[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]
H.R. 1314, H.R. 1927, H.R. 4256, H.R. 4284, H.R. 4319, AND H.R. 4866
=======================================================================
LEGISLATIVE HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED THIRTEENTH CONGRESS
SECOND SESSION
__________
Tuesday, September 9, 2014
__________
Serial No. 113-86
__________
Printed for the use of the Committee on Natural Resources
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or
Committee address: http://naturalresources.house.gov
______
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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
------
CONTENTS
----------
Page
Hearing held on Tuesday, September 9, 2014....................... 1
Statement of Members:
Crawford, Hon. Rick, a Representative in Congress from the
State of Arkansas, Prepared statement of................... 10
DeFazio, Hon. Peter, a Representative in Congress from the
State of Oregon............................................ 4
Hastings, Hon. Doc, a Representative in Congress from the
State of Washington........................................ 2
Prepared statement of.................................... 3
Miller, Hon. George, a Representative in Congress from the
State of California, Prepared statement of................. 81
Statement of Witnesses:
Birmingham, Thomas W., General Manager/General Counsel,
Westlands Water District, Fresno, California............... 68
Prepared statement of.................................... 69
Fischman, Robert L., Professor of Law, Indiana University
Maurer School of Law, Bloomington, Indiana................. 15
Prepared statement of.................................... 17
Frazer, Gary, Assistant Director for Ecological Services,
U.S. Fish and Wildlife Service, Department of the Interior,
Washington, DC............................................. 20
Prepared statement of.................................... 22
Jennison, Robin, Secretary, Kansas Department of Wildlife
Parks and Tourism, Topeka, Kansas.......................... 53
Prepared statement of.................................... 55
Li, Ya-Wei, Director, Endangered Species Conservation,
Defenders of Wildlife, Washington, DC...................... 59
Prepared statement of.................................... 60
Miller, Dave, Commissioner, Iron County, Utah, Cedar City,
Utah....................................................... 51
Prepared statement of.................................... 52
Ray, Tom, Water Resources Program Manager, Hicks-Ray
Associates, Texas Water Conservation Association, and the
Western Coalition of Arid States (WESTCAS), Waco, Texas.... 27
Prepared statement of.................................... 29
Staples, Todd, Commissioner, Texas Department of Agriculture,
Austin, Texas.............................................. 6
Prepared statement of.................................... 8
Veach, Randy, President, Arkansas Farm Bureau, Little Rock,
Arkansas................................................... 12
Prepared statement of.................................... 14
Wieting, Donna, Director, Office of Protected Resources,
National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Washington, DC................. 64
Prepared statement of.................................... 65
Additional Materials Submitted for the Record:
Barcellos, Tom, Prepared statement with attachment on H.R.
1927....................................................... 77
City of Dos Palos, Jerry Antonetti, Mayor, August 28, 2014
Letter submitted for the record on H.R. 1927............... 87
City of Fresno, Georgeanne White, Chief of Staff, et al.,
July 10, 2014 Letter submitted for the record on H.R. 1927. 88
City of Fresno, Ashley Swearengin, Mayor, September 7, 2014
Letter submitted for the record on H.R. 1927............... 90
Fresno Council of Governments, Amarpreet Dhaliwal, Chair,
August 19, 2014 Letter submitted for the record on H.R.
1927....................................................... 91
County of Fresno, Board of Supervisors, Henry Perea,
Chairman, et al. August 7, 2013 Letter submitted for the
record on H.R. 1927........................................ 92
Grassland Water District, Ricardo Ortega, General Manager,
August 6, 2013 Letter submitted for the record on H.R. 1927 93
Kern County, Board of Supervisors, Leticia Perez, Chairman,
July 29, 2014 Letter submitted for the record on H.R. 1927. 94
Latin Business Association, Ruben Guerra, Chairman and CEO,
August 18, 2014 Letter submitted for the record on H.R.
1927....................................................... 95
List of documents submitted for the record retained in the
Committee's official files................................. 98
Nelson, Dan, Executive Director, San Luis & Delta-Mendota
Water Authority, Prepared statement on H.R. 1927........... 87
Paramount Farming Company, William D. Phillimore, Executive
Vice President, July 30, 2013 Letter submitted for the
record on H.R. 1927........................................ 96
Porterville Irrigation District, Tulare County, Mike Ennis,
Tulare County Supervisor and Eric Borba, Director,
Porterville Irrigation District, September 7, 2014 Letter
submitted for the record on H.R. 1927...................... 97
LEGISLATIVE HEARING ON H.R. 1314, TO AMEND THE ENDANGERED
SPECIES ACT OF 1973 TO ESTABLISH A PROCEDURE FOR APPROVAL OF
CERTAIN SETTLEMENTS; H.R. 1927, TO PROVIDE CONGRESSIONAL
DIRECTION FOR IMPLEMENTATION OF THE ENDANGERED SPECIES ACT AS
IT RELATES TO OPERATION OF THE CENTRAL VALLEY PROJECT AND THE
CALIFORNIA STATE WATER PROJECT AND FOR WATER RELIEF IN THE
STATE OF CALIFORNIA, ``MORE WATER AND SECURITY FOR CALIFORNIANS
ACT''; H.R. 4256, TO AMEND THE ENDANGERED SPECIES ACT OF 1973
TO REQUIRE, IN COUNTING THE NUMBER OF A SPECIES IN A STATE FOR
PURPOSES OF DETERMINING WHETHER THE SPECIES IS AN ENDANGERED OR
THREATENED SPECIES, INCLUSION OF THE NUMBER OF THE SPECIES ON
STATE AND PRIVATE LANDS AS DETERMINED BY THE STATE, AND FOR
OTHER PURPOSES, ``ENDANGERED SPECIES IMPROVEMENT ACT OF 2014'';
H.R. 4284, TO AMEND THE ENDANGERED SPECIES ACT OF 1973 TO
ENCOURAGE GREATER STATE INPUT AND AUTHORITY OVER SPECIES AND
HABITAT MANAGEMENT BY ALLOWING STATES TO PROPOSE AND IMPLEMENT
STATE PROTECTIVE ACTION BEFORE SPECIES ARE LISTED UNDER THAT
ACT, AND FOR OTHER PURPOSES, ``ESA IMPROVEMENT ACT OF 2014'';
H.R. 4319, TO AMEND THE ENDANGERED SPECIES ACT OF 1973 TO
REQUIRE THE SECRETARY OF THE INTERIOR TO PUBLISH AND MAKE
AVAILABLE FOR PUBLIC COMMENT A DRAFT ECONOMIC ANALYSIS AT THE
TIME A PROPOSED RULE TO DESIGNATE CRITICAL HABITAT IS
PUBLISHED, ``COMMON SENSE IN SPECIES PROTECTION ACT OF 2014'';
AND H.R. 4866, TO REVERSE THE DEPARTMENT OF THE INTERIOR'S
LISTING OF THE LESSER PRAIRIE CHICKEN AS A THREATENED SPECIES
UNDER THE ENDANGERED SPECIES ACT OF 1973, TO PREVENT FURTHER
CONSIDERATION OF LISTING OF SUCH SPECIES AS A THREATENED
SPECIES OR ENDANGERED SPECIES UNDER THAT ACT PENDING
IMPLEMENTATION OF THE WESTERN ASSOCIATION OF FISH AND WILDLIFE
AGENCIES' LESSER PRAIRIE-CHICKEN RANGE-WIDE CONSERVATION PLAN
AND OTHER CONSERVATION MEASURES, AND FOR OTHER PURPOSES,
``LESSER PRAIRIE CHICKEN VOLUNTARY RECOVERY ACT OF 2014''
----------
Tuesday, September 9, 2014
U.S. House of Representatives
Committee on Natural Resources
Washington, DC
----------
The committee met, pursuant to notice, at 10:05 a.m., in
room 1324, Longworth House Office Building, Hon. Doc Hastings
[Chairman of the Committee] presiding.
Present: Representatives Hastings, Lamborn, McClintock,
Lummis, Benishek, Duncan, Flores, Mullin, LaMalfa; DeFazio,
Grijalva, Costa, Sablan, Cardenas, Huffman, Lowenthal, and
Garcia.
The Chairman. The Committee on Natural Resources will come
to order, and the Chair notes the presence of a quorum, and we
have way exceeded that. I appreciate that.
The Committee on Natural Resources meets today to hear
testimony on the following bills: H.R. 1314, a bill by our
committee colleague, Mr. Flores from Texas, to amend the
Endangered Species Act of 1973 to establish a procedure for
approval of certain settlements; H.R. 1927, the More Water and
Security for Californians Act, introduced, again, by our
committee colleague from California, Mr. Costa; H.R. 4256, the
Endangered Species Improvement Act of 2014, introduced by our
former committee colleague, Mr. Stewart of Utah; H.R. 4284, the
ESA Improvement Act of 2014, introduced by another former
committee member, Mr. Neugebauer of Texas; H.R. 4319, the
Common Sense in Species Protection Act of 2014, introduced by
somebody who has not been a member of this committee, Mr.
Crawford of Arkansas; and the Lesser Prairie Chicken Voluntary
Recovery Act of 2014, introduced by our committee colleague,
Mr. Mullin of Oklahoma.
I ask unanimous consent that any Members who are not on the
committee be allowed to sit on the dais and participate in the
hearing.
[No response.]
The Chairman. Without objection, so ordered.
We will now begin with the opening statements, and I will
recognize myself for 5 minutes.
STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
The Chairman. The committee meets for the second time this
year to consider a number of legislative proposals relating to
the Endangered Species Act, or ESA, a law that has not been
reauthorized for over 25 years, and which, I might add, has a
recovery rate of less than 2 percent.
Over the past 3 years, the committee has held numerous
oversight hearings about this administration's lack of ESA data
transparency, inadequate deference to states, local, county
governments, and private property owners, and costly serial
litigation and closed-door settlements with certain groups that
are forcing hundreds of new listings and millions of acres of
habitat designations. I am pleased that the House took an
important step forward to address these issues in July with
H.R. 4315, which passed with bipartisan support.
The bills before us today are not the only solutions to ESA
issues. But these bills do demonstrate a continuing and growing
awareness that ESA, as it currently exists, is not serving the
people or species well--not just in the West, but in many other
areas of the country, as well.
Among other things, these bills would instill greater
transparency, more accurate economic analysis, counting of
species, adding sunshine to sue-and-settle policies, and
greater deference to states that are already conserving
species. In short, they are a sampling of ideas that follow a
number of recommendations included in a report released earlier
this year by the ESA Congressional Working Group that was co-
chaired by myself and Mrs. Lummis of Wyoming.
Some who are opposed to any changes in ESA will undoubtedly
claim that ESA is working to support the Obama administration's
executive orders and sweeping Federal ESA administrative rules
that impose control over states' conservation plans. They also
think that the Federal Government's unpublished studies or
opinions are better than actual transparent data.
Earlier this year, despite Federal endorsement of a
comprehensive five-state plan designed to manage and keep the
lesser prairie chicken off the list, the Fish and Wildlife
Service listed it anyway, showing it was more fearful of
environmental litigation, it appears, than giving the states a
reasonable amount of time to let their plan work. Many in the
200 million acres affected by a potential listing next year of
the greater sage grouse fear the same thing will happen to
them.
While it appears this administration has made it a primary
priority to settle with environmental groups, setting arbitrary
deadlines for hundreds of ESA listing decisions, they have
repeatedly ignored ESA's statutory deadlines for their own
delisting proposals. One such case in that category is the
listing of the gray wolf.
To make matters worse, the administration proposed three
Federal regulations that could be finalized next month, which
would radically change how they designate critical habitat,
nationwide. Concerns have been raised that these rules, if
enacted, would give the Services sweeping discretion to
designate habitat for areas where a species may be present only
seasonally or not at all, and could make it more difficult for
private, state, and local entities to conserve sufficiently to
be exempted from such designations.
So, this hearing is another hearing in the process to find
solutions to an Act that I had mentioned has not been
reauthorized for 25 years.
[The prepared statement of Mr. Hastings follows:]
Prepared Statement of the Hon. Doc Hastings, Chairman, Committee on
Natural Resources
The committee meets for the second time this year to consider a
number of legislative proposals relating to the Endangered Species Act
(ESA), a law that has not been reauthorized in over 25 years, and which
has a less than 2 percent recovery rate.
Over the past 3 years, the committee has held numerous oversight
hearings about the Obama administration's lack of ESA data
transparency, inadequate deference to states, local county governments
and private property owners relating to ESA decisions, and costly
serial litigation and close-door settlements with certain groups that
are forcing hundreds of new listings and millions of acres of habitat
designations. I am pleased that the House took an important step
forward to address those issues in July with H.R. 4315, which passed
with bipartisan support.
The bills before us today are not the only solutions to ESA issues,
but these bills demonstrate a continuing and growing awareness that ESA
as it currently exists is not serving people or species well, not just
in the West, but in many other areas of the country as well.
Among other things, these bills would instill greater transparency,
more accurate economic analyses, counting of species, adding sunshine
to ESA ``sue and settle'' policies, and greater deference to states
that are already conserving species.
In short, they are a sampling of ideas that follow a number of
recommendations included in a report released earlier this year by the
ESA Congressional Working Group I co-chaired with Representative Lummis
and a number of Members representing districts affected by ESA around
the country.
Some of those opposed to any changes to ESA will undoubtedly claim
the ESA is working and support the Obama administration's executive
orders and sweeping Federal ESA administrative rules that impose
control over states' conservation plans. They also think that the
Federal Government's unpublished studies or opinions are better than
actual transparent data.
Earlier this year, despite Federal endorsement of a comprehensive
five-state plan designed to manage and keep the Lesser Prairie Chicken
off the list, and despite improved numbers, the Fish and Wildlife
Service listed it anyway, showing it was more fearful of environmental
litigation threats than giving the states a reasonable amount of time
to let their plan work. Many in the 200 million acres affected by a
potential listing next year of the Greater Sage Grouse fear the same
will happen there.
