[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
THE NORTHERN LONG-EARED BAT:
THE FEDERAL ENDANGERED
SPECIES ACT AND IMPACTS OF A
LISTING ON PENNSYLVANIA AND
37 OTHER STATES
=======================================================================
OVERSIGHT FIELD HEARING
BEFORE THE
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
Monday, September 8, 2014, in Harrisburg, Pennsylvania
__________
Serial No. 113-85
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Printed for the use of the Committee on Natural Resources
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COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
PETER A. DeFAZIO, OR, Ranking Democratic Member
Don Young, AK Eni F. H. Faleomavaega, AS
Louie Gohmert, TX Frank Pallone, Jr., NJ
Rob Bishop, UT Grace F. Napolitano, CA
Doug Lamborn, CO Rush Holt, NJ
Robert J. Wittman, VA Raul M. Grijalva, AZ
Paul C. Broun, GA Madeleine Z. Bordallo, GU
John Fleming, LA Jim Costa, CA
Tom McClintock, CA Gregorio Kilili Camacho Sablan,
Glenn Thompson, PA CNMI
Cynthia M. Lummis, WY Niki Tsongas, MA
Dan Benishek, MI Pedro R. Pierluisi, PR
Jeff Duncan, SC Colleen W. Hanabusa, HI
Scott R. Tipton, CO Tony Cardenas, CA
Paul A. Gosar, AZ Jared Huffman, CA
Raul R. Labrador, ID Raul Ruiz, CA
Steve Southerland, II, FL Carol Shea-Porter, NH
Bill Flores, TX Alan S. Lowenthal, CA
Jon Runyan, NJ Joe Garcia, FL
Markwayne Mullin, OK Matt Cartwright, PA
Steve Daines, MT Katherine M. Clark, MA
Kevin Cramer, ND Vacancy
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Bradley Byrne, AL
Todd Young, Chief of Staff
Lisa Pittman, Chief Legislative Counsel
Penny Dodge, Democratic Staff Director
David Watkins, Democratic Chief Counsel
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CONTENTS
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Page
Hearing held on Monday, September 8, 2014........................ 1
Statement of Members:
Hastings, Hon. Doc, a Representative in Congress from the
State of Washington........................................ 2
Prepared statement of.................................... 3
Perry, Hon. Scott, a Representative in Congress from the
State of Pennsylvania...................................... 6
Thompson, Hon. Glenn, a Representative in Congress from the
State of Pennsylvania...................................... 4
Statement of Witnesses:
Biggica, Russ, Director, Government and Regulatory Affairs,
Pennsylvania Rural Electric Association, Harrisburg,
Pennsylvania............................................... 13
Prepared statement of.................................... 14
Brubaker, Jim, Board Member, Pennsylvania Farm Bureau, Union
County Farmer, Buffalo Valley Farms, Lewisburg,
Pennsylvania............................................... 31
Prepared statement of.................................... 33
D'Amico, Louis, President and Executive Director,
Pennsylvania Independent Oil and Gas Association, Wexford,
Pennsylvania............................................... 15
Prepared statement of.................................... 17
Lyskava, Paul, Executive Director, Pennsylvania Forest
Products Association, Harrisburg, Pennsylvania............. 56
Prepared statement of.................................... 58
Matteson, Mollie, Senior Scientist, Center for Biological
Diversity, Richmond, Vermont............................... 49
Prepared statement of.................................... 50
Melville, Martin, Owner, Melville Forestry Services, Centre
Hall, Pennsylvania......................................... 54
Prepared statement of.................................... 55
Pyle, Honorable Jeff, Representative, District 60,
Pennsylvania House of Representatives, Armstrong, Indiana
and Butler Counties........................................ 9
Prepared statement of.................................... 10
Stilley, John, Owner and President, Amerikohl Mining, Inc.,
Butler, Pennsylvania....................................... 36
Prepared statement of.................................... 38
Additional Materials Submitted for the Record:
Juniata Valley Audubon, Stan Kotala, M.D., Conservation
Chair, Letter submitted for the record..................... 82
McCarter, Steve, State Representative, Pennsylvania's 154th
Legislative District, September 5, 2014, Letter submitted
for the record............................................. 83
OVERSIGHT FIELD HEARING ON THE NORTHERN LONG-EARED BAT: THE FEDERAL
ENDANGERED SPECIES ACT AND IMPACTS OF A LISTING ON PENNSYLVANIA AND 37
OTHER STATES
----------
Monday, September 8, 2014
U.S. House of Representatives
Committee on Natural Resources
Harrisburg, Pennsylvania
----------
The committee met, pursuant to call, at 10:00 a.m., at the
Pennsylvania State Capitol Complex, North Office Building,
Hearing Room 1, Harrisburg, Pennsylvania, Hon. Doc Hastings
[Chairman of the Committee] presiding.
Members present: Representatives Hastings, Thompson, and
Perry.
The Chairman. The House Natural Resources Committee will
come to order. The committee meets today to hear testimony on a
hearing entitled ``The Northern Long-Eared Bat: The Federal
Endangered Species Act and Impacts of a Listing on Pennsylvania
and 37 Other States.''
By way of introduction, I am Congressman Doc Hastings, and
I represent that 4th District in Washington State, and also
have the privilege to serve as Chairman of the House Natural
Resources Committee. I am joined here by two of my colleagues;
Mr. Thompson from Pennsylvania, who is a member of the
committee, and Mr. Perry, in whose district we are meeting, who
is not, so I--without objection, I will ask unanimous consent
that Mr. Perry be able to join the hearing, and I know nobody
is going to object because I am not and neither is G.T., so I
know that.
So since we are in Mr. Perry's district, I am going to
yield to him to begin as we normally begin our day in
Washington, DC, and I will yield to Mr. Perry.
Mr. Perry. Well, thanks, Mr. Chairman, and welcome to the
4th Congressional District. Being that this is a congressional
hearing that we are about to begin, as we do with every session
of the House of Representatives, with the posting of the colors
and the Pledge of Allegiance, and keeping with flag code, it is
customary to stand and place your hand over your heart every
time the flag is in motion, and remain standing for the Pledge
of Allegiance.
I now recognize Major Bruce Youngblood, U.S. Marine Corps
retired, to lead the Harrisburg High School NJROTC to post the
colors.
[Pledge of Allegiance recited.]
Mr. Perry. As a token of our appreciation, we graciously
give and offer this flag flown over the United States Capitol,
and I am going to walk down and hand it to the----
The Chairman. I thank the gentleman for that, and I thank
the Color Guard.
We will proceed as we normally proceed on congressional
hearings in Washington, DC, and those hearings are all started
where Members will make an opening statement, and then after
that, we will hear from our witnesses, and then following that
will be questions that I know will arise coming from the three
of us up here, and--well, I will get into that detail when we
get to that part.
I will now recognize myself for my opening statement.
STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
The Chairman. Today is the final in a series of field
hearings the House Natural Resources Committee has held over
the past 4 years on The Endangered Species Act, or ESA. The
goal of this effort has been to find common ground on the need
to improve and update a 40-year-old Federal law so that we can
help protect species and people in the 21st century. There are
ways to do both, beginning with data transparency and utilizing
the expertise of local, state and private efforts in fulfilling
the goal of species recoveries.
These hearings have taken us from Fresno, California;
Longview, Washington; Billings, Montana; Casper, Wyoming; and
Batesville, Arkansas, and now here to the great Commonwealth of
Pennsylvania.
Because of the mega settlement that will be alluded to many
times, the ESA is now no longer primarily a western issue. It
is now affecting the eastern parts of the United States, and
that is what this hearing in Pennsylvania is all about. And I
am pleased to have two of my colleagues here today in this
beautiful state capitol to examine one of the most sweeping ESA
listing proposals that has arisen out of the Obama
administration's 2011 mega settlement, with the Center for
Biological Diversity, and the proposed endangered listed of the
Northern Long-Eared Bat, which was in that mega settlement.
These regulations, if culminated, could impact a wide swath of
the country, and the map shown above you illustrates how broad
of an area is affected.
You know, what is kind of disturbing, although 38 states
are affected, the Fish and Wildlife Service has not yet held
even a single public hearing on its proposal or its nexus to
other regulations that would directly impact the millions of
acres of local, state and private lands, and that would cause
the restriction or shutdown of the activities on those lands.
Now, I mentioned that I am from Washington State, so on a
parochial note, I just want to point out that it has been over
20 years since the Federal Government listed the Northern
Spotted Owl in the Pacific Northwest. The resulting ESA
policies of that decision have now resulted over 20 years, to
where more than 80 percent of the timber industry there is off-
limits and 9 million acres of forest are off-limits, and as a
result of that, if you have read in the paper this year a
number of wildfires that have happened in the West, and I
attribute much of that because of lack of good management as a
result of that listing.
Now, back to the issue at hand. The Center for Biological
Adversity, the group that is seeking to list the bat under ESA,
acknowledge, and I will quote directly, ``little is known about
the population trends'' of the bat, and that a small amount of
population level data, and I quote again, ``makes any
conclusion provisional at best.'' Now, this gray area led to a
settlement, yet this group is blaming farming, forest
management and other manmade activities as a cause for the bat
decline. Ironically, the likely primary cause for any
documented decline of the bats is not caused by any human-
related activity, but rather by a disease transmitted mostly
from bats, called the White Nose Syndrome. It seems to me that
efforts should focus on that issue, rather than creating a
Federal Endangered Species solution in search of a problem.
Yet, that is what may happen with the Fish and Wildlife Service
arbitrary settlement--with this mega settlement.
Now, the result of that could pave the way for Federal
designation as early as next year. This, despite many natural
resource state directors who raised concerns that they were
shut out of the Federal planning process, and that these
Federal bat guidelines are overly restrictive, they are based
on insufficient data, and would have a crippling effect on
hundreds of thousands of landowners and the forest industries.
So I will conclude by saying this. Everyone--every hearing
that we have had with the Natural Resources Committee, nobody,
nobody has said a species should go extinct. And we--and I
certainly share that, and I think most people share that, but
the passion--but the question in this particular case is the
best way to help the bat population. Federal edicts that ignore
state efforts and data, and impose one-size-fits-all solutions
are not the most realistic way to achieve, I think, the
objective of saving any species.
[The prepared statement of Mr. Hastings follows:]
Prepared Statement of the Hon. Doc Hastings, Chairman, Committee on
Natural Resources
Today is the final in a series of field hearings the House Natural
Resources Committee has held over the past 4 years on the Endangered
Species Act (ESA). The goal of this effort has been to find common
ground on the need to improve and update the 40-year-old Federal law so
that we can help protect species and people in the 21st century. There
are ways to do both, beginning with data transparency and utilizing the
expertise of state, local and private efforts while fulfilling the
worthwhile goal of species recovery.
These hearings have taken us from Fresno, California; Longview,
Washington; Billings, Montana; Casper, Wyoming; Batesville, Arkansas to
the great Commonwealth of Pennsylvania. As we have witnessed, the ESA
is no longer just a western issue--it is now affecting the eastern
United States and that's what this hearing is about.
I am pleased to join several House colleagues here today in the
State Capitol to examine one of the most sweeping ESA listing proposals
arising out of the Obama administration's 2011 mega-settlements with
the Center for Biological Diversity: the proposed endangered listing of
the Northern Long-Eared Bat. These Federal regulations could impact a
wide swath of the country.
This map illustrates just how broad of an area is affected.
Unfortunately, although 38 states are affected, the Fish and Wildlife
Service has not held even a single public hearing on its proposal or
its nexus to other regulations that would directly impact millions of
acres of private, local, state, and Federal lands and restrict or shut
down a host of activities on them. I might add, it has been over 20
years since the Federal Government listed the Northern Spotted Owl in
the Pacific Northwest, and the resulting ESA policies of that decision
have shut down more than 80 percent of the timber industry there,
placed more than 9 million acres of forests off limits, and decimated
hundreds of thousands of acres of forests and owl habitat from
catastrophic wildfires due to poor management every year.
The Center for Biological Diversity, the group seeking to list the
bat under ESA, acknowledges that ``little is known about population
trends'' for the bat, and that the small amount of population-level
data ``makes any conclusion provisional at best.'' Yet, they blame
farming, forest management and other man-made activities as the cause
of bat decline.
Ironically, however, the likely primary cause for any documented
decline of the bats is not caused by any human-related activity, but
rather from a disease transmitted mostly from bats to other bats called
``White Nose Syndrome.'' It seems to me that efforts should focus on
that issue, rather than creating a Federal endangered species solution
in search of a problem.
Yet, that is what may happen with the Federal Fish and Wildlife
Service's arbitrary settlement with the Center for Biological
Diversity, which has paved the way for a Federal designation as soon as
early next year. This is despite State Natural Resource Department
Directors who raised strong concerns that they were shut out of the
Federal planning process, and that these Federal bat guidelines are
overly restrictive, based on insufficient data, and would have a
``crippling effect'' on hundreds of thousands of landowners and the
forest industry.
I will conclude by saying that everyone wants to protect bats
because they are good for the environment and good for people because
of how many insects they can devour. But, the question is over the best
way to help the bat population. Federal edicts that ignore state
efforts and data and impose one-size-fits-all solutions are not the
most cooperative way to achieve this objective. We have expert
witnesses here today to help find solutions that will protect bats and
Pennsylvania's economy. I look forward to their testimony and thank my
colleagues Congressman Thompson and Congressman Perry for hosting this
hearing.
______
The Chairman. So today we have in front of us expert
witnesses to offer solutions that will protect bats and
Pennsylvania's economy, and so I look forward to hearing your
testimony.
With that, I will recognize the gentleman from the 5th
District in Pennsylvania, Mr. Thompson, for his opening
statement.
STATEMENT OF THE HON. GLENN THOMPSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF PENNSYLVANIA
Mr. Thompson. Well, Mr. Chairman, thank you so much. I want
to thank you for holding this important hearing today. Welcome,
everyone, to this hearing. Thank you to our witnesses who are
here to testify and share your experience, your observations,
your thoughts.
Mr. Chairman, I want to thank you also as you finish up in
your final term, and we have lots of work to do between now and
the end of that, but I also want to thank you for all of your
extensive work in the House of Representatives, especially as
Chairman of the Natural Resources Committee over these past few
years, which I have had an honor to serve under your
leadership. You have been a great mentor and a great leader on
these issues for the American people.
Under your chairmanship, you have shown real leadership on
so many issues, and this is especially true on the topic of the
Endangered Species Act with a creation of the ESA Working Group
and the numerous bills the committee has reported out.
I just want to remark a little bit about, you know, if this
administration--it struck me, we had a unique perspective here,
looking out at all of you when we were honoring our Nation's
flag and colors and we were unified today; if this
administration would bring a team together and, quite frankly,
respect everybody's opinion in a way that unites the way this
room was united at the start of this hearing, we wouldn't be
having this hearing today because everybody's input would be
welcome and would be considered on important issues such as
this--the Northern Long-Eared Bats, but it is that, quite
frankly, that lack of leadership that has kind of led us to
this point.
Let me say that the goals of the Endangered Species Act are
noble and worthy. You know, we have a responsibility to protect
our environment and promote species conservation, but as we
have seen over the past few decades, the ESA is far from
perfect, and has generated many unintended consequences. As a
result, we are at a point now where the law desperately needs
to be improved and modernized. In fact, I think the last time
that the ESA was updated was 1984.
Voice. 1989.
Mr. Thompson. 1989. Under the Chairman's leadership,
through work at the committee level, and efforts by the
Congressional ESA Working Group, we put forward a thoughtful
analysis of some of the key areas of the law that need the most
urgent attention. Now, these efforts are focused on making the
law more transparent, ensuring that listing determinations are
based on sound science and proper data, and most importantly,
that local communities and stakeholders are provided a voice in
the process. Furthermore, we have sought to build consensus
around better solutions, which isn't always easy in the current
political climate.
Now, as many here know, and as we have seen countless times
around the country, listing a species as endangered under the
ESA can have significant consequences on private property, land
use, resource management and our economy. As frequently
required by ESA, limiting or prohibiting land use can impact
any number of economic activities in the communities that rely
on the land. This includes activities such as agriculture,
mining, as well as energy production and distribution. This
also includes forestry and all forest management activities,
which can be precluded under an ESA listing. Now, forestry is
particularly troubling because even management activities to
promote forest health can be restricted under ESA. This is
interesting because it is also contrary to Pennsylvania
Department of Community and Natural Resources findings that
forest management activities including removing timber and
proscribed burns help create foraging habitat that is
beneficial to bats.
While the economic and land management impacts are
troubling enough, another major concern I have with this
proposed listing is that limiting land use activities
fundamentally will not solve the problem in the case of the
Northern Long-Eared Bat. The underlying problem with the
species is the spread of the White Nose Syndrome, rather than
habitat loss due to human activities. And no one can deny
population losses due to the White Nose Syndrome, but
furthermore, there is a consensus that we must know more about
this disease, and to improve partnerships at all levels to
improve science-based efforts to slow its spread.
Unfortunately, at the current time, there is no casual
connection between the land use being regulated under the
proposed designation and harm to the species in question. The
best that we have heard repeatedly from a variety of interests,
the science and data are inconclusive at this time to warrant
an ESA listing. In fact, as is the service--forest--the Fish
and Wildlife Service acknowledges, and I quote, ``even if all
habitat-related stressors were eliminated or minimalized, the
significant effects of White Nose Syndrome on the Northern
Long-Eared Bat would still be present.''
The Fish and Wildlife Service recently granted a 6-month
extension of public comment period, which I appreciate,
referencing the substantial disagreement regarding the
scientific data used to support determination.
Listing the Northern Long-Eared Bat as endangered,
potentially, will have enormous impacts up and down the East
Coast because the species is found not just in the Keystone
State of Pennsylvania, but, obviously, 38 states. So,
therefore, it is imperative that we get the science right, and
strategically address the root problem of the apparent
population losses, rather than restrict large areas of the
economy and activities that would have no bearing on slowing or
reversing the White Nose Syndrome.
Again, thank you, Mr. Chairman, for being here today and
for hosting this important hearing. I thank you to my good
friend and colleague, Mr. Perry, for having this in his
congressional district, and to all the panelists, thank you for
your time and efforts, and we look forward to hearing your
testimonies.
Mr. Chairman, I yield back.
The Chairman. I thank the gentleman for his statement and
now recognize our host today, the gentleman from, as we say in
Washington, DC, the gentleman from the 4th District of
Pennsylvania, Mr. Perry, for his statement.
STATEMENT OF THE HON. SCOTT PERRY, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF PENNSYLVANIA
Mr. Perry. Thank you, Chairman, and thank you for selecting
the 4th District, beautiful Pennsylvania, to hold this hearing,
and I must let you know that I have really grown, in a short
period of time, very fond of Chairman Hastings, Doc, as we call
him, and let him know how saddened I am to know that he is
departing the U.S. Congress, and I have really enjoyed my time
with him, and find him to be one of the most professional and
well-read and articulate Members of Congress, and I think his
leadership in that regard will be dearly missed. I would also
like to thank G.T. for coming and participating, and allowing
me to participate as well.
As the Chairman mentioned, the House Natural Resources
Committee has held several hearings on the Endangered Species
Act with the goal of finding common ground with respect to
this, what many believe is an outdated Federal policy. We are
here today to better understand the Endangered Species Act and
the potential consequences to the Commonwealth that a recent
Obama administration proposed listing under the ESA of the
Northern Long-Eared Bat. The proposed listing affects
Pennsylvania as well as 37 other states, and it will directly
impact hundreds, if not thousands, of acres in Pennsylvania and
business activities on them.
It is my concern that the Federal listing of this scope and
magnitude should not be driven by arbitrary court settlement
deadlines, or be based upon unpublished or sketchy data or
personal opinions by Federal bureaucrats. It is vitally
important that these decisions are carefully and openly
scrutinized and sound, scientific data is used. It is also my
understanding that the Center for Biological Diversity, the
group seeking to list the bat under the ESA, acknowledges that
they do not know much about the current population trends, yet
they suggest the root cause is farming, coal mining and natural
gas exploration. With that said, it has recently come to light
that the primary cause in the decline of the bat population is
the result of White Nose Syndrome, a disease transmitted
through other bats. Because this is a relatively newly
discovered disease, it is too soon to tell from the little
currently available Federal, state and other scientific
research what the extent of the disease's impact has on long
eared bats. With only the data from about half of the states
where the disease has been found, isn't it a bit premature for
the Fish and Wildlife Service to conclude that the bat is
endangered in 38 states? Instead of first focusing on
mitigating the bat-caused disease, the Service issued guidance
which focused on ensuring that every human-related activity
that could possibly interfere or disturb hibernating bats is
regulated or restricted. For example, the Service's guideline
recommends no trees be cleared during certain times of the year
within a 5-mile radius of bats; no noise disturbances be
allowed within a 1-mile radius; no impacting water resources
flow into bat hibernating areas during winter; no proscribed
burning; no removal of bats from occupied homes or structures.
And I just want to highlight that, if anyone has ever had a bat
in their house, no removal of bats from occupied homes or
structures. So if you have one flying around your living room,
or your bedroom, if you ever woke up that way, and I have,
you----
Voice. So have I.
Mr. Perry [continuing]. Turn the light back off and roll
back over and go to sleep, you and the bat are going to coexist
in your house. No use of pesticides or herbicides, and no wind
turbine operations that could harm the bats. Additionally, many
state entities have not been included in the administration's
review process, and I believe that the proposed listing may go
too far. Our own Pennsylvania Game Commission recently stated
the measure would inhibit many forest management activities,
and have major adverse impacts to the state's ability to manage
our lands for the diversity of wildlife species under our
jurisdiction. That is our own Game Commission, and the
diversity of all wildlife species under their jurisdiction. I
hope we can simply take a closer look at the Endangered Species
Act and ensure that all proposed decisions to list a species be
met with scientific data and not a knee jerk reaction. The
proposed listing could mean significant changes to
Pennsylvania's economy and energy industry and jobs, while most
importantly doing little, if absolutely anything, to help the
declining population of Long Eared Bats.
I look forward to hearing the expert witnesses, and thank
Chairman Hastings and Mr. Thompson for bringing this important
issue right to Pennsylvania. Thank you, Mr. Chairman.
The Chairman. I thank the gentleman for his statement. And
for those of you that--and I thank both of you for your
sentiments on my leaving Congress. I am finishing 10 terms in
Congress and not seeking reelection, but I just want to remind
my colleagues I am not dead yet, and I have until--I think I
have until 11:59 on January 3 before my term is completely
over, so I intend to be active until that time.
I want to welcome the panelists in front of us, and just
kind of lay the ground rules. You see this timing light up
here. I assume you can read that on the other side, is that
correct? Can you read that on the other side? Yes. Well, is
that showing on the other side?
Voice. Yes.
The Chairman. OK, you can see it? All right, what that
simply means is that we have--ask all of you to keep your oral
opening remarks within a 5-minute time period. Now, your
written remarks are part of the statement, so your full written
remarks are there, and if you could summarize or whatever you
want to highlight within that, we appreciate that very much.
And for those of you in the audience that aren't on the panel,
and obviously, those of you in the audience aren't on the
panel, there are comment forms at the entrance to this room,
and you can comment on that and send that in, or you could go
to our Web site which is www.naturalresources.house.gov, under
``Contact Us,'' and make a statement. So we would like to hear
from you in that regard.
Now, we do have a distinguished--and by the way, the way
that 5-minutes works is, if the green light is on, then that
means, boy, you are just doing swimmingly well. And then the
yellow light comes on, and that means you are down to a minute.
And it is kind of like a traffic light; when the red light
comes on, you need to speed up or stop, one or the other. So
that is how that whole--all works. Now, obviously, we want you
to make sure you complete your statement, but that is kind of
the ground rules.
Now, we do have a distinguished panel. Let me introduce all
of you and then we will go and introduce each of you for your
statement. We have The Honorable Jeff Pyle who represents the
60th District in the House of Representatives, and I understand
that is Armstrong, Indiana and Butler Counties. Mr. Russ
Biggica. Did I say that correct? I did? Director of Government
and Regulatory Affairs with the Pennsylvania Rural Electric
Association. Mr. Louis D'Amico, President and Executive
Director of the Pennsylvania Independent Oil and Gas
Association. Mr. Jim Brubaker, Board Member for the
Pennsylvania Farm Bureau, Union County Farmer out of Lewisburg,
Pennsylvania. Mr. John Stilley, Owner and President of
Amerikohl Mining in Butler, Pennsylvania. Ms. Mollie Matteson,
Senior Scientist for the Center for Biological Diversity out of
Richmond, Vermont. Mr. Martin Melville, Owner of Melville
Forest Services in Centre Hall, Pennsylvania, and Mr. Paul
Lyskava, Executive Director of the Pennsylvania Forest Products
Association here in Harrisburg.
And with that, let me recognize Representative Pyle, I knew
I would get that, I--see how fleeting time is? You just never
know. Mr. Pyle, you are recognized for 5 minutes, and once
again, your full statement will appear in the record.
STATEMENT OF THE HONORABLE JEFF PYLE, REPRESENTATIVE, DISTRICT
60, PENNSYLVANIA HOUSE OF REPRESENTATIVES, ARMSTRONG, INDIANA
AND BUTLER COUNTIES
Mr. Pyle. Thank you very much, Chairman, and don't let that
confusion bother you. Us House Reps guys normally don't get
invited into Senate hearing rooms, so thanks for that.
I am going to summarize my written remarks and try to be
quick and draw directly from them.
My name is Jeff Pyle, I represent the 60th Legislative
District of Pennsylvania. As the Chairman pointed out--
Armstrong, Butler and Indiana Counties, which is roughly 200
miles west of here. Our county is bisected directly in half by
the Allegheny River which is a whole other ESA issue, but not
for now.
At hand is an increase in the protections and
classifications of the Northern Long-Eared Bat, and as all
three of the congressmen present beautifully summarized, they
are being slain by White Nose Syndrome in things that can be
roughly likened to a Biblical plague. The mortality rates are
in the upper nineties. Here is the weird part about it. The
White Nose Syndrome is transmitted only by actual physical
touch. Well, if you know how bats conserve heat in their
hibernacula, in their cage or in their dwellings, they huddle
together because there is almost no fat on a bat, and when they
do this huddling, this White Nose Syndrome transmits one to
another throughout the entire colony of bats in very little
time. What I am telling you is they instinctively pass this
back and forth between each other and can't stop.
Now, we have looked at White Nose Syndrome in this
Commonwealth for a good 10 years. I suppose why I am here is
because of our experiences with the Indiana Bat. A few years
ago, Ford City and Kittanning, which are both towns in
Armstrong County, decided to consolidate high schools, and I
kid you not, after 100 years of Ford City being in existence. A
family stepped up, donated a whole bunch of land up in the
perfect location on a mountaintop separating two towns that
have had a blood feud reminiscent of the Hatfield and McCoys
for a very--how Dad from Kittanning met Mom from Ford City was
just--nobody can figure it out. Anyway, we go up to build this
school, and the next thing we know, there are people from U.S.
Fish and Wildlife Service and they said, well, you can't build
right there, you are in a bat range, and we said, what do we
have to do, and they had us hang the gigantic mist nets for
hundreds and hundreds of yards in the trees, and they stayed up
there, I know my testimony says weeks, but upon further review
it was actually months, and they didn't catch any bats. So we
are figuring that is great, let's get this school built. This
is kind of cool. My eldest daughter will be the last graduating
class from Ford City High School, and my youngest will be the
first graduating class from the new Armstrong High School. I
think this is a great opportunity, but that wasn't meant to be.
Apparently, for us to be able to put up our new school,
which is paid for by taxpayer money, this is not coming out of
a private company or a big evil corporation, these are
taxpayers, for us to be able to get a permit to move ground up
on top of that hill they said that is fine, give us $60,000 so
we can go buy offset acreage somewhere else so the bats can
play and reproduce and frolic and do what bats do; eat bugs.
And as a side note, Mr. Chairman, my cousin, Kenny, used to eat
bugs, but that is neither here nor there.
Here is the crux of the matter. Take this the right way,
and I mean no disrespect. You have created a government within
a government. These people are self-regulating through the use
of promulgated rules. You don't even know when they are coming.
I will give you an example. A couple of years ago here in
Pennsylvania, with our own Game Commission, there was talk of
them classifying the Little Brown Bat on this list. Most people
know that as the Common House Bat, and as was brought up in the
early intros, I have had bats in my houses, and as I told this
gentleman, I haven't played tennis for 20 years, but that old
Wilson is still in the corner because we have had a lot of bats
come through the house. And when your wife is sleeping with
your 6-month-old, everything else pales except getting that bat
out of the room.
I see the yellow light on so I am going to try to get it
very closely wound down here.
Here is the deal, boys. Until you change ESA, they can
pretty much do whatever they want to do, and that big green
blotch up there represents about one-third of North America, if
I am not mistaken. At what point does homo sapien start to
matter? They are telling people who have owned family land for
over 200 years in Armstrong County that they can't take down
their own timber for 5 months a year, that happened to be right
over the heart of summer when you can go cut timber. Are you
kidding? Sir, at some point--and I love the animals as much as
anybody. Some I find cute and cuddly, and some I find
delicious, but--and I see the red light on, so thank you very
much for your time.
I would love to answer any questions. Thank you, Mr.
Chairman.
[The prepared statement of Mr. Pyle follows:]
Prepared Statement of the Hon. Jeffrey Pyle, State Representative,
Pennsylvania House of Representatives, 60th Legislative District
Good morning. My name is Jeffrey Pyle. For the last 10 years I have
served the good people of the 60th Legislative District (Armstrong,
Indiana and Butler Counties) in the Pennsylvania State house. During
this tenure, I have served on our Environmental Resource and Energy
Committee for a decade and currently chair its subcommittee on mining
and as the majority member on the Mining Reclamation Advisory Board.
From these roles and others I have become quite familiar with today's
topic and hope that my time here is seen by the esteemed panel as
informative and helpful.
I'm told the purpose of this hearing is a change in listing for the
Northern Long-Eared bat. I suppose I've been called because of my
experience with another federally endangered bat, the Indiana bat.
Before I can fully explain this, a bit of background is necessary. My
home is Armstrong County which lies roughly 200 miles west of
Harrisburg, northeast of Pittsburgh. Armstrong County is bisected
almost in half lengthwise by one of the rivers that forms the Ohio in
Pittsburgh, the Allegheny River. The Allegheny is a global oddity--one
of only two gravel bottom rivers in the World due to its role as a main
drainage channel for the retreating glaciers during the last Ice Age.
The County is blessed by abundant agriculture, ample water supplies,
broad blanket forests, tremendous coal, shallow gas, shale gas, various
rock aggregates and 70,000 of the most red, white and blue Americans
you will ever meet. We are former rust belt that has not recovered but
are doing our best with what we've got. A huge part of our citizens'
employment is in natural resource recovery of the aforementioned. It is
not an exaggeration to say that a few years ago, before the Clean Air
Act killed our power plant, we heated the East Coast and never failed
to make the lights come on. The county seat and largest town is
Kittanning (pop. 4600) and its second largest is Ford City (pop. 3400)
just 3 miles away. Two years ago, a new school board voted to close
each town's high school and build a new combined one for both towns'
students on a location high upon a mountain separating both towns and
gazing over miles of the Allegheny and the first new school for
Kittanning since 1955 and Ford City since 1908. A generous donation of
hundreds of acres of land by a family dedicated to education would be
the site. That's when I learned about the Environmental Protection
Agency's federally protected endangered Indiana bat.
When the architects and engineers first entered the site to survey
and what not, they were informed the building site was in a zone
inhabited by federally protected Indiana bats and that special
procedures would be needed at, of course, the school district's
expense. This entailed doing a bat study in which finely meshed mist
nets would need to be hung over hundreds of yards from the trees to
accurately measure the presence on the property of Indiana bats and
determine the remediation efforts that would be required. A few weeks
after the nets were hung, they were studied and it was found that there
were no bats BUT because the building site was located in their
presumed feeding range, there would have to be considerations made by
the school district to the EPA so that we could build the school. It
seemed to matter not that no bats were found; for us to build our
school, it would cost us a little over $60,000 so that the EPA could go
purchase and set aside land somewhere else for the Indiana bats since
our new school building apparently disturbed their ability to frolic
and prosper even though they weren't there at the time. No bats, no
problem--pony up $60K and you can fire up the dozers. That's how it
went down.