While it appears the administration has made it a primary priority
to settle or bow to environmental groups and setting arbitrary
deadlines for hundreds of ESA listing decisions, at the same time, they
have repeatedly ignored ESA's statutory deadlines for their own
delisting proposals, such as in the case of the gray wolf.
To make matters worse, the administration proposed three Federal
regulations that could be finalized next month which would radically
change how they designate critical habitat nationwide. Concerns have
been raised that these rules, if enacted, would give the Services
sweeping discretion to designate habitat for areas where a species may
be present only seasonally, or not at all, and could make it more
difficult for private, state and local entities to ever conserve
sufficiently to be exempted from such designations.
Clearly, ESA as written and implemented can be improved upon, and I
look forward to hearing from the witnesses on the bills before us today
that will begin to do that, and continue a discussion on sound
legislative updates and improvements that I expect will continue well
beyond this Congress.
______
The Chairman. And, with that, I will yield back my time and
recognize the Ranking Member for his statement.
STATEMENT OF THE HON. PETER DeFAZIO, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OREGON
Mr. DeFazio. Thank you, Mr. Chairman. Well, welcome back to
unreality, inside the Beltway. The week before we adjourned we
spent quite some time on the Floor on a number of so-called
Endangered Species Act reforms. Perhaps the most nonsensical of
those was the one that said that any data submitted by any
tribe, county, state, or city would be deemed to be the best
available scientific and commercial data.
Of course, as I pointed out at the time, there is a real-
time conflict between Oregon and Washington about spills on the
Columbia River, ongoing litigation, and it has been going on
over more than a decade, which has, potentially, critical
impact on ratepayers in the Pacific Northwest. And both would
have the best available commercial and scientific data.
Now, I guess what we are really trying to do here is
engender more litigation, and I see that in a number of the
bills before us today.
As the Chairman pointed out, the Act has expired, and I do
agree that the Act needs to be updated with what we have
learned in the last 50 years or so about dealing with
endangered species, particularly those which share a habitat.
And we should be taking a more comprehensive, multi-species,
ecosystem-based approach.
But none of these bills before us today would lead in that
direction. One would create even more confusion when it comes
to the idea of the best available science and data being
anything submitted by any of those jurisdictions I previously
mentioned. But now we are going to have yet a new way of
determining what is the best scientific data, which would, of
course, contradict the bill that just passed the House last
week, or last month, which isn't going anywhere.
But here we are again today, to see if we can waste some
more time. Meanwhile, the West is on fire, the Forest Service
has notified us that they will run out of money in the very
near future. What that means is they will borrow from their
fuel reduction accounts and stop projects that could mitigate
or prevent or lessen the severity of future fires.
There is bipartisan, bicameral legislation that is
supported by the President of the United States, probably the
rarest damn thing around here, rarer than any of the endangered
species we are talking about, something that Democrats,
Republicans, House, Senate, and the President agree on, which
is a better way to deal with these fires, to give them, the
Forest Service and the BLM, the tool they need over time. This
committee has not seen fit to hold a single hearing on this
issue, not one. But here we are on the 5th, 10th, or 27th
hearing on ESA-gutting bills that are going nowhere.
Now, you know, I just spent 5 weeks of reality, and now we
are back inside the Beltway. It is very unfortunate for the
American people that the reality that I assume other Members
heard, they are members of this committee who are cosponsors of
that bipartisan bill so that the Forest Service won't run out
of money and gut their fuel reduction, and fuel management,
forest health budgets every year, and other programs, and
prevent and help deal with this problem long-term, who are not
on the discharge petition to move that bill to the Floor of the
House, over the objections of all the Republican leadership.
Now, it is time to deal with real things that really help
the American people. Yes, the Endangered Species Act needs
updating. None of this here today is a real thoughtful approach
to that. And I am sorry we are wasting everybody's time.
With that, I yield back the balance of my time.
The Chairman. I thank the gentleman for his statement, and
I am glad that he is here, however, notwithstanding some of his
observations, but that is part of the political process, and I
certainly recognize that.
I am pleased to welcome our first panel here. We have the
Honorable Todd Staples, Commissioner with the Texas Department
of Agriculture, from Austin, Texas; Mr. Randy Veach, President
of the Arkansas Farm Bureau, from Little Rock, Arkansas; Mr.
Robert Fischman, Professor of Law at the Indiana University
Maurer School of Law in Bloomington; Mr. Gary Frazer, Assistant
Director of Ecological Services for the U.S. Fish and Wildlife
Service at the Department of the Interior, here in Washington,
DC; and Mr. Tom Ray, the Water Resources Program Manager with
Hicks-Ray Associates from Waco, Texas. And Mr. Ray, I
understand, is also representing the Texas Water Conservation
Association and the Western Coalition of Arid States.
Let me just, for those of you on the panel that have not
had the opportunity to testify, explain how these timing lights
work.
First of all, when you were asked to come, we asked you to
submit a written testimony. That will appear in its entirety in
the record. And what I would like you to do is to keep your
oral remarks within the 5-minute time frame.
Now, how the timing light works is that when the green
light is on, that means, just like when you are traveling on
the road, you are going very good. But when the yellow light
comes on, that means caution. Time is running out. And then,
when the red light comes on, that means either you speed up and
go through the traffic light, or you terminate whatever you are
talking about. Now, listen, try to keep it within 5 minutes.
Obviously, we want to hear as much as we possibly can. But that
is how the timing light works, and we very much appreciate your
being here.
So, for the purpose of introduction, let me recognize my
colleague from Texas, Mr. Neugebauer, who will introduce the
first witness.
Mr. Neugebauer.
Mr. Neugebauer. Thank you, Chairman Hastings, and thank you
for holding this hearing. And I want to thank you for your work
on the Endangered Species Act. I appreciate you including me on
the working group. I think we had a very thoughtful discussion,
and I think the product that came out of that has been very
productive.
I also want to thank you for having a hearing today on my
bill, H.R. 4284, which is the Endangered Species Improvement
Act of 2014, which will really encourage greater state input
and participation and authority. You know, section 6 of the
Endangered Species Act already requires that the Fish and
Wildlife work very closely with our states, and they should,
because the outcomes that we have been achieving recently are
not good. When you only have a 2 percent recovery rate, that is
not a good thing.
I mentioned I was in a town hall meeting when I was
traveling in August, and I said, ``Imagine going to a doctor
and needing a certain surgical procedure, and you ask the
doctor what his outcome is, and he said, `Well, 2 percent of
the time I have a good outcome.' That is not a doctor that you
are going to want to be doing your procedure.'' So, we have
some work to do on the Endangered Species Act. And thank you,
Chairman, again, for holding this hearing.
It is my pleasure to introduce my friend, the Texas
Agriculture Commissioner Todd Staples, to testify before the
committee today. Commissioner Staples is a distinguished public
servant who is serving in his second 4-year term as leader of
the Texas Department of Agriculture. He graduated from the A&M
University with honors, and I don't hold it against him, as
being a Red Raider, but he has also served in the Texas House
and the Texas Senate, and has done a great job. He is our Ag.
commissioner, and Commissioner Staples has been very involved
in Texas' efforts to work with Fish and Wildlife on reasonable
ways to protect our species.
And so, I am delighted to have him here today, and I
appreciate him taking time out to testify before this
committee.
The Chairman. Mr. Staples, you are recognized for 5
minutes.
STATEMENT OF TODD STAPLES, COMMISSIONER, TEXAS DEPARTMENT OF
AGRICULTURE, AUSTIN, TEXAS
Mr. Staples. Thank you. Good morning, Chairman Hastings and
Ranking Member DeFazio and members of the committee. My name is
Todd Staples. I serve as the Texas Commissioner of Agriculture,
and I appreciate the opportunity this morning to testify on
behalf of Congressman Neugebauer's H.R. 4284, the ESA
Improvement Act.
The ESA regulatory system has evolved, or more
appropriately, I might say has devolved, into a rare conundrum
where the burden of proof and related costs are placed on
landowners and communities to prove that a regulatory action is
not necessary, instead of placing that burden on the regulatory
agency to prove the benefits of the regulations would outweigh
those costs. This results in numerous regulatory burdens being
enforced with certain costs, but obviously with obscure
benefits.
Add to that the fact that activist groups are driving this
regulatory scheme, and it is just not hard to see how the ESA,
in its current form today, contradicts basic American
scientific regulatory standards, as well as our basic sense of
justice as costs are unnecessarily and unfairly shifted to
private individuals in an attempt to achieve on what we all
agree, I think, is a public good.
Even worse, though, than the cost-benefit discrepancy is
how success is measured by the ESA. As, Mr. Chairman, you
pointed out, and as Congressman Neugebauer has, since 1973 more
than 1,500 domestic species have been listed for protection
under the Act. Yet our success rate is a miserable 2 percent.
If our goal is to preserve the species, shouldn't a measure of
success be the number of species propagated to a delisting
level?
Greater state and local authority over species and habitat
management is one way to fix the ESA. Under the current law,
activist groups have hijacked the process, while input from
local, state, and regional officials, the very people impacted
by the listing decisions, is not required for such action. This
has led to burdensome and ineffective Federal management of
species, while collaborative conservation efforts by states
have been ignored.
Now, some may point out the circumstances where it appears
that local input has been adopted. But I must point out that
protecting our plants and animals, and, very importantly,
moving them to a recovered status, cannot be successful under
the adversarial process that it has become today.
As all biological systems are in flux, local authorities
and scientists can respond more effectively and more
efficiently to the constant changes with species ecosystems. I
support the reforms put forth in H.R. 4284 that would require
U.S. Fish and Wildlife to coordinate with interested states on
a State Protective Action (SPA) and approve, if it meets
established criteria.
SPAs would preclude the need for a listing in many
circumstances, and keep species management authority at the
state and local level, where stakeholders and species can
simultaneously be better protected.
The saga of the lesser prairie chicken, I think, is a prime
example of what an SPA could prevent in the future. Despite
years of painstaking work, including millions of dollars and
acres invested in range-wide conservation plan, this March the
Service proceeded to list the chicken as threatened under the
ESA. Stakeholders in five states were shocked, given the
Service issued a press release back in October of 2013 touting
their plan as ``a model for state leadership and conservation
of a species proposed for listing under the ESA.'' It is clear
that the system simply isn't working if voluntary conservation
plans that are actually supported by the Service is not enough
to prevent a listing.
We have seen success in Texas with landowner-led
initiatives such as the Texas Recovery Credit system that
brought together an adverse group of individuals that worked
collaboratively.
And I must say that the Service is overwhelmed by
litigation. We are here to say that states are ready to lead.
Our state is sincerely committed to sustainable stewardship
that balances survival of both man and our resources in a
manner that does not punish landowners, and doesn't violate
their constitutional rights, but we desperately need
congressional help to make this happen.
And thank you for the opportunity to be with you today.
[The prepared statement of Mr. Staples follows:]
Prepared Statement of Todd Staples, Texas Agriculture Commissioner on
H.R. 4284
Good morning, Chairman Hastings, Ranking Member DeFazio and members
of the committee. My name is Todd Staples, and I serve as the Texas
Agriculture Commissioner. Thank you for the opportunity to testify on
Congressman Neugebauer's H.R. 4284, the ``ESA Improvement Act of
2014.''
I commend and appreciate the leadership of Chairman Hastings and
the members of the House Committee on Natural Resources in their
pursuit of reforming the Endangered Species Act (ESA).
The ESA regulatory system has evolved into a rare conundrum where
the burden of proof, and related costs, is placed on landowners or
communities to prove a regulatory action is not necessary; instead of
placing that burden on the regulatory agency to prove the benefits of
the regulations would outweigh the costs. This results in numerous
regulatory burdens being enforced with certain costs but obscure
benefits. Add to that the fact that activist groups are driving this
regulatory scheme and it's not hard to see how the ESA, in its current
form, contradicts basic American scientific regulatory standards, and
our basic sense of justice as costs are unnecessarily and unfairly
shifted to private individuals in an attempt to achieve a public good.
Even worse than the cost-benefit discrepancy is how success is
measured by ESA. Since 1973, more than 1,500 domestic species have been
listed for protection under ESA. Yet in that same time, less than 2
percent of species have been de-listed. If our goal is to preserve
species, shouldn't a measure of success be the number of species
propagated to a de-listing level?
The vast Texas landscape is rich and diverse, and our citizens have
long taken tremendous pride in protecting our cherished natural
resources. Approximately 95 percent of Texas land is privately owned.
Texas leads the Nation with over 130 million acres devoted to farms and
ranches. Our landowners are responsible for managing the natural
resources, which help sustain our state's population of 26 million;
feed and clothe the world; provide a healthy environment; and create
the jobs that power our dynamic economy. In Texas, we believe in sound
decisionmaking, private property rights and the fact that government is
not the answer to every problem. Over time, ESA has evolved to conflict
with these principles and has been a source of concern for Texans for
decades.
Greater state and local authority over species and habitat
management is one way to fix the ESA. Under the current law, far flung
activist groups have hijacked the process of listing species as
endangered. At the same time, input from local, state, and regional
officials--the very people impacted by listing decisions--is not
required for such action. Activists have successfully gamed the system.
This has led to burdensome and ineffective Federal management of
species, while collaborative conservation efforts by states have been
ignored. Local, state and regional officials are better equipped and
should be given the opportunity to coordinate species management
efforts with stakeholders.
As all biological systems are in flux, local authorities and
scientists can respond more quickly and effectively than the Federal
Government to the constant changes with the endangered and threatened
species ecosystems. This is better for the species, too, as local
residents and authorities know the species best.
I support the reforms put forth in H.R. 4284 that would require the
U.S. Fish and Wildlife Service (FWS) to coordinate with interested
states on a ``State Protective Action'' (SPA) and approve it if it
meets established criteria. SPAs would preclude the need for a listing
in many circumstances and keep species management authority at the
state and local level where stakeholders and species can be
simultaneously better protected.
The saga of the Lesser Prairie-Chicken (LPC) is a prime example of
what an SPA could prevent in the future. Despite years of painstaking
work by states, municipalities, farmers, ranchers, energy developers,
including millions of dollars and acres invested into a range-wide
conservation plan, this March FWS proceeded to list the LPC as
threatened under ESA. Stakeholders in Texas, New Mexico, Oklahoma,
Kansas and Colorado were shocked given FWS issued a press release back
in October 2013 touting their plan as ``a model for state leadership in
conservation of a species proposed for listing under the ESA.'' It's
clear the system isn't working as designed if voluntary conservation
plans like the range-wide plan, which was supported by FWS, is not
enough to prevent a listing.
Looking back, Texas appears to have dodged a bullet in 2012 when
industry and private landowners developed a conservation agreement for
the Dunes Sagebrush Lizard (DSL). This agreement was approved by FWS.
Fortunately, state and agriculture stakeholders, along with the oil and
gas industry, partnered together to invest in a study that followed
scientific processes and identified previously unknown areas of habitat
for the DSL. This study demonstrated to FWS that the call for listing
the DSL as endangered was both unfounded and unwarranted. Texas leads
the United States in the production of crude oil with 36 percent of
total U.S. production. The listing of the DSL would have been
devastating not just to our economy, but to every American worker who
pays a gas bill every month.
Currently, more than a hundred species of plants and animals are
listed as federally threatened or endangered in Texas. Alarmingly, our
state could experience a dramatic increase in listings in the coming
years. Seventy-seven species in Texas are presently being considered
for listing, meaning future designations could result in large swaths
of Texas being declared habitat for endangered or threatened species,
resulting in one of the largest land and water grabs in modern times.
With a history that includes decimation of agriculture to protect the
spotted owl and the delta smelt, the time for Congress to stop the
abuse of ESA is now. In fact, it's never been more pressing.
Texas will have a difficult time enduring the burden of regulation
and possibility of over-litigation should the endangered species list
grow. In 2010, Texas was sued by a group alleging a ``taking'' of the
endangered whooping crane during the 2008-2009 drought. Ultimately, the
defendants--the Texas Commission on Environmental Quality, Guadalupe-
Blanco River Authority (GBRA), San Antonio River Authority and the
Texas Chemical Council--spent millions of dollars in legal fees and
thousands of man-hours defending the state's water system and the
rights of the water users against this frivolous claim, and ultimately
prevailed. This is a crystal clear example where there was zero benefit
for a species and outrageous expenses to taxpayers. The time and money
spent in this one case could have gone toward proven species management
practices and prosecuting true violations of environmental laws.
We have seen success with state- and landowner-led conservation
efforts. A prime example of state-led conservation is the Recovery
Credit System for the endangered golden-cheeked warbler. The Texas
Department of Agriculture convened a working group in 2005 in response
to a FWS Biological Opinion, which recommended Fort Hood's
participation in an offsite conservation program. Fort Hood maintains
programs to protect habitat on base. However, training activities
inherently risk destroying surrounding habitat. To mitigate such
losses, a recovery credit system was developed where private landowners
with qualifying habitat in surrounding counties enter into contracts
and work with specialists to determine species management practices for
the enhancement of suitable golden-cheeked warbler habitat. I might
point out this process brought together a diverse group of stakeholders
who often have adverse opinions but the process allowed for
constructive collaboration to address a challenge that resulted in a
benefit to the species and, remarkably, landowners volunteering to
collaborate.
The fact is that Texas landowners understand the value of natural
resource preservation. Take the exotic wildlife managers and their
actions toward the scimitar-horned oryx, addax and dama gazelle. Near
extinction in their native Africa, the three antelopes have thrived
under the management of Texas ranchers and to the benefit of wild
populations. In 1979, there were 32 scimitar-horned oryx in a Texas
breeding program. Since then, that number increased to approximately
9,000 animals. The population of addax has grown from two known animals
in 1971 to more than 4,000. Less than 10 dama gazelles were in Texas in
1979; propagation efforts by private landowners have resulted in a
population growth to close to 900 today.
While FWS is overwhelmed by litigation, states and landowners are
eager to lead. I strongly encourage FWS to work with state and local
leaders to ensure that proper species management throughout Texas and
the Nation.
I applaud the committee's work on H.R. 4284 as well as H.R. 4315,
the ``Endangered Species Transparency & Reasonableness Act'' which
passed the House in July. As your committee continues to discuss ways
to improve species conservation, I support legislative efforts that aim
to:
Revise the provisions of ESA to establish a more rigorous
scientific data threshold in determining the status of a
species.
Ensure the party initiating a listing is responsible for
demonstrating the need for such designation. This contrasts
with current practices in which property owners facing the
regulations that accompany a listing carries the burden of
proving a species is not threatened or endangered.
Require flexibility in conservation plans so all
stakeholders impacted by a species listing have the
opportunity to benefit from and participate in activities
that protect and promote the targeted species.
Prevent Federal agencies from settling listing lawsuits
without the consent of affected parties.
Reform the Equal Access to Justice Act to prevent abuse by
activist groups and establish a ``loser pays'' clause to
prevent frivolous lawsuits.
Provide a clear process for analyzing the costs and
benefits of a listing during the initial stages of the
process. This analysis should demonstrate that the
objective, quantifiable benefits of listing a species
outweighs the cost of implementation and the restrictions
placed on affected stakeholders.
Prohibit FWS from regulating activities that lead to the
propagation of the species.
Refocus ESA on species recovery and proliferation.
In closing, I urge Congress to take action to provide true relief
to the people of Texas and the United States. Compared to other states,
Texas has a broad variety of ecosystems. From coastal prairies to pine
forests to deserts and mountains, our ecological profile is enormous.
Our state is sincerely committed to responsible and sustainable
stewardship of plants and animals that balances survival of both man
and our environment, and in a manner that does not punish individual
landowners, and violate their constitutional rights.
Thank you for the opportunity to appear before you today.
______
The Chairman. Mr. Staples, or Commissioner Staples, thank
you very much for your testimony. I would now like to recognize
my colleague from Arkansas for the purposes of an introduction.
Mr. Crawford. I thank the Chairman. I would also like to
ask unanimous consent that I submit an opening statement for
the record.
[No response.]
The Chairman. Without objection, it will be part of the
record.
[The prepared statement of Mr. Crawford follows:]
Prepared Statement of the Hon. Rick Crawford, a Representative in
Congress from the State of Arkansas on H.R. 4319
Thank you Chairman Hastings.
Last year I learned that a significant portion of the waterways in
my district could be designated Critical Habitat for the Rabbitsfoot
and Neosho Mucket Mussels. I also learned at the time that the U.S.
Fish and Wildlife's economic impact study of such a broad designation,
with the potential to affect tens of thousands of my constituents and
countless farms, small businesses and municipalities, would be entirely
made up of only the cost of the Government consulting with itself on
compliance. There would be no consideration for the potential loss of
the use of water and of activities, such as farming and manufacturing,
which use water or the waterways falling under this designation. There
would be no examination of whether this broad designation would cost
the people and businesses of my district the loss of the use of the
land, the loss of their jobs, the threat of increased costs, none of
that would be considered. I believe this so-called ``incremental''
approach formally adopted by the U.S. Fish and Wildlife Service, which
basically measures the cost of paperwork and bureaucracy, hides the
real economic impact of designations from the American public and
completely fails to provide the needed data to measure and reveal the
true cost to lives and livelihoods against the relative benefit gained.
It has not always been this way. Both the U.S. Fish and Wildlife
Service and the National Oceanic Atmospheric Administration's Fisheries
Service, the two agencies who administer the Endangered Species Act,
have used a more comprehensive approach in the past that measures the
true cost of designating particular areas in terms of loss of use,
increased costs and loss of jobs. This so-called ``cumulative''
approach gives a true picture of the cost of designating a particular
area as critical habitat, and permits an accurate and transparent
measure of the cost versus the benefit of designating a particular
area.
In response to this news. I submitted legislation called the
``Common Sense in Species Protection Act,'' which calls not only for
the true measure of the cost of a designation on lives and livelihoods,
but for that cost to be considered when making designations. The
legislation, H.R. 4319, has two significant components.
First, H.R. 4319 requires the Secretary of the Interior to consider
economic impact when designating areas within a proposed critical
habitat designation. The Endangered Species Act gives the Secretary the
option of considering the economic impact when designating, and when
considering whether to include or exclude areas from a critical habitat
designation. H.R. 4319 simply changes ``may'' to ``shall,'' in effect
requiring the Secretary to consider the economic impact. The language
in H.R. 4319 however does not change the provided exclusion from
considering economic impact should the Secretary determine that the
extinction of the species is at risk.
Second, the bill requires the administering agencies to use the
Cumulative rather than the Incremental method to calculate the economic
impact of proposed critical habitat designations. The cumulative method
embodied in H.R. 4319 considers the true costs to the lives and
livelihoods of those who live and work within a proposed designation,
and presents a much more transparent picture of the true cost of
species protection. Certainly more so than the administering agencies'
current method, the so-called incremental method, which basically
counts the cost of one government agency conferring with another. This
requirement is not a radical departure; the administering agencies have
used both methods, and variations of both, over the past 40 years.
Thank you again Chairman Hastings and members of the committee for
holding this hearing on H.R. 4319, and for all of the witnesses that
will appear here today to bring to light the serious need for reform in
how we protect and preserve our natural resources.
______
Mr. Crawford. Again, thank you, Mr. Chairman. I would like
to welcome Randy Veach, President of Arkansas Farm Bureau, and
thank him for coming here today to testify regarding H.R. 4319,
the Common Sense in Species Protection Act.
Randy Veach is in his sixth term as Arkansas Farm Bureau
President, having previously served 5 years as the
organization's vice president, and on the State Board of
Directors since 1999. A third-generation farmer in northeast
Arkansas, he and his wife, Thelma, raise cotton, rice,
soybeans, wheat, and corn, along with their son, Brandon on
farmland cleared by Randy's grandfather and father.
Mr. Veach serves as a member of the American Farm Bureau
Board of Directors, and has been involved with agricultural
trade missions to Mexico, China, Panama, South Korea, and
Japan. He leaves later this week for a trip to Belgium and
Switzerland to meet with trade officials from the European
Union.
I think it is critically important that we hear and
understand how policies coming out of Washington, DC affect the
lives and livelihoods of those living outside the beltway, and
I want to thank Mr. Veach for coming here today to help us
understand the real need for common-sense Endangered Species
Act reform.
And, with that, I yield back.
The Chairman. Mr. Veach, you are recognized for 5 minutes.
And thank you for being here.
STATEMENT OF RANDY VEACH, PRESIDENT, ARKANSAS FARM BUREAU,
LITTLE ROCK, ARKANSAS
Mr. Veach. Mr. Chairman and members of the committee----
The Chairman. Pull that a little bit closer, if you would.
Mr. Veach. Sure. Is that better?
The Chairman. I bet you are going to start, ``Mr.
Chairman.'' Go right ahead.
[Laughter.]
Mr. Veach. All right. Mr. Chairman and members of the
committee, thank you for the opportunity to be with you this
morning. I applaud your efforts to look deeper into the
overreach of rulemaking authority being used by some agencies
to amend the Endangered Species Act. As Congressman Crawford
said, I am a farmer from northeast Arkansas, and I sure am
happy to be here to be able to talk to you.
On behalf of the farmers and ranchers in Arkansas and
across the Nation, I want to express Farm Bureau support for
Congressman Crawford's bill, H.R. 4319, the Common Sense in
Species Protection Act of 2014.
This regulation would require Federal agencies to first
perform a complete analysis of the economic impacts of the
lives and livelihoods of those who live, work, and raise
families in an area before it is possible to declare those
areas as critical habitat. Mr. Chairman, I commend your
leadership in bringing all of us together to address
legislation that would provide some balance to the way Federal
agencies are now using this law.
Let me be blunt. In my view, the species most threatened
here is the American farmer and rancher. We are being
marginalized right out of business by overreaching from Federal
agencies acting beyond the intentions of Congress. These
actions jeopardize the economic stability of the Nation's
agricultural economy.
Four decades ago, the men and women of Congress passed the
Endangered Species Act. We now need Congress to exercise some
common sense and fix these problems.
To be clear, Farm Bureau supports the Endangered Species
Act for the protection of legitimately threatened species.
However, expansion of the law without considering the full
economic consequences is detrimental to an industry that
provides the food, the fiber, and the shelter for our country
in a major portion of the world.
Current regulations allow Federal agencies to only include
costs between Federal agencies when identifying the costs of
critical habitat designations. This is a reckless approach. The
only way to understand the full costs of critical habitat
designations is to have a completely transparent economic
impact study, subject to public comment, well in advance of
these declarations. Congressman Crawford's bill does that very
thing.
We hear a lot of these days about sustainable agriculture,
and many people trying to make a definition for sustainable
agriculture. But I can tell you if we are not profitable, we
are not sustainable. And if we are not sustainable, neither is
the food, fiber, and shelter that you have become so used to.
But an overzealous enforcement of Federal laws hinder,
disrupt, and further burden our farmers and ranchers. We will
not be able to sustainably raise the crops and livestock
necessary to feed the 7 billion people currently on our planet,
much less the 9 billion projected by 2050.
Allow me to address the specific situation in Arkansas,
where a proposal to create critical habitat for a pair of
aquatic species, the Neosho Mucket and the Rabbitsfoot mussel,
threatens to clamp down on Arkansas' farmers and ranchers. This
proposed habitat listing will have a negative impact on the
repair and maintenance of farm-to-market roads and bridges, and
on economic development activities, and exert severe
restrictions on construction and development projects.
In Arkansas, the proposed designation for these two mussels
would include 31 of our state's 75 counties, and would affect
nearly 42 percent of the state's watershed. There are nearly
770 waterway miles in our state connected to this proposed
critical habitat designation. Roughly 90 percent of these river
miles pass through private property, disproportionately
impacting productive land.