All bat populations in the Commonwealth are currently experiencing
their own Ebola-like plague called White Nose Syndrome. It is viral in
nature and thus defies and escapes our ability to cure it. From what we
know of it, it started up in New England and worked its way down the
Appalachians to us. It is not harmful to humans but does a real number
on bats who, instinctively, huddle very close together to conserve body
heat. Therein is the transmission point of the virus. Like Ebola, it is
instinctual direct huddling and touch of an infected bat to another and
after that, they're going to die in amazingly high percentages. We've
seen it here in Pennsylvania and cannot stop it. We've had researchers
at our universities look for a cure and they haven't found it yet.
White Nose Syndrome will continue to work its way down the mountains
until roughly 85 percent of all the bat population on the East Coast is
decimated. To sum up, their instincts encourage them to transmit an
incurable virus among themselves and they are going to be nearly wiped
out and we can do almost nothing about it. That's the straight hard
facts.
If the EPA's classification of the Northern Long-Eared bat rises,
there will be changes to how you live your lives. As I learned from a
former PA Department of Environmental Protection administrator who now
holds a prestigious position in Pittsburgh with an environmental
lobbying group, it's not whether the bats live there or not (as
happened to us), it's about habitat--could the endangered bat in
question utilize the area to re-establish itself and come back to a
healthy population. It is rhetorical in nature as the White Nose
Syndrome will do exactly as has been described but it has not deterred
neither the EPA nor the PA Game Commission (who administers our
endangered species program and tells everyone it's the DEP) who,
nonetheless, have drawn the ``supposed'' ranges of the bats in large
outlines all over a map of the Commonwealth. Within those boundaries,
those ranges, anyone wishing to perform seemingly any kind of outdoor
activity must submit to the conditions prescribed by our various rule
promulgating agencies because of being located in the bat's yard. Great
trouble is encountered in that bats, being airborne creatures, move
over great distances and create immense outlines where human activity
is highly regulated. To compound the great range, the roosting of the
various bat species takes place in abandoned homes, trees and just
about anywhere that's got a half-inch crack that will let them stay
dry. Those are also protected places which puts our ability to tear
down urban blighted properties. To limit human activity within a 3 to
10 mile radius of every pine tree (where little Brown bats roost) in
Pennsylvania covers just about the whole place and again, it's not
whether or not you find the endangered creature there, it's could they
live there? If my testimony has angered any of these agencies enough
for them to take a closer look at Armstrong County, they will find that
our abundant food and water sources, coupled with a rugged hill and
valley strata covered by dense forest, would be an ideal habitat for
Bigfoot. Using the ``we don't have to actually find them, just call it
habitat and extort huge fees that jeopardize jobs'' approach currently
in use, they could do it and the part with which you should concern
yourselves with is how you, the House of the people, can't stop them.
EPA is a rule promulgating agency just like the Pennsylvania Game
Commission and Fish and Boat Commission. In short, they can make rules
that hold the force of law without you even knowing unless you monitor
and read the correct bulletins. Executive directors execute these rules
at the behest of the appointed EPA administrator or game commissioners.
In Pennsylvania, these game commissioners are chosen by the Governor's
nomination and our Senate's confirmation. At no time does that House of
Reps have any role in any of the process. Of interest to this
discussion is that our game commissioners are non-elective yet hold the
power to make rules that hold the force of law. To point, in addition
to the Federal EPA's endangered list, the Commonwealth maintains an
additional list of threatened or endangered species that they consider
endangered. I say ``they'' because none of the listings are ever
subjected to a governmental OR public vote. They can just do it and
they do. As a personal note, I see no salient logic as to why the state
snake of Arizona (the massasauga rattlesnake) is a protected species in
Pennsylvania. Using the same logic, we better get cracking on
designating the Timber Wolf and Buffalo because I'm sure both lived
here a long, long time ago.
I recently offered legislation that would have required the
Commonwealth's handling of species of concern in a more open manner.
One of the things my bill would have done was require our Game
Commission and Fish and Boat Commissions to open up their confidential
database of identified species locations to allow interested developers
to learn whether or not the land being considered for development
hosted endangered species that would require additional financial
investment to establish the dictated remediations. I felt it served the
spirit of caveat emptor--the buyer beware--and allow them to do their
due diligence of quantitative and qualitative data from a confidential
protected database PRIOR to the execution of sale on the property. It
struck me as innately fair--one does not buy a car without kicking the
tires. The measure was strongly opposed by mainly west coast
environmental groups and their Pennsylvanian chapters who emailed with
vengeance that this part of the bill made me a genocidal maniac and
once created a picture of me in a Batman costume standing in front of
scorched Earth (not buff Batman--the Adam West batman). Apparently I
struck a nerve as their goal, as a rulemaking agency that holds force
of law without accountability to the public in any shape or fashion,
was to protect their ability to ``ambush'' developers with financial
demands but these couldn't be made until after the purchase was
finalized. Being a genocidal maniac I can't really speak from
authority, but that's just how the 10-year observation appears.
Panel, my family has lived in Armstrong County since before it was
Armstrong County (1803). We have farmed its fields, dug its coal, made
its steel and taught its kids for over 200 years. Whenever our Nation
called us to go fight we did and often spilled blood the whole way from
Germantown and Antietam to Kuwait. To think that a distant unelected
body can dictate to us when we can and cannot cut our standing timber
on our own land according to a bat's mating schedule is simply
preposterous. It wouldn't be so bad if there was some kind of recourse
to protest these rulings made so far away by people who have never been
here who really don't give a hoot whether the citizens of Armstrong
County have jobs is wholly and comprehensively unacceptable. The ESA
encourages us, who have such a dynamic and deep grasp of patriotism, to
become lawbreakers in the Nation we've gone to fight for. It has to
stop. That folks who don't live here can profess to know what's best
for us is ridiculous and exposes to me only one thing: ideological
positioning and defense for animals that don't affect the area and
people who live around them exposes only their hollow ``supremacy''
that they cannot justify when questioned. Seriously, do you think
Philadelphia would shut down Independence Mall if they found an
endangered bat there? I think not.
It defies logic that our care for one animal has become so trivial.
We know we cannot cure white nose syndrome yet nonetheless, we advance
a ruling on yet another species that means more than homo sapien.
Thank you for your time and attention and I eagerly await your
questions should you have any.
______
The Chairman. Thank you very much, Representative Pyle. We
appreciate your testimony.
Mr. Biggica, you are recognized for 5 minutes.
STATEMENT OF RUSS BIGGICA, DIRECTOR, GOVERNMENT AND REGULATORY
AFFAIRS, PENNSYLVANIA RURAL ELECTRIC ASSOCIATION, HARRISBURG,
PENNSYLVANIA
Mr. Biggica. Thank you, Mr. Chairman, and good morning to
you and to the committee members. My name is Russ Biggica and I
am the Director of Legislative and Regulatory Affairs at the
Pennsylvania Rural Electric Association, and I appreciate the
opportunity to address you today.
The National Rural Electric Association has submitted
comments to the U.S. Fish and Wildlife Service, which I have
submitted to the committee, and we, the Pennsylvania Rural
Electric Association, appreciate this opportunity.
Let me first quickly explain our organizational chart.
NRECA is the national service organization for more than 900
not-for-profit rural electric cooperatives that provide
electricity to 42 million people in 47 states. As for us in
Pennsylvania and New Jersey, we supply electricity and
distribution services to more than 230,000 rural households and
businesses, representing more than 600,000 consumers. The 13
rural electric cooperatives in Pennsylvania alone own and
maintain 13 percent of the electric distribution lines in the
state, covering nearly one-third of the Commonwealth's land
area in 42 of 67 counties in Pennsylvania. Cooperatives in
Pennsylvania average about 7 consumers per mile, while
investor-owned utilities, as an example, average anywhere from
30 to 40 customers per mile.
As a side point, rural electric cooperatives have the
lowest electricity rates in both states.
PREA and NRECA understand the Fish and Wildlife's concerns
for the Northern Long-Eared Bat presented by the disease, the
White Nose Syndrome, as outlined in this proposal. While there
may be compelling reasons for listing the bat as threatened and
endangered, all rural electric cooperatives affected have
concerns regarding the guidelines for its compliance as it
relates to the proposed listing. Our concern centers on
electric cooperatives' obligations to public safety,
maintaining electrical reliability, and legal requirements
under the Energy Policy Act of 2005 and NERC's vegetation
management standards, which I have outlined in our submitted
comments.
To summarize our concerns, the bat's habitat, including
suitable roost trees, may occur in or near electric utility
rights-of-way posing a risk to power lines. Electric
cooperatives identify and remove these danger trees that are
growing into power lines, or at risk of falling into a power
line, every year, often on an emergency basis. Co-ops remove
danger trees throughout the spring, summer and fall months,
when access is possible and some of the heaviest demands on our
electric system occur. Unfortunately, Committee, this is the
same time that the bats occupy them as well.
If the Fish and Wildlife Service lists the Northern Long-
Eared Bat as endangered, rural cooperatives have concerns that
the prohibitions of the unauthorized take of listed species and
habitat will be at odds with electric cooperatives' public and
legal obligations to remove danger trees in order to maintain
the safety and reliability of power lines. NRECA, our national,
believe this listing will affect potentially 650 distribution
co-ops and G&Ts within the bat's 39 or 38-state range. The
importance instead of this problem requires a national solution
for electric cooperatives.
Because of what we see as a potential conflict between
requirements to maintain reliable power by removing certain
trees or other vegetation that threatens transmission and
distribution lines, and the requirement to protect listed
species and their habitat, rural electric cooperatives are
committed to working with the Fish and Wildlife Service and
other immediate stakeholders to develop such a result.
In closing, I wish to thank the committee for allowing PREA
to comment and offer dialogs toward a solution. The
Pennsylvania and New Jersey cooperatives and its members
believe that rural electric cooperatives must do their part in
protecting the environment, while at the same time ensuring for
safe and reliable electric service to the rural communities
they serve. We believe this commitment may continue by actively
working with the Fish and Wildlife Service to develop and
ensure that an effective commonsense approach is taken for the
overall protection of the Northern Long-Eared Bat, at the same
time, allowing cooperatives the opportunity to protect and
serve their consumers.
Thank you, Mr. Chairman.
[The National Rural Electric Cooperative Association
comments submitted for the record by Mr. Biggica follow:]
Letter Submitted for the Record by Mr. Biggica
National Rural Electric Cooperative Association,
Arlington, VA 22203,
August 29, 2014.
Public Comments Processing
ATTN: FWS-R5-ES-2011-0024
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 Fairfax Drive, MS 2042-PDM
Arlington, VA 22203
Submitted Electronically via eRulemaking Portal to FWS-R5-ES-2011-0024
SUBJECT: Comments on Listing the Northern Long-Eared Bat as an
Endangered Species; Proposed Rule, 78 Fed. Reg. 36698 (June 30,
2014), Docket No. FWS-R5-ES-2011-0024
The National Rural Electric Cooperative Association (NRECA)
respectfully submits the following comments in response to the above-
referenced notice and request for comment from the U.S. Fish and
Wildlife Service (FWS). We appreciate the opportunity to submit
comments on the proposed rule to list the Northern Long-Eared Bat
(NLEB) as an endangered species under the Endangered Species Act of
1973, as amended (ESA).
NRECA is the national service organization dedicated to
representing the national interests of cooperative electric utilities
and the consumers they serve. NRECA is the national service
organization for more than 900 not-for-profit rural electric utilities
that provide electric energy to over 42 million people in 47 states or
12 percent of electric customers. The vast majority of NRECA members
are not-for profit, consumer-owned cooperatives. NRECA's members also
include approximately 65 generation and transmission cooperatives,
which generate and transmit power to 668 of the 838 distribution
cooperatives. The G&Ts are owned by the distribution cooperatives they
serve. Remaining distribution cooperatives receive power directly from
other generation sources within the electric utility sector. The
typical distribution co-op is a small business that serves 13,000
consumers. Electric cooperatives own and maintain 2.5 million miles or
42 percent of the nation's electric distribution lines, covering 75
percent of the U.S. landmass. Both distribution and G&T cooperatives
were formed to provide reliable electric service to their owner-members
at the lowest reasonable cost.
NRECA understands the FWS's concerns for the NLEB presented by the
disease white-nose syndrome as outlined in the proposed listing. While
we agree that there are compelling reasons for listing the NLEB as
threatened or endangered, NRECA has concerns regarding the guidelines
for compliance with the ``Northern Long-eared Bat Interim Conference
and Planning Guidance,'' and with the proposed listing of the species
as endangered. Our concern centers on the electric cooperatives
obligations to public safety, maintaining electric reliability, and
legal requirements under the Energy Policy Act of 2005 and the North
American Electric Reliability Corporation Transmission Vegetation
Management standards (FAC-003-3).\1\
---------------------------------------------------------------------------
\1\ http://www.nerc.com/files/FAC-003-3.pdf
---------------------------------------------------------------------------
NLEB habitat, including suitable roost trees, may occur in or near
electric utility rights-of-way posing a risk to power lines. Electric
cooperatives identify and remove these danger trees--any trees that are
growing into a power line or at risk of falling into a power line--
every year, often on an emergency basis. Co-ops remove danger trees
throughout the summer months when access is possible and the heaviest
demands on the electrical system occur, unfortunately at the same time
as NLEB potentially occupy them. Many of the trees are dead or dying,
and must be quickly removed to maintain safe and reliable electrical
power. When conditions are dry, trees near power lines also can cause
serious fires.
If the FWS lists the NLEB as endangered, NRECA has concerns that
the ESA section 9 prohibition of the unauthorized ``take'' of listed
species will be at odds with electric cooperatives' public and legal
obligations to remove danger trees in order to maintain the safety and
reliability of power lines, both transmission and distribution. Illegal
take can give rise to criminal enforcement, civil administrative
penalties and civil judicial action for injunctive relief.
A final listing of the NLEB appears to immediately trigger this
double jeopardy issue with one regulatory agency requiring a utility to
trim or remove vegetation (NERC) and another regulatory agency
preventing a utility from doing so (FWS). NRECA believes this listing
will affect potentially 650 distribution co-ops and G&Ts within the
NLEB's 39-state range. The importance and extent of this problem
requires a national solution for electric cooperatives.
Because of what we see as a potential conflict between two legal
requirements--the requirement to maintain reliable power by removing
certain trees or other vegetation that threaten transmission and
distribution lines and the requirement to protect listed species and
their habitat--NRECA recommends that FWS work with electric
cooperatives to identify a means by which cooperatives will be able to
meet both of these legal obligations simultaneously. NRECA is committed
to working with the FWS and other immediate stakeholders to develop
such a result.
Sincerely,
Carol E. Whitman, Ph.D.,
Senior Legislative Principal,
Environmental Issues.
______
The Chairman. Thank you very much, Mr. Biggica. I
appreciate your testimony.
Mr. D'Amico, you are now recognized for 5 minutes.
STATEMENT OF LOUIS D'AMICO, PRESIDENT AND EXECUTIVE DIRECTOR,
PENNSYLVANIA INDEPENDENT OIL AND GAS ASSOCIATION, WEXFORD,
PENNSYLVANIA
Mr. D'Amico. Thank you. Good morning and thank you,
Chairman Hastings, Congressman Thompson and Congressman Perry.
My name is Lou D'Amico and I am President and Executive
Director of the Pennsylvania Independent Oil and Gas
Association, otherwise known as PIOGA. I appreciate the
opportunity to be here today, and want to provide this brief
statement concerning my written testimony----
The Chairman. Mr. D'Amico, did you press the--turn the
microphone on there?
Mr. D'Amico. Yes.
The Chairman. It is on?
Mr. D'Amico. Yes.
The Chairman. OK, you have to get a little bit closer.
Mr. D'Amico. Is that better?
The Chairman. That is much better, thank you.
Mr. D'Amico. All right. I will be the first to admit that
our industry faces legitimate development issues, but the U.S.
Fish and Wildlife Service's listing of the Northern Long-Eared
Bat is not one of them.
I use the term fiasco intentionally because I am amazed
that the Service continues down the path to endangered listing
for this bat, in spite of its own conclusions that objectively
point the other way. If I were a part of the Service's effort
on this, I would be embarrassed that this matter has proceeded
this far and that this hearing is even required.
Detailed in my written testimony, the Service admits that
the White Nose Syndrome, which is a fungal disease discovered
in New York in 2006, with currently no known cure, alone has
led to dramatic and rapid population level effects on the NLEB.
The Service also admits that oil and gas exploration and
development activities do not have population-level effects on
the bat, even when combined with the effects of all other land
development activities throughout the Northern Long-Eared Bat's
range. The Service also admits that the White Nose Syndrome
Disease has spread to only a portion of the range of the
Northern Long-Eared Bat. Significant impacts to the species
from the disease have been reported only in a fraction of that
portion of the range, and the Northern Long-Eared Bat continues
to be prevalent in a majority of its broad 38-state range,
regardless of the impacts of White Nose Syndrome, and of
course, any impacts from land development activities including
oil and gas development. Numerous state government commentators
have already explained in their comments that White Nose
Syndrome has little or no effect on the bat in many areas where
it has been detected, and my written testimony explains why the
NLEB's population outside of the limited areas where White Nose
Syndrome reportedly has affected the species is more than
sufficient to be resilient to White Nose Syndrome.
Finally, the Service's principle tool to aid the recovery
of listed species is habitat protection. So, typically, the
Service designates critical habitat when listing a species, but
the Service has not designated critical habitat as part of this
listing. The Service could hardly do otherwise in view of its
admission that even if all habitat-related stressors were
limited--eliminated or minimalized, the significant effects of
White Nose Syndrome on the Northern Long-Eared Bat would still
be present.
In closing, PIOGA urges the committee to do everything in
its power and within the power of its individual members to
correct the wrong course the Service is on, and require the
Service to identify methods for the management of White Nose
Syndrome and protection of the Northern Long-Eared Bat from its
effects, other than listing the NLEB as endangered or even
threatened.
Thank you for allowing me to speak today.
[The prepared statement of Mr. D'Amico follows:]
Prepared Statement of Lou D'Amico, President & Executive Director,
Pennsylvania Independent Oil & Gas Association
My name is Lou D'Amico and I am the President and Executive
Director of the Pennsylvania Independent Oil & Gas Association
(``PIOGA''). I am grateful for the invitation to testify today before
the committee regarding the proposed listing of the northern long-eared
bat (NLEB) as endangered under the Endangered Species Act (ESA) by the
U.S. Fish and Wildlife Service (FWS).
PIOGA is a non-profit trade association, with nearly 1,000 members,
representing Pennsylvania independent oil and natural gas producers,
marketers, service companies and related businesses, landowners and
royalty owners. PIOGA members are subject to Federal and state laws for
the protection of listed bat and other protected species. The
association and our members have a direct interest in FWS's proposal to
list the NLEB as an endangered species, given the oil and gas
development and production operations that PIOGA's members are
undertaking within the potential range of the NLEB in Pennsylvania.
These operations, including clearing trees and building roads, are
constrained and directed by environmental laws regarding permits and
species protection, as well as by property and contract law.
The economic benefits from the oil and gas industry have been
described as economically ``transformative'' for not only Pennsylvania
communities, but for those across the country who are the beneficiaries
of abundant and stable natural gas supplies. It is estimated that the
oil and gas industry operating in the Marcellus Shale region employs
232,000 people with an average salary of $83,000 per year. Between 2010
and 2012, approximately $31.5 billion dollars were invested in the
region as a result of industry activity, with $1.8 billion in state tax
revenue generated since 2006.
In addition, the energy generated in the Marcellus Shale region is
playing a pivotal role in what has been described as a manufacturing
renaissance. A recent study from IHS Global Insight entitled,
``America's New Energy Future: The Unconventional Oil and Gas
Revolution and the Economy--Volume 3: A Manufacturing Renaissance,''
notes the revolutionary economic benefits that have accrued to
households, communities, and manufacturers across the country as a
result of this stable and plentiful supply of energy. The most recent
update to the study includes the following significant national
economic impacts of this development:
Unconventional oil and gas will steadily increase U.S.
competitiveness, contributing $180 billion to the U.S.
trade balance by 2022.
Increased disposable household income by $1,200 in 2012,
rising to $3,500 in 2025;
Generated $74 billion in government revenues in 2012,
rising to $138 billion in 2025;
Attracted U.S. capital investments totaling $121 billion
in 2012, rising to $240 billion by 2025;
Contributed $284 billion to the U.S. GDP in 2012, rising
to $533 billion by 2025; and Supported $150 billion in
earnings for U.S. workers in 2012, rising to $269 billion
by 2025.
PIOGA believes this background of Marcellus Shale development and
its driving role in creating tremendously significant economic benefits
both regionally and nationally are an important context as the
committee considers the potential impacts of a listing decision
regarding the NLEB.
I. The proposed listing of the NLEB is not based on the best available
scientific and commercial data.
PIOGA, together with the Pennsylvania Chamber of Commerce,
commented on FWS's proposed listing of the NLEB. A copy of those
comments is provided for the record as Attachment No. 1 to this
testimony. In those comments, we expressed our deep concern that the
proposal was not based on the best available scientific and commercial
data, as the ESA requires. As we noted, the proposal is based on
numerous unpublished studies and sources of data that have not been
peer reviewed. We urge the committee to use its influence to ensure
that this substantial deficiency in the proposal is corrected. The
ESA's requirement that FWS base its listing decisions on the best
available scientific and commercial data available is the most
important check on FWS's authority and FWS should not be allowed to
ignore it.
II. Section 7(a)(4) conferencing reviews and conferences should not be
required.
In the meantime, even though the proposal is not based on the best
available data and even though it has not been finalized, this
committee should be aware that the proposal is already significantly
adversely impacting the operations of our member companies. This is
because FWS has instructed its field offices and other Federal action
agencies to conduct--pending the finalization of its proposed listing--
costly and time consuming ESA Section 7(a)(4) conferencing reviews for
all activities proposed to take place within the NLEB's 39 state range
(including D.C.) to determine if the proposed activity likely will
jeopardize the continued existence of the NLEB, and to initiate a
conference even if the activity is not likely to jeopardize the NLEB.
This conferencing requirement--which requires coordination between at
least two Federal agencies, evaluation of environmental studies and
data, and legal and scientific analysis--has already needlessly and
unlawfully imposed substantial expense and delays on oil and gas
operators.
This conferencing requirement is also clearly contrary to FWS's
regulations and guidance. FWS regulations define ``jeopardize the
continued existence of'' to mean ``to engage in an action that
reasonably would be expected, directly or indirectly, to reduce
appreciably the likelihood of both the survival and recovery of a
listed species in the wild by reducing the reproduction, numbers, or
distribution of that species.'' 50 C.F.R. Sec. 402.02. Moreover, FWS's
Endangered Species Consultation Handbook (pp. 4-36) provides that
jeopardy determinations must be based on the effects of the proposed
action to the entire population of a species range-wide: ``Adverse
effects on individuals of a species . . . generally do not result in
jeopardy determinations unless that loss, when added to the
environmental baseline, is likely to result in significant adverse
effects throughout the species' range.'' As explained below, FWS has
already reached conclusions that preclude a ``jeopardy determination.''
In February of this year, PIOGA joined with eight other
organizations in filing an emergency petition with FWS for an exemption
for the oil and gas industry from the conferencing requirement. A copy
of that petition, which requested action within 30 days and to which
FWS has not responded, is provided for the record as Attachment No. 2
to this testimony.
In the petition, PIOGA and the other organizations made the
following points:
1. Section 7(a)(4) requires conferences between a project proponent
and FWS only if it is determined that the proposed
activity--not just any cause, such as a disease--is likely
to jeopardize the continued existence of a species proposed
for listing, pending the finalization of the listing.
2. In the course of developing its listing proposal for the NLEB,
FWS has already concluded that oil and gas exploration and
development activities do not have population-level effects
on the NLEB, even when combined with the effects of all
other land development activities throughout the NLEB's
range. As FWS explained in its proposed listing, it is the
white-nose syndrome ``alone [that] has led to dramatic and
rapid population level effects on the'' NLEB. 78 Fed. Reg.
61072. Accordingly, it is beyond dispute that the white-
nose syndrome and not the effects of oil and gas activities
is responsible for the decline of the NLEB.
3. In light of this conclusion, neither the FWS nor the other
Federal action agencies can reasonably or lawfully
determine that any proposed oil and gas activity will
likely jeopardize the NLEB.
4. Therefore, the proponents of oil and gas activity should not be
subjected to the section 7(a)(4) conferencing requirements
before they can proceed with their projects.
Accordingly, PIOGA urges the committee to use its influence to get
FWS to immediately issue a programmatic finding of ``no jeopardy'' for
all oil and gas exploration and development activities to be undertaken
within the NLEB's range before a final listing decision is made for the
species. This action is necessary to put an end to the substantial
costs that FWS is needlessly and unlawfully imposing on oil and gas
operators and, ultimately, on the consumers of their products.
Alternatively, FWS should grant the previously requested exemption,
which would produce the same result.
The FWS's recently finalized (July 1, 2014) ``rule'' or ``policy''
interpreting the phrase ``significant portion of its range'' does not
support listing the NLEB or requiring the Section 7(a)(4) conferencing
reviews, even if the policy were applied here, which it shouldn't. The
lone population level risk to the NLEB--WNS--is confined to only a
portion of the species' range, and the species has reportedly incurred
significant effects from WNS in only a fraction of that area. Moreover,
as numerous state government commentators have explained, WNS has had
little or no effect on the NLE bat in many areas where it has been
detected. Accordingly, the best available science demonstrates that the
NLEB's population outside of the limited areas where WNS reportedly has
affected the species is more than sufficient to be resilient to WNS or
any other potential impact. For example, the administrative record
makes clear that (i) the species' viability does not depend on the
productivity of the population in any portion of the NLEB's range and
(ii) the population in the remainder of its range can maintain a
sufficient growth rate to persist on its own.
Nor does the segment of the NLEB population that has been affected
by WNS contain important elements of genetic diversity without which
the remaining population may not be genetically diverse enough to adapt
to changing environmental conditions. If anything, the fact that NLEBs
outside of the Northeast have not experienced significant impacts from
WNS in areas where the disease is present suggests that the opposite is
true. Put simply, there is no basis for the FWS to invoke its new
``significant portion of its range'' policy to support listing the NLEB
or requiring Section 7(a)(4) conference reviews.
III. The ESA is ill-suited to deal with the threat to the NLEB's
existence caused by the white-nose syndrome.
The principal tool provided to FWS to aid in the recovery of listed
species is habitat protection. Typically, FWS will designate critical
habitat for a species and all Federal activities in that habitat will
then have to insure that they do not destroy or adversely modify that
habitat. That conventional approach does not fit the challenge posed by
white-nose syndrome to the NLEB.
Our members are concerned that if habitat protection is made the
focus of a recovery plan for the NLEB, it will needlessly restrict
their activities without benefiting the NLEB. As FWS has stated, the
NLEB ``is in danger of extinction, predominantly due to the threat of
white nose syndrome'' (emphasis added). 78 Fed. Reg. 61046. As FWS
acknowledges, ``[e]ven if all habitat-related stressors were eliminated
or minimized, the significant effects of WNS on the northern long-eared
bat would still be present.'' 78 Fed. Reg. at 61061. The key factor at
issue is disease, not oil and gas operations or other activities. A
listing that leads to a recovery plan which concentrates on the
designation and protection of critical habitat as it relates to oil and
gas development and other activities is contrary to the express purpose
of [the] ESA, which is to conserve species.
We therefore urge the committee to require FWS to work with the
wide range of public and private organizations that are concerned about
the NLEB to identify methods other than the listing the NLEB or the
designation of critical habitat for the management of white-nose
syndrome and protection of the NLEB from its effects.
Summary
PIOGA and our member companies believe the proposed listing is
unsupported by the facts and law and is not justified by the best
available scientific and commercial data. We also believe that FWS must
utilize its 6-month extension to subject the data to rigorous and
transparent review by those in the scientific community, which will
confirm the lack of scientific and legal justification for listing the
NLEB.
Accordingly, we also urge the committee to require FWS to determine
that Section 7(a)(4) conferencing reviews are unnecessary for oil and
gas activities in light of the fact--documented by FWS no less--that
oil and gas development activities will not place the NLEB in jeopardy
anywhere, much less throughout its range.
Finally, PIOGA suggests that if any final rule resulting in the
listing of the species is adopted, it may not lawfully restrict
activities, such as oil and gas development, that have no casual
connection to WNS or otherwise threaten or endanger the NLEB.
Attachments
ATTACHMENT 1
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
December 23, 2013
Via U.S. Mail and Docket Submittal at www.regulations.gov
Public Comments Processing
Attn: FWS-R5-ES-2011-024
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive, MS 2042-PDM
Arlington, VA 22203
Re: Endangered and Threatened Wildlife and Plants; 12-Month Finding on
Petition To List the Northern Long-Eared Bat and the Eastern
Small-Footed Bat as Endangered or Threatened Species; Listing
the Northern Long-Eared Bat as an Endangered Species--[Docket
No. FWS-R5-ES-2011-0024]
The Pennsylvania Independent Oil & Gas Association (PIOGA) and the
Pennsylvania Chamber of Business and Industry (PA Chamber) respectfully
submit the following comments regarding the U.S. Fish and Wildlife
Service's Status Review and request for comments on its 12-Month
Finding on a Petition to List the Northern Long-Eared Bat as an
Endangered Species but not to list the Eastern Small-Footed Bat as a
Threatened or Endangered Species (the ``Status Review''), as published
in the October 2, 2013 Federal Register (78 Fed. Reg. 61046).
PIOGA is a nonprofit trade association, with nearly 1000 members,
representing Pennsylvania independent oil and natural gas producers,
marketers, service companies and related businesses, landowners and
royalty owners. PIOGA members are subject to federal and state laws for
the protection of listed bat and other protected species. The
association and our members have a direct interest in the Service's
proposal to list the northern long-eared bat as an endangered species,
given the oil and gas development and production operations that
PIOGA's members undertake within the potential range of the northern
long-eared bat in Pennsylvania. These operations, including clearing
trees and building roads, are constrained and directed by environmental
laws regarding permits and species protection, as well as by property
and contract law.
The PA Chamber is the largest broad-based business advocacy
association in Pennsylvania. Its thousands of members throughout the
Commonwealth of Pennsylvania employ greater than 50 percent of
Pennsylvania's private workforce. Its membership ranges from Fortune
100 companies to sole proprietorships. Headquartered in Harrisburg, the
PA Chamber serves as the frontline advocate for business on Capitol
Hill by influencing the legislative, regulatory, and judicial branches
of state government. Its mission is to improve Pennsylvania's business
climate for PA Chamber members.
In summary, PIOGA and the PA Chamber believe that the Service does
not have a legally or technically adequate basis to list the northern
long-eared bat as endangered or threatened at this time. The listing
proposal should be withdrawn or delayed until all current efforts to
protect the species have been fully considered, and all of the
assumptions, modeling, and uncertainties have been subject to peer
review. We support and concur with the comments submitted in this
matter by our other Pennsylvania extractive industry trade
associations, the Marcellus Shale Coalition and the Pennsylvania Coal
Alliance.
Comments
1. The Status Review and proposed listing
does not satisfy ESA section 4(b)(I)(A).
Section 4(b)(1)(A) of the Endangered Species Act, 16 U.S.C.
Sec. 1533(b)(1)(A), requires listing determinations to be made on the
basis of the ``best scientific and commercial data available.'' As
discussed below, the Service's Status Review for its proposal to list
the northern long-eared bat as endangered is based on conflicting
information, assumptions, unpublished data which has not been peer-
reviewed, and suffers from numerous data gaps. The proposed listing is
not supported by the best scientific and commercial data available and
therefore does not meet the legal standard required by Sec. 4(b)(1)(A)
of the ESA.