In this proposed area there are 21,000 family farms, 7.4
million acres of farmland, 8.6 million acres of forest land,
$2.9 billion of agricultural economy, annually. Farmers in
these areas produce 78 million broiler chickens, 6 million
laying hens, beef cattle by the tens of thousands, 600,000
acres of rice, 780,000 acres of soybeans. Again, we must
consider the impact to the lives and livelihoods of those who
live, work, and raise families in these areas.
We believe the proposed critical habitat designation will
lead to unwarranted litigation against private landowners.
There is little risk placed on those who file these lawsuits,
since the ESA picks up the taxpayer dollars to cover those
legal fees. But the government never picks up the cost of
private landowners who have to defend the use of their property
and the way they are using it.
There are several examples of agency overreach where
private lands would be overburdened by the critical habitat
designation. Much of the reason----
The Chairman. Mr. Veach, would you please summarize? Your
time has expired. Again, your full statement is in the record,
so if you would summarize----
Mr. Veach. All right.
The Chairman [continuing]. Here in the next 10 seconds, I
would appreciate it.
Mr. Veach. OK. These tactics have changed and threatened
the endangered species listing process, opening the door for
the government.
In closing, I ask again for Congress to rein in those
working around the intent of the Endangered Species Act and
provide the American public full transparency to the true cost
of the Endangered Species Act and proposed critical habitat
designations. If we don't, let me give you the bottom line on
this. If we do not----
The Chairman. Mr. Veach, please, you are over and we do
have two panels, and we want to give everybody an opportunity.
Mr. Veach. All right.
The Chairman. So please close.
Mr. Veach. The security of the supply of our food, fiber,
and shelters is threatened, and so is our national security.
Thank you for your time. God bless you and your families,
and God bless the farmers and ranchers.
[The prepared statement of Mr. Veach follows:]
Prepared Statement of Randy Veach, President, Arkansas Farm Bureau on
H.R. 4319
Mr. Chairman and members of the committee, thank you for the
opportunity to be with you this morning. I applaud your efforts to look
deeper into the over-reach of rulemaking authority being used by some
agencies to amend the Endangered Species Act.
As Congressman Crawford said, my name is Randy Veach and I am a
cotton, soybean, corn and rice farmer from northeast Arkansas.
On behalf of our farmers and ranchers in Arkansas and across the
Nation, I want to express Farm Bureau's support for Congressman
Crawford's bill, H.R. 4319, the ``Common Sense in Species Protection
Act of 2014.'' This legislation would require Federal agencies to first
perform a complete analysis of the economic impacts on the lives and
livelihoods of those who live, work and raise families in an area
before it is possible to declare those areas as critical habitat.
Mr. Chairman, I commend your leadership in bringing all of us
together to address legislation that would provide some balance to the
way Federal agencies are now using this law.
Let me be blunt; in my view, the species most threatened here is
the American farmer and rancher. We are being marginalized right out of
business by over-regulation from Federal agencies acting beyond the
intentions of Congress. These actions jeopardize the economic stability
of the Nation's agricultural economy.
Four decades ago, the men and women of Congress passed the
Endangered Species Act. We now need Congress to exercise some common
sense and fix these problems.
To be clear, Farm Bureau supports the Endangered Species Act for
the protection of legitimately threatened species. However, expansion
of the law without first considering the full economic consequences is
detrimental to an industry that provides food, fiber and shelter for
our country and a good portion of the world.
Current regulations allow Federal agencies to only include the
consultation costs between Federal agencies when identifying the
``costs'' of critical habitat designations. This is a reckless
approach.
The only way to understand the full costs of critical habitat
designations is to have a completely transparent economic impact study,
subject to public comment, well in advance of these declarations.
We hear a lot these days about sustainable agriculture, which, to
me, means a readily available supply of food. The farmers and ranchers
who supply this food are sustainable only when we can profitably remain
in business. But, if over-zealous enforcement of Federal laws hinder,
disrupt or further burden our farmers and ranchers, we will not be able
to sustainably raise the crops and livestock necessary to feed the 7
billion people currently on our planet, much less the 9 billion
projected by 2050.
Allow me to address the specific situation in Arkansas, where a
proposal to create critical habitat for a pair of aquatic species--the
Neosho Mucket and the Rabbitsfoot mussel--threatens to clamp down on
Arkansas' farmers and ranchers. This proposed habitat listing will have
a negative impact on the repair and maintenance of farm-to-market roads
and bridges, on economic development activities, and exert severe
restrictions on construction and development projects.
In Arkansas, the proposed habitat designation for these two mussels
would include 31 of our state's 75 counties and would affect nearly 42
percent of the state's watershed.
There are nearly 770 waterway miles in our state connected to this
proposed critical habitat designation. Roughly 90 percent of these
river miles pass through private property, disproportionately impacting
productive land.
In this proposed area there are 21,000 family farms, 7.4 million
acres of farmland, 8.6 million acres of forestland and $2.9 billion of
agricultural income. Farmers in these areas produce 78 million broiler
chickens, 6 million laying hens, beef cattle by the tens of thousands,
600,000 acres of rice and 780,000 acres of soybeans.
A recent study conducted by the University of Arkansas at Little
Rock estimated the cost of the habitat designation in Arkansas alone to
be five (5) times the impact calculated by U.S. Fish and Wildlife
Services for the 12 states included in this designation of these two
aquatic species. Quite frankly, we expect the impact in Arkansas to be
significantly higher, once the full cost of changes to best-management
practices, unrealized opportunities and additional regulatory costs are
included.
Again, we must consider the impacts to the lives and livelihoods of
those who live, work and raise families in these areas.
We believe the proposed critical habitat designation will lead to
unwarranted litigation against private landowners. There is little risk
placed on those who file the lawsuit, since in many cases, the ESA
provides taxpayer dollars to cover legal fees for those who file the
lawsuit. The government never picks up the cost of the private
landowner who has to defend the use of their property.
There are several examples of agency overreach, despite
declarations that private lands would not be overburdened by the
critical habitat designations.
Much of the reason we are here today defending the rights of
American farmers is due to the current tactics employed by radical
environmental groups. In 2011 two environmental groups negotiated a
settlement agreement with the Fish and Wildlife Service and National
Marine Fisheries Service that resulted in hundreds of new species
listings across the Nation--potentially more than 300 species in the
Southeast. With each listed species comes with the consideration of
expansive and limiting regulatory burden of critical habitat
designations.
These tactics have changed the threatened and endangered species
listing process, opening the door for non-government organizations and
third-party litigants to come into states nationwide to essentially
extort private landowners through the threat of litigation.
In closing, I ask again for Congress to rein in those working
around the intent of the Endangered Species Act and provide the
American public full transparency to the true cost of the ESA and
proposed critical habitat designations.
Thank you for your time.
God bless you and your families. God bless our farmers and
ranchers. And God bless America.
______
The Chairman. Thank you, Mr. Veach. Appreciate your
testimony. And now I would like to recognize Mr. Robert
Fischman, Professor of Law at Indiana University Maurer School
of Law in Bloomington, Indiana.
You are recognized for 5 minutes.
STATEMENT OF ROBERT L. FISCHMAN, PROFESSOR OF LAW, INDIANA
UNIVERSITY MAURER SCHOOL OF LAW, BLOOMINGTON, INDIANA
Mr. Fischman. Thank you very much, Mr. Chairman, for the
privilege of testifying today. In addition to being a professor
of law at Indiana University, I am also a member scholar at the
Center for Progressive Reform. I speak today on my own behalf,
however, and not on behalf of either of those institutions.
My major message is that I think piecemeal fixes for
particular species or particular projects will not improve the
performance of the Endangered Species Act. They tend to skew
priorities with temporary strategies. They increase the overall
cost of administering the Act, usually without commensurate
funding, micro-managing risks, undermining this Congress'
longstanding emphasis on science-based decisionmaking.
Instead, I propose more systematic reforms to make the
aspirations of Congress in the Act a reality. The ESA works to
prevent extinctions through data, best available technology.
But that is not enough to ensure national conservation goals or
minimize the costs of species protection. To accomplish those
objectives, what we desperately need is legislation to promote
the ecological health of the Nation.
Representative Neugebauer used an analogy to human health
in the medical profession. I would say the Endangered Species
Act is akin to a very crowded hospital emergency room, right,
with a long wait. The most effective way of reforming the ESA
is to provide treatment for species before their status is so
dire. Programs like the State Comprehensive Wildlife Action
Plans head off more listings, and are a bargain compared to the
emergency treatment under the ESA.
Congress intended the ESA to conserve the ecosystems upon
which imperiled species depend. And it is important to remember
that we all depend on ecosystems for our health and prosperity.
In addition to the moral rationale for the Endangered
Species Act, there are also, however, practical benefits. Mr.
Veach mentioned the freshwater mussels. My part of the Midwest,
in Indiana, also hosts listed freshwater mussels, as does the
State of Ohio. And like canaries in coal mines, freshwater
mussels are telling us something about excess nutrient runoff.
That is the problem that ultimately shut down the water supply
of Toledo for several days this summer.
It is not easy to get a handle on unsustainable farming
practices, but the ESA forces us to make some very difficult
choices. Therefore, the Act takes a lot of heat.
The problem is, by the time a species gets listed,
populations are already so depleted that there remains little
flexibility for further declines. But most declining species in
the United States are not on the brink of extinction. A
conservation program for sustaining these species could succeed
with much greater flexibility than the ESA.
If we had a set of programs to slow unsustainable practices
before biodiversity reached the point of potential collapse, we
would avoid many of the train wrecks that have tarnished the
image of the ESA. We ought to rely on it less, and more on
preventative initiatives, just as we do in the field of public
health.
One great opportunity for prevention is funding the
comprehensive wildlife action plans that now every state has in
place. Avoiding new ESA listings is a foundational purpose for
each of these plans, which Congress encouraged through a grant
program. The action plans provide states with flexibility on
setting priorities to avoid listings through programs of their
own choosing. Federal appropriations to assist states in
carrying out their plans currently amount to less than $1
million per state per year. They are decreasing over time.
Funding the plans would require about a 10- to 20-fold
increase, a relatively small amount of money to head off much
more expensive ESA challenges, where recovery costs are
estimated to be in the billions of dollars.
Now, I understand this committee does not directly control
purse strings, but it certainly can avoid making the triage
situation for the ESA worse through delayed listings and
unfunded agency procedures.
Let me just conclude by saying that conservation success
will require comprehensive legislative reform, more
appropriations for the agencies charged with implementing the
Endangered Species Act, and vigilant citizens policing
compliance with the Act.
I am happy to answer any questions you have about my
statement, or how it relates to the particular bills the
committee is considering. Thank you for your time.
[The prepared statement of Mr. Fischman follows:]
Prepared Statement of Robert L. Fischman, Professor of Law, Indiana
University Maurer School of Law
My name is Robert L. Fischman. I am a Professor of Law at the
Indiana University Maurer School of Law. I am also a member scholar of
the Center for Progressive Reform. Thank you for inviting me to
testify. I am testifying today on my own behalf; the views I express
should not be attributed to any organization with which I am
affiliated. A copy of my curriculum vitae is attached to this testimony
as Appendix A. I also include a brief biographical paragraph in
Appendix B. I have written about and taught the Endangered Species Act
(ESA) for over two decades. My publications are listed in the vitae.
The statement that follows reflects my view that piecemeal fixes
for particular species or projects will not improve the performance of
Federal agencies in meeting the objectives of the ESA. There are just
too many individual issues and site-specific reforms, such as the
carve-outs for certain water projects in H.R. 1927 and H.R. 4866's
reversal of the lesser prairie chicken listing, which tend to skew
priorities with temporary strategies. Piecemeal legislation and micro-
management of agencies risk undermining this Congress' longstanding
emphasis on science-based decisionmaking.
Instead, I propose more systematic reforms to make the aspirations
of Congress in the ESA a reality. The ESA today is an indispensable
tool of Federal biodiversity conservation, but it can work better.
i. the endangered species act should be a last resort for conservation,
not the principal tool
Though Congress intended the ESA to conserve ``the ecosystems upon
which'' imperiled species depend,\1\ the act almost exclusively focuses
on preventing species from going extinct. By the time species are
listed for protection under the ESA, populations are already so
depleted that there remains little flexibility for further declines.
The famous inflexibility of the Act, to ``halt and reverse the trend
toward species extinction, whatever the cost,'' \2\ is borne of the
emergency situation facing a species when it declines to the very brink
of extinction. Isolated fragments of habitat, low genetic diversity,
and precious few populations raise the costs of conservation and
heighten the consequences of failure.
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\1\ 16 U.S.C. Sec. 1531(b).
\2\ Tennessee Valley Authority v. Hill, 437 U.S. 153, 184 (1978).
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The most effective step Congress could take to improve the track
record of the ESA and reduce conflicts about its application is to
enact comprehensive biodiversity protection legislation. Most declining
species in the United States are not on the brink of extinction. A
conservation program for sustaining these species could succeed with
much greater flexibility than the ESA. The ESA often demands
modification of commercial activities because we do not take reasonable
measures until species are at a relatively high risk of extinction. If
we had a set of programs to slow unsustainable practices before
biodiversity reached the point of potential collapse, then we would
avoid many of the train wrecks that have tarnished the image of the
ESA. It is a program of last resort, and we ought to rely less on the
ESA and more on preventive biodiversity health initiatives to address
ecological integrity.
For instance, it can be difficult to promote both economic
development and species protection when very little habitat remains.
The larger the area, the more feasible trade-offs become. Early
planning, before every last scrap of habitat is needed for a species to
cling to existence, enables more flexibility and can distribute the
costs of species protection more evenly. Some candidate conservation
agreements include this kind of flexible approach, but they tend to be
developed when it is too late to realize their potential because
species populations are too small. We need legislative incentives to
engage in such planning before a species is on the verge of listing.\3\
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\3\ Robert Fischman, Predictions and Prescriptions for the
Endangered Species Act, 34 Environmental L. 451 (2004).
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Preventive ecological health to avoid ESA listing also requires
information. Without information about the location, vigor, trends, and
needs of species, we have little hope of avoiding endangerment. Most
species' range-wide status is not tracked by any agency, state or
Federal. Scientists are currently at work on a promising national
conservation-support network.\4\ This is one model Congress could
endorse, as it would establish the scientific data needed to support
preventative ecological health.
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\4\ Vicky J. Meretsky et al., A State-Based National Network for
Effective Wildlife Conservation, BioScience 62:970-976 (2012).
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ii. the endangered species act needs more funding for effective
implementation
The ESA has never received adequate funding to fulfill its
objectives, and recent budgets have intensified the problem. Much of
the litigation that entangles the U.S. Fish and Wildlife Service (FWS)
seeks to enforce clear statutory deadlines in cases where there is not
much dispute over the meaning of the law. The listing agencies are
simply unable to comply with the demands of the ESA because they do not
possess the resources to keep pace with a flow of species declines that
promises only to get worse. Limiting judicial review would not help the
agencies meet their congressional mandates. The real solution is to
give the agencies funding to carry out species listing, critical
habitat designation, recovery planning, interagency coordination, and
enforcement.
Funding implementation of the ESA now will be much cheaper than
continuing on the current course of inadequate responses to the
extinction crises. Unless we can prevent further listings through
conservation and address imperiled species needs for recovery early, we
will experience more massive, expensive train wrecks like the disputes
over the Columbia and San Joaquin Rivers. The states understand this
and have made great strides in planning for preventive conservation.
Congress should encourage states with more grants, as noted below. This
is a classic case where an ounce of prevention is worth a pound of
cure.
Habitat acquisition combats the leading cause of species
imperilment, habitat loss,\5\ and has been a key element of Federal
efforts to prevent extinctions since the time of Congress' very first
endangered species legislation in 1966.\6\ Unfortunately, the
centerpiece for funding this tool, the Land and Water Conservation
Fund, has been under-appropriated for many years. The account now
accumulates about $900 million annually, but appropriations from it
have declined to under $300 million annually. Of the total revenues
accumulated in the fund for conservation purposes, Congress has spent
less than half.\7\ Much of this money goes to states and enlists the
power of cooperative federalism to promote species conservation.
Congress should view such spending as an investment, because it reduces
future recovery costs and burdens on businesses.
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\5\ David S. Wilcove et al., Quantifying Threats to Imperiled
Species in the United States, BioScience 48:607-615 (1998).
\6\ Pub. L. No. 89-669, Sec. Sec. 1-3, 80 Stat. 926, 926-27.
\7\ Carol Hardy Vincent, Land and Water Conservation Fund:
Overview, Funding History, and Issues (7-5700 RL33531) (2010).
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Federal funding can be used to conserve habitat with methods other
than land acquisition. Another long-employed conservation tool is the
appropriation of subsidies to encourage and compensate landowners for
better management to protect species. Indeed many landowners expect
compensation for foregone profits resulting from habitat protection.
The farm bill programs provide some of this aid but are typically
limited to agricultural land and are not sharply focused on
biodiversity. Funding of incentive programs for habitat protection and
enhancement could yield tremendous conservation dividends without
enlarging the Federal estate of public lands.
The ESA section 6 cooperative agreements to states and tribes could
be significantly extended with infusions of funding. This would give
greater control of priorities to states, which often feel pushed around
by the priorities of Federal agencies. In addition, all states have
produced comprehensive wildlife action plans to protect biodiversity.
Avoiding new ESA listings is a foundational purpose of each of these
state plans, which Congress encouraged through a grant program
contingent on Federal approval of the plans. Instead of supporting H.R.
4256's singular mandate that Federal agencies include states' counts of
species in listing determinations, Congress should support the states'
own wildlife action plans, which provide states with flexibility in
setting priorities to avoid listings through programs of the states'
own choosing. Federal grants to assist states in carrying out their
plans amount to less than $1 million/state/year and are decreasing over
time. Funding the plans would require investments of $9-26 million/
state/year, a relatively small amount of money to head off much more
expensive ESA challenges, where recovery costs are estimated to be many
billions of dollars.\8\
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\8\ Vicky J. Meretsky et al., A State-Based National Network for
Effective Wildlife Conservation, BioScience 62:970-976 (2012); Office
of the Inspector General, U.S. Department of the Interior, Rep. No. 90-
98, Audit Report: The Endangered Species Program 11 (1990).
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While this committee does not directly control purse strings, it
certainly can avoid making the situation worse. Requirements such as
H.R. 4319's additional economic analyses and H.R. 4284's process
involving ``state protective actions'' are problematic. Imposing new
obligations on Federal agencies to engage in more analyses will
exacerbate problems, as foreseeable appropriations are likely to be
inadequate to carry out the necessary research. New obligations will
also increase lawsuits and implementation by consent decree.
iii. citizen suits play an important role in holding agencies
accountable to the requirements of congress
One understandable reaction to the frustration of litigation
against the listing agencies, especially over violations of statutory
deadlines, is to outlaw the lawsuits or make them difficult to file.
However, that would remove an important control over agency overreach.
Citizen suits play an essential role ESA implementation by keeping
agencies focused on the commands of Congress and less distracted by the
political demands of interest groups. As illustrated below, developers
and other business groups actively employ the opportunity to hold the
FWS to its legal mandates. Attorney's fees are generally available only
to parties prevailing on the merits of lawsuits. That is a good
incentive for citizens to bring to courts only meritorious claims of
agency wrong-doing.
Courts defer to agency determinations under the ``arbitrary and
capricious'' standard applicable to almost all ESA citizen suits.
Therefore, plaintiffs can succeed on the merits only when the agency
utterly fails to comply with the law. An agency decision must be
``arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law; contrary to [the constitution] . . .; in excess of
statutory jurisdiction, authority, or limitations . . .; [or] without
observance of procedure required by law . . .'' in order for a court
order a remand.\9\ In other words, a mere disagreement or difference of
opinion is not enough to overturn an agency action or trigger
attorney's fees. In a commonly cited formulation, the Supreme Court
stated that an agency action may be overturned under this standard if
it:
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\9\ 5 U.S.C. Sec. 706.
has relied on factors which Congress had not intended it to
consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs
counter to the evidence before the agency, or is so implausible
that it could not be ascribed to a difference in view or the
product of agency expertise.\10\
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\10\ Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29, 43 (1983).
Establishing road-bocks to judicial review gives agencies license
to consider factors unintended by Congress or to ignore considerations
that Congress required to be part of a determination. For instance, the
San Luis and Delta-Mendota Water Authority proved that the Federal
listing of the Sacramento splittail as a threatened species was
arbitrary and capricious. The court agreed with the water provider that
the FWS failed to rely on the best scientific data available, to relate
the data to the listing, and to provide a written justification to the
state agency opposing the listing.\11\ The citizen suit forced the
agency to follow Congress' criteria in making a listing decision for
the fish, which the FWS removed from the list of species protected
under the ESA.\12\
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\11\ San Luis & Delta-Mendota Water Auth. v. Badgley, 136 F. Supp.
2d 1136 (E.D. Cal. 2000).
\12\ Notice of Remanded Determination of Status for the Sacramento
splittail (1Pogonichthys macrolepidotus), 68 Fed. Reg. 55,140-01 (Sept.
22, 2003).
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Settlements through consent decrees allow the Federal Government to
avoid unnecessary litigation expenses when the outcome is clear that an
agency will lose. By mandating that each affected state and county
approve a consent decree prior to judicial approval, H.R. 1314 adopts a
``tragedy of the anticommons'' \13\ approach that will stifle the
number ESA-related consent decrees by giving too many parties veto
power to hold out for better outcomes. Such strategies that make
settlement more difficult will increase litigation costs at a time when
Federal budgets are austere and will detract from the ability of
agencies to effectively implement the ESA.
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\13\ Michael Heller, The Tragedy of the Anticommons, 111 Harvard L.
Rev. 621 (1998).
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iv. conclusion
The ESA works to prevent extinctions and employs sound science.\14\
But that is not enough to ensure national conservation goals or
minimize the costs of species protection. To accomplish those
objectives, we desperately need legislation to create programs that
would promote the ecological health of the Nation. The ESA is akin to a
crowded hospital emergency room with a long wait. The most effective
way of reforming the ESA is to provide treatments for species before
their status is so dire. Programs like the state comprehensive wildlife
action plans that head off more listings are a bargain compared to the
emergency treatment under the ESA. Conservation success will require
comprehensive legislative reform, more appropriations for the agencies
charged with implementing the ESA, and vigilant citizens policing
compliance with the act.
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\14\ National Research Council, Science and the Endangered Species
Act (1995); Mark W. Schwartz, The Performance of the Endangered Species
Act, Annual Review of Ecology, Evolution, and Systematics 39:279-299
(2008).
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______
The Chairman. Mr. Fischman, thank you very much for your
testimony.
I now want to recognize Mr. Gary Frazer, the Assistant
Director of Ecological Services for the U.S. Fish and Wildlife
Service of the Department of the Interior here, in Washington,
DC.
Mr. Frazer, you are recognized for 5 minutes.
STATEMENT OF GARY FRAZER, ASSISTANT DIRECTOR FOR ECOLOGICAL
SERVICES, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE
INTERIOR, WASHINGTON, DC
Mr. Frazer. Mr. Chairman and members of the committee, I am
Gary Frazer, Assistant Director for Ecological Services of the
U.S. Fish and Wildlife Service. I appreciate the opportunity to
testify for you today regarding six bills to amend the
Endangered Species Act. While the Department does not support
the six bills as written, we welcome the opportunity to work
with the committee on efforts to improve the implementation of
the Endangered Species Act.
In the 40 years since it has passed, the ESA has prevented
the extinction of hundreds of species, and promoted the
recovery of many others. But as others have testified at
earlier ESA hearings, increasing numbers of species are facing
the threat of extinction; we need a strong and effective ESA
now, more than ever.
The Service has creatively developed and used a variety of
tools to engage landowners and other partners to advance the
conservation of at-risk species. As an example, last month the
Service announced its determination that listing the Montana
population of Arctic grayling was not warranted. Private
landowners in the Big Hole and Centennial valleys in Montana
worked through a voluntary Candidate Conservation Agreement
with Assurances, or CCAA, to improve conditions for grayling.
Since 2006, over 250 conservation projects have been
implemented under the CCAA. Habitat quality was improved, and
grayling populations have more than doubled since the CCAA
began.
The collaboration between ranchers and the Federal and
state resource agencies serves as a model for voluntary
conservation across the country. These and other success
stories across the country reflect the kind of innovation,
collaboration, and flexibility that professional men and women
of the Fish and Wildlife Service and our partners bring to the
difficult job of species conservation under the ESA every day.
I would now like to briefly comment on the six bills before
the committee.
H.R. 1314 would amend the ESA to give parties more
opportunity to intervene in ESA lawsuits, effectively prohibit
the payment of attorneys' fees to plaintiffs in any case it
settles, and require each state and county within the range of
the species to approve any settlement. If this bill were to be
enacted, these provisions would make it highly unlikely that
any plaintiff will agree to settle a case. Instead, plaintiffs
would likely press the courts for summary judgment, seeking a
remedy likely far less favorable for the Service, and forcing
the government to incur litigation costs far in excess of the
reasonable attorneys' fees associated with the settlement
agreement. For that reason, the Department opposes H.R. 1314.
H.R. 1927 is aimed at minimizing the extent to which
Californians' water supplies are impacted by requirements for
fish listed under the Endangered Species Act. While drought is
not referenced in the language of this bill, it is clear that
any water supply impacts associated with the ESA are more
conspicuous because of the drought's effects on water supplies
this year in California. The central reason for reduced water
supplies in California this year stems from drought, not the
implementation of the ESA.
The Department does not support H.R. 1927, and our views
are directly informed by the actions that are being taken to
address the drought, actions promoting sound water management,
consistent with existing laws, including the ESA, which lead us
to the conclusion that these coordinated actions are better
able than the measures described in the bill to provide the
operational flexibility to best maximize the delivery of the
limited water supplies available during dry years, while
protecting endangered species.
H.R. 4256 would amend the ESA to direct the Secretary to
count all individuals of the species without regard to land
ownership or conservation status for the purpose of determining
whether or not to list a species as threatened or endangered.
The Department has concerns about H.R. 4256 as currently
drafted, but would be happy to work with the committee to
discuss how the objectives of the bill could be achieved
without compromising the listing determination process set
forth in the Act.
H.R. 4284 would amend the ESA to establish a process by
which any population of a species in a state would be precluded
from listing as a threatened or endangered species if the
Secretary has approved a State Protective Action for the
population. While we strongly support the intent of the bill to
provide additional incentives for states to develop and
implement conservation plans for candidate species, we have
concerns with H.R. 4284 in its current form. We would be happy
to work with the committee to further explore options that
would engage states early in an effort to conserve species and
their habitat before a listing under the ESA is required.
H.R. 4319 would amend Section 4(b)2 of the Act to make it
mandatory that the Secretary exclude any area from designation
of critical habitat if she determines that the benefits of
exclusion outweigh the benefits of inclusion. The Department
opposes H.R. 4319 because, by making the exclusion process
under Section 4(b)2 mandatory, as opposed to discretionary, it
will greatly increase the litigation exposure of the government
for critical habitat designations.
And H.R. 4866 would reverse the Service's listing of the
lesser prairie chicken as a threatened species. The Department
strongly opposes H.R. 4866. The Service carried out its
responsibilities and made a science-based listing determination
in accordance with the Act. The final listing determination for
the lesser prairie chicken as a threatened species came with a
4(d) rule that establishes that landowners and businesses
enrolled and participating in the state's range-wide
conservation plan are not subject to further regulation under
the Act. A congressional override of this lawful and proper
listing determination would severely undermine effective and
science-based implementation of the Act.