Section 4(b)(1)(A) also prohibits ESA listing determinations until
after all of the efforts made by states or other political subdivisions
to protect such species are considered. Several states have created
white-nose syndrome (WNS) action plans \1\ and are in the ``front
lines'' of bat management efforts. PIOGA and the PA Chamber believe the
Service has not fully considered these efforts to protect and conserve
the northern long-eared bat. The Service recognizes that its Status
Review only ``provides a few examples of such existing regulatory
mechanisms, but is not a comprehensive list.'' See 78 Fed. Reg. at
61067-68. Worse, the Service actually misunderstands or misrepresents a
bill pending in the Pennsylvania legislature, House Bill 1576 (the
Endangered Species Coordination Act), which does specifically allow
Pennsylvania administrative agencies to designate threatened and
endangered species under Pennsylvania state law. Id. at 61068.
---------------------------------------------------------------------------
\1\ See White-nose Syndrome.org, www.whitenosesyndrom.org/white-
nose-syndrom-planning, which provides links to action plans from ten
states.
---------------------------------------------------------------------------
The Service must consider all current state and local efforts to
protect the northern long-eared bat in order to comply with
Sec. 4(b)(1)(A). PIOGA and the PA Chamber recommend that the Service
postpone making a final decision on the species listing so that it can
fully review conservation and research programs underway in various
states.
2. Peer review of significant amounts of unpublished data
is missing; the
listing is not supported by the best scientific and
commercial data available.
The Service is ``seeking comments from knowledgeable individuals
with scientific expertise to review our analysis of the best available
science.'' 78 Fed. Reg. at 61046. The Status Review lists over 20
unpublished studies and sources of data, including data reportedly
supplied by the Pennsylvania Game Commission and other state agencies.
Some studies anecdotally note northern long-eared bat population
declines in Pennsylvania but only from winter cave surveys rather than
multiple seasonal surveys. Some or all of these studies and data
clearly warrant peer review because the Service obviously is relying on
them for its proposed listing. It is not clear whether the scientific
community has had a meaningful opportunity to review these sources,
whether the sources have been peer-reviewed, or if so, which sources
have been reviewed. PIOGA and the PA Chamber do not believe the
Pennsylvania Game Commission data, for example, has been made available
to the public and regulated community. We have not seen it.
Observations of multiple independent bat biologists that are
summarized in the Marcellus Shale Coalition's and the Ohio Oil and Gas
Association's comments on the Status Review indicate that the northern
long-eared bat is the most common bat captured in surveys. Peer review
would determine whether all appropriate factors to evaluate a listing,
such as spring emergence counts, summer mist netting, fall swarming
surveys, and winter hibernacula surveys, have been considered. The
Service cannot meet its legal obligation to use the best scientific and
commercial data available without subjecting its data to peer review.
3. The development of recovery plans that impose
significant restrictions
on industry and the designation of critical habitat are
not warranted.
The Service makes two key findings regarding WNS and critical
habitat. First, the northern long-eared bat ``is in danger of
extinction, predominantly due to the threat of white nose syndrome''
(emphasis added). 78 Fed. Reg. 61046. Second, there is no designation
of critical habitat,\2\ although comments are invited on such a
designation. The Status Review notes that ``since information regarding
the biological needs of the [long-eared bat] is not sufficiently well
known to permit identification of areas as critical habitat, we
conclude that the designation of critical habitat is not determinable
for the northern long-eared bat at this time.'' 78 Fed. Reg. at 61079.
---------------------------------------------------------------------------
\2\ ``Critical habitat'' is the habitat that is essential to the
conservation of the species under Section 3 of the ESA. 16 U.S.C.
Sec. 1532(5).
---------------------------------------------------------------------------
Those two findings compel the following conclusion: where disease
rather than habitat loss is causing the species decline, additional
restrictions on field activities such as tree clearing, well pad
development, and similar activities will not significantly help
preserve the northern long-eared bat or combat the spread of WNS.
Nothing in the Status Review indicates that the proposed listing, the
development of a recovery plan, and restricting potential habitat
modification, including oil and gas development, will appreciably stop
or reverse the northern long-eared bat's decline. As the Service
acknowledges, ``[e]ven if all habitat-related stressors were eliminated
or minimized, the significant effects of WNS on the northern long-eared
bat would still be present.'' 78 Fed. Reg. at 61061. The key factor at
issue is disease, not oil and gas operations or other activities. A
listing that leads to a recovery plan which concentrates on the
designation and protection of critical habitat as it relates to oil and
gas development and other activities is contrary to the express purpose
of Section 2(b) of the ESA, which is to conserve species. 16 U.S.C.
Sec. 1531(b).
As the Service evaluates a listing decision based on the existing
record, the Service must fully consider the fact that not enough
information is known to designate critical habitat, and that WNS rather
than the loss of critical habitat is the predominate reason for the
bat's decline.
4. The Service must better understand the temporary nature
of disturbance
from the oil and gas development before finalizing the
proposed listing.
The conventional and unconventional (i.e., shale gas development)
oil and gas industry develops natural resources responsibly by, for
example, using existing access roads where feasible, limiting earth
disturbance, minimizing the size of well pads, and reclaiming sites to
pre- existing conditions after wells are drilled and completed. Oil and
gas development operations typically are not of the nature, scope or
duration that would compromise the lifecycle, reproduction, and habitat
of the northern long-eared bat.
Several of the statements in the Status Review's discussion of
shale gas development are simply not accurate. 78 Fed. Reg. at 61061.
First, the statements regarding the number of wells projected and the
size of potential disturbance do not take into account the evolution
and shift of technology of horizontal drilling and minimizing
disturbance by drilling multiple wells on one well pad. Second, the
surface disturbance created by the development of shale gas is
temporary and many states including Pennsylvania require site
restoration and reclamation as part of the permit and construction
process. And third, there is no recognition of the very minor footprint
(frequently half an acre or less) occupied by a conventional well after
it is drilled and completed. PIOGA and the PA Chamber recommend that
the Service more carefully consider these facts as it evaluates the
proposed listing.
5. The relationship between White-Nose Syndrome and
northern
long-eared bat population must be better researched and
understood.
The effect of WNS varies widely by bat species. The Service
recognizes that the use of predicted trends in other species may or may
not be indicative of population trends in other bat species including
the northern long-eared bat. 78 Fed. Reg. 61061. The Service also
acknowledges that the northern long-eared bat is easily overlooked
during hibernacula surveys and the species is reported to be present in
any one site smaller numbers than other species of bats. But the
Service provides nothing to support the statement that ``other factors
are acting in combination with WNS to reduce the overall viability of
the species.'' 78 Fed. Reg. 61076. As such, the determination to list
the northern long-eared bat could only be based on strong data and
evidence about the impact of WNS on the bats, which PIOGA and the PA
Chamber believe is lacking.
Additional studies should be completed to understand the connection
and impact of WNS on the northern long-eared bat.
6. PIOGA and the PA Chamber support deferring
the listing on the eastern small-footed bat.
PIOGA and the PA Chamber agree with the Service's determination
that an endangered listing of the eastern small-footed bat is not
warranted at this time in view of the information, survey data and what
is currently known about this bat species.
Conclusion
We believe that there is not a legally or technically adequate
basis to list the northern long-eared bat as endangered or threatened
at this time. The listing proposal should be withdrawn or delayed until
all current efforts to protect the species have been fully considered,
and all of the assumptions, modeling, and uncertainties have been
subject to peer review. PIOGA and the PA Chamber join the Marcellus
Shale Coalition's request that the Service obtain a six-month extension
to the deadline for making a final decision on the species listing.
This would benefit all stakeholders and the Service because it would
allow (i) stakeholders and the scientific community at large time to
peer review data cited in the Status Review, (ii) the Service time to
review the comments received with respect to the proposed listing, and
(iii) the Service time to consider and compile additional data and
information which may have been absent from the current analysis.
If the Service decides to list the northern long-eared bat, PIOGA
and the PA Chamber strongly encourage the Service to provide maximum
flexibility in any rule or protective measures that are developed. As
noted above, designation of critical habitat is not appropriate to
conserve the species because no specific area in this bat's range is
likely to be essential to its conservation. The costs imposed on
development activities throughout multiple industries and on the oil
and gas industry specifically by any listing could be significant
without a clear benefit to the species. However, if the Service moves
forward to designate critical habitat and a recovery plan, PIOGA and
the PA Chamber request to be included as stakeholders in that process.
On behalf of our members, we appreciate your consideration of our
comments. Please contact us if you have any questions or if you want to
discuss these comments.
Sincerely,
Lou D'Amico,
President & Executive Director
PIOGA
Sam Denisco,
Vice President, Government Affairs
PA Chamber of Business and Industry
cc:
The Honorable Dan Ashe, Director, U.S. Fish & Wildlife Service
Jill Utrup--U.S. Fish & Wildlife Service, Twin Cities Field Office
William Capouillez, Director, Habitat Management, Pennsylvania Game
Commission
ATTACHMENT 2
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
February 5, 2014
BY CERTIFIED MAIL
The Honorable Sally Jewell, Secretary of the Interior
U.S. Department of the Interior
1849 C Street, N.W.
Washington, D.C. 20240
The Honorable Dan Ashe, Director
U.S. Fish & Wildlife Service
1849 C Street, N.W., Room 3331
Washington, D.C. 20240
Re: Emergency Petition for Programmatic ``No Jeopardy'' Finding for the
Northern Long-Eared Bat
Dear Secretary Jewell and Director Ashe:
Pursuant to the Right to Petition Government Clause of the First
Amendment to the United States Constitution,\1\ the Ohio Oil and Gas
Association, the Marcellus Shale Coalition, the Gas Processors
Association, the Independent Oil & Gas Association of New York, the
Oklahoma Independent Petroleum Association, the Pennsylvania Chamber of
Business and Industry, the Pennsylvania Independent Oil & Gas
Association, the U.S. Chamber of Commerce, and the West Virginia Oil
and Natural Gas Association (collectively ``Petitioners'') hereby
submit this petition, on an emergency basis, to the U.S. Department of
the Interior and the U.S. Fish & Wildlife Service (``FWS'' or ``the
Service''). Specifically, Petitioners ask the Service to issue a
finding pursuant to Section 7(a)(4) of the Endangered Species Act
(``ESA ''), 16 U.S.C. Sec. 1536(a)(4), that oil and gas exploration and
development activities undertaken before FWS issues a final listing
decision for the Northern long-eared bat (``NLEB''), expected later
this year, are not likely to jeopardize the continued existence of the
species.
---------------------------------------------------------------------------
\1\ ``Congress shall make no law . . . abridging . . . the right of
the people . . . to petition Government for a redress of grievances.''
U.S. Const., amend. I. The right to petition for redress of grievances
is among the most precious of the liberties safeguarded by the Bill of
Rights. United Mine Workers of America, Dist. 12 v. Illinois State Bar
Ass'n, 389 U.S. 217, 222 (1967). It shares the ``preferred place''
accorded in our system of government to the First Amendment freedoms,
and has ``a sanctity and a sanction not permitting dubious
intrusions.'' Thomas v. Collins, 323 U.S. 516, 530 (1945). ``Any
attempt to restrict those First Amendment liberties must be justified
by clear public interest, threatened not doubtful or remotely, but by
clear and present danger.'' Id.
---------------------------------------------------------------------------
As explained more fully below, after proposing to list the NLEB as
endangered in October, the Service began instructing its Field Offices
and federal action agencies to perform costly and time-consuming ESA
Section 7(a)(4) conferencing reviews for all activities proposed to
take place within the species' range to determine whether each activity
likely will jeopardize the continued existence of the NLEB, and to
initiate a conference even if the proposed activity likely will not
jeopardize the species. These instructions and the reviews they
generate are unwarranted and unsupported by law. Because oil and gas
exploration and development activities are localized and do not have
population-level effects on the NLEB, there is no scenario in which
those activities likely will jeopardize the continued existence of the
species during the pendency of FWS's listing decision. As a result,
there is no scenario in which such a proposed activity should trigger
the ESA's Section 7(a)(4) conferencing requirement.
To ensure that the FWS Field Offices and the various federal action
agencies comply with the narrow requirements of the ESA for proposed
species and, in the process, avoid wasting millions of federal and
private dollars and needlessly delaying billions of dollars in energy
development projects nationwide, Petitioners respectfully request that
the Service issue a programmatic ``no jeopardy'' finding for proposed
oil and gas exploration and development activities scheduled to occur
within the NLEB's range before FWS issues a final listing decision for
the species.
I. Interests of Petitioners
The importance of the oil and natural gas industry to the national
economy cannot be overstated. Oil and gas supply more than 60% of the
,nation's energy, and they are crucial components in a wide variety of
products--from synthetic fabrics, to medicines, to fertilizers. As a
result, the oil and natural gas industry has a deep impact throughout
all sectors of the economy and across all 50 states. In 2011 alone, the
industry's total impact on U.S. gross domestic product was $1.2
trillion, accounting for 8.0% of the national total. The industry's
total employment impact to the national economy in 2011 amounted to 9.8
million full-time and part-time jobs and accounted for 5.6% of total
U.S. employment. That employment generated $598 billion in labor
income, or 6.3% of national labor income in 2011. See generally,
American Petroleum Institute, Economic Impacts of the Oil and Natural
Gas Industry on the U.S. Economy in 2011 (July 2013), available at
http://www.api.org/policy-and-issues/policy-items/jobs/economic-
impacts-of-oil-natural-gas-industry-on-us-economy-2011. Petitioners
represent thousands of members in this industry. many of whom regularly
operate within the range of the NLEB and are significantly affected by
the activities of FWS described in this petition.
The Ohio Oil and Gas Association (``OOGA'') is one of the largest
and most active state-based oil and natural gas associations in the
country and has served as the representative of Ohio's oil and gas
industry since 1947. Its 3,300+ members include large and small
business entities involved in all aspects of the exploration,
development, production, and marketing of crude oil and natural gas
resources in Ohio. Because of the small size of many OOGA members, they
often rely on OOGA as their primary source of information on industry
trends, activities, tax changes, legislation, and regulatory matters.
OOGA also serves to protect its members' interests by participating in
federal and state regulatory actions involving the crude oil and
natural gas industry.
The Marcellus Shale Coalition (``MSC'') is a trade association with
national membership. The MSC was formed in 2008 and currently is
comprised of approximately 300 producing and supply chain members who
are fully committed to working with local, county, state and federal
government officials and regulators to facilitate the development of
the natural gas resources in the Marcellus, Utica and related
geological formations. The MSC's members represent many of the largest
and most active companies in natural gas production, gathering and
transmission in the country, as well as the suppliers and contractors
who service the industry.
The Gas Processors Association (``GPA'') is a trade organization
that has served member companies since 1921. GPA is made up of 130
corporate members, all of whom are engaged in the processing of natural
gas into merchantable pipeline gas, or in the manufacture,
transportation, or further processing of liquid products from natural
gas. GPA's corporate members represent approximately 92% of all natural
gas liquids produced in the United States and operate approximately
190,000 miles of domestic gas gathering lines.
The Independent Oil & Gas Association of New York (``IOGANY'') is
an industry trade association founded in 1980 and is currently
comprised of more than 330 members, including but not limited to, oil
and gas producers and operators, pipeline and marketing companies,
engineers and geologists, and oil and natural gas utilities. Many
IOGANY members operate in areas within the range of the NLEB. These
operations are crucial to its members' business and their continued
ability to develop and produce our nation's energy. They also provide
substantial income within these localities, along with secure, well-
paying jobs at a time when significant unemployment continues to
trouble our nation.
The Oklahoma Independent Petroleum Association (``OIPA'')
represents approximately 2,650 small to large independent operators
that are primarily involved with the exploration and production of
crude oil and natural gas in Oklahoma. In addition, OIPA represents a
number of companies which provide services that support exploration and
production activities. ``Independent'' producers are non-integrated
companies which receive the majority of their revenues from production
at the wellhead. They are exclusively in the exploration and production
segment of the industry with no marketing or refining operations as
compared to the large, integrated, major oil and gas companies.
Independent oil and gas companies range in size from large companies
with thousands of employees to hundreds of smaller ``mom and pop'' type
companies. In Oklahoma, independent producers make up the majority of
the energy industry producing 96% of the state's crude oil and 88% of
the state's natural gas.
The Pennsylvania Chamber of Business and Industry (``PA Chamber'')
is the largest broad-based business advocacy association in
Pennsylvania. Its thousands of members throughout the Commonwealth of
Pennsylvania employ greater than 50 percent of Pennsylvania's private
workforce. Its membership ranges from Fortune 100 companies to sole
proprietorships. Headquartered in Harrisburg, the PA Chamber serves as
the frontline advocate for business on Capitol Hill by influencing the
legislative, regulatory and judicial branches of state government. Its
mission is to improve Pennsylvania's business climate for PA Chamber
members.
The Pennsylvania Independent Oil & Gas Association (``PIOGA'') is a
trade association comprising nearly 1,000 members: Pennsylvania
independent oil and natural gas producers, marketers, service companies
and related businesses, landowners and royalty owners. PIOGA's members
undertake oil and gas development and production operations within the
potential range of the NLEB in Pennsylvania. These operations,
including clearing trees and building roads, are constrained and
directed by environmental laws regarding permits and species
protection, as well as by property and contract law.
The U.S. Chamber of Commerce (``Chamber'') is the world's largest
business federation, representing the interests of more than three
million businesses of all sizes, sectors, and regions, as well as state
and local chambers and industry associations, and dedicated to
promoting, protecting, and defending America's free enterprise system.
The West Virginia Oil and Natural Gas Association (``WVONGA''),
chartered in 1915, is the only association that serves the entire oil
and gas industry within West Virginia. WVONGA members operate in
virtually every county in West Virginia. Its members employ thousands
of people across the state, having payrolls totaling hundreds of
millions of dollars annually. WVONGA members have a cumulative
investment of nearly $10 billion in West Virginia, own about 20,000 oil
and gas wells, have more than 15,000 miles of pipeline crisscrossing
the state and provide oil and natural gas to roughly 300,000 West
Virginia homes and businesses. Because of the small size of many WVONGA
members, they often rely on WVONGA as their primary source of
information on industry trends, activities, tax changes, legislation,
and regulatory matters. WVONGA also serves to protect its members'
interests by participating in federal and state regulatory actions
involving the crude oil and natural gas industry.
II. Background
On October 2, 2013, the Service issued a 12-Month Finding on
Petition To List the Northern Long-Eared Bat and the Eastern Small-
Footed Bat as Endangered or Threatened Species and Proposed Rule. 78
Fed. Reg. 61046 (Oct. 2, 2013) (Attachment 1 hereto). The Northern
long-eared bat has a broad range, covering 39 states (including the
District of Columbia) and much of Canada, and the species continues to
be commonly captured throughout the bulk of that range. Id. at 61051-
64. Nevertheless, FWS has proposed to list the species as endangered
because of reported and anticipated impacts from white nose syndrome
(``WNS'')--a fungal disease discovered in New York in 2006 with
currently no known cure.
In support of its proposed listing decision for the NLEB, the
Service explains that ``WNS currently is the predominant threat to the
species, and if WNS had not emerged or was not affecting the northern
long-eared bat populations to the level that it has, we presume the
species would not be experiencing the dramatic declines that it has
since WNS emerged.'' Id. at 61058. Although WNS has been confirmed only
in a portion of the NLEB's range, FWS believes that in time the disease
will spread to other areas of the species' range. Accordingly, the
Service's proposed listing decision is premised solely upon the
reported and anticipated effects of WNS on the NLEB. See id. at 61072.
Indeed, the Service states that while ``[o]ther sources of mortality to
the species include wind-energy development, habitat modification,
destruction and disturbance (e.g., vandalism to hibernacula, roost tree
removal), effects of climate change, and contaminants . . ., no
significant decline due to these factors has been observed . . ..'' Id.
at 61075.
The Service did not designate any critical habitat for the NLEB in
its proposed listing decision because it determined that doing so was
not ``prudent and determinable.'' Id. at 61077-79. FWS expects to issue
a final listing decision for the species by October 2, 2014.\2\ See
generally id. Until that time, the NLEB is considered a ``proposed
species'' under the ESA. 50 C.F.R. Sec. 402.02.
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\2\ It should be noted, however, that numerous commenters on the
proposed listing decision have urged FWS to obtain a six-month
extension of the deadline for making a final decision pursuant to the
terms of the multi-district litigation settlement agreements. In Re:
Endangered Species Act Section 4 Deadline Litigation, MDL No. 2165,
Case No. 10-377 (D.D.C).
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III. ESA Section 7(a)(4) Conferencing Requirement and FWS
Conferences on the NLEB
Unlike species that the Service has listed as threatened or
endangered, proposed species, such as the NLEB, are not subject to the
ESA's traditional species protections. See 16 U.S.C.
Sec. Sec. 1536(a)(2), 1538(a)(1). The ESA's protections for proposed
species are limited in pertinent part to the Section 7(a)(4)
conferencing requirement. Id. Sec. 1536(a)(4).
Section 7(a)(4) of the ESA directs that ``[e]ach Federal agency
shall confer with the Secretary on any agency action which is likely to
jeopardize the continued existence of any species proposed to be listed
under [the ESA] or result in the destruction or adverse modification of
critical habitat proposed to be designated for such species.'' Id.
Thus, in contrast to Section 7 consultations, which federal agencies
must initiate with FWS anytime a planned action ``may affect'' a listed
species, federal agencies must initiate Section 7(a)(4) conferences
only if they determine that the action ``likely'' will ``jeopardize the
continued existence of'' a proposed species.\3\ See id.; FWS,
Endangered Species Consultation Handbook at 6-1 (1998). That is a
rigorous standard to meet.
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\3\ The Section 7(a)(4) conferencing requirement also is triggered
when an activity likely will destroy or adversely modify proposed
critical habitat. 33 U.S.C. Sec. 1536(a)(4). Because FWS has not
proposed to designate critical habitat for the NLEB, that requirement
is not applicable here. In addition, although not contemplated in the
ESA or its implementing regulations, the Service has unofficially
interpreted Section 7(a)(4) to allow action agencies voluntarily to
request a conference with FWS without first determining that a proposed
action likely will jeopardize a proposed species or destroy/adversely
modify critical habitat. Endangered Species Consultation Handbook at 6-
1. We question the validity of that interpretation, but it currently is
beyond the scope of this petition.
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The Service defines ``jeopardize the continued existence of'' to
mean ``to engage in an action that reasonably would be expected,
directly or indirectly, to reduce appreciably the likelihood of both
the survival and recovery of a listed species in the wild by reducing
the reproduction, numbers, or distribution of that species.'' 50 C.F.R.
Sec. 402.02. Making the standard even more demanding, jeopardy
determinations must be based on the effects of the proposed action to
the entire population of a species range-wide. Endangered Species
Consultation Handbook at 4-36. As FWS has explained, ``[a]dverse
effects on individuals of a species . . . generally do not result in
jeopardy determinations unless that loss, when added to the
environmental baseline, is likely to result in significant adverse
effects throughout the species' range.'' Id.
On January 6, 2014, the Service issued interim guidance to help FWS
Regions 2, 3, 4, 5, and 6 conduct Section 7(a)(4) conferences on the
NLEB in advance of a final listing decision. FWS, Northern Long-Eared
Bat Interim Conference and Planning Guidance (Jan. 6, 2014) (``NLEB
guidance'') (Attachment 2 hereto). Notwithstanding the narrow
requirement of Section 7(a)(4) for action agencies to confer with FWS
only when they determine that a proposed activity likely will
jeopardize a species, the Service's guidance espouses a far broader
interpretation. The guidance asserts that ``it is in the best interest
of the species, and our federal partners to consider the value of
voluntary conservation measures [in the conferencing process] for
projects that are not likely to cause jeopardy, but are likely to
adversely affect the NLEB.'' Id. at 6. In fact, the guidance
acknowledges that its outlined procedures ``include some section 7
language and steps that are not required,'' but states that ``FWS
offices and action agencies are encouraged to employ these procedures''
nonetheless. Id. at 9. In other words, FWS is advising its Field
Offices and the federal action agencies to take actions that are beyond
the authority provided in the ESA and the conferencing requirement of
Section 7(a)(4).\4\
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\4\ Although not the subject of this petition, Petitioners question
whether the guidance is valid or authorized by the ESA. By filing this
petition, Petitioners do not waive any right to challenge the guidance
or FWS's or any other agency's reliance on it.
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Unfortunately, the Field Offices and action agencies already have
begun implementing these overreaching procedures--in some cases, even
before the guidance was finalized. For example, the FWS Ecological
Services Office in Columbus, Ohio employed these procedures as early as
November 2013 to instruct project proponents and federal action
agencies not to clear trees in areas where NLEBs have been captured in
surveys ``until after any necessary consultation between the Federal
agency and the Service, under section 7 of the Endangered Species Act
of 1973, as amended, is complete.'' See Letters from Mary Knapp--FWS
Field Supervisor for Columbus Ecological Services Office (Attachment 3
hereto).\5\ It further ``request[s] that unavoidable tree clearing be
conducted from October 1 to March 31 whenever possible.'' Id. These
instructions by FWS are not authorized by the ESA or justified under
the statute's Section 7(a)(4) conferencing provision.
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\5\ These letters appear to go even further than the NLEB guidance
by instructing the project proponent to undertake Section 7
consultation--a process that the ESA reserves only for species that
already have been listed under the ESA. See 16 U.S.C. Sec. 1536(a)(2).
---------------------------------------------------------------------------
The ultra vires conferencing process that the NLEB guidance
recommends already has had and will continue to have a significant
impact on the government and on industry. Conferencing reviews take
time. They require coordination between at least two federal agencies,
evaluation of environmental studies and data, and legal and scientific
analyses. Conducting those activities requires FWS and the action
agencies to expend significant money and resources from their already-
strained budgets.\6\ Meanwhile, and contrary to the express terms of
Section 7(a)(4), the subject activity under review cannot move forward
because action agencies typically will not issue the permits and other
federal authorizations required to begin work on projects until the
conferencing review has been completed. See 16 U.S.C. Sec. 1536(a)(4)
(clarifying that the ESA does not prohibit permit applicants from
moving forward with their activities before the conferencing process is
completed). As a result, project proponents already have and will
continue to suffer substantial and costly delays and incur significant
opportunity costs on account of these unwarranted reviews.\7\
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\6\ See U.S. Fish & Wildlife Service Budget Justifications and
Performance Information--Fiscal Year 2014 at ES-11 (explaining that
$64.75 million has been budgeted in FY 2014 for FWS to carry out its
responsibilities under Section 7 and the habitat conservation planning
provisions of the ESA).
\7\ In 2012, oil and gas producers spent an estimated $153.7
billion to drill 46,736 wells in the United States. API Survey: U.S.
Energy Revolution Gathers Momentum (Dec. 23, 2013), available at http:/
/www.api.org/news-and-media/news/newsitems/2013/dec-2013/api-survey-us-
energy-revolution-gathers-momentum. Billions more are spent each year
on pipelines and related infrastructure.
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IV. Requested Relief and Justification
To ensure that the Service and federal action agencies act within
the confines of the Section 7(a)(4) conferencing requirement and avoid
wasting significant federal and private resources and needlessly
delaying important energy projects in 39 states, Petitioners
respectfully request that FWS promptly issue a programmatic ``no
jeopardy'' finding for all oil and gas exploration and development
activities (``O&G activities'') to be undertaken within the NLEB's
range before a final listing decision is made for the species.\8\ Such
a finding is appropriate because the best scientific and commercial
data available--the record underlying FWS's proposed listing decision--
demonstrates beyond dispute that (1) oil and gas exploration and
development activities do not appreciably affect the NLEB individually
or cumulatively (leading FWS to conclude that these activities do not
affect the species' ``continued existence''), even when combined with
the effects of all other land development activities throughout the
species' range; (2) the single primary threat to the NLEB is white-nose
syndrome--indeed, FWS would not be proposing to list the NLEB but for
the reported and anticipated effects of WNS--yet the disease has spread
to only a portion of the NLEB's range and significant impacts to the
species from the disease have been reported only in a fraction of that
area; and (3) irrespective of the impacts of WNS and any impacts from
land development activities, the NLEB continues to be prevalent in the
majority of its broad range. Each of these factors is discussed in
turn.
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\8\ This petition requests the Section 7(a)(4) ``no jeopardy''
finding only until the Service issues a final listing decision for the
NLEB because, if FWS decides to list the species, Section 7(a)(4) no
longer would apply. Accordingly, any activities that have not been
completed and will continue to require federal action or subsequently
will require federal action would be subject to the ESA's Section
7(a)(2) consultation requirement for listed species (if they likely
will affect a listed species) once a final affirmative listing decision
is made.
---------------------------------------------------------------------------
First and most fundamentally, the Service already has determined
that O&G activities do not have population-level effects on the NLEB,
even when combined with all other non-WNS impacts. In the proposed
listing decision, FWS considers potential direct and indirect effects
to the NLEB from a variety of activities, including wind energy
development, pesticide application, forest management and prescribed
burning, activities that emit greenhouse gases, natural gas exploration
and development, mining, and other land development activities that
take place within the species' summer habitat. 78 Fed. Reg. at 61059-61
, 61068-72. Based on that analysis, the Service concludes that
``[a]lthough such activities occur, there is no evidence that these
activities alone have significant effects on [the NLEB], because their
effects are often localized and not widespread throughout the species'
range[].'' Id. at 61072; see also id. at 61061 (``Although such
activities occur, these activities alone do not have significant
population-level effects on [the] species.'').
Under the express terms of the ESA, that conclusion confirms that
human activities do not affect the NLEB's ``continued existence'' and,
therefore, that they cannot be ``likely'' to jeopardize the species'
continued existence. See 16 U.S.C. Sec. 1533(a)(1)(E) (setting forth
the Factor E listing criterion--the analysis FWS performed to reach the
above-quoted conclusion--which requires FWS to determine whether the
species should be listed on account of ``natural or manmade factors
affecting its continued existence'') (emphasis added). If that were not
enough, the Service then concludes that those various types of human
activities--even when viewed ``in combination'' with each other and
even when considering ``all present and threatened destruction,
modification. or curtailment of [the NLEB's] habitat or range'' from
other activities (including natural gas development) and the use of the
species for ``commercial, recreational, scientific, or educational
purposes''--``do not have significant effects on the species.'' Id. at
61057, 61061, 61072.\9\
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\9\ While FWS also states that ``when combined with the significant
population reductions due to white-nose syndrome (Factor C), the
resulting cumulative effect may further adversely impact the species,''
that tentative conclusion does not suggest that these activities, alone
or in combination with each other and WNS, could affect the NLEB to
such an extent as to likely jeopardize its continued existence. See id.
at 61072 (emphasis added). Nor could it given that WNS has not been
confirmed in nearly half of the NLEB's range. See infra at 7.
---------------------------------------------------------------------------
In the face of these conclusions, which the ESA required FWS to
make based on the best scientific and commercial data available, the
Service cannot now reasonably find that any individual O&G activity
that is undertaken before a final listing decision is made likely will
jeopardize the NLEB.\10\ That is particularly true in light of the
Service's understanding that jeopardy findings should be based on
range-wide, population-level species impacts from proposed actions, not
localized and individual effects to species. See Endangered Species
Consultation Handbook at 4-36; supra at 6.
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\10\ Although not considered by FWS in its proposed listing
decisions, the conclusion that human activities such as O&G development
will not likely jeopardize the species is even stronger here because
(1) the NLEB will be in hibernation (and therefore would not be
expected to be directly affected by such activities) for a large
portion of the time remaining in the listing decision-making process,
and (2) the species will not suffer significant effects from such
activities when not hibernating since NLEB summer habitat is and will
continue to be plentiful. See 78 Fed. Reg. at 61055 (explaining that
NLEBs can hibernate from October until April); Comments of MarkWest
Energy Partners, L.P. at 12 (Jan. 2, 2014) (Attachment 4 hereto)
(citing the comments of several state and peer review commenters to
demonstrate that summer habitat is not a limiting factor for the NLEB).
---------------------------------------------------------------------------
Second, throughout its proposed listing decision, the Service makes
clear that impacts--both reported and predicted--to the NLEB from
white-nose syndrome are the ``but for'' cause of its proposal to list
the species as endangered. FWS explains that ``WNS alone has led to
dramatic and rapid population level effects on the northern long-eared
bat'' and ``the species likely would not be imperiled were it not for
this disease.'' 78 Fed. Reg. at 61072 (emphasis added). At the same
time, the Service recognizes that the distribution of WNS covers only
portions of the NLEB's range in the U.S. and abroad. In fact, as of
this past August, WNS has never been documented in 17 states within the
NLEB's U.S. range. Id. at 61061. And based on FWS reports, to date the
disease has not significantly affected the NLEB in many of those areas
where its presence has been confirmed. See id. at 61064-65 (reporting
that WNS is known to have significantly affected the NLEB only in the
northeastern portion of its U.S. range). Moreover, while the Service
hypothesizes that WNS will quickly spread to the remainder of the
species' range and will significantly affect the NLEB range-wide in the
future, the administrative record for the proposed listing decision
does not support that conclusion. See Attachment 4, Comments of
MarkWest Energy Partners, L.P. at 7-8.