In conclusion, America's rich and natural heritage of fish,
wildlife, and plants belongs to all Americans, and ensuring the
health of imperiled species is the shared responsibility of all
of us. The Service has been responsive to the need to develop
flexible, innovative mechanisms to engage the cooperation of
private landowners and others, both to preclude the need to
list species where possible, and to speed the recovery of those
species that are listed.
Thank you for your interest in endangered species
conservation and ESA implementation, and for the opportunity to
testify.
[The prepared statement of Mr. Frazer follows:]
Prepared Statement of Gary Frazer, Assistant Director for Ecological
Services, U.S. Fish and Wildlife Service, Department of the Interior
Chairman Hastings, Ranking Member DeFazio, and members of the
committee, I am Gary Frazer, Assistant Director for the U.S. Fish and
Wildlife Service's Ecological Services program within the Department of
the Interior (Department). I appreciate the opportunity to testify
before you today regarding six bills to amend the Endangered Species
Act of 1973, as amended (ESA). While the Department does not support
the six bills as written, we welcome the opportunity to work with the
committee on efforts to improve the implementation of the Endangered
Species Act.
overview
In the 40 years since it was passed, the ESA has prevented the
extinction of hundreds of species and promoted the recovery of many
others, including gray wolves in the Northern Rocky Mountains and the
Western Great Lakes. The first fish to be proposed for delisting due to
recovery, the Oregon Chub, is native to rivers and streams in the State
of Oregon. The recovery of the Oregon chub is noteworthy because it is
attributable in significant part to the cooperation of private
landowners who entered into voluntary conservation agreements to manage
their lands in ways that would be helpful to this rare fish. In May
2013, the Service announced the first invertebrate to be recovered: the
Magazine Mountain Shagreen, found in the Arkansas' Ozarks. This great
conservation work has helped to achieve Congress' call to preserve the
Nation's natural resource heritage, and it has happened alongside
robust and sustained economic development.
But, as witnesses at previous ESA hearings testified, increasing
numbers of species are facing the threat of extinction. The petition
process, deadlines, and citizen suit provisions of the ESA provide
appropriate opportunity for these parties to challenge the pace and
priorities of the Service in administering our listing duties. This
contributes to a seemingly unlimited workload with limited resources
sometimes resulting in missed statutory deadlines for which we are
often sued. Settlement agreements are often in the public's best
interest because we have no effective legal defense to most deadline
cases, and because settlement agreements facilitate issue resolution as
a more expeditious and less costly alternative to litigation.
When we settle a deadline case, we agree on a schedule for taking
an action that is already required by the ESA. We do not give away our
discretion to decide the substantive outcome of those actions, and the
notice and comment and other public participation provisions of the ESA
and the Administrative Procedure Act still apply.
The Multidistrict Litigation Settlement Agreement (MDL), likely the
subject of H.R. 1314, has served to reduce deadline litigation by
almost 96 percent. Through the agreement, the plaintiffs have agreed to
substantially limit or eliminate their deadline litigation. This
reduction has allowed the Service to use our objective, biologically
based priority system to establish our work priorities, rather than
have our priorities overridden by litigation seeking to advance
plaintiffs' priorities.
Since the MDL settlement, the Service has used existing tools such
as the Candidate Conservation Agreement with Assurances (CCAA) and
others to engage landowners and other partners to advance the
conservation of species. In fact, three proposals for listing have been
withdrawn and more than 20 species, identified as candidates in 2010
and covered under the MDL settlement agreements, have been found to not
warrant protections under the Act.
In October 2013, the Service withdrew its proposal to list the
Coral Pink Sand Dunes tiger beetle, another species covered under the
MDL settlement agreements that is found in Kanab, Utah. The Service was
able to withdraw its proposal based on an amendment to an existing
conservation agreement that sufficiently addressed the threats to the
beetle by enlarging an existing conservation area, and targeting
additional areas of habitat for protection. This was a joint effort
among the Bureau of Land Management, Utah Department of Natural
Resources, Kane County and FWS.
Last month, the Service announced its determination that listing
the Montana population of Arctic grayling was not warranted. The
grayling was another species covered under the MDL settlement
agreements. Private landowners in the Big Hole and Centennial valleys
in Montana worked through a voluntary CCAA to achieve significant
conservation of grayling within its range. Since 2006, over 250
conservation projects have been implemented under the CCAA to conserve
Arctic grayling and its habitat. Habitat quality has improved and
grayling populations have more than doubled since the CCAA began in
2006. The cooperation between the Federal and state partners serves as
a model for voluntary conservation across the country.
The Endangered Species Act provides great flexibility for
landowners, states and counties to work with the Fish and Wildlife
Service on voluntary agreements to protect habitat and conserve
imperiled species. Through Safe Harbor Agreements, Candidate
Conservation Agreements, Habitat Conservation Plans, Experimental
Population authority, and the ability to modify the prohibitions on
take of endangered species in Section 9 by crafting special rules for
threatened species under Section 4(d), the Act allows and encourages
creative, collaborative, voluntary practices that can align landowner
objectives with conservation goals.
H.R. 1314--To amend the Endangered Species Act of 1973 to establish a
procedure for approval of certain settlements
H.R. 1314 would amend the ESA to require the Service to publish all
complaints received pursuant to the ESA within 30 days of being served
in order to provide notice to all affected parties. Those affected
parties would then have a reasonable period to move to intervene,
during which time parties would be prohibited from moving for entry of
a consent decree or to dismiss the case pursuant to a settlement
agreement. The bill would create a rebuttable presumption that any
affected party moving for intervention would not be adequately
represented by the existing parties. If the court grants a motion to
intervene, the bill requires the court to refer the case to mediation
or a magistrate judge for settlement discussions including any
intervenors. Finally, the bill revises the attorneys' fees provision,
effectively prohibiting the payment of attorneys' fees to plaintiffs in
any case that settles and adds a new provision that requires each state
and county where the species at issue occurs to approve of the
settlement.
The great majority of ESA litigation brought against the Service is
to enforce compliance with the mandatory deadlines for action set forth
under the Act. When the Service settles a deadline case, it is because
we lack a viable defense, and we agree to a schedule for taking an
action that is already required by the ESA on terms more favorable to
the Government than what we might expect from a court if the case went
to trial. We do not give away our discretion to decide the substantive
outcome of those actions, and the notice and comment and other public
participation provisions of the ESA and the Administrative Procedure
Act still apply to the process for making those decisions. In short, so
long as the Act imposes mandatory deadlines for taking action that
exceed the capability of the Service to meet within the resources we
have available, it is important that we retain the ability to settle
deadline litigation on favorable terms and reduced cost to the
Government.
If this bill were to be enacted, the prohibition against the award
of reasonable attorney fees and the requirement that each state and
county within the range of the species must approve any settlement will
make it highly unlikely that any plaintiff will agree to settle a case.
Instead, plaintiffs would likely press the courts for summary judgment,
seeking a remedy that may be far less favorable for the Service and
forcing the Government to incur litigation costs far in excess of the
reasonable attorney fees associated with a settlement agreement. When
deadline cases have been litigated in the past, courts have frequently
imposed very short deadlines. Therefore, removing the incentive for
settlement is likely to accelerate the timing of listing determinations
and other actions required by deadline, thereby reducing the
opportunity for interested parties to participate in the decisionmaking
process. In addition, the necessity of fully litigating each case would
greatly increase the administrative burdens and costs borne by the
Service and the courts, with no offsetting benefit.
The Department opposes H.R. 1314 because it will greatly diminish
the opportunity to settle deadline lawsuits brought under the ESA,
where it is usually in the interest of the Government and taxpayer to
do so.
H.R. 1927--More Water and Security for Californians Act
The More Water and Security for Californians Act, H.R. 1927, is
aimed at minimizing the extent to which California's water supplies are
impacted by requirements for fish under the Endangered Species Act
(ESA; 16 U.S.C. 1531 et seq.). The bill addresses operation of the
State Water Project (SWP) and Central Valley Project (CVP),
collectively referred to as the ``Projects,'' and applies to biological
opinions associated with the projects under the ESA. The bill states
that all requirements of the ESA relating to operation of the projects
are ``deemed satisfied'' if reasonable and prudent alternatives (RPAs)
from the biological opinions are implemented, additional actions are
implemented and as long as state requirements for water quality are
met. The bill favors specific operational regimes described in the
biological opinions, and is aimed at preventing any interpretation of
the biological opinions that would curtail water exports via the state
and Federal pumping plants in the southern end of the Sacramento-San
Joaquin Bay-Delta.
The bill's other major provisions authorize a fish hatchery program
for delta smelt; a habitat program that includes fish passage projects
in and above the Bay-Delta; and the installation of a barrier within
the delta aimed at protecting migrating Chinook salmon and other listed
fish from influence of the export pumps. No new funding is authorized
or appropriated by the bill. While drought is not referenced in the
language of this bill, it is clear that any water supply impacts
associated with the ESA are more conspicuous because of the drought's
effects on water supplies this year in California. In this third year
of drought, all uses of state and Federal project water--including the
environment--are severely impacted. But while media coverage and
editorializing might argue otherwise, the central reason for reduced
water supplies in California this year stems from drought, not the
implementation of the ESA. It is true that the implementation of the
ESA necessarily entails some choices, and requires the dedication of
water that in some cases cannot be recovered. But it is not clear that
the language of H.R. 1927, if enacted, would meaningfully change the
water supply allocations made by the projects in drought years like
2014.
The Department does not support H.R. 1927 because it would limit
the scope of actions the agencies can take, consistent with the best
available science, for operating the state and Federal projects in a
way that is protective of endangered species. The bill sets an
unfavorable precedent of layering a general congressional policy goal
over the top of carefully crafted actions that were developed to comply
with the law for the protection of listed fish while still allowing
water deliveries to continue. In addition, a section of this bill
conflicts with longstanding Reclamation law, specifically Section 8 of
the Reclamation Act of 1902. The bill could further complicate project
operations in years of drought since many of its provisions, such as
the reverse-flow language in Section XX(b)(2), which would potentially
interfere with actions necessitated by the specific hydrology of a
given year. The Department's views on H.R. 1927 are directly informed
by the actions that are being taken to address drought, actions
promoting sound water management consistent with existing laws,
including the ESA, which lead us to the conclusion that these
coordinated actions are better able than the measures described in the
bill in providing the operational flexibility to maximize the delivery
of the limited water supplies available during dry years.
We share the goals of the bill's sponsor to secure California's
water supplies, but do not believe the approach embodied in H.R. 1927
advances that objective.
H.R. 4256--Endangered Species Improvement Act of 2014
The Endangered Species Improvement Act of 2014, H.R. 4256, would
amend the ESA to direct the Secretary of the Interior, to count all of
the species without regard to whether it is found on state, private, or
tribal lands as determined by the state, for the purposes of whether or
not to list a species as threatened or endangered.
For the purpose of determining whether a species should be listed
as threatened or endangered, the Service must consider both the status
of the species, for which population size is an important
consideration, and the threats to that species using the factors set
forth in the statute. The Service always counts all individuals for the
purpose of estimating population size, but in some circumstances may
not credit all individuals as contributing to a secure population that
is not at risk of extinction.
The Department has concerns about H.R. 4256 as currently drafted
but would be happy to work with the committee to discuss how the
objectives of the bill can be achieved without compromising the listing
determination process set forth in the Act.
H.R. 4284--ESA Improvement Act of 2014
The ESA Improvement Act of 2014, H.R. 4284, would amend the ESA to
further engage states in the conservation of threatened and endangered
species. The bill would establish a process by which any population of
a species in a state would be precluded from listing as a threatened or
endangered species listing if the Secretary has approved a State
Protective Action (SPA) for that population.
The bill would require the Secretary to provide the state with at
least 90 days advanced notice of a proposed listing rule together with
``criteria for approval'' of a SPA. Within 45 days of submission of a
SPA, the Secretary would have to approve the plan if it meets the
criteria. If it does not meet the criteria, the Secretary would provide
written comment explaining the disapproval; provide 45 additional days
for a resubmission; and make a final approval determination within 30
days thereafter. Upon final approval of a SPA, the Secretary would be
precluded from listing the population(s) in the state(s) covered by an
approved SPA.
The bill would require the Secretary to review SPAs every 5 years,
and would give the Secretary the authority to revoke the approval if
the state has failed to implement the Action or if the Action ``has
failed to make measurable progress toward achieving the recovery
criteria for the population.'' The bill states that revocation of
approval may not occur any sooner than 5 years after the approval. Once
approval is revoked, the Secretary may propose adding the species to
the list. The Secretary would also be empowered to ``terminate'' the
Plan if the recovery criteria for the population have been achieved.
The bill also states that SPAs would be treated as cooperative
agreements for the purposes of Federal grants.
While we support the intent of the bill to provide additional
incentives for states to develop and implement conservation plans for
candidate species to avoid the need for listing under the ESA, but have
concerns with H.R. 4284 in its current form. Most significant among our
concerns is that: (1) it establishes a process to exclude all or part
of a population from listing without opportunity for public comment on
the criteria for approval of a plan and merits of the SPA submitted by
the state(s) for approval, and (2) it precludes ESA protection for a
covered population for at least 5 years even if a state fails to
implement an approved SPA.
However, the Department strongly supports the intent of the bill to
encourage states to proactively develop and implement conservation
actions for candidate and at risk species so that protection under the
ESA in not necessary. To this end, we would like to work with the
committee to further explore options that would engage states early in
an effort to conserve species and their habitat before a listing under
the ESA is required.
H.R. 4319--Common Sense in Species Protection Act of 2014
The Common Sense in Species Protection Act of 2014, H.R. 4319,
would amend section 4(b)(2) of the ESA to make it mandatory that the
Secretary exclude any area from the designation of critical habitat if
she determines that the benefits of exclusion outweigh the benefits of
inclusion. The bill would also establish, in statute, the requirement
to publish a draft economic analysis at the time of a critical habitat
proposal. We note that the Services issued a final rule on August 28,
2013 (78 FR 53058) that requires draft economic analyses to be issued
concurrently with the proposed rule to designate critical habitat and
codifies the practice of evaluating the incremental economic effects
that are solely the result of the designation of critical habitat.
In general, the Service agrees that areas should be excluded when
the benefits of exclusion outweigh the benefits of inclusion, and we
give careful consideration to the appropriate use of this discretionary
authority when we designate critical habitat. However, the requirement
that exclusions be mandatory, as opposed to discretionary, actions will
greatly increase the litigation risks for critical habitat designations
and will likely result in a greatly increased amount of litigation
challenging the Secretary's decisions on whether to exclude areas from
a designation. It is often not possible to fully quantify the benefits
of either exclusion or inclusion and the Service must use judgment,
informed by many years of experience in making critical habitat
determinations, as to whether the benefits of exclusion outweigh the
benefits of inclusion or not. In the past when litigants have
challenged the Secretary's decision to exclude an area under Section
4(b)(2), courts have consistently noted the discretion given to the
Secretary under ESA and upheld the Secretary's decision.
The Department opposes H.R. 4319 because, by making the exclusion
process under Section 4(b)(2) mandatory as opposed to discretionary, it
will greatly increase the litigation exposure of the Government for
critical habitat designations.
H.R. 4866--Lesser Prairie Chicken Voluntary Recovery Act of 2014
The Lesser Prairie Chicken Voluntary Recovery Act of 2014, H.R.
4866, would reverse the Department of the Interior's listing of the
lesser prairie chicken as a threatened species under the ESA until
January 31, 2020, and prevent listing of the species after that date
unless it is determined that implementation of the Western Association
of Fish and Wildlife Agencies' (WAFWA) Lesser Prairie-Chicken Range-
Wide Conservation Plan has not achieved its conservation goals.
The Department strongly opposes H.R. 4866. The Service carried out
its responsibilities and made a science-based listing determination in
accordance with the Act. The final listing determination for the lesser
prairie-chicken as a threatened species came with a 4(d) rule that
establishes that landowners and businesses enrolled and participating
in the Range-Wide Conservation Plan are not subject to further
regulation under the Act. A congressional override of this lawful and
proper listing determination would severely undermine effective,
science-based implementation of the Act.
conclusion
America's fish, wildlife, and plant resources belong to all
Americans, and ensuring the health of imperiled species is a shared
responsibility for all of us. The Service has been responsive to the
need to develop flexible, innovative mechanisms to engage the
cooperation of private landowners and others, both to preclude the need
to list species where possible, and to speed the recovery of those
species that are listed. The Service remains committed to conserving
America's fish and wildlife by relying upon the best available science
and working in partnership to achieve recovery. Thank you for your
interest in endangered species conservation and ESA implementation, and
for the opportunity to testify.
______
The Chairman. Thank you, Mr. Frazer, for your testimony.
Now, for purpose of introduction, I will recognize my
colleague from Texas, Mr. Flores.
Mr. Flores. Thank you, Mr. Chairman, for holding today's
hearing. We all know the special interest groups have been
overwhelming the Fish and Wildlife Service with requests to
classify numerous species as endangered. In 2011, settlements
between two environmental groups and FWS resulted in a work
plan for the Interior Department to make determinations for
hundreds of species listings.
These settlements appear to give more regard to accelerated
deadlines, rather than to adequately allow for the deliberative
collection of the best-available science and data and
population information. The 2011 work plan was decided behind
closed doors, and without the input of states, counties, or
other affected parties.
These special interest groups have been exploiting the
agency's duty to meet certain deadlines to respond to these
requests, and they follow up with lawsuits against the agency
when it fails to meet its statutory review deadlines. These
same groups are then able to recover the legal fees, only to
take those taxpayer funds and to start the process all over
again. In fact, they have filed or have been a party to over
400 lawsuits since the 2011 mega-settlements.
H.R. 1314 will give states and localities a voice in the
settlements that impact them, and save precious taxpayer
dollars by putting an end to the broken sue-and-settle process.
Listing decisions resulting from these settlements impact all
sectors of our economy--agriculture, energy development, and
water resources, to name a few--all of which thereby further
the economic endangerment of hard-working American families all
across our country.
It is my pleasure, in connection with today's hearing, to
introduce Tom Ray from Waco, Texas. Mr. Ray is the Water
Resources Program Manager with Hicks-Ray Associates, and is
testifying on behalf of the Texas Water Conservation
Association and the Western Coalition of Arid States. Mr. Ray
has over three decades of experience on water resource issues
in the State of Texas, and it is my pleasure to welcome him to
testify before this committee.
Thank you again, and we look forward to your testimony.
The Chairman. Mr. Ray, you are recognized for 5 minutes.
And turn on the microphone, if you would.
STATEMENT OF TOM RAY, WATER RESOURCES PROGRAM MANAGER, HICKS-
RAY ASSOCIATES; TEXAS WATER CONSERVATION ASSOCIATION; AND THE
WESTERN COALITION OF ARID STATES (WESTCAS), WACO, TEXAS
Mr. Ray. Thank you, Mr. Chairman, members of the committee,
Congressman Flores. It is a pleasure to be here and have this
opportunity to testify on behalf of the Western Coalition of
Arid States, WESTCAS, and the Texas Water Conservation
Association, TWCA. Both of these groups appreciate the
opportunity to present testimony in support of Congressman
Flores' H.R. 1314.
WESTCAS is a coalition of mostly highly trained water and
wastewater professionals from districts and cities throughout
the arid West states. That includes Arizona, California,
Colorado, Nevada, New Mexico, and Texas. TWCA is the leading
organization in Texas that is dedicated to conserving,
developing, protecting, and using the water resources of the
state, all for beneficial purposes.
Pertinent to this hearing, both WESTCAS and TWCA support
cooperation on two critical goals: protection of threatened and
endangered species, and responsible and timely development and
conservation of our water resources. There is no doubt that
attempting to reach these goals can and does result in
conflict. Members of both of these associations would assert
that conflict results in delay. And, in both cases, delays can
be detrimental and even destructive.
Recognizing this, we support the changes to the ESA
settlement procedures that will provide an opportunity for
stakeholders to be informed on pending ESA complaints and opt
to be at the table.
Let me summarize my concerns with the present citizen
lawsuit procedures. In 2011 there was the mega-settlement that
was reached with the U.S. Fish and Wildlife, again, due to a
statutory deadline failure. The settlement requires Fish and
Wildlife to issue endangered or threatened rulings on 757
species by 2018. That goal is being achieved in an accelerated
fashion.
However, the settlement that initiated that process took
place out of the public arena with little or no input or
involvement from potential affected parties. The result is that
while local stakeholders were left out of that process, they
were and still face the responsibility of responding to the
proposed listings that could have potential harm to their
communities and their economies.
In two ways, H.R. 1314 seeks to address this situation
without limiting Fish and Wildlife's regulatory authority or
preventing it from litigating a case to resolution. First would
require the Secretary to publish notice of complaints within 30
days, and second, provide affected parties--what I am referring
to as stakeholders--with a reasonable opportunity to intervene
in a consent decree or settlement agreement that is filed
pursuant to Section 11(g)(1)(C).
States, counties, and stakeholders can participate in the
process. It also provides that, until the end of that
intervention, parties to the suit may not motion for consent
decree or dismiss the suit under a settlement agreement.
Another provision already mentioned is it would bar the
practice of having the Federal Government pay the legal fees of
plaintiffs in a settlement action.
In my written remarks, Mr. Chairman, I have cited a number
of examples that I don't have the time to go into today, but I
would cite quickly the dunes sagebrush lizard and the
cooperative work that resulted in a comprehensive conservation
plan, resulted in Fish and Wildlife Service in 2012 actually
not listing the dunes sagebrush lizard. And I think it is an
example of what can be done with cooperation.
Also, with that particular species, additional data was
collected by one of the local stakeholders, by the energy
group. They did find additional data that was not available
when the listing was initially made.
In closing, in Texas and in the arid West, TWCA and WESTCAS
are dedicated to pursuing sound scientific solutions managing
our water resources and our water quality of those supplies in
a responsible manner.
Members of the committee, I would suggest that if all
parties and stakeholders, are notified through their respective
local and state governments, and given the opportunity to
present and participate in an ESA settlement discussion, there
would be benefits, potentially overcoming the delays that can
result from the outcomes of the present procedures.
Thank you very much, and again, we appreciate the
opportunity on behalf of TWCA and WESTCAS to present this
testimony.
[The prepared statement of Mr. Ray follows:]
Prepared Statement of J. Tom Ray, PE, D.WRE, Water Resources Program
Manager; Texas Water Conservation Association (Federal Affairs
Committee Chair); and Western Coalition of Arid States (Federal
Liaison) on H.R. 1314
Thank you for the opportunity to testify before you today on behalf
of the West Coalition of Arid States (WESTCAS) and the Texas Water
Conservation Association (TWCA). Both groups appreciate the opportunity
to present testimony in support of H.R. 1314, which is legislation to
establish a procedure for approval of certain settlements with regard
to endangered species.
WESTCAS is a coalition of approximately 75 water and wastewater
districts, cities, towns, and professional organizations focused on
water quantify and water quality in the arid-West states of Arizona,
California, Colorado, Nevada, New Mexico, and Texas. Its mission is to
work with relevant Federal and state water quality and quantity
agencies to promote scientifically sound laws, regulations, and
policies that support adequate supplies of water in the arid West,
recognizing the unique hydrologic and water resources conditions of the
arid-West and in a manner that protects public health and the
environment of the arid West.
TWCA is the leading organization in Texas developed to conserving,
developing, protecting, and using water resources of the state for all
beneficial purposes. The membership encompasses the full spectrum of
water use or interests: groundwater users, irrigators, municipalities,
river authorities, navigation and flood control districts, industrial
users, drainage districts, utility districts, and general/environmental
interests. Each of these categories is represented on the TWCA Board of
Directors.
Specific to this hearing, both WESTCAS and TWCA support cooperation
on two critical goals--protection of threatened and endangered species
throughout the United States and responsible and timely development and
conservation of our water resources. There is no doubt that attempting
to reach these goals can and does result in conflict. Members of both
associations would assert that conflict results in delay--and in both
cases, the protection of a critical species and provision and
conservation of adequate water resources, delays can be destructive.
TWCA and WESTCAS members are leaders in water conservation,
reclamation, and innovative means to preserve our available water
supplies. Recognizing this, we support the changes to ESA settlement
procedures that will provide an opportunity for such stakeholders to be
at the table. Having worked in water resources management in Texas for
over 35 years, I have seen the emerging recognition that goals of water
supply development and management must be co-equally pursued with the
protection and recognition of needs for all the other resources that
constitute our environment.
Let me summarize my concerns. In 2011, a settlement was reached
between the U.S. Fish and Wildlife Service and two environmental
groups. This settlement was the result of lawsuits launched by the two
environmental groups charging that the FWS had failed to meet certain
statutory deadlines associated with the filing of petitions to list
hundreds of species. The settlement requires FWS to issue endangered or
threatened rulings on 757 species by 2018. This goal is being achieved
through an accelerated work plan to make these complex decisions. The
process used to reach these agreements took place out of the public
arena behind closed doors, with little or no involvement with potential
stakeholders. Yet the species identified for possible listing have the
potential to impact the lives and job opportunities for millions of
Americans.
The result is that FWS is obligated to make determinations for
hundreds of species in just a few years. Given the complexities
involved in determining whether a species is endangered or threatened,
it is not surprising that the Service and its staff have literally been
overwhelmed. This fact encourages additional lawsuits by plaintiffs
encourage further settlements with regard to species protection.
Additional legal action can result in delays in needed projects or
economic progress and in actions to protect species.
These are examples of instances where the Fish and Wildlife Service
settled with a plaintiff and decided the dates by which they would make
determinations regarding designations for endangered and threatened
species. This ``closed door'' aspect of the settlements, which H.R.
1314 seeks to address, has received so much attention from those in
Congress and from local stakeholders. By engaging in closed door
agreements with environmental groups the Fish and Wildlife Service
ceded its own species priority setting process to outside parties
agreeing to take their marching orders from work plans created by
environmental groups which were then, in turn, approved by a Federal
Judge. The result is that while local stakeholders were left out of the
process they still faced the responsibility of defending against
proposed listings that have the potential to harm their communities.
There are even cases where the Fish and Wildlife Service had already
entered into conservation agreements with locals only to have the 2011
settlement upend the time frames for conservation or the study of a
listed species.
H.R. 1314 seeks to address this confusion by establishing a
procedure to approval settlements with regard to endangered species.
The chief benefit would be to stop the practice of closed-door
agreements that can lead to huge cost impacts despite the fact that
important stakeholders such as state and local governments and
businesses have been excluded from the discussion. This provides a path
that will help avoid economic damages and job losses as well as help
forestall overreach by both environmental groups and the Federal
Government.
We support H.R. 1314's requirement that all complaints filed with
regard to endangered and threatened species which provides that the
Secretary must publish within 30 days all complaints filed against it.
This involves wide dissemination of the complaint within the Federal
community and among stakeholders at the state and county levels of
government. It is impossible for stakeholders to become involved in a
process which they may not even know exists. We also strongly support
the provision in this legislation that prohibits the failure of the
Secretary of the Interior to meet a deadline to be used as the basis
for a designation. Failure to meet deadlines for determinations
regarding hundreds of species should not be an excuse for designations
that may not reflect the best available science and which may threaten
serious local impacts.
In addition to requiring the Secretary to publish complaints filed
in association with a species, H.R. 1314 also includes a path that
allows states or counties to participate in the review process. The
Secretary of the Interior must provide states and counties where the
species that are the subject of the lawsuit occur are provided with
notice of proposed covered settlements, and consult with the states to
make sure it gives notice to the right counties. These provisions are
an important of ensuring that local affected stakeholders play a
meaningful role in the complete review and listing process.