In light of the foregoing, the Service and federal action agencies
cannot reasonably conclude that any O&G activity likely will jeopardize
the NLEB as the ESA requires to compel a Section 7(a)(4) conference
with FWS. That WNS--the sole cause of the reported population-level
declines of the NLEB--has not reached nearly 50% of the species'
domestic range and currently does not significantly affect the bat in
many areas that it has reached ensures that even the largest O&G
activities will not jeopardize the NLEB.
Finally, notwithstanding the proposed listing decision, the NLEB
continues to be prevalent throughout much of its broad 39-state range.
As FWS recognizes, the NLEB has been particularly ``abundant'' in the
eastern portion of its range, and it is ``commonly encountered in
summer mist-net surveys throughout the majority of the Midwest and is
considered fairly common throughout much of the region'' as well. 78
Fed. Reg. at 61052. According to the Service, the NLEB remains the
second-most captured bat species in Vermont, is ``fairly common'' in
Virginia and Maine, is routinely caught in at least 51 counties in
Indiana, is considered ``common'' in West Virginia, is ``commonly
captured'' in Missouri (so much so that the state removed the bat from
its species of concern list in 2007), is ``regularly caught'' in
Illinois, is ``regularly collected'' in Ohio, is ``regularly captured''
and is ``one of the most common bat species captured during mist net
surveys'' within its range in Oklahoma, and is ``commonly captured'' in
Kentucky. Id. at 61052-53, 61064. And as numerous state, peer review,
and private commenters explained in their recent comments on the
proposed listing decision, even these reports underrepresent the
species' abundance and population trends. See, e.g., Comments of OOGA
(Jan. 2, 2014) and Comments of MarkWest Energy Partners, L.P. (Jan. 2,
2014) (demonstrating that the winter survey data that FWS relied on for
the proposed listing decision significantly underrepresents the NLEB's
abundance and does not reflect the best available science) (Attachment
4 hereto). In view of the NLEB's continuing abundance throughout much
of its range (not to mention the localized nature of most O&G
activities that FWS recognizes in the proposed listing decision, see
supra at 8), no proposed O&G activity likely will jeopardize the NLEB
and thus require a Section 7(a)(4) conference before a final listing
decision is made.
For each of the above reasons, the Service should issue the
requested ``no jeopardy'' finding for proposed O&G activities scheduled
to occur within the NLEB's range before a final listing decision is
made. The administrative record for the proposed listing decision,
which the Service endorses as the best scientific and commercial data
available, demonstrates that there is no scenario in which such
activities ``are likely to jeopardize the continued existence of'' the
NLEB during that time. There simply is no reasonable basis for
concluding that any such activity could ``be expected, directly or
indirectly, to reduce appreciably the likelihood of both the survival
and recovery of [the] species in the wild by reducing the reproduction,
numbers, or distribution of that species'' as the Service's regulations
require for a jeopardy finding. See 50 C.F.R. Sec. 402.02 (emphasis
added). FWS already has concluded as much in its Factor E (and Factor
A) analysis for the proposed listing decision. See supra at 8-9. It now
should memorialize that finding for purposes of Section 7(a)(4) in a
programmatic ``no jeopardy'' determination.
In light of the severe financial and logistical impacts that will
continue to accrue until the Service acts on this petition, the limited
timeframe until FWS makes a final listing decision on the NLEB, and the
substantial legal and factual bases supporting the requested action,
Petitioners respectfully request that FWS consider this petition on an
emergency basis and perform an expedited review. To that end, we ask
that the Service issue the proposed ``no jeopardy'' finding for O&G
activities within 30 days from the date of this letter. Given the
emergency nature of this request, if the proposed finding has not been
issued by the expiration of that period, we must consider the petition
to have been denied. In addition, in the interest of expediting this
process, we request a meeting, with Director Ashe and any staff he
deems appropriate before the expiration of that period to discuss these
issues.
*****
Thank you for considering this emergency petition to issue a
programmatic ``no jeopardy'' finding for proposed oil and gas
exploration and development activities that will occur within the
NLEB's range before the Service makes a final listing decision for the
species. For the reasons explained above, issuing such a finding will
comply with Section 7(a)(4) of the ESA, is supported by the
administrative record for FWS's proposed listing decision, and will
avoid wasting millions of federal and private dollars to conduct
superfluous reviews that will needlessly delay billions of dollars in
planned projects over the next year. If you have any questions about
this petition, please contact W. Parker Moore at (202) 789-6028, or
counsel for OOGA, Kristin Watt at (614) 464-8398. In addition, please
direct any correspondence regarding this petition to:
W. Parker Moore
Beveridge & Diamond, P.C.
1350 I Street, NW, Suite 700
Washington, DC 20005
(202) 789-6028
[email protected]
Respectfully submitted,
Jeff Applekamp David Spigelmyer
Vice President, Government
Affairs President
Gas Processors Association Marcellus Shale Coalition
Thomas E. Stewart Bradley R. Gill
Executive Vice President Executive Director
Ohio Oil & Gas Association Independent Oil & Gas Association
of New York
Mike Terry William L. Kovacs
President Senior Vice President,
Oklahoma Independent
Petroleum Association Environment, Technology &
Government Affairs
U.S. Chamber of Commerce
Sam Denisco Lou D'Amico
Vice President, Government
Affairs President and Executive Director
Pennsylvania Chamber of
Business and Industry Pennsylvania Independent Oil &
Gas Association
Nicholas ``Corky'' DeMarco
Executive Director
West Virginia Oil & Natural
Gas Association
______
The Chairman. Thank you. And thank you very much, Mr.
D'Amico, for your testimony.
Now recognize Mr. Jim Brubaker from the Farm Bureau. You
are recognized for 5 minutes.
STATEMENT OF JIM BRUBAKER, BOARD MEMBER, PENNSYLVANIA FARM
BUREAU, UNION COUNTY FARMER, BUFFALO VALLEY FARMS, LEWISBURG,
PENNSYLVANIA
Mr. Brubaker. Good morning, Chairman Hastings, and
Representative Thompson and Representative Perry. I am Jim
Brubaker, a grain and livestock farmer in Union County,
Pennsylvania. I am a member of the Pennsylvania Farm Bureau,
Board of Directors, and chair our Natural and Environmental
Resources Committee.
Today, I am testifying on behalf of the Pennsylvania Farm
Bureau and the American Farm Bureau Federation.
The Farm Bureau agrees that we must conserve and recover
wildlife facing preventable extinction, but the ESA needs to be
modernized to help endangered species without placing undue
burdens on landowners.
The Northern Long-Eared Bat's range and numbers make the
potential impact of this listing on agriculture significant,
and we are concerned that the basis for listing is not related
to human activity, but because of the White Nose Syndrome. In
summer, the Northern Long-Eared Bat roosts in live trees and
snags, and in and on buildings, barns, sheds and so forth.
These features are commonly found on farms across Pennsylvania
in the bats' range.
The take prohibitions of the ESA, along with the
designation of critical habitat could severely restrict
activities, including natural gas and wind energy development,
pesticide, insecticide and herbicide applications, highway
construction and timbering harvesting. These restrictions could
seriously hurt Ag. and, more specifically, farms. We have many
questions about how listing this bat could affect our
livelihoods. For example, how would an endangered listing
impact livestock farmers seeking to develop shale gas onto
their property? What about a dairy farmer who can't get a milk
truck onto his farm because construction and repair of a nearby
bridge has been stalled? How would this impact a farmer's
ability to clear trees for firewood, or planning or implement
forest management plans?
Let's look at my farm. Do I have the Northern Long-Eared
Bat? I really don't know. Like many farmers, I just know that I
have bats but I don't know what species, and that leads to more
questions. What if the bats that I have in my barn are the NLE
Bat, would I be prohibited from repairing or even changing my
barn? What if I had to take land out of production or change
the way I farm because I was too close to a roosting site? For
instance, the notice links pesticides to the NLE Bat. It is
scary to think that inputs critical to farm production could be
restricted, even though the notice indicates that exposure to
pesticides is not an immediate or significant risk itself.
Pesticides are already governed by Federal and state laws.
Farmers have used well-established application practices,
spanning decades, in which the NLE Bat populations were not
declining.
I hope I have raised some important concerns today about
how listing this bat will impact farmers. We care about the
environment and conservation, and want to be good stewards of
the land so we can pass it on to our next generation, but we
also need to earn a viable income through our farms and be able
to provide a safe and affordable food and fiber supply.
Excessive regulations will not fix anything. Practical,
workable solutions can, and we are willing--more than willing
to do our part to help, but let's make sure we are solving the
problem and not making a new one.
Listing this bat will only restrict farmers' ability to use
their land, and isn't likely to stop the spread of White Nose
Syndrome. We urge the Fish and Wildlife Service to not list the
Northern Long-Eared Bat, and to ask Congress and the members of
this committee to help prevent this listing from happening.
Thank you again for the opportunity to testify, and I would
be happy to respond to your questions.
[The prepared statement of Mr. Brubaker follows:]
Prepared Statement of Jim Brubaker on behalf of the Pennsylvania Farm
Bureau
Good morning, Chairman Hastings, Ranking Member DeFazio, and
members of the committee. I am Jim Brubaker, a grain and livestock
farmer in Union County, Pennsylvania. I operate Buffalo Valley Farms
with my two sons. We have 900 acres of corn and soybeans, 18,000 market
hogs and one million kosher broilers. I currently serve on the Board of
Directors for Pennsylvania Farm Bureau (PFB), and on the Board's
Executive Committee. I also serve as the chairman of the Natural and
Environmental Resources Committee for PFB. In addition to my Farm
Bureau activities, I am a member of the Buffalo Township Planning
Commission and the Union County Commissioners' Ag Advisory Committee.
I offer these remarks on behalf of Pennsylvania Farm Bureau and our
nearly 60,000 members, and the more than six million member families of
the American Farm Bureau Federation. My testimony will focus on Farm
Bureau's understanding of the proposal to list the northern long-eared
bat as a protected species under the Endangered Species Act (ESA) and
the potential impact on agriculture.
Before I begin, however, I want to be clear that Farm Bureau agrees
that Federal agencies and citizens must take responsible action when
wildlife species are in danger of extinction to facilitate recovery of
species populations. Farmers enjoy the benefits of having wildlife on
their properties. I know I do. And farmers already take measures on
their own to provide for wildlife and their habitat on farmland. But,
at the same time, Farm Bureau believes that the ESA must be modernized,
so that we can protect endangered species without imposing excessive
burdens and restrictions on landowners' use of land that provide
marginal enhancement of species recovery. Unfortunately, the ESA is
often ineffective at protecting endangered species, unnecessarily
hurting people's livelihoods in the process. And, in the case of the
northern long-eared bat, listing this species has the potential to
negatively affect farmers within the bat's range.
potential impacts of listing the nle bat
The decision to list the northern long-eared bat should not be
taken lightly. With a range of 38 states and the District of Columbia,
and the fact that this species of bat is 15-20 times more common than
other non-listed bats in some areas, the potential scope of this
listing and the impact on agriculture could be unprecedented. Even more
concerning is the basis for the proposed listing is not related to
human activity, but because of the U.S. Fish and Wildlife Service's
anticipated impact of the white-nose syndrome. Page 61058 of the
October 2, 2013 Federal Register Notice \1\ (``Notice'') states:
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\1\ Federal Register. Volume 78, Number 191. October 2, 2013.
Docket No. FWS-R5-ES-2011-0024; 4500030113: Endangered and Threatened
Wildlife and Plants; 12-Month Finding on a Petition To List the Eastern
Small-Footed Bat and the Northern Long-Eared Bat as Endangered or
Threatened Species; Listing the Northern Long-Eared Bat as an
Endangered Species.
``. . . we have found no other threat that is as severe and
immediate to the northern long-eared bat's persistence as the
disease, white-nose syndrome (WNS) . . . if WNS had not emerged
or was not affecting the northern long-eared bat populations to
the level that it has, we presume the species would not be
---------------------------------------------------------------------------
experiencing the dramatic declines it has since WNS emerged.''
In addition, the Notice's \2\ summary of ``other natural or manmade
factors affecting [the northern long-eared bat's] continued existence''
indicates that though the factors identified (which included wind
energy and natural gas development, contaminants, etc) do occur, there
is:
---------------------------------------------------------------------------
\2\ Page 61072.
``. . . no evidence that these activities alone have
significant effects on either species [eastern and northern
long-eared bat], because their effects are often localized and
---------------------------------------------------------------------------
not widespread throughout the species' ranges.''
Furthermore, concerns have been voiced by commenters in response to
the FWS's request for comments about the validity of survey data
conducted for the proposed listing was based on inaccurate and
insufficient NLE bat data collected during winter surveys. In fact, in
the Notice,\3\ the FWS discusses the winter habitat and specifically
states that, ``Northern long-eared bats are typically found roosting in
small crevices or cracks in cave or mine walls or ceilings, often with
only the nose and ears visible, thus are easily overlooked during
surveys.''
---------------------------------------------------------------------------
\3\ Page 61054.
---------------------------------------------------------------------------
The summer roosting locations are more likely to impact
agriculture. Per the Notice, in the summer, the NLE bats, ``typically
roost . . . underneath bark or in cavities or crevices of both live
trees and snags,'' and ``they have also been observed roosting in
colonies in human made structures, such as buildings, barns, a park
pavilion, sheds, cabins, under eaves of buildings, behind window
shutters and in bat houses.'' \4\ Many of these roosting sites are
likely to be found on farms across Pennsylvania and within the stated
range of these bats.
---------------------------------------------------------------------------
\4\ Page 61045-5.
---------------------------------------------------------------------------
Once listed, the ESA makes it unlawful for any person--including
private and public entities--to ``take'' a NLE bat. The ESA defines
``take'' to mean ``harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or attempt to engage in any such conduct.''
Further, the Act prohibits potential ``harm'' to include significant
habitat modification or degradation which ``actually kills or injures
fish or wildlife by significantly impairing essential behavioral
patterns, including, breeding, spawning, rearing, migrating, feeding or
sheltering.'' Violation of ESA take prohibitions carries civil
penalties of up to $25,000 per violation, and criminal penalties of up
to $50,000 and 1 year imprisonment per violation.
These take prohibitions, along with the designation of critical
habitat, have the potential to adversely impact a broad range of
industries/activities including natural gas and wind energy
development; application of pesticides, insecticides and herbicides;
highway construction; and timber harvesting. And, if there's one thing
in common with this list, it's that they all impact agriculture. How
would such a listing impact a livestock farmer with vast shale gas
resources under her land, when the sale of subsurface rights would
provide a much-needed infusion of capital? And what of a dairy farmer
who can't easily get a milk truck onto the farm because construction of
a nearby bridge has stalled?
For the purposes of this testimony, I'll discuss the issue of
pesticides and forest land in a little more detail.
Pesticides
In asserting the possible cumulative effects to the NLE from other
natural or manmade factors--specifically the application of
pesticides--FWS's proposed listing seeks to tie the chemical
application of agricultural use of organiochlorine pesticides,\5\
organophosphate, carbamate and neonicotinoid insecticides,
polychlorinated biphenols and polybrominated diphenyl ethers, and
pyrethroid insecticides to species decline. However, at the end of the
section of the Federal Register notice \6\ discussing the effects of
these and other contaminants, the FWS concludes:
---------------------------------------------------------------------------
\5\ The Federal Register (page 61070) notice acknowledges that
``most organochlorine pesticides have been banned in the United States
. . ..''
\6\ Page 61071.
``. . . the best available data indicate that contaminant
exposure can pose an adverse effect to individual northern
long-eared and eastern small-footed bats, although it is not an
immediate and significant risk in itself at a population
---------------------------------------------------------------------------
level.''
Pesticide applications are covered by state laws and the Federal
Insecticide, Fungicide and Rodenticide Act, and farmers have well-
established practices concerning the application of pesticides. These
practices spanned decades in which the NLE bat populations were not in
decline. It was only after WNS was introduced to the NLE bat, that we
began to see documented impacts to species health and population
decline. In light of this, it is inappropriate for the FWS to link the
application of pesticides by farmers to species decline without
documented scientific analysis.
As a farmer, linking between pesticides and the NLE bat is very
concerning. It's scary to think that my access to an important on-farm
tool could be restricted. I--like many of my fellow farmers in PA--am a
certified pesticide applicator. On our farm, we don't use more
pesticides, herbicides and insecticides than we have to and choose our
treatments/preventive measures carefully. For example, on my farm we
choose our herbicides based on weed pressure and field history. As I
mention later, we also use cover crops which helps reduce weed pressure
and the amount of herbicides we have to apply.
Forest Land
With 59 percent or nearly 17 million acres of Pennsylvania covered
by forest, many agricultural operations include forested acres. Given
the statement on page 61075 of the Notice that, ``Other sources of
mortality to the species include . . . habitat modification,
destruction and disturbance,'' and the summer habitats of the NLE bat
discussed earlier, listing the NLE bat as an endangered species is
likely to pose very serious challenges to farmers who have forested
land on their farms.
While I personally do not have much forested land on my property,
many farmers do. What happens if the NLE bat is found to be roosting in
an area of a farmer's property? How will that impact the farmer's
ability to clear trees for firewood or planting, implement forest
management plans and undertake managed harvesting and other recommended
activities? Restricting these activities has the potential to adversely
affect on-farm production activities, forest habitat management, and
farm revenue.
On the timbering side, I know you'll be receiving testimony from
the PA Forest Products Association, however, I do want to mention that
Pennsylvania has one of the Nation's largest concentrations of hardwood
growing stock and is a leading producer of hardwood lumber. This
industry sustains jobs and contributes to both the state and national
economies. In addition, Pennsylvania is a national leader in the
implementation and promotion of sustainable forestry practices.
Based on potential impacts on pesticide use and forest management
alone, agriculture has much to be concerned about if the NLE bat is
listed as an endangered species. But let's explore this issue even
further.
farmer concerns
Looking at a Fish and Wildlife Service map,\7\ there are confirmed
or suspected cases of White Nose Syndrome in many of the counties
surrounding Union County, where I live. This leads me to suspect that
if the NLE bat was listed, I--or my neighbors--could face immediate
restrictions on our farms and properties.
---------------------------------------------------------------------------
\7\ http://www.fws.gov/midwest/endangered/images/mammals/nlba/
nlebRangeAndWNSmapV4 High.jpg.
---------------------------------------------------------------------------
You may be wondering if I have the NLE bat on my property. My
answer is I don't know. And I'd bet that a majority of my fellow
farmers--in Pennsylvania or elsewhere--would answer the same way. I do
have bats on my farm. I see them in buildings and in houses on my farm.
In fact, there is one particular farmstead where I have a larger
concentration of bats. But I don't know the species.
What if the bats in my own barn were found to be the northern long-
eared bat? Would I face restrictions on how I could use my barn? Would
I be able to repair or tear down an existing structure if it were found
to house NLE bats? And, what if I had to take land out of production or
change the way I farmed the land because it was too close to a roosting
site?
Consider this: if I had to take 4 acres of a corn field out of
production, that would amount to approximately 800 bushels of corn. At
$4.30 a bushel, that's a $3,440 in income. Or, what if I wasn't able to
spray the correct pesticide and, as a result, I lost 40 percent loss of
my 4-acre crop? That's a loss of $1,376. On a farm, every bit of land
counts, and losing even just a small parcel of land can have serious
consequences on our bottom line and the success of our farm.
farmers care
I do know this: farmers care about the environment and
conservation. We want to preserve our land and the environment. We want
to pass our land onto the next generation without ruining it for them
and the generations that follow. We want practical solutions that work
for agriculture--and the environment.
On my farm, we do everything reasonably possible to be good
stewards of the land. For example, we've been 100 percent no-till for
the last 10-12 years; every year we sow cover crops on our soy stubble
and use them to spread manure on in the fall; we have--and follow--a
nutrient management plan; we test our soil before applying nitrogen to
make sure we don't over apply nutrients and we've installed sod
waterways.
On the conservation side, while most of our land is tillable with
very little wooded land, we mow along streams to allow for habitat for
rabbits and pheasants, and we try to keep a healthy, but manageable
deer population. Due to the practices we use at Buffalo Valley Farms,
our land has become much more productive over the 40 years that we've
been farming it. I've seen our crop yields improve, and we're looking
at our best crop year ever in 2014.
finding a solution
During my years as a farmer, I've learned many things, especially
this: excessive regulations do not benefit either the person regulated
or that which is intended to be protected. Paperwork doesn't solve
problems. Practical, workable solutions can--and do--solve problems. As
I mentioned earlier, we need practical solutions to protect wildlife
and the environment, but we need to ensure that agriculture can
continue to operate effectively and efficiently. If we fail, then we
jeopardize the ability of agriculture to produce safe, affordable and
abundant food and fiber for consumers in Pennsylvania, the United
States and the world.
As the FWS and Congress try to make the right decisions regarding
the NLE bat, they might want to look at the Pennsylvania Game
Commission (PGC) as a case study. As you might know, several years ago,
the PGC considered placing the northern long-eared bat and two other
species impacted by white-nose syndrome on the state's endangered
species list. Following a public comment period, the PGC decided not to
list the three bat species. In a press release on the decision, Carl
Roe, the PGC's Executive Director stated:
``. . . it is clear that more discussion, research and
coordination need to be done on WNS and the other outside
factors that are impacting our bat populations, as well as how
we can craft solutions that protect bats without threatening
the industries that employ thousands of Pennsylvanians.'' \8\
---------------------------------------------------------------------------
\8\ PGC News Release #121-12 (October 4, 2012).
Based upon my understanding of the issue, I'd say that we're facing
the same issue almost 2 years later. I'd say Pennsylvania made the
right decision then, and I do hope that the Federal Government will
make the right decision now. Because making the wrong decision will
have ripple effects on the environment and agriculture right on to the
consumer.
As a farmer, I believe that using both common sense and science is
a logical way to approach not just farming, but regulations. It seems
to me that this proposal to list the northern long-eared bat is flawed
from both a scientific and common sense perspective. If the U.S. Fish
and Wildlife Service recognizes that human activities have not had an
appreciable effect on the species to date, why would we focus on human-
induced impacts to try to slow population decline?
It just doesn't make sense.
Why hurt farmers, landowners, builders and service providers--to
just name a few--when there is no guarantee that this will stop NLE bat
declines? Instead, shouldn't we focus on the root cause of the
problem--white nose syndrome?
Agriculture has long been willing to step up and do our part
whether it's helping out in our communities or responsibly managing the
environment or wildlife. We're more than willing to work with states
and the Federal Government to do our part to ensure the longevity of
the northern long-eared bat. But let's make sure we're solving the
problem, not making new ones, because we're not targeting the root
cause. And, in this case, it's white-nose syndrome.
Farm Bureau recommends that the U.S. Fish and Wildlife Service not
list the northern long-eared bat as an Endangered Species. And we urge
Congress and the members of the U.S. House Committee on Natural
Resources to help prevent this listing from happening.
Additionally, I'd like to commend Chairman Hastings and members of
the Natural Resources Committee for their continued efforts to identify
and develop common-sense legislative reforms to the Endangered Species
Act. The passage of H.R. 4315 in the House of Representatives
demonstrates your commitment to update and improve the processes and
procedures that the ESA put in place 40 years ago. We look forward to
working with Congress to make the ESA more workable for private
landowners and thus more beneficial for the species that it is supposed
to help.
Thank you again for the opportunity to testify today, and I would
be happy to respond to your questions.
______
The Chairman. Thank you, Mr. Brubaker. Appreciate your
testimony.
Now recognize Mr. John Stilley, Owner and President of
Amerikohl Mining. You are recognized for 5 minutes.
STATEMENT OF JOHN STILLEY, OWNER AND PRESIDENT, AMERIKOHL
MINING, INC., BUTLER, PENNSYLVANIA
Mr. Stilley. Good morning. Mr. Chairman, Members of the
House Natural Resources Committee, my name is John Stilley and
I am President of Amerikohl Mining, along with Patriot
Exploration Corporation and Amerikohl Aggregates. I also own
all three companies, along with my two sons.
Amerikohl Mining mines coal by the surface mining method in
13 counties in Pennsylvania. Last year, we employed 125
hardworking men and women, produced 1 million tons of coal, all
of which was marketed to local utilities' industrial accounts.
Since 1978, we have completed mining of over 350 separate mine
sites, and have successfully reclaimed the land to productive
post-mining uses, including parks, residential communities,
working farms and forest land.
Approximately one-third of these sites consisted of lands
which were mined previously in the 1940s and 1950s when no
reclamation was required or done. As part and parcel to our
mining efforts, we have reclaimed on these sites miles upon
miles of existing high walls, 15,000 acres of abandoned mine
lands, and rehabilitated many, many miles of polluted streams,
all at no cost to the taxpayer. Amerikohl has also won over 70
state and Federal awards for outstanding reclamation.
Amerikohl Aggregates operates two stone quarries in
Pennsylvania, and annually produce and market over 1.25 million
tons of stone and aggregate used primarily to build and
rehabilitate Pennsylvania's infrastructure, and Patriot
Exploration has drilled and currently operates 250 oil and gas
wells.
I am here today on behalf of the Pennsylvania Coal
Alliance, a trade association representing the interests of the
state's bituminous coal industry. Our Pennsylvania industry is
responsible for 60 million tons of production, and the creation
of 40,000 jobs in the state.
With that, please allow me to address the potential impact
on the mining and quarrying industry if the Northern Long-Eared
Bat is listed as an endangered species, along with my
experience with the endangered listing of the Indiana Bat.
The total amount of protected Indiana Bat habitats in
Pennsylvania now totals over 3 million acres, or close to 10
percent of Pennsylvania. This encompasses almost 80 percent of
Fayette County, and similar portions of Armstrong, Lawrence,
Beaver and Butler Counties, specifically where we mine coal and
quarry stone. Amerikohl has been dealing with the problem of
the endangered Indiana Bat over the past 10 years, and expended
millions of dollars in doing so, between mitigation fees, paid
protection enhancement plans implemented, mist net surveys,
seasonal limits on our lessees' ability to harvest their timber
estates, additional permit costs, legal defense of our rights
with other Federal agencies, scheduling conflicts, and on and
on. Additionally, compliance with the requirements imposed have
negatively impacted our ability to manage our reserves to their
optimal work, keep our men and capital employed to the fullest
extent possible, and obstructed our ability to comply with
contractual supply obligations.
We, along with all in our industry, have stepped up and
done all that has been asked of us and required of us. All the
while, the Indiana Bat population over the same time frame has
been decimated by White Nose Syndrome, rather than by lack of
habitat or direct impacts from incidental take due to industry
practices or any other human influences. Similar to the Indiana
Bat, the Pennsylvania Game Commission data documented decline
in the Northern Long-Eared Bats primarily due to the White Nose
Syndrome, and again, not industry practices or any human
influences.
Unlike the Indiana Bat, the Northern Long-Eared Bat's
summer and winter habitat ranges across the entire state, with
a variety of forested habitats used for roosting and foraging.
Should the Northern Long-Eared Bat be listed, the same limits
and restrictions as mandated by the presence of the Indiana Bat
would be imposed over most, if not all of Pennsylvania.
Although the U.S. Fish and Wildlife Service announced on
June 30 a 6-month extension on any final decision regarding a
listing, the Service's State College regional office is
treating permit reviews as though the listing has already been
made. In response to an application for a limestone quarry
operation Amerikohl submitted for review, I was instructed via
letter from the field office that this site is located within
the range of the Northern Long-Eared Bat, and although the
species is not listed, the letter cautioned us to address this
issue in the permit application or face project delays if a
listing is finalized.
So despite the U.S. Fish and Wildlife Service's
acknowledgement about the scientific uncertainty associated
with the available data for making a determination, despite its
announcement to defer a decision until April 2, 2015, in order
to fully analyze the data, and without any justifiable
certainty that a proposed activity will indeed threaten the
continued existence of the Northern Long-Eared Bat, the
Pennsylvania field office is instructing all permit applicants
to implement protective measures for a non-listed species to
avoid permit delays.
This brings me to my final and principal comment. The
regulatory process is in turmoil, devoid of science and common
sense. Standards are constantly changing pursuant to regulatory
and policy whims, not statutory or regulatory mandates, and all
driven by a few who believe they know what is in the public's
best interest. This well-intentioned legislation is passed by
Congress, never intended or anticipated at takeover expansion
to the extent we are seeing today by unelected bureaucrats for
reasons very, very difficult for me to understand, creating
many distortions in the marketplace and making our great Nation
uncompetitive in a world economy.
The most important recommendation and request I can make to
this committee today is to restore reason and balance to the
process, and take back the power and authority invested in you
by the electorate. Let size trump whim and hold these Federal
bureaucrats accountable to the public law.
Thank you very much.
[The prepared statement of Mr. Stilley follows:]
Prepared Statement of John M. Stilley, President, Amerikohl Mining,
Inc.
Good morning Mr. Chairman, members of the House Natural Resources
Committee. My name is John Stilley and I am the President of Amerikohl
Mining, Inc. which is headquartered in Butler, Pennsylvania. I am also
President of Patriot Exploration Corp. and Amerikohl Aggregates, Inc.
Amerikohl mines coal by the surface mining method in 13
Pennsylvania counties. Last year we produced approximately one (1)
million tons of coal and employed 120 workers. Since 1978, we have
completed mining of over 300 separate mine sites and have successfully
reclaimed the land to productive post-mining uses including parks,
residential communities, working farms, and forestland. Approximately
1/3 of these sites consisted of areas which had been mined in the 1940s
and 1950s when no reclamation was required to be done. Amerikohl has
won over 65 awards for outstanding reclamation work, has reclaimed over
15,000 acres of abandoned mine lands and restored miles of streams at
no cost to taxpayers.
We are also in the stone and natural gas businesses. This year we
will produce 1.25 million tons of stone and aggregates used to build
and rehabilitate Pennsylvania's infrastructure. Additionally we
currently operate over 200 wells, producing gas and oil, from the Upper
Devonian formation and participate in the drilling and production from
28 Marcellus dry gas wells which are all in Pennsylvania.
I am also here today on behalf of the Pennsylvania Coal Alliance
(PCA), a state trade association representing the interests of the
state's bituminous coal mining industry.
Pennsylvania is the Nation's fourth leading coal producing state,
with about 67 million tons of both anthracite and bituminous coal mined
in 2013.
The coal industry is a major contributor to Pennsylvania's economy.
Its annual economic benefit to the Commonwealth exceeds $4 billion and
it is responsible for the creation of almost 40,000 direct and indirect
jobs.
Most of the coal produced in Pennsylvania is used to generate
affordable and reliable electricity.
I appreciate being asked to testify today on the potential impacts
for mining if the Northern Long-Eared Bat (NLE) is listed as an
endangered species.
Because of time constraints, I have attached, for the record,
specific comments submitted by the PCA to the U.S. Fish and Wildlife
Service (FWS) on this matter. These comments are detailed,
Pennsylvania-specific and highly relevant to this proceeding.
My testimony will highlight our major concerns with such action
and, if time permits, I would like to address the committee on an
important overarching issue that is a critical impediment to the future
viability of coal mining.
Range--The NLE Bat has a much larger range and a greater presence
in Pennsylvania than the Indiana Bat. (As a frame of reference, the
total amount of protected Indiana Bat habitat in Pennsylvania today
totals over 3 million acres). A listing would therefore, severely
restrict any permitted earth moving activity proposed within a broad
geographic area, particularly among the mineral extraction industry.
The result would be permit delays and increased business costs without
any assurance of commensurate environmental benefits.
Disease Not Habitat Issue--The NLE Bat has been hard-hit by White-
Nose Syndrome (WNS), especially in the United States. Indeed, the FWS
repeatedly recognizes that the WNS, not any human activity, alone is
responsible for the major impacts to the NLE Bat that have been
reported.
Any species protection requirements (e.g. tree clearing restrictions)
that would accompany a Federal listing will not address the WNS impact
on NLE Bats. It would be senseless to impose significant costs on a
multitude of industries whose activities would not affect the bat's
population with restrictions that would not in any measurable manner
preserve the species.
Sufficiency and Accuracy of Data--Even the FWS recognizes that
there has been ``. . . substantial disagreement regarding the best
available science . . .'' as it relates to the NLE Bats current and
predicted population trends and threats. Given the significant permit-
related implications of a proposed listing, unless science is available
to justify the action and unless reasonable expectations exist to
demonstrate that such action would produce the intended benefit, the
FWS should not proceed with a designation. On this particular issue,
both parameters--science and expectations--are noticeably lacking.
cost implications
Increased Costs Associated With Bat Mist Netting
In 2014, the USFWS issued a 2014 Indiana Bat Summer Survey Guidance
Overview which provided the protocol for conducting bat surveys in
Pennsylvania, which is within the Northeast Region (Region 5). While
the initial intent was to reissue range-wide survey guidelines, the
Northeast Region imposed a much higher level of survey effort (mist
netting and acoustic) than other FWS regions. For ``non-linear''
projects, which are most common for the mining industry, the following
increases in effort and costs have been observed over the past several
years.
----------------------------------------------------------------------------------------------------------------
Required Survey Effort/
Year Site Increase in Effort Approximate Cost/Site
----------------------------------------------------------------------------------------------------------------
2014 42 net nights/123 10.5x $55,000
acres of suitable
habitat
2013 24 net nights/123 6x $30,000
acres of suitable
habitat
2012 4 net nights/123 -- $ 5,000
acres of suitable
habitat
----------------------------------------------------------------------------------------------------------------
As you can see, the level of bat survey effort has increased more
than 10-fold over the past 3 years.
Example: If a mining company has a 500 acre forested site, it would
cost roughly $275,000 to conduct a bat survey in Pennsylvania and the
northeast region.
Telemetry Costs
If the proposed listing of the NLE Bat proceeds, any NLE bat
captures will require radio telemetry work in order to locate roosting
trees for individual bats. For each NLE Bat (and Indiana Bat) captured
during a mist net survey, it costs approximately $7,000 to track and
monitor each individual bat.
During the 2014 mist netting season (May 15 to August 15), a mid-
size environmental consulting firm in Pennsylvania captured 55 NLE Bats
in Pennsylvania, Ohio, and West Virginia. This equates to an additional
$385,000 of costs that the industry will shoulder without any
assurances of species protection.
Miscellaneous Cost Considerations
Additional costs associated with preparation of Habitat
Conservation Plans (HCPs), tree clearing restrictions, and long term
avoidance measures are also significant and need to be considered when
discussing the economic impacts associated with the proposed listing of
the NLE Bat.
Permitting Impacts--In addition to costs, unjustifiable and
unpredictable Federal action can wreak havoc on our ability to obtain
permits, a prerequisite to actual mining.
Due to the nature of the operation, permit delays are most
troublesome for surface mine operators.
Since surface mine projects in Pennsylvania are significantly
smaller in terms of reserves and production than underground mine
operations and are completed in shorter time frames, permits for
surface mining are required on a more frequent basis. As such,
indeterminate permit delays acutely affect this type of mining method
more than other type of mining.
For example, Amerikohl generally operates between 8 to 10 mining
sites on an ongoing basis in a given year. On average, it takes us
about 9 months to complete a job. Consequently, we are continually
applying for permits to mine. Delays on permit issuance challenge the
company's ability to maintain continuity of operations, meet our
contractual supply obligations and keep our men and women working full
time.
In addition, most of Pennsylvania's easily accessible surface coal
reserves have already been mined and a high percentage of our remaining
reserves are off-limit because of unilateral and unjustifiable
regulatory actions, like this proposed listing, that more often than
not are precipitated at the Federal level.
When all factors are considered, surface operators have very little
viable options left on where to mine. Permitting restrictions further
reduce these options and unless we get a more timely and predictable
process, our remaining reserves will be sterilized, mining derived
income and jobs will be lost and we all lose the benefits of cheap and
reliable coal based electricity.
Implementation--Although the FWS announced on June 30 a 6-month
extension on any final decision regarding a listing, the Service's
State College Regional Office is treating permit reviews as though the
listing has already been made.
In response to a permit application for a limestone quarry that I
am in the process of attempting to secure, I was instructed via letter
by the field office that the site is located within the range of the
NLE bat. Although the species is not listed, the letter cautioned us to
address this issue in the permit or face project delays if a listing is
finalized.
So, despite the FWS' acknowledgement about the scientific
uncertainty associated with the available data for making a
determination, despite its announcement to defer a decision until April
2, 2015, to clarify and ``fully analyze'' the data, and without any
justifiable certainty that a proposed activity will indeed threaten the
continued existence of NLE bats, the Pennsylvania field office is
instructing permit applicants to implement protective measures for a
non-listed species to avoid permit delays.
This brings me to my final, overarching comment--the regulatory
process is in turmoil, devoid of science and commonsense; defined by
standards that are constantly changing pursuant to regulatory whim, not
statutory or regulatory mandates; and driven by a select few who
believe they know what is in the public's best interest.
Overarching Concern--It would be easy to simply refer to this
situation as the result of a deliberate and targeted assault on the
coal industry. Clearly, the Obama administration's intent is to end
mining and transform America's usage away from coal.
The administration's actions are certainly a challenge to the
future viability of the industry and its workforce, as well as the
price and reliability of electric generation. But the impacts of these
actions are more profound than a war on coal.
Perhaps, most insidious is the manner in which these requirements
are being applied--by policy, not by legislation or regulation. Under
the Obama administration, Federal agencies have steadily usurped
permitting and enforcement authority heretofore reserved to states by
establishing through policies restrictions on both the mining and use
of coal that are harsh, misguided and not supported by science. As a
result, mining permits are delayed or denied, jobs are lost, and coal
reserves are unnecessarily sterilized.
This Federal overreach tramples on public accountability and
transparency while eroding our system of checks and balances that is
the core of a true democracy.
My most important recommendation that I can make to this committee
today is to restore reason and balance to the process, let science
trump whim and hold these Federal bureaucrats accountable to public
law.
Thank you.
Attachment: Pennsylvania Coal Alliance Comments
ATTACHMENT
Pennsylvania Coal Alliance,
Harrisburg, PA,
January 2, 2014.
Via Docket submittal at www.regulations.gov
Public Comments Processing
Attn: FWS-R5-ES-2011-0024
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive
MS2042-PDM
Arlington, VA 22203
Re: Docket No. FWS-R5-ES-2011-0024--Endangered and Threatened Wildlife
and Plants; 12-Month Finding on a Petition To List the Eastern
Small-Footed Bat and the Northern Long-Eared Bat as Endangered
or Threatened Species; Listing the Northern Long-Eared Bat as
an Endangered Species
To Whom It May Concern:
The Pennsylvania Coal Alliance (PCA) respectfully submits the
following comments regarding the U.S. Fish and Wildlife Service's
(USFWS) request for comments pertaining to the 12-month Finding on a
Petition to List the Northern Long-Eared Bat (NLE) as a Threatened or
Endangered Species and to NOT list the Eastern Small-Footed Bat, as
noticed in the October 2, 2013 Federal Register (78 Fed. Reg. 61046),
and the extension of the comment period in the December 2, 2013 Federal
Register (78 Fed. Reg. 72058).
PCA is the principal trade organization representing underground
and surface bituminous coal operators in Pennsylvania, as well as other
associated companies whose businesses rely on coal mining and the
thriving coal economy. PCA member companies produce almost 80 percent
of the bituminous coal mined annually in Pennsylvania, which totaled
nearly 60 million tons in 2012. PCA member companies operations are
subject to both state and federal laws for the protection of threatened
and endangered species. Accordingly, PCA has an immediate interest in
the USFWS' intent to list the Northern Long-Eared bat as a Threatened
or Endangered Species and not to list the Eastern Small-footed Bat
under the Endangered Species Act of 1973.
General
In the Federal Register notice, USFWS indicated they have
determined that the NLE is in danger of extinction, predominantly due
to the threat of White Nose Syndrome (WNS). PCA understands the damage
WNS has inflicted on the NLE, as well as other bats. However, we
disagree with the USFWS' proposed rule to list this species as
Endangered, and we believe not enough data and information has been
collected range wide to support a Threatened designation for the NLE.
Listing the NLE as Threatened or Endangered will have potentially
significant permit-related regulatory implications for our members'
operations with no positive effect on the bats.
Accordingly, we offer the following specific comments:
1. It is Premature and Scientifically Inappropriate to List the NLE
Species Without Peer Reviewed Data.
The Endangered Species Act requires the USFWS to determine the
status of a species on the basis of the best scientific and commercial
data available after conducting a review of the status of the species.
In the Federal Register notice, USFWS indicates they ``will seek peer
review'' and are ``seeking comments from knowledgeable individuals with
scientific expertise to review our analysis of the best available
science and application of that science and to provide any additional
scientific information to improve this proposed rule.'' The notice goes
on to state that ``our final determination may differ from this
proposal.'' \1\
---------------------------------------------------------------------------
\1\ Ibid.
Because the proposed rule has not undergone peer review, it may not
reflect the best scientific and commercial data available, as required
by Section 4 of the Act. The peer review process ensures that any
proposed listing meets the requirements of the Endangered Species Act
of 1973 and allows a critique of USFWS' work, as well as ensuring that
any additional scientific information is considered by the USFWS ahead
---------------------------------------------------------------------------
of their actions.
The June 2012 USFWS document entitled, ``Information Quality
Guidelines and Peer Review,'' \2\ outlines the USFWS policy and
procedures for reviewing, substantiating, and correcting the quality of
information it disseminates to the public. Part VI contains information
quality methods and the USFWS guidance on peer review of influential
information. This section expands on peer review being conducted prior
to the public comment period, specifically stating, ``. . . peer review
prior to the public comment period should be considered.'' \3\
---------------------------------------------------------------------------
\2\ Found at: http://www.fws.gov/informationquality/topics/
InformationQualityGuidelinesrevised 6_6_12.pdf.
\3\ Ibid, page 12.
We also agree that this step should occur before the USFWS proposes
to list the species in the Federal Register as Threatened or Endangered
---------------------------------------------------------------------------
and as such, the decision to list is premature.
The USFWS' Information Quality Guidelines and Peer Review also
recognizes the White House Office of Management and Budget's Final
Information Quality Bulletin for Peer Review.\4\ That document
discusses the timing of peer reviews suggesting early peer review leads
to a better end product, and recognizes that ``peer review should
precede an opportunity for public comment to ensure that the public
receives the most scientifically strong product (rather than one that
may change substantially as a result of peer reviewer suggestions.''
\5\
---------------------------------------------------------------------------
\4\ Found at: http://www.cio.noaa.gov/services_programs/pdfs/
OMB_Peer_Review_Bulletin_m05-03.pdf.
\5\ Ibid, page 21.
The Endangered Species Act of 1973 requires USFWS to base its
decisions on best available science. Given we do not have the data, we
are unable to discern if the data USFWS utilized for these proposed
actions went through peer review. Again, USFWS should not be basing its
proposed listing decisions on data that has not been subjected to the
peer review process by qualified specialists.
2. There is Insufficient and Incomplete Data to List the NLE and to
Allow for Substantive Comments.
Throughout the entire Federal Register notice discussion, the USFWS
acknowledges and notes there are many unknowns with respect to the NLE
and WNS. For example, there is insufficient data regarding:
NLE hibernation patterns
NLE migration patterns
NLE population mortality and susceptibility effects due to
WNS
The overall understanding of WNS and its effects on bats
This information is vitally important to the determination of the
proper course of action regarding the NLE. And while we understand that
it is the USFWS' mission to protect endangered and threatened species,
for USFWS to act on a petition to list the NLE bat species based on
inadequate data and without any demonstration that the listing would
preserve or assist in the recovery of the NLE species is not a prudent
use of the Service's time and budget--not to mention the resulting
significant economic impact to the Pennsylvania coal industry to comply
with the requirements that would result from the listing of the NLE
bat.
Further, we are very concerned at the references in the Notice to
``unpublished data from Pennsylvania'' and data that has not been peer
reviewed. In an attempt to provide substantive and meaningful comments,
PCA requested the unpublished data for Pennsylvania from the USFWS via
email and received no data. We verbally requested the same information
from the Pennsylvania Game Commission and also received no information.
It is impossible for us to provide meaningful, scientific-based
information to the USFWS without access to all available data.
However, as part of PCA's September 10, 2012 comments submitted to
the Pennsylvania Game Commission in response to its Notice of Request
for Comments relating to possible measures to protect the NLE and two
other bats,\6\ we provide you with the following analysis which
illustrates that Pennsylvania data calls into question support for an
endangered listing for the NLE.
---------------------------------------------------------------------------
\6\ Found at: http://www.pabulletin.com/secure/data/vol42/42-32/
1555.html.
---------------------------------------------------------------------------
As noted in our comments to the Pennsylvania Game Commission, a
preliminary review of bat capture data from four projects which were to
be reported in 2012 to the Pennsylvania Game Commission by a PCA member
company indicates that two of the bat species--the Little Brown and the
NLE, remain common throughout the western portion of the state where
the surveys were conducted. The data was recorded from 547 bat captures
at 80 net sites in Armstrong, Indiana, Clarion, Venango, Somerset, and
Jefferson Counties. As can be seen in the chart below, approximately
27% of the bats captured were NLE and approximately 26% were Little
Brown bats. Both species were captured at an average of 64% of the
sites that were netted on these four projects.
Moreover, summer bat netting data from the PA Game Commission
(Attachment, named ``Exhibit 2'') for the years 2009 and 2010-11 \7\
indicates that the number of NLE captured in 2010-11 was 8,554, which
is a substantial increase over the 4,298 NLE netted during the prior
period. Also, a summary of bat survey contractor netting activities for
Pennsylvania from 1999 through 2010 (Attachment, named ``Exhibit 3'')
actually evidences an upward trend in captures of the NLE.
---------------------------------------------------------------------------
\7\ At the time of our September 10, 2012 comments, all the 2011
data had not yet been reviewed and tabulated. Even assuming there were
not additional bats added to the 2010-2011 total (a most unlikely
assumption), the data for the period 2009-2011 does not reflect a
decline in the NLE population.
---------------------------------------------------------------------------
2012 PA
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
3. The NLE is Already Protected Due to Extensive Protection
Measures for Other Bats.
The USFWS states in the Federal Register notice that conservation
methods are already underway to protect the NLE, and
``Although there are various forms of habitat destruction and
disturbance that present potential adverse effects to the
northern long-eared bat, this is not considered the predominant
threat to the species. Even if all habitat-related stressors
were eliminated or minimized, the significant effects of WNS on
the northern long-eared bat would still be present.'' \8\
---------------------------------------------------------------------------
\8\ 78 Fed. Reg. 61046 (October 2, 2013), 61061.
The Federal Register Notice itself further states that ``the
eastern small-footed bat and northern long-eared bat have likely
benefited from the protections given to the Indiana bat and its winter
habitat, as both species' ranges overlap significantly with the Indiana
bat's range.'' \9\
---------------------------------------------------------------------------
\9\ Ibid, 61058.
---------------------------------------------------------------------------
In PCA's September 30, 2012 comments to the Pennsylvania Game
Commission in response to its Notice of Request for Comments relating
to possible measures to protect the NLE and two other bats, we indicate
that extensive protections already afforded to the state- and
federally-listed Indiana Bat are benefiting the above bat species.
Before a permit to conduct coal mining activities in Pennsylvania
can be issued, a diversity index search must be conducted to determine
whether the area of the proposed activity is located within a 10-mile
radii of any locations where Indiana Bats hibernated, were captured, or
where maternity roosting occurred.
If the project is located for example within a 10-mile radius of
one of the 19 known Indiana Bat hibernacula as alleged by the
Pennsylvania Game Commission, the applicant must submit a Protection
and Enhancement Plan which, among other things, precludes the applicant
from cutting any trees during specific months of the year and which
further obligates the applicant to implement specific measures to
protect and enhance the Indiana Bat.
Given that the NLE appear to share hibernacula with the Indiana
Bat, and significant protective measures are already being implemented
to protect the Indiana Bat, by default, the NLE. The data we discussed
above from our September 30, 2012 comments to the PGC supports this
assertion.
As an example, Fayette County in southwestern Pennsylvania
allegedly has two Indiana Bat hibernacula. Drawing a 10-mile radius
around each location (which does not appear to overlap), you encompass
an area containing approximately 402,000 acres, or almost 80% of
Fayette County's total area of approximately 510,000 acres. PCA asserts
the existing Indiana Bat conservation management measures are, by
default, already protecting the NLE species in Fayette County. A
similar result is present in other Pennsylvania counties where mineral
extraction occurs, including Somerset, Beaver and Lawrence Counties.
Indeed, even accounting for some overlap in the protective radii
around the aforementioned 19 known Indiana Bat hibernacula, the total
amount of protected bat habitat in Pennsylvania already totals over
3,000,000 acres at a minimum, or close to ten percent of Pennsylvania.
Add in all 68 of the ``special concern'' hibernacula periodically
monitored by the Pennsylvania Game Commission, the amount of protected
area increases to almost 49 percent of Pennsylvania.
Because the range of the NLE in Pennsylvania overlaps with the
Indiana Bat, according to the data PCA has available to us, all
conservation management efforts that are currently utilized here in
Pennsylvania to protect the Indiana Bat, serve to protect the NLE as
well.
4. Bat Conservation Management Actions Need to Address WNS.
We are aware of the requirements to provide a means for listing
species as endangered and giving them limited protection, and the
associated conservation and recovery planning within the context of the
Endangered Species Act. However, the connection between conservation
management actions for the NLE bat, and bats in general, with the
primary threat of WNS are out of sync. USFWS states:
``no other threat is as severe and immediate to the northern
long-eared bat's persistence as the disease, white-nose
syndrome (WNS).'' \10\
---------------------------------------------------------------------------
\10\ Ibid.
---------------------------------------------------------------------------
USFWS further states,
``Although there are various forms of habitat destruction and
disturbance that present potential adverse effects to the
northern long-eared bat, this is not considered the predominant
threat to the species. Even if all habitat-related stressors
were eliminated or minimized, the significant effects of WNS on
the northern long-eared bat would still be present.'' \11\
---------------------------------------------------------------------------
\11\ Ibid, 61061.
---------------------------------------------------------------------------
And,
``Although conservation efforts have been undertaken to help
reduce the spread of the disease through human-aided
transmission, these efforts have only been in place for a few
years and it is too early to determine how effective they are
in decreasing the rate of spread.'' \12\
---------------------------------------------------------------------------
\12\ Ibid, 61066.
Furthermore, information on USFWS' website admits to a lack of
knowledge surrounding WNS and its cause.\13\
---------------------------------------------------------------------------
\13\ http://www.fws.gov/northeast/pdf/white-nosefaqs.pdf.
---------------------------------------------------------------------------
Pennsylvania coal mining activities typically are not of the type
that would compromise bat habitat and reproduction areas. Yet potential
permit-related restrictions on our regulated members due to
conservation management measures would impose resource burdens that
would fail to address the primary driver behind this proposed listing
by USFWS--the effect of WNS on NLE.
Given this, we suggest the USFWS' efforts should be directed to
completing additional research to determine the exact original cause of
WNS, possible treatment strategies for bats, assessing under what
conditions the fungus is transmitted and how it spreads, determining
what the optimal environmental conditions are that allow the growth and
transmission of the fungus, determining what is driving the spread of
the fungus, and determining the differences in those colonies affected
and unaffected by WNS. Only when this critical information is known
would USFWS then be able to determine appropriate listing actions, if
necessary. It is inappropriate and scientifically unwarranted to take
action to list the NLE without this knowledge.
5. Lack of Information Regarding Critical Habitat
In the Federal Register notice, USFWS identifies the situations at
50 CFR 424.12(a)(2) under which critical habitat is not determinable:
Information sufficient to perform required analyses of the
impacts of the designation is lacking, or
the biological needs of the species are not sufficiently
well known to permit identification of an area as critical
habitat.
The notice goes on,
``We reviewed the available information pertaining to the
biological needs of the species and habitat characteristics
where this species is located. Since information regarding the
biological needs of the species is not sufficiently well known
to permit identification of areas as critical habitat, we
conclude that the designation of critical habitat is not
determinable for the northern long-eared bat at this time.''
These statements, combined with other statements found throughout
the Federal Register notice serve to reinforce PCA's position that
existing data does not support an endangered listing and there is
insufficient data to support a Threatened listing of the NLE.
The goal of the Endangered Species Act of 1973 is to protect and
preserve species. It is irrelevant whether critical habitat is
``determinable'' because no critical habitat designation will serve to
protect any bats against WNS.
6. USFWS Decision NOT to List Eastern Small-footed Bat is Appropriate.
In the Federal Register notice, the USFWS indicates the factors
contributing to their decision NOT to list the Eastern Small-footed bat
as threatened or endangered including:
Eastern Small-footed bats appear to be less susceptible to
WNS than other cave bat species, (these factors include
hibernacula selection, total time spent hibernating in
hibernacula, location within the hibernacula regarding
lower humidity and higher temperature fluctuations),
solitary roosting behavior,
insignificant population declines,
existing State listings, and
less susceptible to mortalities caused by man-made
equipment.
We support the USFWS' position NOT to list the Eastern Small-footed
bat as threatened or endangered.
7. USFWS Agreements with External Parties are Precluding Solid Science.
On a bigger picture, the USFWS signed an agreement with the Center
for Biological Diversity on July 12, 2011 requiring the Agency to make
initial or final decisions on whether to add hundreds of imperiled
plants and animals to the Endangered Species list by 2018.
The USFWS subsequently developed a Listing Program Work Plan to
address the very large increase in the number of species petitioned for
listing.\14\ According to the USFWS' Listing Program Work Plan
Questions and Answers,
---------------------------------------------------------------------------
\14\ http://www.fws.gov/Endangered/improving_ESA/
listing_workplan_FY13-18.html.
``. . . the Service was petitioned to list an average of 20
species per year from 1994 to 2006. By contrast, since 2007,
the Service has been petitioned to list more than 1,250
species, nearly as many species as the agency listed during the
previous 30 years of administering the ESA. The Service was
petitioned to list 695 species in 2007, 56 species in 2008, 63
species in 2009, and 451 species in 2010 . . .. The deadlines
for responding to this large increase in petitions, driven in
large part by these megapetitions, have overwhelmed the
capacity of the Listing Program and required diverting
significant human and financial listing resources to the task
of completing findings for the petitioned species, to such an
the extent that no new listing determinations were initiated in
FY 2010. The Service published final listing determinations for
51 species in FY10, and 13 species in FY11. Most were listed
with a concurrent critical habitat designation.'' \15\
---------------------------------------------------------------------------
\15\ http://www.fws.gov/endangered/improving_esa/
FWS%20Listing%20Program%20Work %20Plan%20FAQs%20FINAL.PDF.
We believe the workload imposed by these mega-petitions is
precluding good science in USFWS' attempts to avoid legal
repercussions. Furthermore, we suggest that USFWS financial resources
that are being expended in these legal actions could better be
utilized, for example, on WNS research.
CONCLUSION
Based on the above, we disagree with the USFWS' proposed rule to
list the NLE species as Endangered and believe not enough information
is known to list it as Threatened. We support the decision not to list
the Eastern Small-footed Bat.
We appreciate consideration of our comments. Should you have any
questions or comments, please do not hesitate to contact us.
Sincerely,
George Ellis,
President, PCA.
Attachments: Exhibits 2 and 3
EXHIBIT 2
County Summary of Statewide Bat Counts for Period 2009-2011
Taken From PGC Reports
(only a partial count for year 2011)
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
EXHIBIT 3
Summary of Contractor Activities 1999-2011 Taken From PGC
Reports
(only a partial count for year 2011)
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
__
The Chairman. Thank you very much for your testimony.
Now recognize Ms. Mollie Matteson, Senior Scientist with
the Center for Biological Diversity out of Richmond, Vermont.
Recognized for 5 minutes.
STATEMENT OF MOLLIE MATTESON, SENIOR SCIENTIST, CENTER FOR
BIOLOGICAL DIVERSITY, RICHMOND, VERMONT
Ms. Matteson. Thank you, Chairman Hastings, Representative
Thompson and Representative Perry. Thank you for the
opportunity to testify today.
My name is Mollie Matteson and I am Senior Scientist at the
Center for Biological Diversity.
The Northern Long-Eared Bat faces a grave crisis. Its
plummeting populations over the last 8 years have put it on the
fast track to extinction. It is the very kind of wildlife that
needs the protection of the Endangered Species Act, just like
the Bald Eagle, the Peregrine Falcon, Grizzly Bear, and other
emblematic species of our Nation that have benefited greatly
from the protection of the Act in the past.
Prior to the advent of the fungal disease, White Nose
Syndrome, the Northern Long-Eared Bat was rare, patchily
distributed throughout its range, and almost never found in
large numbers anywhere. Scientists have recognized that this
species is vulnerable to a number of threats including habitat
loss, and in fact, this bat may have been in decline even
before the arrival of White Nose Syndrome.
Since 2006, when White Nose Syndrome was first documented,
the evidence has been clear; the Northern Long-Eared Bat
population has plummeted. In the Northeast, once a stronghold
for the species, scientists have estimated that the population
has declined by 99 percent. In many bat caves, it has
disappeared altogether. The disease is now in 25 states, taking
in all of the most important territory for this species.
According to peer-reviewed scientific models, White Nose
Syndrome will eventually spread across most of North America.
Prominent bat experts have referred to the precipitous loss
of the Northern Long-Eared Bat, and six other bat species also
affected by White Nose Syndrome, as the worst wildlife health
crisis in memory. Endangered Species Act protection offers the
best and perhaps only means for saving this species from
extinction. The Act has a 99 percent success rate at keeping
imperiled species from going extinct. The scale of this bat
extinction crisis is not something that any one state has the
capacity to address. Only the Endangered Species Act provides
the long-term and broad-scale framework for conservation and
recovery that is required to restore the Northern Long-Eared
Bat to healthy numbers once again.
The Endangered Species Act is already working to recover
hundreds of species in the eastern and central United States,
including several bats, as well as birds, fish, turtles and
many other creatures that not only add to the richness and
beauty of this part of the world, but also are vital to
environmental health and ultimately long-term social and
economic well-being. As with currently protected species, the
rules protecting the Northern Long-Eared Bat will have built-in
flexibility that allows sustainable and responsible
development.
Scientists estimate that bats provide billions of dollars
in crop protection services across the United States. The
Northern Long-Eared Bat controls moths and beetle pests that
attack timber and crops. Without this bat, the challenges
farmers and the timber industry face will grow, not lessen.
Because the Northern Long-Eared Bat is so depleted, it is
important that we safeguard survivors from as much harm as
possible, including harm to their critical habitat. Responsible
environmental stewardship calls for this approach. This is what
the Endangered Species Act is designed to promote, and this is
what Americans wish the Act to do; to protect for future
generations the diverse and magnificent natural treasures of
this Nation.
Thank you very much.
[The prepared statement of Ms. Matteson follows:]
Prepared Statement of Mollie Matteson, M.S., Senior Scientist, Center
for Biological Diversity
introduction
The northern long-eared bat faces a grave crisis. Its plummeting
populations over the last 8 years have put it on the fast track to
extinction. It is the very kind of wildlife that needs the protection
of the Endangered Species Act, just like the wide-ranging bald eagle,
peregrine falcon, grizzly bear, and other emblematic species of our
Nation that have benefited greatly from the crucial protection of the
Endangered Species Act in the past.
Prior to the advent of the fungal disease, white-nose syndrome, the
northern long-eared bat was rare, patchily distributed throughout its
range, and almost never found in large numbers anywhere. Scientists
recognized the species as vulnerable to a number of threats, such as
habitat loss, and it may have been in decline even before the arrival
of the disease.\1\
---------------------------------------------------------------------------
\1\ Ingersoll, T.E., B.J. Sewall and S.K. Amelon. 2013. Improved
analysis of long-term monitoring data demonstrates marked regional
declines of bat populations in the eastern United States. PLoS ONE
8(6): e65907. doi:10.1371/journal.pone.0065907.
---------------------------------------------------------------------------
However, since 2006, when white-nose syndrome was first documented
in North America, the trends have been clear: the population of the
northern long-eared bat has plummeted. In the Northeast, once a
stronghold for the species, the population has declined by an estimated
99 percent. In many bat caves, it has disappeared altogether. The
disease is now in 25 states, ravaging bat populations from New England,
to the Mid-Atlantic and Midwest, to the South. These affected areas
take in all of the most important territory for the species. White-nose
syndrome continues to advance, and according to scientific models, will
eventually spread across most of North America.
Prominent bat experts have referred to the precipitous loss of the
northern long-eared bat, and six other bat species also affected by
white-nose syndrome, as the ``worst wildlife health crisis in memory.''
The Endangered Species Act offers the best and perhaps only means for
saving the northern long-eared bat. The Act has a 99 percent success
rate at keeping species from the brink of extinction. Further, the
scale of the problem is not something that any one state has the
capacity to address. Only the Endangered Species Act provides the long-
term and broad scale framework for conservation and recovery that is
required to restore the northern long-eared bat to healthy numbers once
again.
The Endangered Species Act is already working to recover hundreds
of species in the eastern and central United States, including the
Indiana bat and Virginia big-eared bat, as well as birds, fish,
turtles, and many other creatures that not only add to the richness and
beauty of this part of the world, but also are vital to environmental
health and ultimately the long-term social and economic well-being of
our society. As with those other federally listed species, the rules
protecting the northern long-eared bat will have built-in flexibility
that allows sustainable and responsible development.
Scientists estimate that bats provide billions of dollars in crop
protection services across the United States. The insect-eating
northern long-eared bat provides a valuable population check on moths
and beetles that may attack timber and crops. Without this bat, the
challenges farmers and the timber industry face will grow, not lessen.
Because the northern long-eared bat is so depleted, it is important
that we safeguard survivors from as much harm as possible, including
harm to their critical habitat. Responsible environmental stewardship
calls for this approach. That is what the Endangered Species Act is
designed to promote, and for the majority of Americans, this is what
they wish the Act to do--to protect for future generations the diverse
and magnificent natural treasures of this Nation.
path to endangerment
Since 2006, the northern long-eared bat (Myotis septentrionalis)
has declined dramatically as a result of the exotic, invasive fungal
disease known as white-nose syndrome (WNS). In the Northeast, where the
disease has been present the longest, the species has plummeted 99
percent.\2\ However, WNS is not the only threat the species faces.
Scientists have evidence that the northern long-eared bat was in
decline prior to the onset of WNS, possibly due to factors such as
habitat destruction and fragmentation, environmental toxins, and
climate change.\3\ Now, WNS may be interacting with these other dangers
to cause a downward spiral that may soon become irreversible. For the
perpetuation of the species it is vital that the scarce survivors are
safeguarded from as many harms as possible. WNS has caused the sudden
and dramatic shrinkage of the northern long-eared bat population, but
it may well be these other factors, if left unaddressed and
unmitigated, that could finish the species off. The northern long-eared
bat is clearly in danger of extinction throughout all or a significant
portion of its range, and as a matter of both law and responsible
conservation policy, the FWS must designate the species as endangered.
---------------------------------------------------------------------------
\2\ U.S. Fish and Wildlife Service. 2013. Proposed Rule: 12-Month
Finding on a Petition to List the Eastern Small-Footed Bat and the
Northern Long-Eared Bat as Endangered or Threatened Species; Listing
the Northern Long-Eared Bat as an Endangered Species. Docket No. FWS-
R5-ES-2011-0024, 78 FR 61045. Oct. 2, 2013.
\3\ Ingersoll, T.E., B.J. Sewall and S.K. Amelon. 2013. Improved
analysis of long-term monitoring data demonstrates marked regional
declines of bat populations in the eastern United States. PLoS ONE
8(6): e65907. doi:10.1371/journal.pone.0065907.
---------------------------------------------------------------------------
The Center for Biological Diversity submitted a citizen petition to
list the eastern small-footed bat and the northern long-eared bat on
January 21, 2010.\4\ On October 2, 2013, the U.S. Fish and Wildlife
Service (FWS) proposed to list the northern long-eared bat (Myotis
septentrionalis) as endangered.\5\ The FWS then decided earlier this
summer, primarily in response to listing opponents, to extend the
period for final determination another 6 months, to April 2, 2015.
---------------------------------------------------------------------------
\4\ Center for Biological Diversity. 2010. Petition to list the
eastern small-footed bat Myotis leibii and northern long-eared bat
Myotis septentrionalis as threatened or endangered under the Endangered
Species Act. 61 pp. http://www.biologicaldiversity.org/species/mammals/
eastern_small-footed_bat/pdfs/petition-Myotisleibii-
Myotisseptentrionalis.pdf.
\5\ FWS, ibid.
---------------------------------------------------------------------------
species' precipitous decline warrants endangered listing
Populations of the northern long-eared bat have plummeted as a
result of WNS. In the northeastern United States, where WNS has been
present longest in North America, winter surveys demonstrate that the
northern long-eared bat has declined by 99 percent. Summer surveys are
generally in line with these findings. The Northeast is also the region
in which the species was historically most abundant; a decline in that
region has a disproportionately large impact on the species' overall
status. No solution yet exists for WNS. So long as this is the case,
the disease will likely spread and cause similar mortality among
northern long-eared bats in other regions. Although the primary threat
to the northern long-eared bat is WNS, it is an established biological
principle that small populations of a species are more vulnerable to
discrete threats than large populations are. For that reason, the
severely reduced northern long-eared bat population is more at risk
from other threats, including those from human activities, than prior
to WNS.
We take issue with the claims of those calling for FWS to list the
northern long-eared bat as threatened rather than endangered.
Population declines of more than 90 percent in the core of its range,
with more declines predicted due to WNS, constitute a present ``danger
of extinction throughout all or a significant portion of its range.''
The decreases do not represent a mere ``[likelihood] to become an
endangered species within the foreseeable future throughout all or a
significant portion of its range.'' In other words, for the northern
long-eared bat, endangerment is not just a possibility on the horizon--
endangerment is already here.
non-existent or inadequate protective measures
No regulations or conservation plans currently exist that address
the widespread and severe decline of the northern long-eared bat, and
counter the various threats the species faces. The species is listed as
state endangered or threatened in several states: ``endangered'' in
Delaware, Massachusetts, and Vermont; ``threatened'' in Wisconsin;
proposed for endangered in Maine. However, it has no protected status
or only minimal recognition as a vulnerable species in many more states
within its range. Unfortunately, none of the state listings provide
strong regulatory protection against threats such as destruction of
forested roosting habitat that, together with WNS, could lead to the
extinction of the species. State-level protections also do not provide
range-wide recovery planning, habitat conservation plans for activities
that may take listed bats, or Federal funding for research and
management.
Unfortunately, some state natural resource agencies in the upper
Midwest have expressed opposition to the needed Federal protection of
northern long-eared bats.\6\ Directors of Minnesota, Wisconsin,
Michigan and Indiana natural resource agencies requested in an April
2014 letter to FWS that the agency delay protection of the northern
long-eared bat because of the potential impact on timber operations and
private landowners. Yet, none of these states have their own programs
to conserve and recover the species that are equivalent to the
protections provided by Federal ESA listing.
---------------------------------------------------------------------------
\6\ http://www.jsonline.com/news/wisconsin/states-raise-concerns-
about-bat-protection-plan-b99253534z1-256378541.html.
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wns continues to spread and northern long-eared bat continues to
decline
The U.S. Geological Survey/National Wildlife Health Center reported
this April \7\ that WNS spread to three new states--Arkansas, Michigan,
and Wisconsin--in the winter of 2013-14. The disease also continued to
spread within the states where it had been previously documented,
intensifying its impact in the Midwest, Southeast, and South. In
Canada, the disease spread last winter within Nova Scotia, New
Brunswick, Quebec and Ontario. The extent of the disease now reaches
from the 49th parallel in Quebec south to Paulding County, Georgia, and
from Prince Edward Island west almost to the Missouri/Kansas border.
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\7\ http://www.nwhc.usgs.gov/publications/
wildlife_health_bulletins/WHB_2014-04_WNS_ Updates.pdf.
The following information was reported at the 2014 Northeast Bat
Working Group \8\ annual meeting in January:
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\8\ http://www.nebwg.org/AnnualMeetings/2014/index.html.
In summer mist net surveys in New York, northern long-
eared bats have notably declined over the last several
years. Acoustic surveys show a dramatic decline of all
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Myotis species, which include the northern long-eared bat.
In Pennsylvania, numbers of bats at summer roosts are
down, as are numbers of bats at hibernacula. The northern
long-eared bat was down by 99.2 percent in hibernacula
surveys in 2013, as compared to pre-WNS counts. The number
of contractor-conducted net surveys has grown dramatically
from 390 in 2006 to 1,087 in 2012, yet the capture rate of
northern long-eared bats relative to its pre-WNS numbers
has continued to go down.
In Virginia, the number of northern long-eared bats caught
during summer mist net surveys has gone down by 96 percent
compared to pre-WNS surveys.
In West Virginia, the northern long-eared bat was the most
common bat species found in summer mist net surveys prior
to WNS (33 percent). However, now only 20 percent of the
bats captured are northern long-eared bats. (The report did
not indicate whether total number of all bats captured has
also declined, but this seems likely).
A recent paper on pre- and post-WNS bat activity on the Fernow
Experimental Forest in West Virginia reports: ``Activity of little
brown myotis, northern myotis, and Indiana myotis was lower post-WNS
than pre-WNS, consistent with the species' precipitous declines
previously reported in WNS-affected areas in the Northeast and upper
portions of the Mid-Atlantic.'' \9\ This study was based on summer
acoustic surveys.
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\9\ Johnson et al. 2013. Nightly and yearly bat activity before and
after WNS on the Fernow Experimental Forest in West Virginia.
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Some opponents of endangered species listing have asserted that
recent summer bat surveys, unlike hibernacula surveys, indicate that
the northern long-eared bat is still abundant. However, publicly
available data such as studies and surveys cited above paint a clear
picture of ongoing and dramatic decline of the species.
scientific uncertainty and the best available science
The best, currently available science went into the FWS'
recommendation to list the northern long-eared bat as endangered, and
that decision was peer-reviewed and supported by leading bat
scientists. There is no genuine scientific uncertainty about whether
this bat is in danger of extinction in all or a significant part of its
range. To the extent that incomplete information about the species,
white-nose syndrome, and other threats still exists, this is a reality
of the scientific process. A listing decision cannot wait until
complete scientific research has been done and no amount of uncertainty
remains. To delay such a decision while threats are ongoing, as they
are for the northern long-eared bat, would be ecologically and fiscally
irresponsible because the status of the species would likely worsen in
the meantime, and require even more aggressive, potentially expensive,
action down the line to save it from extinction.
the need for addressing all harms
White-nose syndrome is the primary threat to the northern long-
eared bat. However, it is not the only threat. A small population is
vulnerable to losses of any kind, from any source. Forest clearing and
fragmentation, human disturbance of caves, and environmental toxins,
among others, are other threats to the northern long-eared bat that
need to be addressed if conservation and recovery efforts are to be
effective. Just as a cancer patient would be ill-advised to stop
wearing her seat belt, just because the major threat to her health is
cancer, so too must biologists be able to address potential and likely
harms to the northern long-eared bat, from other sources besides white-
nose syndrome.
conclusion
The northern long-eared bat is in current danger of extinction
throughout a significant portion of its range. Based on the current,
best available scientific information, it qualifies for endangered
status under the Endangered Species Act, and it is in need of that
level of Federal protection to address the profound and various threats
it faces. The Act is a tool that works, a policy that the American
public supports, and in its success at preventing extinction, it is a
gift that we bestow upon future generations.
______
The Chairman. Thank you very much for your testimony.
Now recognize Mr. Martin Melville, Owner of Melville
Forestry Services. And, Mr. Melville, you are recognized for 5
minutes.
STATEMENT OF MARTIN MELVILLE, OWNER, MELVILLE FORESTRY
SERVICES, CENTRE HALL, PENNSYLVANIA
Mr. Melville. Thank you very--I am going to move this thing
closer here. So I was perhaps not as clear on my purpose for
being here. I will say that given the pattern of ESA
implementation by Fish and Wildlife Service, it is likely that
a listing on such a broad scale as the Northern Long-Eared Bat
would significantly impact, perhaps disastrously, as in the
Northwest, my business, my logging and my peers.
I would say that in the reading that I have done in
preparation for this, there is not any indication that ceasing
forest management activities would benefit the bat. It appears
that the bat is a generalist, and really actually kind of does
pretty well when you give it a variety of habitats.
What I heard this morning though is more, so the ESA is 40
years old and it should be updated. And there are some
important parts of it that just really don't seem to work. One
of those was mentioned by our friend from Ford City who
mentioned his inability to build a school. There is a clause in
there somewhere about suitable habitat, and at one SFI
workshop, I asked the facilitator if it was suitable habitat
for a dinosaur, if that was meant that they were protected
there and I couldn't do any work there, and he said, no, that
doesn't apply because they are extinct. But the way that it was
worded, it made it sound very clearly like if it was suitable
habitat, it didn't matter if the animal hadn't been seen there
for hundreds of years, it is still restricted activity.
I see mission creep, I think, although I am not an expert
in ESA, certainly.
I was talking with a friend of mine this morning who is a
log truck driver, and, you know, we live here, our office is
out there, and we have lunch under a tree, and logging is as
much a way of life as it is a mode of employment. And I mean I
think it would not be too far-fetched to suggest that perhaps
loggers should be listed at times.
There are some important considerations, and, for loggers
themselves, we are now, whether we like it or not, members of a
global economy and we must compete on that level. And so our
opportunity to raise our prices to help meet our costs is
virtually nonexistent. We are in competition with hybrid
markets from Eastern Europe and Russia, and now from South
America as well. Capital costs keep going up. Employees are
harder and harder to find. And a recent logging survey showed
that more than 70 percent of the loggers nationwide, but there
would be no reason to doubt that the numbers are similar for
Pennsylvania, were operating at a 3 percent or less margin of
profit. And needless to say, that in itself is not a
sustainable arrangement. So adding another burden to this heap
for something that will arguably not help to benefit the bat
strikes me as sort of arcane or bizarre.
Thank you, friends.
[The prepared statement of Mr. Melville follows:]
Prepared Statement of Martin Melville, Centre Hall, Pennsylvania
Chairman Hastings and distinguished members of the House Natural
Resources Committee, my name is Martin Melville. I am a resident of
Centre Hall, Pennsylvania, received a Bachelor of Science in Forestry
in 1980, and have worked in the forest industry for the past 35 years;
20 years logging and 10 years as proprietor of Melville Forest
Services. I was presented the Pennsylvania ``Outstanding Logger Award''
in 1997 and met the criteria of the Sustainable Forestry Initiative
' program Master Logger in 2004.
I also appear today on behalf of the members of the American
Loggers Council, a national organization representing professional
timber harvesters in 30 States across the United States with whom I
have had an affiliation with for the past several years. I am pleased
to have the opportunity to address the committee on the potential
impacts that could occur should the U.S. Fish and Wildlife Service
(USFWS) list the Northern Long-Eared Bat as a Federal Endangered
Species, but first I would like to throw out a few statistics for you.
The latest numbers that I have been able to gather are from 2012,
taken directly from the American Forest and Paper Association Web site.
For Pennsylvania they are:
Pennsylvania employment numbers in the forest products
industry--50,103
Payroll--$2,622,276
With an estimated 274 manufacturing facilities ranging from
mill work, treating plants, sawmills and paper mills, the total
value of industry shipments in 2012 was $14,815,029,000.00 with
state and local tax payments of $179,000,000.00.
Forests compose 16,577,000 acres in Pennsylvania, covering 57
percent of the state. Of that 16.6 million acres, 11.6 million
are privately held.
As you know, the Northern Long-Eared Bat is experiencing
significant declines in parts of its range due to White Nose Syndrome
(WNS). In its proposed listing, the USFWS has affirmed that WNS is the
most significant threat to the NLEB and the species would most likely
not be imperiled if not for this ``disease'' and that ``habitat
concerns and other anthropogenic factors create no significant effects
alone or in combination.'' 78 Fed. Reg. at 61072 (emphasis added).
USFWS also asserts in its document that when combined with significant
population reductions due to WNS, ``the resulting cumulative effect may
further adversely impact the species''; the only real threat to the
species is clearly a wildlife disease, not habitat modification or
loss.
There is no evidence I am aware of indicating timber harvest
restrictions will improve the NLEB's chances of surviving the WNS which
is leading to the population decline, yet the Interim Conference and
Planning Guidelines issued by the FWS in January of this year suggest a
completely unrealistic, and in my view, unnecessary set of constraints
on forest management during nearly every seasonal period of bat habitat
use. These restrictions include vaguely worded restrictions on
prescribed burning at various times of the year, restrictions on tree
harvesting of all trees larger than 3 inches DBH and larger, and
ambiguous direction to ``Avoid reducing the suitability of forest
patches with known NLEB use.'' In essence, although the species has
been shown to be present in forest with a variety of age classes,
management regimes, and in fact may depend upon management to
perpetuate various habitat features over time, the Guidance seems to
suggest that creating 5-mile radius ``no management'' zones around
known habitat as the best way to conserve bats.
There is no evidence to suggest these measures have anything to do
with the spread of White Nose Syndrome, nor that they would do anything
to prevent very high levels of mortality should WNS spread throughout
the bat's range, as the USFWS speculates it will.
I would argue current forest practices greatly enhance roosting and
rearing habitat. In fact it may be true leaving dead snags and trees
spaced apart from one another, such as those associated with logging,
may separate the NLEB preventing incidental contact which spreads WNS.
This is supported by the fact where WNS is not yet present;
populations of NLEB appear to be quite robust. For instance, the NLEB
is one of the most frequently captured bats in the mist net surveys on
the Black Hills National Forest in South Dakota, one of the most
heavily managed National Forests in the country. In fact it is my
understanding prior to the introduction of WNS, NLEB's were regarded as
``most common'' in the Northeastern portion of their range. States
ranging from Northern New England through the lower portion of the Lake
States and Indiana contain a variety of habitat types, forest
ownerships, and land use practices. This strongly suggests the bat is
not dependent on a particular type of habitat much less a particular
class of trees.
While UFWS may not take economics into consideration when making
decisions, it should recognize the fact it takes dollars generated from
tax paying businesses to have a clean stable environment both socially
and ecologically. The forest products industry is one of the largest
industries in the state of Pennsylvania generating over 14 billion
dollars to our state economy.
As a logger, and part of the forest products industry here in
Pennsylvania, I am committed to continuing forestry practices that
enhance NLEB habitat. Any premature listing of an endangered species,
or listing without taking into account economic considerations to the
state, could have a negative impact to Pennsylvania's Forest Products
Industry, including timberland owners and loggers as well as a
significant impact to our state's economy.
Rural forest dependent communities are still reeling in the
aftermath of the great recession. While housing starts have improved,
they have yet to return to pre-recession levels, and I and those in our
industry that I represent are still struggling.
Over the past several years, I estimate that we have lost
approximately 30 percent of our logging capacity due primarily to the
downturn in the housing markets and the curtailing of mills producing
solid wood products for that market. We are just now beginning to see
some improvement in those markets, but to propose an Endangered Species
listing that is based on a disease rather than loss of habitat, that
would restrict my ability to manage and harvest timber could spell
disaster for my family owned business.
I strongly recommend the emphasis on Northern Long-Eared Bat
protection be focused on stopping the spread of White Nose Syndrome and
not destroying well managed forests or the communities with an ESA
listing that will have no impact on the viability of the species.
Thank you for the opportunity to testify and I would be happy to
try and answer any questions that you might have.
______
The Chairman. Thank you very much for your testimony.
I now recognize Mr. Paul Lyskava, Executive Director of the
Pennsylvania Forest Association. You are recognized for--
Lyskava. Lyskava, is that how you----
Mr. Lyskava. That is correct, yes.
The Chairman. So I blew up the first time, but I recovered
quickly.
Mr. Lyskava. That is OK, Mr. Chairman, members of my family
do the same.
The Chairman. Well, I feel better about that then.
STATEMENT OF PAUL LYSKAVA, EXECUTIVE DIRECTOR, PENNSYLVANIA
FOREST PRODUCTS ASSOCIATION, HARRISBURG, PENNSYLVANIA
Mr. Lyskava. Mr. Chairman, I would like to welcome the
committee to Pennsylvania, which leads the Nation in the
production of hardwood lumber. We are proud that Pennsylvania
hardwoods are valued across the Nation and around the world as
a renewable and sustainably managed resource of high quality
and beauty. With over 17 million acres of forest, Pennsylvania
leads the Nation in the volume of hardwood growing stock.
The decline of the Northern Long-Eared Bat and other cave-
dwelling bat species due to the spread of White Nose Syndrome
is an issue that should be of concern to all. Our organization
supports public and private research efforts to learn more
about White Nose Syndrome, and the efforts of Federal and state
agencies to restrict recreational access to certain caves to
prevent the unintentional spread of White Nose Syndrome by man.
We are also taking steps within our organization to educate
the state's forestry and logging community on bats and White
Nose Syndrome through training offered by our sister
organization, the Pennsylvania Sustainable Forestry Initiative.
We commend the U.S. Fish and Wildlife Service for its decision
to provide a 6-month extension before its final listing
determination, but we believe that this extension still does
not provide sufficient time to address the existing gaps and
conflicting data on Northern Long-Eared Bat populations and
survivability. Until these gaps and conflicts are addressed, we
believe that it is premature for the U.S. Fish and Wildlife
Service to list Northern Long-Eared Bat as endangered.
I would also like to stress, as the other speakers have,
that the most significant threat to the Northern Long-Eared Bat
comes from the White Nose Syndrome Disease, not from lack of
habitat. The U.S. Fish and Wildlife Service, as others have
stated, has gone as far as to state that habitat concerns and
other anthropologic factors create no significant negative
effects to Northern Long-Eared Bat, alone or in combination.
Timber harvesting and other forestry activities are not causing
a decline in the Northern Long-Eared Bat, nor are these
activities associated with White Nose Syndrome.
If Northern Long-Eared Bat is listed as endangered, the
U.S. Fish and Wildlife Service will likely adopt an extensive
set of restrictions on forestry activities and other tree
removal activities. This is because the Endangered Species Act
currently requires the Agency to maintain a focus on habitat
preservation, even if habitat issues are not causing the risk
to the species, as is in the case with Northern Long-Eared Bat.
The current Endangered Species Act is poorly suited at
helping a species which is suffering due to a wildlife disease.
As others have stated, the habitat provisions will likely
include establishing protection zones around hibernacula,
establishing seasonal tree harvesting restrictions during the
summer. In Pennsylvania, these seasonal restrictions could
possibly run from as long as April 1 to November 15. All trees
3 inches diameter, breast height and larger, would be covered
under these harvesting restrictions. There would also be
additional restrictions on other non-harvesting forestry
activities such as proscribed burning. Because the Northern
Long-Eared Bat is a forest generalist, as my colleague just
stated a few moments ago, and was prevalent--and is prevalent
in Pennsylvania pre-White Nose Syndrome, the amount of acreage
in the state impacted by the restrictions will be significant.
As a forest generalist, Mr. Chairman, we mean that the Northern
Long-Eared Bat, during the summer, can roost in a wide variety
of species--big trees, small trees, living trees, dead trees;
in a wide variety of forest types--types of forest landscapes.
Because of this, the data recently developed by the
Pennsylvania Game Commission and Pennsylvania Bureau of
Forestry indicates that as much as 54 percent of Pennsylvania
or 15.8 million acres provides a moderate to high potential
summer habitat use for Northern Long-Eared Bat. This accounts
for much of the forested acres within the state. This also
includes about 88 percent of state forest land, and 84 percent
of state game lands. Additionally, Pennsylvania has 114 known
hibernacula which house Northern Long-Eared Bat. As a result,
as much as 20 percent of the state could be subject to the
additional restrictions applied to--according to the
anticipated hibernacula protection zones.
Mr. Chairman, if implemented, these various forestry
restrictions across such a wide swath of Pennsylvania will
basically decimate the state's forest products industry.
Logging would essentially become a part-time activity across
much of the state. Local supply chains that provide logs to
sawmills, paper mills and other forest products manufacturers
will be disrupted, and it is difficult to conceive a scenario
where larger production facilities will be able to continue to
sustain their operations under such a restricted supply of
logs. Hundreds of operations will close, with the loss of tens
of thousands of jobs.
What is at risk? Currently, Pennsylvania is home to more
than 2,200 forest product establishments, employing
approximately 60,000 Pennsylvanians. The listing of the
Northern Long-Eared Bat will also impact an estimated 533,000
private forest landowners. These folks hold over 70 percent of
the forested acres in the state.
From Pennsylvania forest products alone, the effect of the
Northern Long-Eared Bat will have a significant negative impact
on Pennsylvania's economy. In 2012, the state's wood industry
had over $11 billion in sales, and an overall economic impact
to the state of $19 billion a year. And we are just one of the
states where forestry will be negatively impacted by the
Northern Long-Eared Bat listing. According to the National
Alliance of Forest Owners, 27 of the 38 states touched by the
Northern Long-Eared Bat range have a sizable forest products
industry presence. These states contain a total of more than
372 million acres of public and private timber land. The
industry provides a total of 2.2 million direct, indirect and
induced jobs, with a combined payroll of over $80 billion.
Annual timber sales and manufacturing shipments equate to over
$210 billion, with a combined contribution to the gross
domestic products of those states of over $89 billion.
With that, sir, I will wrap up my testimony, and look
forward to additional questions. Thank you.
[The prepared statement of Mr. Lyskava follows:]
Prepared Statement of Paul Lyskava, Executive Director, Pennsylvania
Forest Products Association
We thank the committee for the opportunity to comment on the
decline of the Northern Long-eared Bat (NLEB) and the consideration of
the species for listing as endangered under the Federal Endangered
Species Act.
We also welcome the committee to Pennsylvania, which leads the
Nation in the production of hardwood lumber. Pennsylvania hardwoods are
valued across the Nation and around the world as a renewable and
sustainably managed resource of high quality and beauty. With 17
million acres of forest, Pennsylvania leads the Nation in the volume of
hardwood growing stock.
The decline of NLEB and other cave dwelling bat species due to the
spread of white nose syndrome disease (WNS) is an issue that should be
of concern for all. PFPA supports public and private research efforts
to learn more about the impacts of WNS on NLEB and other bat species,
and ultimately how to control, mitigate or eliminate WNS as a threat to
bats. PFPA also supports the efforts of Federal and state agencies to
restrict recreational access to critical bat hibernacula at this time
to prevent the unintentional spread of WNS.
We are also taking steps to educate the state's forestry and
logging community on bats and WNS through training offered by our
sister organization, the Pennsylvania Sustainable Forestry Initiative
'.
We commend the U.S. Fish and Wildlife Service (USFWS) for its
decision to provide a 6-month extension before its final listing
determination and the re-opening of the comment period this summer. But
we believe that this extension still does not provide sufficient time
to address the existing gaps and conflicting data on NLEB populations
and survivability.
It seems that the evidence for the proposed listing of the species
as endangered is based primarily upon significant mortality events
documented at a limited number of hibernacula. While these events are
dramatic, it has been documented that NLEB populations remain robust in
portions of the species range, including midwestern and northern states
where WNS is not yet documented. The USFWS and others have also
recognized that NLEB is difficult to accurately count via cave surveys,
given its preference to hibernate singularly and in small groups in
recessed areas such as cracks, crevices and broken stalactites.
Finally, there seems to be a consensus acknowledgment that the NLEB
also hibernates in rock outcroppings in Pennsylvania and other areas,
although these populations are not currently being considered.
Additionally, while the USFWS has cited NLEB mortality of as much
as 99 percent at these hibernaculum die-offs, other research has
suggested that NLEB population declines in Pennsylvania and nearby
states may be as low as 31 percent.
Until these data gaps and conflicts are addressed, we believe that
it is premature for the USFWS to list NLEB as endangered.
We would like to stress that the most significant threat to the
NLEB comes from the WNS disease, not a lack of habitat. This fact is
recognized by the USFWS and many environmental interests. The USFWS has
gone as far as to state that habitat concerns and other anthropogenic
factors create no significant negative effects to NLEB alone or in
combination. Timber harvesting and other forestry activities are not
causing a decline in NLEB, nor are these activities associated with
WNS. As further evidence, the proliferation of WNS and reported decline
of NLEB in Pennsylvania has occurred during a period of historically
low timber harvesting in the state.
We thank the committee for gathering information on the economic
impacts associated with a Federal endangered listing of the NLEB. As
you know, the USFWS will not consider economic or human impacts in its
determination whether to list a species as threatened or endangered.
If NLEB is listed as a federally endangered species, it will be
illegal to kill, harm or harass a NLEB, even if unintentional. The
definition of `take' under the Endangered Species Act includes habitat
impacts that could be an impediment to the essential behavior of the
species, such as roosting or reproduction.
If NLEB is listed as endangered, the most likely USFWS management
protocols, based upon the USFWS Interim Guidance document published in
January 2014, will be an extensive set of restrictions on forestry
activities and other tree removals. This includes establishing 5-mile
protection zones around known hibernacula and establishing seasonal
tree harvesting restrictions on bats summer habitat. In Pennsylvania,
these seasonal restrictions could possibly run from April 1 to November
15. All trees 3" DBH and larger would be covered by these harvesting
restrictions. There would also likely be additional restrictions on
other non-harvesting forestry activities, such as prescribed burning.
The NLEB is a forest generalist during the summer, utilizing a wide
variety of forest age classes, tree species, tree sizes, living and
dead trees, as well as various man-made structures. For this reason and
the frequency of its occurrence pre-WNS, the amount of acreage in
Pennsylvania impacted by these restrictions will be significant. Data
recently developed for the Pennsylvania Game Commission and
Pennsylvania Bureau of Forestry indicates that 54 percent of
Pennsylvania (15.8 million acres) provides moderate to high potential
summer use habitat for the NLEB, which accounts for much of the
forested acres in the state. This includes 88 percent of State Forests
and 84 percent of State Game Lands.
Pennsylvania has 114 hibernacula known to house NLEB. As a result,
as much as 20 percent of the state could be subject to the additional
restrictions applied to the anticipated hibernacula protection zones.
If implemented, these various forestry restrictions across such a
wide swath of Pennsylvania will decimate the state's forest products
industry.
During the fraction of the year that forestry will be unimpeded by
these NLEB restrictions, Pennsylvania's forestry community is already
subject to a variety of mandated, encouraged and voluntary restrictions
on timber harvesting activities. This includes hunting seasons; forest
roads closed or with plowing restrictions during winter to support
snowmobile activities; best practices that encourage minimizing the
transport of logs during the spring freeze/thaw period when paved roads
are most susceptible to damage; and periods in the spring when it is
too wet to log.
As a result, logging would essentially become a part-time activity
across much of Pennsylvania, unencumbered for only a fraction of the
year. The owners and employees of these logging companies will not be
able to continue their operations in this fashion. The local supply
chain that provides logs to sawmills, paper mills and other forest
product manufacturers will be disrupted. It is difficult to conceive of
a scenario where larger production facilities will be able to sustain
operations under such a restricted supply of logs.
Even secondary forest product manufacturers of products such as
cabinets, flooring, millwork, and pallets will come to find
Pennsylvania as an uncompetitive place to base operations, as the local
supply of hardwood lumber dries up when the sawmills close.
Currently, Pennsylvania is home to more than 2,200 forest product
establishments, employing approximately 60,000 Pennsylvanians. This is
about 10 percent of the state's manufacturing workforce. The forest
product industry has a presence in every county of the Commonwealth.
The listing of the NLEB as an endangered species and implementation
of the suggested forestry restrictions will result in the loss of tens
of thousands of these jobs and the closing of hundreds of businesses.
Most of the jobs lost will be in forestry, logging and
manufacturing, paying middle class wages and above. Most establishments
that will be forced to close will be owned by hardworking individual
entrepreneurs and families, some of which have been in the forest
product business for generations.
The listing of NLEB as endangered will impact forest landowners as
well. Pennsylvania contains nearly 17 million acres of forest. Nearly
30 percent of this acreage (4.8 million acres) is publically owned. An
estimated 533,000 private owners hold over 70 percent of the forested
acres (11.7 million acres) in Pennsylvania. Families and individuals
are the dominant group in this private category, accounting for 54
percent (9.6 million acres) of forest in Pennsylvania. The listing of
NLEB and associated restrictions will impede public and private
landowners from their desired and necessary forestry practices.
Furthermore, a collapse of the state's forest products industry will
lower the demand for logs, decreasing the value of timber on both
public and private lands. Any disincentive to maintain lands as working
forests provides an incentive for this land to be permanently converted
to non-forest uses.
From forestry and forest products alone, the effect of the NLEB
listing will have a significant negative impact on Pennsylvania's
economy. In 2012, the state's wood industry had $11.5 billion in sales
and an overall total economic impact of $19 billion contributed to the
state's economy. This included total direct, indirect and induced
employment of over 98,000 individuals, with $5.0 billion in wages and
salaries earned. The anticipated loss of forest product business and
jobs will significantly impact these figures. Local impacts will be
even more dramatic in the communities where forestry and forest
products are the leading employer.
Pennsylvania is just one of many states where forestry will be
negatively impacted by an NLEB listing. According to the National
Alliance of Forest Owners, 27 of the 38 states touched by the NLEB
range have a sizable forest products industry presence. These states
contain a total of 372,535,969 acres of public and private timberland.
The industry provides a total of 2.2 million direct, indirect, and
induced jobs with a combined payroll of $80 billion. Annual timber
sales and manufacturing shipments equaled $210.7 billion, with a
combined contribution to state GDPs of $89 billion.
The negative impacts of a NLEB listing are not only economic. The
associated forestry restrictions will create a significant impediment
to public and private forest owners seeking to improve the forest
habitat for other species, including other listed species and other bat
species being negatively impacted by WNS.
In Pennsylvania, for example, the state's Game Commission and
Department of Conservation and Natural Resources are working on a
habitat conservation plan that will improve forest habitat for the
benefit of the endangered Indiana Bat. The forest management
restrictions suggested for a NLEB listing may make this plan
unfeasible.
The restrictions will also create an obstacle for landowners to
engage in needed forest management practices to maintain forest health
and address the impacts of forest diseases and invasive pests. A
endangered listing of NLEB will lead to a general decline in the health
of Pennsylvania's forests.
In conclusion, the habitat protection provisions associated with an
endangered listing of the NLEB will have dramatic negative consequences
for Pennsylvania's forestry industry, its forest landowners, the
state's economy and the forest habitat itself--all while providing no
benefit to addressing the impact of WNS that threatens the NLEB.
The USFWS needs to forego any mandated restrictions on forest
management practices. The USFWS needs to work with other Federal
agencies, state wildlife and forestry agencies and other stakeholder to
fill the gaps in the existing data and understanding of NLEB and WNS.
Finally, the USFWS and others need to remain focused on the research
and efforts on the control and elimination of the WNS that is the
actual threat to NLEB and other bat species.
Thank you again for this opportunity to comment on this important
matter.
Attachments:
PFPA Comments: Docket No. FWS-R5-ES-2011-0024 (August 29, 2014).
Consensus Forest Industry Comments: Docket No. FWS-R5-ES-2011-0024
(August 29, 2014).
PFPA Comments: Docket No. FWS-R5-ES-2011-0024 (January 2, 2014).
ATTACHMENT 1
Pennsylvania Forest Products Association,
Harrisburg, PA,
August 29, 2014.
Docket No. FWS-R5-ES-2011-0024
Public Comments Processing
Attn: FWS-R5-ES-2011-0024
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive, MS 2042-PDM
Arlington, VA 22203
Re: Final Determination on the Proposed Endangered Status for the
Northern Long-Eared Bat, 78 Fed. Reg. 61046 (October 2, 2013)--
[Docket No. FWS-R5-ES-2011-0024]
Dear USFWS:
The Pennsylvania Forest Products Association (PFPA) offers the
following comments related to the above referenced proposal to list the
northern long-eared bat (Myotis septentrionalis) as an endangered
species. We thank the USFWS for its six-month extension for the final
listing determination and the re-opening of the comment period.
The following comments supplement our previous comments submitted
on January 2, 2014, and the consensus comments submitted by coalition
of forestry and forest product organizations (including PFPA) dated
August 29, 2014.
About PFPA:
The Pennsylvania Forest Products Association (PFPA) is the leading
trade group in the state representing the various sectors of the forest
products industry. PFPA's membership accounts for approximately three-
quarters of the state's hardwood lumber production, as well as many of
the leading pulp and fiber utilizing manufacturing facilities in the
state. PFPA's members also own or manage more than one million acres of
private forest in Pennsylvania.
PFPA is also the administrative host and sponsor of the
Pennsylvania Sustainable Forestry Initiative' (PA
SFI') , which has provided safety, environmental and
ecological training to more than 7,000 loggers, foresters and others.
It is the leading logger training program in the state. PA
SFI' regularly includes courses related to wildlife, habitat
and biodiversity issues as part of its continuing education
opportunities.
We offer the following additional comments on this issue and
respond to the USFWS request for additional information.
NLEB Population and Species Decline:
We share the concern about the decline of northern long-eared bat
(NLEB) as a result of white nose syndrome (WNS). It seems that the
evidence for the proposed listing of the species as endangered is based
primarily upon significant mortality events documented at a limited
number hibernaculum. While these events are horrific, the overall
science on NLEB populations and survivability currently contains both
gaps and conflicting data.
It has been documented that NLEB populations remain robust
in portions of the species range, including midwestern and
northern states where WNS is not yet documented. Even in
Pennsylvania, the Pennsylvania Game Commission has said
that NLEB is still commonly found in parts of the state.
The USFWS and others have recognized that NLEB is
difficult to accurately count via cave surveys, given its
preference to hibernate singularly and in small groups in
recessed areas such as cracks, crevices and broken
stalactites. As a result, there is a probability that
actual NLEB populations in identified hibernacula are being
under-reported. If so, the NLEB mortality rates at
documented die-off events could be over-estimated, perhaps
by a significant amount.
While the USFWS has cited NLEB mortality of as much as 99
percent at these hibernaculum die-offs, other research has
suggested that NLEB population declines in Pennsylvania and
nearby states may be only 31 percent. (http://
www.nrs.fs.fed.us/pubs/jrnl/2013/
nrs_2013_ingersoll_001.pdf) While still significant, this
rate of decline may not foretell the imminent demise of the
species.
There seems to be a consensus acknowledgment that the NLEB
also hibernates in rock outcroppings. Numerous occurrences
of NLEB in Pennsylvania where rock outcroppings are common
suggest that rock outcroppings may be a significant
undocumented resource for NLEB in Pennsylvania.
Additionally, we believe that certain characteristics of the
ecology of the NLEB may suggest greater potential for species
survivability than implied by reported mortality rates in the proposed
listing. In comparison to other bats species impacted by WNS, NLEB
tends to winter singularly and in small groups, segregated in the
cracks and crevices of hibernacula (as opposed to other species that
cluster in larger groups). Compared to the federally listed Indiana
Bat, NLEB has been documented in significantly more hibernacula (114 vs
18 documented sites). As stated above, it is likely that there are
significant undocumented populations wintering as individuals and small
groups in remote rock outcroppings. Finally, the NLEB seems to
congregate in smaller numbers during maternity and summer roosting. All
of these factors combined would suggest the possibility that the spread
of WNS could be slower within the NLEB population, compared to other
bat species, benefiting the survivability. Research on this issue is
needed.
In summary, we recognize the impact that WNS is having on NLEB. We
believe, however, that there are still significant conflicts and gaps
in the research to suggest that the species may not be at the brink of
extinction. These research gaps need to be better addressed before an
endangered listing is warranted.
NLEB Habitat:
As was emphasized in our previous comments and in the comments of
countless others, the most significant threat to the NLEB comes from
the WNS disease, not a lack of habitat. The USFWS recognizes this and
has gone as far as to state that habitat concerns and other
anthropogenic factors create no significant negative effects to NLEB
alone or in combination.
Furthermore, existing research and the wide diversity of habitat
within the NLEB range suggests that the species is not dependent upon
any particular type of forest habitat. For its summer roosting needs,
NLEB seems to be adaptive to a wide variety of forest age classes, tree
species, tree sizes, living and dead trees, as well as various man-made
structures. NLEB has not been adversely impacted by forest habitat
changes resulting from forest management activities.
Because NLEB is such a forest generalist, data recently developed
for the Pennsylvania Game Commission and Pennsylvania Bureau of
Forestry indicates that 54 percent of Pennsylvania (15.8 million acres)
provides moderate to high potential use habitat for the NLEB in the
summer. We suspect that other states in the NLEB range also have
expansive areas of potential use habitat for the NLEB in the summer.
For this reason, we continue to urge the USFWS to forego the
designation of any forested areas as critical habitat, as no specific
area within its range is critical to its future survival, save for
hibernacula that are currently free from WNS.
We are distressed that the USFWS continues to seek to address the
decline of NLEB by focusing on seasonal restrictions to forest
management practices, as expressed in the Interim Guidance issued in
January. These restrictions for timber harvesting, prescribed burning
and other forest management practices throughout much of the year will
do nothing to prevent the spread of WNS or protect NLEB from WNS. Such
restrictions will, however, have a negative impact on efforts by public
and private forest owners to improve the forest habitat for other
species, including other listed species and other bat species being
negatively impacted by WNS. In Pennsylvania, for example, the Game
Commission and Bureau of Forestry are working on a habitat conservation
plan that will benefit the endangered Indiana Bat. The forest
management restrictions suggested for a NLEB listing may make this plan
unfeasible.
Ongoing Bat Conservation Efforts:
Recognizing the impacts that WNS is having on local bat
populations, the Pennsylvania Sustainable Forestry
Initiative' is offering a course entitled Bats and Forest
Management as part of its logger training continuing education program.
Taught by Pennsylvania Bureau of Forestry wildlife specialists, the
course covers the importance Pennsylvania bat species, their habitat
requirements, WNS, current regulations and additional steps that
individuals can take to minimize potential impacts on bats during a
timber harvest. We estimate that more than 700 harvesters and foresters
will have an opportunity to take this course as it is offered during
the upcoming years.
PFPA also continues to support public and private research efforts
to learn more about the NLEB and for the control and elimination of the
WNS that is the actual threat to NLEB and other bat species.
Potential Economic and Human Impact:
We recognize that the USFWS will not consider economic or human
impacts in its determination whether to list NLEB under the Endangered
Species Act. However, we feel obligated to provide such information as
it relates to Pennsylvania, given the scope of forestry in Pennsylvania
and the impact that any listing will potentially have on future
conservation efforts affecting a broad range of wildlife species and
forest health issues.
Pennsylvania contains nearly 17 million acres of forest. Nearly 30
percent of this acreage (4.8 million acres) is publically owned. An
estimated 533,000 private owners hold over 70 percent of the forested
acres (11.7 million acres) in Pennsylvania. Families and individuals
are the dominant group in this private category, accounting for 54
percent (9.6 million acres) of forest in Pennsylvania.
Pennsylvania is the leading producer of hardwood lumber in the U.S.
In 2012, the state's wood industry had $11.5 billion in sales. The
total economic impact of wood industry amounted to $19 billion
contributed to the state's economy, with total direct, indirect and
induced employment of over 98,000 individuals. The state's forest
products industry directly employs nearly 60,000 individuals,
accounting for more than 10 percent of the state's manufacturing
workforce.
Conclusion:
Because of the continued gaps and conflicting data, we
request that the USFWS not list NLEB as endangered.
We request that the USFWS forego the designation of any
forested areas as critical habitat.
We request that the USFWS forego any mandated restrictions
on forest management practices. These will not prevent the
spread of WNS nor protect the NLEB from WNS, but will
impede public and private forest landowners from
effectively implementing other habitat and forest health
improvements.
We urge the USFWS to work with other federal agencies,
state wildlife and forestry agencies and other stakeholder
to fill the gaps in the existing data and understanding of
NLEB and WNS.
Finally, we urge the USFWS to focus its research and
efforts on the control and elimination of the WNS that is
the actual threat to NLEB and other bat species.
Thank you for the opportunity to comment again on this proposal. We
welcome any additional conversations on this process and other efforts
to address the impact of white nose syndrome on NLEB and other bat
species.
Sincerely,
Paul Lyskava,
Executive Director, PFPA.
ATTACHMENT 2
August 29, 2014.
Docket No. FWS-R5-ES-2011-0024
Public Comments Processing
Attn: FWS-R5-ES-2011-0024
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive, MS 2042-PDM
Arlington, VA 22203
Re: Final Determination on the Proposed Endangered Status for the
Northern Long-Eared Bat, 78 Fed. Reg. 61046 (October 2, 2013)
To whom it may concern:
We write to you today to provide comments on the U.S. Fish and
Wildlife Service's (USFWS or Service) proposed listing of the northern
long-eared bat (NLEB), Final Determination on the Proposed Endangered
Status for the Northern Long-Eared Bat, 78 Fed. Reg. 61046 (October 2,
2013), and to express significant concerns with the Interim Conference
and Planning Guidelines issued by the Service in January of this year,
Northern Long-Eared Bat Interim Conference and Planning Guidance, USFWS
Regions 2, 3, 4, 5, & 6 (January 6, 2014).
We recognize that the Service will not consider economic impacts in
its determination whether to list the northern long-eared bat under the
ESA. However, as you consider management and recovery policies, we
believe it would be helpful to understand the breadth of the forest
products industry throughout the range of the NLEB. While we summarize
this in terms of economic impact, we urge you to also consider this as
evidence of conservation opportunity. Of the 38 states touched by the
NLEB range, the forest products industry has a significant presence in
29.\1\ These states contain a total of 80,085,969 acres of public and
private timberland. The industry provides a total of 2.2 million
direct, indirect, and induced jobs with a combined payroll of $80
billion. Annual timber sales and manufacturing shipments equaled $210.7
billion, with a combined contribution to the states GDPs of $89
billion. Forest-related industries made the largest contributions to
their state manufacturing (on a percentage basis) in Arkansas, which
was the highest in the South with 19.90 percent; Pennsylvania, the
highest in Appalachia with 9.98 percent; Maine in the Northeast with
23.73 percent; and Wisconsin with 14.04 percent in the Midwest.\2\
---------------------------------------------------------------------------
\1\ These states are AL, AR, FL, GA, IL, IN, KS, KY, LA, ME, MD,
MI, MN, MS, MO, MT, NH, NY, NC, OH, OK, PA, SC, SD, TN, VA, VT, WV, WI
and WY.
\2\ The source for this paragraph, which is based on 2010 economic
data, is The Economic Impact of Privately Owned Forests in the United
States (June 27, 2013) prepared by Forests2Market for the National
Alliance of Forest Owners and is available at www.nafoalliance.org.
---------------------------------------------------------------------------
As you know, this species is experiencing significant declines in
parts of its range due to White Nose Syndrome. In the proposed listing,
the Service affirms that ``White-nose syndrome is the most significant
threat to the northern long-eared bat, and the species would likely not
be imperiled were it not for this disease'' and that ``habitat concerns
and other anthropogenic factors create no significant effects alone or
in combination.'' 78 Fed. Reg. at 61072 (emphasis added). Although the
Service asserts that when combined with the significant population
reductions due to WNS, ``the resulting cumulative effect may further
adversely impact the species,'' id., the only true threat to this
species is clearly a wildlife disease, not habitat modification or
loss.
The fact is, where White Nose Syndrome is not yet present,
populations of NLEB appear to be quite robust. For instance, the NLEB
is one of the most frequently captured bats in mist net surveys on the
Black Hills National Forest in South Dakota, one of the most heavily
managed National Forests in the country. 78 Fed. Reg. at 61053.
Moreover, prior to the introduction of White Nose Syndrome, NLEB's were
regarded as ``most common'' in the Northeastern portion of their range.
This vast swath of states, ranging from Northern New England through
the lower portion of the Lake States and Indiana and all the way to
parts of the Southeastern U.S., contains a mosaic of habitat types,
forest ownerships, and land use practices. This strongly suggests that
the bat is not dependent on a particular type of habitat, much less a
particular age class of forest, and has not been adversely affected by
forest management.
In spite of the limited role that habitat conditions appear to play
in the status of the NLEB, the Interim Guidance distributed in January
suggests a completely unrealistic and unnecessary set of constraints on
forest management during nearly every seasonal period. These
restrictions include vaguely worded restrictions on prescribed burning
at various times of year, restrictions on tree harvesting of all trees
3 inches DBH and larger, and ambiguous direction to ``Avoid reducing
the suitability of forest patches with known NLEB use.'' In essence,
although the species has been shown to be present in forests with a
variety of age classes and management regimes and, in fact, may depend
upon management to perpetuate various habitat features over time, the
Guidance seems to suggest that creating 5-mile radius ``no management''
zones around known hibernacula, and even greater summer habitat
restrictions, is the best way to conserve bats. There is no evidence to
suggest that these measures have anything to do with the spread of
White Nose Syndrome, nor that they would do anything to prevent very
high levels of mortality should WNS spread throughout the bat's range,
as the Service speculates it will.
As you know, several State natural resources agencies wrote to the
Service on April 17, 2014, expressing serious concerns about the NLEB
Interim Guidance. They noted that ``(a)lthough the USFWS solicited
comments on the proposed listing, it did not afford our agencies an
opportunity to assist in the drafting of the (interim guidance), and
has not invited us to participate in the development of the
consultation guidance.'' They also ``request an opportunity to provide
input on this guidance and any other species guidance and avoidance
measures before they are finalized.''
The Directors note that the Interim Guidance ``is overly
restrictive and too broad to be used as consultation guidance.. . . In
particular, these measures protect summer habitat at a very high cost .
. . If these measures were applied to all forested lands, they could
impact hundreds of thousands of landowners managing their forests and
have a crippling effect on our forest product industries. In addition,
they would severely limit our ability to manage critical habitats for
other species of special concern such as the Kirtland's Warbler (US
Endangered), Karner blue (US Endangered), Golden-winged Warbler, and
numerous savanna species that are dependent on intensive management.''
We note that such restrictions on harvest, thinning, and prescribed
burning could significantly complicate forest management efforts to
maintain and enhance the habitat for other listed species, such as the
Red Cockaded Woodpecker in the Southeastern U.S., and could limit your
ability to implement needed forest management practices such as
thinning overstocked conifer stands in the Rocky Mountains and
regenerating aspen and mixed species stands in the Lake States and
Northeast.
In actuality, thinning overstocked conifer stands aligns with NLEB
habitat requirements, and we are alarmed how the Interim Guidance
discounted much of the science in the proposed listing that discussed
summer roosting habitat. The proposed listing discusses the benefits
from an active vegetation management program, stating: ``Studies have
found that female bat roosts are more often located in areas with
partial harvesting than in random sites, which may be due to trees
located in more open habitat receiving greater solar radiation and
therefore speeding development of young.'' 78 Fed. Reg. at 61060. The
proposed listing also recognized that reproducing females generally
have shown preference to roost ``in areas of relatively less canopy
cover and tree density,'' 78 Fed. Reg. at 61057, and that ``Fewer trees
surrounding maternity roosts may also benefit juvenile bats that are
starting to learn to fly,'' 78 Fed. Reg. at 61055. These statements are
supported by cited scientific research but are not reflected in any
portion of the Interim Guidance.
We are extremely concerned that the Service will use the Interim
Guidance not only as a basis for consultation and Biological
Assessments and Biological Opinions for current and future forest
management projects on Federal lands (including sales under contract)
but also as the general management scheme for all non-federal forested
lands within the bat's range until the critical habitat and recovery
plan are completed.
It is absolutely vital that the Service work with other Federal
agencies, State partners, and other stakeholders to revise and improve
the Interim Guidance. Active forest management can help conserve the
NLEB by creating a variety of stand conditions, ages, and types over
time, providing secure habitat through management rather than by
eliminating management. A reserve approach seems both unnecessary and
unlikely to succeed. As members of the forest management and products
community, we offer assistance to the Service to provide research for
the control and elimination of the actual threat to the NLEB and other
bat species, i.e.--White Nose Syndrome. Elimination of the disease is
the best strategy to support and protect both the bat population and
the wood products industry.
Thank you for the opportunity to comment on this proposed listing.
We also support the comments submitted by the National Council for Air
and Stream Improvement (NCASI), a copy of which is attached.
Sincerely,
Alabama Forestry
Association Minnesota Forest Industries
American Forest & Paper
Assoc. Minnesota Timber Producers Assoc.
American Loggers Council Mississippi Forestry Association
Appalachian Hardwood
Manuf., Inc. Missouri Forest Products
Association
Arkansas Forestry
Association National Alliance of Forest
Owners
Associated Industries of
Vermont National Assoc. of State
Foresters
Black Hills Forest Resource
Assoc. National Hardwood Lumber Assoc.
Empire State Forest
Products Assoc. National Wood Flooring
Association
Federal Forest Resource
Coalition New Hampshire Timberland Owners
Assoc.
Florida Forestry
Association North Carolina Forestry
Association
Forest Landowners
Association Northeastern Loggers' Association
Forest Resources
Association Ohio Forestry Association
Georgia Forestry
Association Oklahoma Forestry Association
Great Lakes Timber
Professionals Pennsylvania Forest Products
Assoc.
Hardwood Federation Society of American Foresters
Hardwood Manufacturers
Assoc. South Carolina Forestry
Association
Hardwood Plywood & Veneer
Assoc. Southeastern Lumber Manuf. Assoc.
Illinois Lumber & Materials
Dealer Assoc. Tennessee Forestry Association
Indiana Hardwood
Lumbermen's Association Virginia Forest Products
Association
Intermountain Forest
Association Virginia Forestry Association
Kentucky Forest Industries
Assoc. Westside Hardwood Lumberman's
Club
Lake States Lumber
Association West Virginia Forestry
Association
Louisiana Forestry
Association Western Hardwood Federation
Maine Forest Products
Council Wisconsin County Forests Assoc.
Maple Flooring Manuf.
Assoc. Wisconsin Paper Council
Massachusetts Forest
Alliance Wood Component Manuf. Assoc.
Michigan Forest Products
Council
ATTACHMENT 3
Pennsylvania Forest Products Association,
Harrisburg, PA,
January 2, 2014.
Public Comments Processing
Attn: FWS-R5-ES-2011-0024
Division of Policy and Directives Management
U.S. Fish and Wildlife Service
4401 N. Fairfax Drive, MS 2042-PDM
Arlington, VA 22203
Re: Endangered and Threatened Wildlife and Plants; Listing the Northern
Long-Eared Bat as an Endangered Species--[Docket No. FWS-R5-ES-
2011-0024]
Dear USFWS:
The Pennsylvania Forest Products Association (PFPA) offers the
following comments related to the above referenced proposal to list the
northern long-eared bat (Myotis septentrionalis) as an endangered
species and to not list the eastern small-footed bas as a threatened or
endangered species.
The Pennsylvania Forest Products Association (PFPA) is the leading
trade group in the state representing the various sectors of the forest
products industry. Pennsylvania leads the nation in the production of
hardwood lumber. PFPA's membership accounts for approximately three-
quarters of the state's hardwood lumber production and many of the
leading pulp and fiber utilizing manufacturing facilities in the state.
PFPA's members also own or manage more than one million acres of
private forest in Pennsylvania. Forest product manufacturing is an
important component to the state's economy, employing an approximately
60,000 Pennsylvanians.
PFPA is also the administrative host and sponsor of the
Pennsylvania Sustainable Forestry Initiative' (PA
SFI'), which has provided safety, environmental and
ecological training to more than 7,000 loggers, foresters and others.
It is the leading logger training program in the state. PA
SFI' regularly includes courses related to wildlife, habitat
and biodiversity issues as part of its continuing education
opportunities.
We offer the following comments on the related proposal:
Proposed Listing of northern long-eared bat:
We believe that the information provided in the Status Review of
its proposal is insufficient to support the listing of the northern
long-eared bat at this time. The Status Review acknowledges that the
information regarding the impact of white nose syndrome on the species
is limited, with significant data gaps, conflicting information, over-
reliance on antidotal information and other data that has not been
peer-reviewed, and assumptions that may well not accurately reflect
what is happening to the species across its range.
For example, the Service references reports of declines from winter
cave surveys in Pennsylvania and a limited number of other states.
However, this is not confirmed by adequate surveying in during other
seasons of the year. This is noteworthy, as the Service acknowledges
that the northern long-eared bat is easily overlooked during
hibernacula surveys. It is also noteworthy that recent summer mist net
surveys and acoustic surveys in several states indicate the northern
long-eared bat to be among the most common bat detected.
Given the data gaps and use of anecdotal and non-peer reviewed
information, we believe that the proposal is not supported by the best
scientific and commercial data available, as is required by the
Endangered Species Act.
State Regulatory Actions:
In its Status Review, the Service has wrongly mischaracterized (p.
61068) a pending bill in the Pennsylvania General Assembly (HB 1576) as
a proposal to prohibit state species listings. This is representation
is incorrect, as the bill explicitly does continue to allow for state
listings and provides a defined process that ensures that proposed
listings are reviewed to ensure that they are based in sound science
and open to public comments, as is the required by the Federal
Endangered Species Act. It should also be noted that this bill has been
introduced, but not yet enacted into law, not unlike the thousands of
other bills introduced in the Pennsylvania General Assembly each
legislative session--including HB 1099, which would mandate the state
endangered listing of northern long-eared and other bat species. Given
the uncertainly of final enactment, this legislative proposal did not
warrant mention in the Status Review, let alone it mischaracterization.
Furthermore, we do not believe that the Service has fully
considered to actual state efforts which are on-going and under
development to both address white nose syndrome and conserve the
northern long-eared bat, nor have states been given adequate time to do
the necessary research to fully develop and initiate their own action
plans. The Endangered Species Act allows for federal determinations to
be made only after taking into consideration all of the efforts of the
states and political sub-divisions to protect the species.
Critical Habitat:
The Service's proposes to list northern long eared bat as
endangered of extinction predominately due to the threat of white nose
syndrome. The Service has stated that the even if all habitat-related
stressors were eliminated or minimized, the significant effects of
white nose syndrome on the northern long-eared bat would still be
present.
There is little definitive research that suggests that specific
forest types of forest structures are a limiting factor for survival of
the species or that restricting forest management activities will aid
the species in recovery. There is also little evidence linking forestry
activities to the spread white nose syndrome.
We urge the Service to forego the designation of any forested areas
as critical habitat, as no specific area of its range is critical to
its future survival. Although the Service states that there is much to
learn about the interactions between the species and its forest needs,
there does seem to be a level of consensus that the northern long-eared
bat is more of a forest generalist able to utilize a wide variety of
forest conditions.
The only areas where critical habitat may be warranted are the
hibernacula, as this is where white nose syndrome seems to have its
greatest direct impact on the species.
We also urge the Service to minimize the restrictions on forestry
as part of the recovery plan. These restrictions will have little if
any impact on preservation of the species. They will, however,
negatively impact thousands of hardworking families that depend on
forest product jobs for their livelihood. We also believe that
unnecessary and unproductive regulation of forestry activities will
ultimately discourage forestry practices that may help improve forest
habitat to the benefit other species.
Decision to deferral on listing of eastern small-footed bat:
We agree that with the Service's determination that a threatened or
engendered listing of the eastern small-footed bat is not warranted at
this time, given the survey data and information on the species known
at this time.
Response to the information request:
We offer to the Service the following information:
According the U.S. Forest Service, there was a one percent
net gain of forestland cover in Pennsylvania between 2004
and 2009, with the minimal conversions of forest acres to
non-forested and agricultural uses off-set by other lands
reverting to forest. http://www.fs.fed.us/nrs/pubs/rb/
rb_nrs82.pdf. Prior to that, there was no significant
change in the total acreage of forestland cover between
1989 and 2004. http://www.nrs.fs.fed.us/pubs/2990.
Since 2007, Pennsylvania's forest products industry has
suffered through a significant downturn of which it is
still struggling to recover. Hardwood lumber production in
the state dropped by more than 40% since 2006. These are
the lowest levels of sawmill production since the Great
Depression. http://www.fs.fed.us/nrs/pubs/rb/rb_nrs82.pdf.
This data is offered as further evidence that the reported demise
of the northern long-eared bat in Pennsylvania is not due to any
scarcity of forest habitat for the species. The reported decline of the
species has occurred during a period where the forest cover in the
state has been stable and there has been a historic low level of timber
harvesting and other forestry activities in the state.
Conclusion:
We request that the Service withdraw or delay the proposed
listing of northern long-eared bat until gaps in the
science and species data have been addresses, information
peer reviewed and all current efforts to protect the
species have been fully considered.
We also request that the Service forego the designation of
any forested areas as critical habitat.
We agree that with the Service's determination that a
threatened or engendered listing of the eastern small-
footed bat is not warranted at this time.
Thank you for the opportunity to comment on this proposal. We
welcome any additional conversations with the U.S. Fish and Wildlife
Service on this process and other efforts to address the impact of
white nose syndrome on this and other bat species.
Sincerely,
Paul Lyskava,
Executive Director, PFPA.
______
The Chairman. Thank you very much. And I do want to thank
all of you. I allowed several to go over because some of you
were less, and so I am keeping score up here and I--it works
out precisely perfectly.
Before we go to the question from the Members up here, I
have 13 letters here from Members of Congress, from Governors
and State Departments of Natural Resources, from the States of
Pennsylvania, Ohio, West Virginia, North Carolina, Georgia,
Alabama, Mississippi, Louisiana, Wisconsin, Indiana, Michigan
and Minnesota, all raising concerns with the Fish and Wildlife
Service proposal to list the Northern Long-Eared Bat, and I ask
unanimous consent to be a part of the hearing. Without
objection, so ordered.
Normally, the Chairman has all the power in these
committees and he gets to start the questioning, however, in
deference to my hosts here in Pennsylvania, I am going to allow
my colleagues from Pennsylvania, and then I will follow up, and
we may have more rounds of questioning rather than just a round
of questioning, it just depends on the interest here so far.
So with that, let me recognize Mr. Thompson for 5 minutes
for questioning.
Mr. Thompson. Well, Mr. Chairman, with unanimous consent,
we acknowledge you are all-powerful, and I appreciate you
deferring.
Once again, good morning, everybody. Thank you for being
here, thanks for your testimony.
Ms. Matteson, I want to start with--there seemed to be some
really conflicting points of testimony, and sometimes, not just
your testimony, but testimony--even with language within the
citizens' petition on this issue, and your testimony, whether
it is total, it seems like you are projecting there is total
consensus on the science, and even within the citizens'
petition where it really indicates that there is very, very
limited consensus. And one particular area I wanted to check in
on was under your testimony on protective measures which, you
know, if they are effective, they are science-based, I think
that is wonderful.
So my question is, in your testimony--written testimony,
you talked about no regulations or conservation plans currently
exist that address this issue, and specifically, the Chairman
referenced the State of Minnesota; Minnesota, Wisconsin,
Michigan, Indiana, Natural Resources Agencies requested in
April 2014 a letter that the Fish and Wildlife delay
protection, and the objection to the organization was that none
of these states have programs to conserve and recover. My
question is, was your organization supportive of--out of
Pennsylvania, we have a, was put forward the Habitat
Conservation Plan, which just--was just not Pennsylvania, it
had to go through a complex and extensive process with the Fish
and Wildlife Service, and it is supported by the U.S. Forest
Service, National Park Service, and then Pennsylvania Forest
Products and various aspects of the industry, so it really had
some very strong Federal Government endorsement. Is that what
was missing from Minnesota, so is your organization on record
then of supporting the Habitat Conservation Plan that was put
forward by the Commonwealth of Pennsylvania with those other
strong partners, including the U.S. Forest Service and, I
apologize, and the National Park Service?
Ms. Matteson. Excuse me, Representative Thompson, which
Habitat Conservation Plan are you referring to? Was this for
the Northern Long-Eared Bat?
Mr. Thompson. Yes--well, actually, it was originally put
forward for the Indiana Bats, to accommodate current and future
forest management activities on state lands.
Ms. Matteson. I think--if I understand your question
correctly, you are asking me if the Center for Biological
Diversity is in support of habitat conservation plans?
Mr. Thompson. Correct.
Ms. Matteson. We certainly are, yes.
Mr. Thompson. Well, then it is entered in your testimony
though you--shortly after this was submitted--by the way,
included, actually, the National Guard as well because of our
training center in this area. Shortly afterwards, your
organization, along with several other national environmental
groups, sent a letter to the Federal Fish and Wildlife Service
urging denial of the ACP.
Ms. Matteson. OK, now I----
Mr. Thompson. And so----
Ms. Matteson. I--yes, now I understand which ACP you are
talking about.
We support habitat conservation plans. We were arguing with
the content of that plan, not the idea of a plan.
Mr. Thompson. OK. One of the--you know, in your testimony,
you talk about publicly available data, you talk about how some
opponents from the Endangered Species Act have asserted that
recent summer bat surveys, like hibernacula surveys indicate
the Northern Long-Eared Bat is still abundant, however,
publicly available data such as studies and surveys cited above
paint a clear picture of ongoing and dramatic decline of the
species. So I assume, obviously, your organization is very
supportive of transparency in terms of publicly available data?
Ms. Matteson. I am supportive of transparency, yes.
Mr. Thompson. Yes. Is your organization supportive of the
measure that we recently passed out of the House of
Representatives, which basically was all about transparency, it
would just require the Fish and Wildlife Service to make public
the science and the data that it uses for making determinations
of listing? I think we passed it out of the House----
Voice. Bipartisan.
Mr. Thompson. It--with bipartisan support within the past
month, I believe.
Ms. Matteson. Well, I am not personally familiar with that
legislation, but we are certainly supportive of data being----
Mr. Thompson. Transparency.
Ms. Matteson [continuing]. Data transparency, yes.
Mr. Thompson. OK, so--as am I. Thank you.
Representative Pyle, it is great to see you again.
Mr. Pyle. Good to see you again.
Mr. Thompson. Can you discuss what listing by either both
the state or the U.S. Fish and Wildlife would mean for
Pennsylvania from a regulatory standpoint? In other words,
should the Northern Long-Eared Bat be listed by the state or
Federal Government, and what kind of burden and regulatory
responsibility would this put on the State of Pennsylvania?
Mr. Pyle. It would be profound, Congressman. As you can
see, its range pretty much goes from coast-to-coast, top to
bottom.
I can tell you from personal experience what is going to
happen if this goes down. What they are going to do is they are
going to go up and they are going to tell you this is where the
bat is. In our case, the Pennsylvania Game Commission of
Pennsylvania, Fish and Boat Commission, oversee the Endangered
Species Act. What the gentlemen probably don't realize is in
addition to your endangered species list, we have one of our
own also.
I can give you an opinion, Congressman, and say anybody who
wants to walk on my family land and tell us what we can do with
it after 200 years of treating it well and raising scores of
dairy cow that fed the whole place, I can tell you that should
one of these people show up and tell us what they are going to
do with our land, it is going to be met with opposition.
Now, on an official level, we in Pennsylvania in the
Commonwealth have similar difficulties that you on the Federal
level are having, only you just brought up something that I
think is a great idea here. I recently tried to run an
Endangered Species Coordination Act. I was met with such a wall
of grief. Now, what their main oppositions are going to be were
exactly what you just identified; transparency. One of the
parts of our bill that was not run was that if there is a
developer willing to come into an area, either to log timber,
mine coal, or build a cul-de-sac or a shopping mall, one of the
parts of our bill we felt was fair was the caveat emptor
clause, where, before somebody has to put down large sums of
money to buy the property to develop whatever they want, they
would go to our Fish and Game or--you know, Commissions and
ask, do you have any hits on endangered species on this
property. Absolute objection, dig your heels in and fight.
Which tells me what they want to do is they want you to put the
money up first so they can come in later and say, surprise.
Now, how can I back that up? I can give you examples from
Clarion County where a family had a couple hundred acres and
they wanted their boy to build on it, and the kid went off to
school in California, made all kinds of money, came back, Dad
wanted to carve off half the land, and one day the guy walks
out and there is a guy walking up and down through Redbank
Creek on his property. And the guy said, who are you, and the
guy said, I am from Fish and Wildlife and you have a Massasauga
snake habitat. And the guy said, we have never had snakes here,
where is it. And he took him down to the stream and he showed
him a bunch of piled-up rocks, and he said, that is perfect.
And the guy said, what does that mean to me, and he said, well,
$30,000 for offset acreage and we will let you build on land
your family has owned for 100 years. Are you serious? You know
what I mean.
Especially in the northern tier, Pennsylvania's hardwood
industry is huge. If you cut down our ability to feed our kids,
you are essentially exercising a de facto eminent domain on us.
The Chairman. Representative Pyle, we have others, I----
Mr. Thompson. Thank you, Chairman.
The Chairman. Mr. Perry is recognized.
Mr. Perry. Thank you, Mr. Chairman. I will turn to Mr.
Pyle.
It is my understanding and recollection that you used to be
an educator, is that correct? You taught in the school system
in Pennsylvania?
Mr. Pyle. Fourteen years in the public high schools.
Mr. Perry. Did you teach anything other than the facts?
Mr. Pyle. No.
Mr. Perry. So if I tell you the Federal Government has
currently listed 1,553 domestic species as threatened or
endangered, and over 40 years recent analysis has determined
that about 33 species have ever been deemed recovered and
removed from the list, in regard to Ms. Matteson's testimony
that says that the ESA is 99 percent effective because it saves
endangered species. Now, I know that is quick math for you,
Representative Pyle, is this 99 percent effective statement
true based on what I just told you, the 1,553 versus the 33
species over 40 years?
Mr. Pyle. I would say statistical analysis would not bear-
up the assertion, sir.
We have, however, in my county, had great success with new
breeding pairs of Bald Eagles, and we are pretty happy about
that.
Mr. Perry. So as you know, the Endangered Species Act is--
as it is currently written, requires the best scientific and
commercial data available, and I quote, ``best scientific and
commercial data available.'' The FWS proposed ruling calling
for the endangered listing of the Long-Eared Bat refers to
unpublished reports 87 times, and refers to some studies that
were written in 1940 and 1969. With all due respect, Ms.
Matteson, in her written testimony, claims that this is the
best available science and listing--and that the listing should
occur based on that. Eighty-seven times unpublished reports,
and studies written in 1940 and 1969, just based on that, do
you agree with her finding?
Mr. Pyle. No, I do not, Congressman. It is--you can repeat
a lie over and over and over, and thousands of people rank upon
row can repeat it, but that is not going to make it true.
Mr. Perry. Thank you.
Ms. Matteson, your disclosure mentions that the Center for
Biological Diversity files on average about 42 lawsuits a year.
When your organization receives taxpayer financed attorney fees
from those lawsuits from the Federal Government from some of
these lawsuits, how much does your organization invest into
habitat for existing endangered species? How much do you turn
back into habitat--saving the habitat or safeguarding the
environment of those funds?
Ms. Matteson. Well, first of all, the amount of money that
we receive from litigation is a very small percentage of our
budget. It is, on average, less than 5 percent----
Mr. Perry. But it is----
Ms. Matteson [continuing]. A year.
Mr. Perry [continuing]. Up to $600 an hour, which goes way
above the limit for Federal attorney fees as I understand it.
Is that correct?
Ms. Matteson. I am not an attorney, I am a biologist, so--
--
Mr. Perry. OK.
Ms. Matteson [continuing]. I am not familiar with that.
Mr. Perry. Fair enough. All right, so it is a small
percentage, but how much is reinvested into habitat reclamation
or protection?
Ms. Matteson. So we are a group that focuses primarily on
advocacy for endangered species.
Mr. Perry. Do you know? Is there an answer? I mean I----
Ms. Matteson. We----
Mr. Perry [continuing]. If you don't, it is OK----
Ms. Matteson. We----
Mr. Perry [continuing]. I just----
Ms. Matteson. We do some conservation land work in the
Southwest, but primarily we are an advocacy organization.
Mr. Perry. All right. If you could at some point, we would
love to get that figure, how much your organization uses for--
to invest in habitat for endangered species.
Moving on, can you name the timber sales on Federal land
that your organization has supported? Which ones?
Ms. Matteson. I cannot answer that question.
Mr. Perry. Do you know if there are any?
Ms. Matteson. I am not familiar with the answer to that
question.
Mr. Perry. OK. It is my understanding that there aren't
any, and it just leads us to believe, with all due respect,
that the organization is opposed to any timbering whatsoever.
And while we depend on the things that we are sitting behind, I
hate to mention it but toilet paper is really important to a
lot of people, it is an important industry and we would hope
that there would be a balance from your organization as well as
from the Federal Government.
To Mr. Brubaker, you indicated that barns and silos could
be impacted by the Federal bat designation. What would happen
if you were a homeowner who had a bat lodged in a wall or a
fireplace, or if a bat got into your house, could you be liable
and subject to fines under Federal law if you harmed this bat,
based on your understanding of this----
Mr. Brubaker. Based on my understanding, I would say that
we could be, and I have had the experience too of needing to
rid a bat from my bedroom. And in that particular case, there
is no discretionary decision; the bat will go.
Mr. Perry. So you would be in violation of the Federal
statute, the Federal rule if you tried to clear the bat from
your kitchen, your bedroom, your living room----
Mr. Brubaker. That is----
Mr. Perry [continuing]. You would be----
Mr. Brubaker. That is my understanding.
Mr. Perry [continuing]. In violation?
Mr. Brubaker. That is my understanding.
Mr. Perry. That is great.
All right, Mr. Chairman, I yield.
The Chairman. Thank both of you for your statements.
I just want to make kind of a big picture observation, and
I do have a question for Mr. Lyskava, but the Endangered
Species Act has been around since 1973, and there have been, as
Mr. Perry pointed out, 1,553 listings and 33 species recovered.
Now, I am sure people here in Pennsylvania, with two Major
League baseball teams, are all baseball fans. Let me just ask a
rhetorical question here. You don't have to answer, but if you
are 33 for 1,553, would you even qualify for T-ball at that
batting average? I mean, but that is what we are dealing with.
Now, here is the--what I think is a huge, huge issue with
this mega listing; 1,553 listings in 40 years. This mega
settlement could be more than 750, or roughly 50 percent more,
in the next 2 years, and the mere fact that the testimony and
all of you have heard, I have certainly heard over and over and
over, is the simple fact that the data is questionable. If the
data on the Long-Eared Bat is 40 years old at best, and even
the petitioner says that you can't draw conclusions, does that
give you any confidence that the 750 potential listings of the
mega settlement will be any better, or probably worse? And that
is what the issue facing the committee is. And by the way,
going back to Mr. Thompson's question to Mrs. Matteson, for the
record, the Center for Biological Diversity opposed the
legislation to have transparency in listings or de-listings.
They opposed that legislation that passed on a bipartisan
basis.
Mr. Lyskava, I want to follow up, since you are in the
timber industry and I alluded to in my opening statement the
Spotted Owl in the Northwest, and the fact that timber harvests
have declined by some 80 percent. On Federal land, by the way,
it is 90 percent in where it is listed. And the issue of the
Spotted Owl was the lack of old growth timber, and that is
supposedly why that was listed.
We have now discovered, however, that it is not the lack of
old growth, but rather a predator called the Barn Owl. It is a
little bit larger than the Spotted Owl. Big guys beat up on
little guys, that is in human nature, I guess, forever. By the
way, I should say, Fish and Wildlife's response to that is to
shoot the Barn Owl, by the way. That is the response. This just
happened.
Now, Mr. Lyskava, I want to ask you a question. Do you see
any similarities with what has happened in the Northwest with
the Spotted Owl that could happen if the Long-Eared Bat is
listed here in Pennsylvania?
Mr. Lyskava. Mr. Chairman, the proposed listing for the
Northern Long-Eared Bat is our Spotted Owl moment. It is our
Spotted Owl moment for Pennsylvania, for the other Appalachian
states, for the states in the northern part of the range, and
the other areas within the range of the Northern Long-Eared
Bat. And I would agree with you, sir, that the economic impact
is going to be severe, and those aren't faceless jobs, those
are tens of thousands of families that are going to be
impacted, whose family structure is going to be severely
stressed when they lose those jobs. Those rural communities
that depend upon forest products are going to be severely
impacted. And as you had stated previously also, the benefits
of forestry activities which would take place; forest health
activities, we don't--in the eastern United States, we do not
have the problems with fire that you do in the West, but we do
have a lot of forest health issues out there as it relates to
Gypsy Moth, Hemlock wooly adelgid, Emerald Ash Borer, and
dealing with those issues, both on private forest land and
public forest land, we will be precluded from doing that. And,
ironically, both private and public forest landowners will be
precluded from initiating the forestry activities which help a
wide variety of other species, whether they be a listed species
such as the Indiana Bat, in which the--as was previously
mentioned, the Pennsylvania Department of Conservation and
Natural Resources, and the Pennsylvania Game Commission, are
looking at submitting a habitat conservation plan to help
improve the habitat for Indiana Bat, or the wide variety of
other species that are out there that the citizens of the
Commonwealth and citizens of the United States would like to
have around, and it is all going to be severely impacted
without this listing, again, without--because we are talking
about disease, sir, all this listing and all those negative
impacts will provide no positive affect upon the survival of
the Northern Long-Eared Bat.
The Chairman. OK, my time has expired.
We will start a second round, and I will recognize Mr.
Thompson.
Mr. Thompson. Thank you, Chairman.
Mr. Biggica, in your testimony you talked about projected
impact, I think the number was 650 rural electric co-ops or
around within that region, that green area, that was new
information to me, but it makes sense. You talked about the
conflict in compliance, basically, caught--basically, double
jeopardy that rural utilities faced with regard to tree removal
versus potential ESA restrictions, because there are
regulations on both, and I wanted to see if you could expand on
that a little bit. In your experience, does the ESA provide the
flexibility to account for common sense, but also to be able to
mitigate its way through conflicting regulations that are
imposed upon the industry?
Mr. Biggica. Congressman Thompson, this is our catch-22.
Where do we go? We have two agencies asking two different
things from us. It attacks us a little differently in
Pennsylvania with the rest of our cousins throughout the rural
areas, both on the transmission side and on the distribution
side. And NERC has a zero tolerance when it comes to tree
trimming and vegetation management. Even beyond our right-of-
ways, NERC has asked G&Ts, generation transmission
cooperatives, that not only are responsible for our right-of-
way, which is usually for a transmission line about 200 feet,
even beyond the right-of-way, if there is any threat to dead
trees or imposing trees on those lines. We have faced
tremendous problems with right-of-way clearing. In the State of
Pennsylvania, as you know, about a year-and-a-half ago, we had
the tremendous ice storm that affected your cooperative,
Congressman, down in Adams. We had some people who were out for
almost a week. Luckily for the cooperatives, our reliability
was better than the other utilities around. They were out for
3-4 weeks. Clearing, vegetation management, right-of-way
trimming is a direct correlation with reliability, and that is
of utmost importance.
Our people are very reasonable people, but when you are out
for a week because a tree is lying across the power line, they
become very unreasonable. And we have found that the
correlation between trimming, vegetation management is so
important to the stature of the cooperative and the commitment
to its consumers.
Mr. Thompson. Thank you.
Mr. Stilley, your testimony mentioned permitting delays.
Should the Northern Long-Eared Bat be listed, what kinds of
impacts might delays have on permitting and ultimately on your
business?
Mr. Stilley. It creates a huge problem for us. You know, in
the coal industry in particular, we have been mining coal in
Pennsylvania for the last 150 years. As I mentioned in my
testimony, anywhere between one-third and one-half of the sites
that we move on to mine coal today have been previously either
surface mined or deep mined in years past. So, in effect, the
permits that we need to secure to maintain our level of
operation are our lifeblood. Our jobs last anywhere from 3
months to 2 years, and we are moving from site to site as often
as 9 months to a year apart.
The impact of the Endangered Species Act, and requirements
under the permitting requirements, extend the review time by
the DEP, who are working under privacy with OSM, by as much as
anywhere from a year to a year-and-a-half. So in effect, if we
don't have a permit issued, our guys stay home, our equipment
stays parked. We have contractual arrangements to ship coal to
various utility companies in Pennsylvania, and industrial
customers up in New York State. If we can't get the permits to
maintain our consistent production of coal, we are then in
violation of those contractual obligations. And the way the
coal industry is today, with the number of plant closings that
have taken place under the Obama administration, you can ill
afford to miss any potential to be able to ship coal because
chances are, a year from now, those opportunities are going to
disappear. We have to be able to get permits on a timely basis,
and this is just another impact that precludes us from not
being able to get that done.
Mr. Thompson. Thank you.
Mr. D'Amico, talking about permits, you had mentioned in
your testimony that PIOGA and eight other companies requested
an emergency petition to Fish and Wildlife in February 2014, 7
months ago. Still no response back from that office?
Mr. D'Amico. No, sir.
Mr. Thompson. Yes. What else can you say, except I yield
back.
The Chairman. Mr. Perry.
Mr. Perry. Thanks, Chairman.
Mr. Biggica, you are a co-op, right, or you represent co-
ops, so just explain to everybody that--the customers are
owners, right? Customers--your customers are--they own----
Mr. Biggica. Are the owners.
Mr. Perry [continuing]. The electricity company----
Mr. Biggica. Yes.
Mr. Perry [continuing]. Power company. So how would a
listing of the Northern Long-Eared Bat complicate your ability
to provide electricity and transmission to parts of the state,
and can you elaborate based on a direct and indirect cost about
that?
Mr. Biggica. Well, the costs are hard to substantiate right
now, but we can tell you that most importantly there is a
direct correlation. It is probably the most labor intensive and
financial intensive project that we do as cooperatives. There
is nothing more important than clearing right-of-way. There is
nothing more devastating than downed power lines. As I said
with NERC, they have a zero tolerance when it comes to
transmission lines. On the other side, on the distribution side
which we are most in Pennsylvania familiar with, we only have
about 11 miles of transmission lines. We are working with the
PUC with jurisdictional utilities, as you know, we are owned
and operated by cooperatives, so we are non-jurisdictional, but
because of the devastation that we have experienced in
Pennsylvania with the hurricanes and the ice storm, the PUC,
rightfully so, is also taking a zero tolerance toward it, but
when it comes to cost, it is the most expensive aspect of a
cooperative operation and that is to clear the lines. We
usually do--we do it all the time on emergency bases, but we
have cycles; either 3, 4 or 5 years. Five years is kind of
pushing the cycle.
Mr. Perry. So let me ask you this, who pays for that?
Mr. Biggica. Well, our cooperative owners, the members.
Mr. Perry. Who are your owners?
Mr. Biggica. Our owners are the people who receive the
electricity from us.
Mr. Perry. It is your customers, right?
Mr. Biggica. That is exactly right.
Mr. Perry. And they are going to be paying the bill for
this based on inexact science, I think you would----
Mr. Biggica. Exactly right.
Mr. Perry [continuing]. Conclude.
Ms. Matteson, the Endangered Species Act as it is currently
written requires, again, and I want to use this quote, ``the
best scientific and commercial data available.'' In your
experience, if data isn't available, often unpublished studies
or opinions are used. I mean I read that in your own testimony.
In your view, is that the best? Is that the best?
Ms. Matteson. It is the best available at the time. In----
Mr. Perry. It doesn't say at the time, it says the best
scientific and commercial data available. It doesn't say at the
time, it says available.
Ms. Matteson. If we continue to wait on endangered species,
they will go extinct.
Mr. Perry. If we continue to wait on----
Ms. Matteson. But we need to----
Mr. Perry. Even if the data is----
Ms. Matteson. We need to protect----
Mr. Perry [continuing]. One hundred percent flawed--you
would say even if the data is 100 percent flawed, White Nose
Syndrome is causing it, it has nothing to do with habitat,
human activity, we must move forward anyhow. Would that be your
assertion then based on that?
Ms. Matteson. The law says to use the best scientific and
commercial data available, and that is what is in this
decision----
Mr. Perry. So you are saying this data that is from 1969
and 1940, that is the best available?
Ms. Matteson. I don't know the context of how that
particular reference was used. It may have been historical----
Mr. Perry. OK.
Ms. Matteson [continuing]. But most of the information,
most of the reference that went into the proposed rule is much
more current than that. And sometimes publication takes a long
time, so you have to go with what is currently available.
Mr. Perry. I would say we all want to save these endangered
species, and as a person--marvel at bats, they eat a lot of
insects and we want them around, and live in our barns and in
our fields and forests and so on, we want them around, but we
want to make sure we are making the proper--taking the proper
discretion regarding impacting people and animals' lives from a
Federal law standpoint. If we have insufficient, incorrect,
outdated data, it seems to me that that is not the best
scientific or commercial data available.
While I complete here, Mr. Stilley, you are in the mining
business, heavily, heavily regulated. Rightly so, right, based
on safety, et cetera. If I said to you, you must use the best
scientific and commercial data available regarding your safety
program, and you gave me something decades old and said, well,
this is what I've got, do you think that that would fly in the
face of the regulators that you deal with? Do you think that
they would accept that and let you continue to operate based on
what we knew 20, 30, 5 years ago, as opposed to today? Just
curious, because we live by the same set of rules, right? We
should. Your comments.
Mr. Stilley. MSHA is our current regulator for the mining
industry, Mine Safety and Health Administration. They are
revamping their regulations and policies on a daily basis. To
think that we would be living under regulations as posed and
required of us 30 years ago and try to do that with MSHA, we--
first of all, it is not the right thing to do, and second, we
would be shut down today. We must, for the sake of our
employees and the guys working in the mines, make sure that it
is as safe and sound a place as staying at home. And that
requires up-to-date, current information at this instant in
time, pure and simple.
The Chairman. Thank you very much, Mr. Perry.
Mr.--I want to kind of follow up on this. Mr. D'Amico, in
your testimony, you said that the proposed listing is not
based, this is the line of questioning Mr. Perry had here, is
not based on the best scientific and commercial data that is
available, and I tend to agree with you. Yet, on the listing by
the Center for Biological Diversity, on page 11, they state,
and this is a direct quote from that petition, ``little is
known about population trends for the Northern Long-Eared
Bat.'' Now, that is in their petition listing. They further go
on to say that because that small amount of population data,
they say this, and I quote, ``make--to make any conclusion,
provisional at best.''
So this is what Fish and Wildlife got from the petitioner,
and yet Fish and Wildlife went ahead with this listing. Your
comments on that process.
Mr. D'Amico. I think there is an overall concern here, and
you made reference to it in your initial comments, and as the
process of the mega settlement. When the Center proposed
several hundred species at one time, you have a Federal agency,
the Fish and Wildlife Service, that now all of a sudden has a--
basically an insurmountable effort to do, because they have to
review this, make a determination in one year's time or they
are going to be in court back with the Center or some other
environmental group trying to do it. So from their standpoint,
if I put myself in the Fish and Wildlife's shoes, they are
afraid to make the wrong decision, and from their standpoint,
as protectors of wildlife, they are going to err on the side
of, well, you know, let's regulate everything to death. The
problem with that concept is the overall damage that it does to
the entire country, whether it is my industry, and actually it
is kind of, you know, somewhat of a relief hearing all the
impacts that are happening to everybody else, because there are
times we have to focus on our industry and, oh, my God, these
people are just trying to put us out of business, for the
Northern Long-Eared Bats with our industry here in the East or
the Prairie Chicken in the West, you know, we are hearing the
same kinds of things.
But the bottom line is, at some point we need to have
things and protections that don't shut down the entire economy,
don't shut down farming so we can't feed our people, doesn't
shut down the natural gas industry so that we can't keep people
warm, it doesn't shut down the coal industry so that
electricity can be generated, and, frankly, Russ, you know,
from your standpoint, if we can't produce the energy to make
the electricity, you don't have anything to worry about because
it is not going to affect you. We won't have any electricity.
But this is the problem; I think there is absolutely no common
sense, sir, in these regulatory agencies, and how these rules
are being conducted. And, unfortunately, something that you all
are very well aware of, there is such a partisanship in the
U.S. Congress that it makes it difficult for even you folks to
impact this because you have another--that is going to come up
with an entirely different opinion. Pardon me speaking with my
hands, I am Italian. But, that is the basic issue here, and to
base something without scientific basis is just--it is why I
referred to it as a fiasco.
The Chairman. Well, I, of course, agree with that, and I
mentioned earlier I come from the Northwest, and prior to this
mega listing, while there are instances around the country,
most of the big economic impact because of listings was in the
western part of the United States. There are documented cases
all over of the school district in Southern California that
went through as bad as you went through, Representative Pyle.
But in addition to the Spotted Owl, we have the salmon issue in
the Northwest. We spent billions, and that is with a B,
billions of dollars. Ratepayer dollars transferred because the
utilities are paying for this, plus taxpayers. And I might add,
just for the record, the salmon return coming back in the
Columbia River are larger now the last 4 or 5 years than they
have since we have been keeping records in 1938. There has been
nary a--anybody speaking about de-listing the fish yet, so
billions are still going to be spent. And the reason that I
have had such an interest in this and was so happy to come to
Pennsylvania, and earlier down in Arkansas, is because now,
because of this mega listing, the rest of the country is going
to be--could be potentially as impacted as we are. Now, when I
started talking to my colleagues earlier and they said, are you
going to do anything on the Endangered Species Act, I say why
and then they tell me, and like listings like this. And my
response to them is I don't take pleasure in this, but welcome
to the club. Why welcome to the club? Because the only way you
are going to change is when you have the political will to do
so. Now, my colleagues here and in Arkansas, and all of the
Governors of the states I listed are going to tell their people
get some common sense into the Endangered Species Act.
So my time is way over. Do any of my colleagues want to
make any more questions or--if not, I will yield to you for
your closing statement.
Mr. Thompson. OK, Chairman, thank you very much. I would be
remiss if I didn't say a special hello to one of the witnesses
who are my constituents here today, the gentleman from Centre
Hall, thanks for being here, Mr. Melville. We greatly
appreciate it.
I want to thank someone else that helped really secure this
facility, Senator Gene Yaw, who has been a good friend, a good
public servant of Pennsylvania, he went out of his way to make
arrangements to allow us to be able to have that here today. We
are very much appreciative to the Pennsylvania Senate and the
Legislature.
Chairman, thank you for having this hearing, Mr. Perry, for
being a part of it. Thanks to the witnesses for being here and
for all those who took time this morning to attend.
You know, the Endangered Species Act is important, and,
quite frankly, I care about the National Long-Eared--Northern
Long-Eared Bat. Well, it is almost national, I guess. That
green area, pretty much could claim it. I am glad it wasn't--I
would soon much have the eagle as our flying symbol versus the
bat, but it does cover a lot of area.
You know, this species and any others deserve an Endangered
Species Act that is effective, that is transparent, that is
science- and data-based, that avoids unwarranted, unneeded,
negative consequences. That is not what we have today with the
Endangered Species Act. You know, these species deserve better.
You know, there is a requirement to use best available science.
I have to tell you that because of the lack of transparency by
the Fish and Wildlife Service, I have no idea whether our Fish
and Wildlife Service is in compliance with the law. I don't
know, and we should be able to know and make those--as the
lawmaking body in this country, we should be able to offer that
judgment, whether these Federal agencies are working according
to the Federal law, and the complete lack of transparency
alarms me because I don't know. I couldn't assure you or my
constituents, or the citizens of the Nation, that we are--that
they are following the laws. The Endangered Species Act, you
know, must be science- and data-directed, not the result of a
closed-door settlement, and that is where we are at today. And
I really appreciate the leadership of the Chairman and the
Natural Resource Committee, and I look forward to continuing
this work as we have a lot of work to do left in the 113th
Congress, so thank you and I yield back.
The Chairman. Thank you.
Mr. Perry?
Mr. Perry. Mr. Chairman, Doc, thanks for coming to
Harrisburg. Thanks very much for allowing me to participate. To
you folks, thanks for your attendance here today. We are
looking for solutions, and I would agree with Ms. Matteson,
especially for the bat who is the--the time is very urgent, I
am concerned about a Federal Government and an Agency that
spends much of its resources defending lawsuits, and where
those resources could be used in combating this White Nose
Syndrome, and actually getting to the facts so that we can find
a solution to save the bat, at the same time, continue to live
our lives and employ people and live well in doing so in
harmony and in concert with the species around us. The
Endangered Species Act is vitally important in that regard, and
we must do everything we can to safeguard it, but also to make
sure it is effective, and I fear at this point over its time it
is being used to fulfill the agendas of some folks that can't
fulfill an agenda through the other means, and that is the
problem, because we all want to preserve these species, at the
same time preserve our way of life. And so I think that is what
this hearing is about, to get to the facts, and I hope that it
helps us as legislators become more educated on not only the
bat itself, but the process by which we save all our species in
the United States, and so we can be more effective at doing so,
and I appreciate your indulgence and your willingness to stand
for the tough questions.
Thank you, Doc.
The Chairman. Thank you very much, and I want to thank my
colleagues for talking to me about having this hearing here
some time ago, and I am glad we finally made it come to an end.
I just want to make a couple of statements. And I want to
thank the panel for your testimony. Many times when we have
panels, there are follow-up questions. If you get a question
from us, we would ask you to respond in a very timely manner.
And in that regard, Mr. D'Amico, you said in a larger sense
that, politically, there is a challenge in Washington, DC.
Listen, I think anybody, no matter where they live in this
great country that we have the privilege to live in, would
acknowledge that the country is somewhat divided politically.
OK, that is the price of self-government. As difficult as it
is, that is the price of self-government. And that reflection
is going to be reflected in the peoples' house that we have the
privilege to serve in, in the peoples' house. But we have to
work our way through it. And, yes, there are politics in a lot
that we do, there is absolutely no question about that, and
sometimes it doesn't help when the rhetoric on both sides gets
rather heated. Now, I was asking you about the science. There
has been a lot of discussion on the science here, and, Ms.
Matteson, you said that the best available science goes back
over 40 years, and yet in your press statement, you said
because the science is clear. Now, does that help the
discussion, for goodness sake, when you say here in Committee
that is the best available science, acknowledging it is over 40
years old, and yet say in a press statement about this meeting
that the science is clear? That doesn't help trying to find
solutions to what we are trying to find.
And let me go one step further. Mr. Perry asked you if the
CBD had been involved in any restoration or whatever, you
didn't know because you said you are a scientist, but you do
work for them, so I am not--well, I won't ask you if you know
or not, I am asking you to find out and tell us, send to the
committee what CBD has done as far as restoration. You said
specifically in the Southwest. I want to know exactly what you
are doing there. The committee wants to know that. And so you
get that information to us, and I will ask a further question.
We heard virtually all of the panelists here talk about the
White Nose Syndrome. Virtually all of them. I want to know if
CBD is doing any research on trying to eradicate that. So I am
asking you to give us that information, not that we would like
to have it, I want to know because you work for CBD, get it to
us.
And so if there are any further questions to any of you,
that would be the same tone we would ask you; get the
information to us.
Once again, I want to thank the panelists for being here.
And for those of you in the audience, if you would like to
comment, you can go to our Web site, or there are sheets back
here that you can add. I think we will have--generally, we have
10 days after these hearings to get comments in place.
So if there is no further business to come before the
committee, the committee stands adjourned.
[Whereupon, at 11:52 a.m., the committee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Juniata Valley Audubon,
Tyrone, PA 16686
Hon. Glenn Thompson,
U.S. House of Representatives,
Washington, DC.
Dear Congressman Thompson:
Juniata Valley Audubon, a regional conservation organization with
more than 500 members in south-central Pennsylvania, strongly supports
the proposal to list the northern long-eared bat as endangered under
the Endangered Species Act.
White-nose syndrome has killed an estimated 5.5 million cave-
hibernating bats in the Northeast, Southeast, Midwest and Canada.
Populations of the northern long-eared bat in the Northeast have
declined by 99 percent since symptoms of white-nose syndrome were first
observed in 2006.
Before the emergence of white-nose syndrome, the northern long-
eared bat was found in 39 states, including the District of Columbia,
with higher abundance in the East and becoming increasingly rare moving
west. Other threats to the species include wind energy development,
habitat destruction or disturbance to hibernating and summer habitat,
climate change, and contaminants.
Under the Endangered Species Act, an endangered plant or animal is
one that is in danger of becoming extinct. This is certainly the case
with the northern long-eared bat. If a final decision is made to list
the northern long-eared bat, the species will be protected from take--
harming, harassing, killing--and federal agencies will work to conserve
the bat and its habitat as they fund, authorize or carry out
activities. In addition, a recovery plan should be developed for the
species.
Sincerely,
Stan Kotala, M.D.,
Conservation Chair.
______
Pennsylvania's 154th Legislative District,
September 5, 2014.
Hon. Doc Hastings, Chairman,
House Committee on Natural Resources,
Washington, DC 20515.
Hon. Peter DeFazio, Ranking Member,
House Committee on Natural Resources,
Washington, DC 20515.
Dear Chairman Hastings and Ranking Member DeFazio:
The House Natural Resources Committee will be holding a field
hearing at the Pennsylvania State Capitol Complex on Sept. 8 regarding
the proposed listing of northern long-eared bats under the federal
Endangered Species Act. While it appears that there will be at least
one scientist present at this hearing testifying in support of the
protection of the species, I am concerned that the other witnesses will
not provide an accurate portrayal of how Pennsylvanians feel about the
protection of our natural heritage, both inside Pennsylvania and across
the United States. As a member of the Pennsylvania General Assembly, I
am writing to you today requesting that this letter become part of the
official record of this hearing.
Pennsylvania has a proud and long tradition of protecting
endangered species. In 1982 Pennsylvania passed the Wild Resources
Conservation Act--our own state-level endangered species legislation--
setting up a system of legal protections for rare and endangered
species within Pennsylvania. This law protects species that are rare
and declining in Pennsylvania even if those species are common
elsewhere. Currently more than 75 animals and 600 plants are protected
under Pennsylvania law, as well as 15 species within Pennsylvania that
are protected by the Endangered Species Act.
The strength of both our Pennsylvania law and the federal
Endangered Species Act has come from their requirements that decisions
on whether to protect a species is based solely upon the best available
science. Whether or not a species is in fact endangered is a purely
scientific question--and it has been the judgment of both the people of
Pennsylvania and the nation that when a species is endangered, we have
a moral obligation to prevent its extinction. But once a species is
protected, there are alternatives and options regarding how to conserve
those species in ways that minimize the economic impacts that the
conservation activities have on our local and regional economies. In
fact, both Pennsylvania law and the Endangered Species Act contain
numerous provisions that provide flexibility and options to private
parties to minimize any burdens that they may experience in helping to
conserve our natural heritage.
In the past two years, Pennsylvania's Wild Resources Conservation
Act has come under heavy attack. House Bill 1576, introduced by Rep.
Jeff Pyle, sought to gut the Act by ending protections for species
already protected under Pennsylvania law, turning over listing
authority to the Independent Regulatory Review Commission, and
requiring that all information on endangered species be placed in a
centralized database that disclosed geographic information on species'
locations. This bill is unnecessary and, if passed, would pose a
tremendous threat to Pennsylvania's natural heritage. The U.S. Fish and
Wildlife Service was so concerned about the passage of this bill that
it wrote a letter on Aug. 9, 2013 indicating that passage of this
legislation would jeopardize Pennsylvania's Pittman-Robertson Wildlife
Restoration funding.
Industry special interests may believe that H.B. 1576 would benefit
them by reducing their environmental stewardship responsibilities.
However, reducing protections for endangered species is not a core
value of Pennsylvanians, who understand that protecting imperiled
plants and animals and the habitats we share with them is key not only
to preserving the long-term health of the environment, but also to
protecting the nation's long-term economic security.
I am concerned that Monday's hearing on the northern long-eared bat
furthers the false dichotomy imbedded in H.B. 1576 that protecting
endangered species comes at an unbearable economic price for our state
and our nation. The reality is that Pennsylvania has a long track
record of helping to prevent the extinction of the Indiana bat, which
has been protected under the Endangered Species Act since 1967. There
is simply no factual reason to believe that protecting the northern
long-eared bat under the Endangered Species Act will be any different
from protecting the Indiana bat. If the best available scientific
information from our nation's top wildlife experts indicates that the
bat should be protected, then we should all support that decision and
move forward together in a constructive fashion to recover this species
to the best of our collective ability.
Sincerely,
Steve McCarter,
State Representative.
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