Yet another provision of this legislation bars the practice of
having the Federal Government pay the legal fees of the plaintiffs in a
covered settlement. This will help end the practice of taxpayer dollars
being used to subsidize suing the Federal Government. H.R. 1314 limits
the use of taxpayer dollars in paying litigation costs in any proposed
covered settlement to any party. This would prevent a repeat of the
2011 settlement where the two plaintiffs were awarded legal fees in
addition to the settlement designating hundreds of species for
potential listing and also an accelerated work plan to expedite the
process.
The kind of severe land use restrictions that are often associated
with an endangered or threatened designation can often play havoc with
the local economies of local communities, states, or entire regions.
This is the case throughout the arid West, which are only exacerbated
by other conditions such as drought and population growth. This
underscores the potential benefits of early notification of ESA.
There are important examples in Texas that support giving local
government and stakeholders an input in settlements, as provided in
H.R. 1314. This is the case with the Dunes Sagebrush Lizard (DSL). The
listing of the DSL would have threatened energy exploration, and in
consequence the entire regional economy of portions of west Texas and
eastern New Mexico. The State Comptroller facilitated the development
of a conservation plan by a group of stakeholders including private
landowners, royalty owners, the oil and gas and agriculture industries,
academia, and state and Federal agency representatives. In June 2012
FWS announced its decision not to list the Dunes Sagebrush Lizard as
endangered due in large part to the conservation and the voluntary
enrollment of landowners in the plan. However, another key factor was
the effort of the oil and gas industry to obtain valid scientific data
on the DSL in Texas; data that was unknown when the DSL was proposed
for listing by FWS. The lessons learned with the DSL support the
benefits of local and state government notification in ESA settlement
procedures.
State of Texas has been impacted by the 2011 settlement that
identified 22 species for possible designation as endangered or
threatened. There has been a great deal of publicity with regard to 3
of these 22 species including the Lesser Prairie Chicken, and the
Georgetown Salamander. Issues associated with protecting the Lesser
Prairie Chicken include controls over drilling rigs and wind turbines,
which are mainstays of the economy of west Texas and much of the five
state area of the Prairie Chicken's habitat. Williamson County, just
north of Austin, is one of the fastest growing areas of Texas. The
water habitat needs of the Georgetown Salamander and the Jollyville
Plateau Salamander, added in 2013, impacts the ability of local
governments to issue the building permits and construct water treatment
facilities that might threaten this species. These restrictions will
impact the local economy of the city of Georgetown and much of
Williamson County and Austin area.
It was a surprise for the state and local governments and
businesses to discover in mid-2011 that species had been identified for
listing and that the protections being sought potentially involved
steps that would undermine key areas of the economy including energy
exploration, ranching, and construction. All of these communities would
have benefited had they known these discussions were about to produce
the settlement of 2011. The discussions on the three Texas species that
have gone on for the past 3 years have triggered an exhaustive effort
by the Texas Congressional Delegation, the State of Texas, numerous
counties and local governments, and the energy and ranching
communities, all directed toward listing agreements that all parties
could live with.
In the end, the Lesser Prairie Chicken and the Georgetown
Salamander were both listed as threatened. These designations were
achieved only after extensive interaction among all parties that
resulted in major habitat protection practices being adopted by the
city of Georgetown, Texas regarding protecting the water sources of the
Georgetown Salamander. Energy exploration and production companies and
ranchers also agreed to new land use policies protecting the Sand Dune
Lizard and the Lesser Prairie Chicken that should offer major new
protections for both species. This progress could have been achieved in
a much less chaotic and convoluted manner had the protections of H.R.
1314 been in place which would have notified the state and local
stakeholders at the beginning of the negotiation phase that produced
the settlement of 2011 as opposed to once the agreement had been made
between the FWS and the environmental groups.
In Texas and the arid West, TWCA and WESTCAS are dedicated to
pursuing sound, scientific solutions, managing our water supplies and
our water quality of those supplies in a responsible manner. As a
member of the committee, I would suggest that if all parties
(stakeholders) are notified through their respective local governments
and given the opportunity to be present and participate in the ESA
Settlement discussions, there would be benefits potentially overcoming
the delays that can result the outcomes of the present closed-door
procedures.
Members of the committee, thank you again for this opportunity to
testify regarding H.R. 1314 and the benefits it would bring to the ESA
Settlement procedures.
______
The Chairman. Thank you very much, Mr. Ray, for your
testimony. I wanted to thank all the panelists for testimony.
We will now start the questioning period for Members.
And I will just simply want to make an observation, that
this is an issue, the Endangered Species Act and its
implementation has been something that I have been interested
in since I have been in Congress, and it is principally because
the impact of the Endangered Species Act as to its
implementation has principally been the West Coast, I am not
saying exclusively, but principally in the West Coast.
And I cite the fact in my home state of Washington, when
the spotted owl was listed some 20 years ago, the result of
that listing, which was because of lack of old-growth--which,
by the way, has since been acknowledged not the case; in fact,
it is a predator, rather than the lack of old-growth--but the
result of the critical habitat designation has resulted in
timber harvesting in the Western part of the United States
decreasing by 80 percent.
Now, you apply that to other things that you witnesses have
touched on, of the economic impact you have in your respective
states, it is serious. And that is why there is more of an
interest, I think, across the country in bringing the
Endangered Species Act up to speed. Keep in mind, it has not
been reauthorized for 25 years. So, the interest of my
colleagues from different parts of the country, I think, is
healthy for the debate.
Now, this committee has had a series of hearings over the
last 4 years. We have had hearings in Fresno, California, we
have had them in Longview, Washington, in my home state, in
timber country. We had hearings in Billings, Montana, and
Casper, Wyoming. And we had a hearing in Batesville, Arkansas
earlier this year. And just yesterday we had a hearing in
Harrisburg, Pennsylvania.
Especially those last two, if you went back 15 years and
had a hearing on the Endangered Species Act in those
localities, it probably would not have raised any level of
interest. But because of the mega-listing that went on with the
Obama administration that would potentially list 50 percent
more potential listings than what has been listed in the first
40 years, it causes some concerns, and it causes, I think, a
discussion on the law.
Now, Mr. Frazer, in your opening line you said you oppose
all bills. At least your Department opposes all bills. And in
your testimony you said you are willing to work with people on
those bills. I have to tell you that is progress, albeit small
progress. Because, in the past, we would have heard,
``Absolutely not, forget it, we don't even want to talk about
it.'' But the mere fact that we are talking about this in a
rational way, and Members introducing pieces of legislation
from other parts of the country to deal with this, is a step
forward.
I would rather, Mr. Frazer--and I will say this--say that
the most important part of your testimony is your willing to
work with Congress in order to bring the Endangered Species Act
up to speed. So I just wanted to make that statement. And you
can certainly see, by the interest here on this committee,
that, as this Congress winds down, that this is an important
issue.
And I might add the bill that I alluded to in my opening
statement passed on a bipartisan basis. And all it talked
about--and I think every one of the witnesses here, in some way
or the other, alluded to it--transparency. Why are we listing
or delisting? Tell us why.
We are going to have another hearing tomorrow to find out
why we haven't gotten that information from the Department of
the Interior. It makes perfectly good sense to me. If these
issues are so important, why don't the American people know why
these things were done? Tell us why, and then we can argue
about it. But right now it is done, and the mega-listing was
done, frankly, behind closed doors.
So, this issue is not going to go away. I know it is not
going to go away. But I do want to congratulate my colleagues
for taking the initiative in their own respective ways of
addressing this issue.
So, with that, I will yield back my time, and I will
recognize Mr. Costa from California for his questioning.
Mr. Costa. Thank you very much, Mr. Chairman, for this
hearing, and for the subject matter on both panels.
Mr. Frazer, several different questions. I listened very
carefully to your comments with regards to the legislation that
I have introduced, H.R. 1927. How familiar are you with the
operations of the Central Valley Project in California?
Mr. Frazer. To be perfectly honest, Congressman, I am not
well versed in the details. This is an extremely complex
project, operation----
Mr. Costa. No, it is a very complex project. You made some
statements that obviously were the result of other people's
input, if you are not familiar with the knowledge. Because I
was going to ask you when--to summarize your statement, and
tell me if you think it is an unfair summary--is that the
current law is working and the operational flexibility exists
within the project, and there is no need to make the changes
that are considered under the legislation I introduced, H.R.
1927. Would that be an accurate summary?
Mr. Frazer. Well, I would phrase it in terms of we believe
that the existing biological opinions and the flexibility that
we have under the Act, and working with the state and other
Federal agencies, is doing the best that we can to address the
very challenging drought situation we are having in California.
Mr. Costa. Yes, well--but there are numerous factors that
are impacting the species. And, obviously, the drought is
state-wide, and I will talk more about that later on.
But in March of this year we had pulse flows in which--are
the times where you can move water around. That means you have
rain and you have excessive water that is moving the salt water
out to the ocean, and that gives you the ability to allow the
Federal project to operate, and the State Water Project to
operate.
And I am curious, but you may not be able to answer this,
when you have those excessive flows occurring in March as a
result of the storms, and even though there was no take on the
delta smelt that were listed, and even though the take on the
salmonoid and the steelhead was less than 10 percent of the
allowable take, which, I would say, is de minimis; yet, there
was no change in the ability to operate the projects to move
water that could be moved as a result of losing as much as, it
was estimated 150,000 to 200,000 acre-feet of water this March.
And last year, if you apply the same criteria, as much as
800,000 acre-feet. I am just wondering how you think that
everything is fine.
Mr. Frazer. Well, I think, as you know, that there are
multiple objectives for managing those projects, including----
Mr. Costa. And multiple objectives is to protect the fish,
the species. That is what this hearing is all about.
Mr. Frazer. And since last----
Mr. Costa. And if you have less than 10 percent being taken
at the time that you are allowed to move water, to pump water,
but you chose not to, then I am trying to understand the
rationale, or the reasoning for that.
Mr. Frazer. So since last fall, in this drought situation,
the biological opinion for delta smelt has not constrained
water operations of the project.
Mr. Costa. Oh, that is not true. How do you make that
statement?
Mr. Frazer. There are many other objectives, water quality
and other issues that are----
Mr. Costa. Of course. And water quality during those pulse
flows was--I mean that is the only time you could pump, because
you had storms that took place in March, so you had excess
water flowing through. So the other criterias were all being
met, as well.
So, obviously, you are not familiar with how the projects
operate, and you have read a statement, I understand that. I
appreciate that.
Let me ask another question you might have more knowledge
of. You state in your testimony that part of the Service faces
significant challenges related to its mission to meet recovery
of listed species, and that a significant amount of the
challenge is a lack of resources. Did you say that?
Mr. Frazer. I don't remember that being----
Mr. Costa. Devoted to species recovery?
Mr. Frazer. We certainly are challenged to address all our
responsibilities----
Mr. Costa. What percentage, or the average of the agency-
requested funds for species protection have been provided by
Congress, can you tell us?
Mr. Frazer. It has been quite a few years since we have had
an appropriations process that actually was able to result in
anything other than a continuing resolution, so it is hard for
me to answer that.
Mr. Costa. Well, I mean, you could make that statement with
everything. We have been operating on auto pilot for a long
time around here.
Do you feel that during the reauthorization of the
Endangered Species Act that there are improvements that can be
made that would help recovery, much to the comments of the
witness next to you, who talked about looking at species as a
whole, I mean do you think it is, I mean we created this, and
we have 20 years or more of experience. Has the Department
attempted to come in, in terms of making assessments and what
changes or improvements you would like to make?
Mr. Frazer. The Department, the Fish and Wildlife Service,
are constantly looking for opportunities to improve
implementation. We think we have a significant administrative
authority to make improvements, and we are doing so. But, as I
said in my statement, that we are also very happy to work with
Congress on how we might improve implementation of the Act.
Mr. Costa. Well, I mean, we have sought efforts to get
comments on a host of efforts, and it has been unsuccessful
thus far.
I guess my time has passed, but thank you very much, Mr.
Chairman. I look forward to the other witnesses.
The Chairman. I thank the gentleman. I now recognize the
gentleman from Oklahoma, Mr. Mullin.
Mr. Mullin. Thank you, Mr. Chairman. I would like to visit
a little bit with Commissioner Staples.
You had made mention with the Fish and Wildlife that the
finalized statement, including deadlines for hundreds of
decisions regarding the listing of the habitat designation; did
they ever consult you or talk with the state before they did
this?
Mr. Staples. Oh, I think there is a big difference between
actual consulting and then just letting you know that it is
going to happen. And the level of participation has clearly not
been there in order to lead to the propagation of the species
that we think could be done under a process like the State
Protective Action Plan that is being proposed by Congressman
Neugebauer.
Mr. Mullin. So they just came in and basically said, ``Hey,
we know how to run the land in Texas and take care of the
animals there better than those that live there,'' is that
correct?
Mr. Staples. It is clearly an adversarial relationship. We
have had some success, but it has been a success at a
tremendous cost that could be averted and lead to better
management of the species.
And I would say, Congressman, that there is no better
steward of a resource than someone who has a vested financial
interest in that item. And, clearly, landowners have that and
recognize that. And states are ready to lead.
Mr. Mullin. We have a tremendous amount of pride in
Oklahoma, especially in our football program--had to throw that
out there--but, you know, what I don't understand is how people
from Washington can come in and start essentially telling us
that, hey, we don't care enough about our land.
And so, in your knowledge, are you aware of this ever
happening before? I mean in the state history with the Fish and
Wildlife just absolutely refusing to work with the state, that
just says, ``Hey, we're going to tell you how to do it, we're
going to take it from here'' ?
Mr. Staples. Well, the lesser prairie chicken is a big
example of that, where----
Mr. Mullin. Yes, sir, it is.
Mr. Staples [continuing]. Where landowners came together,
energy sector, agriculture, and said, ``Look, we have a plan
that will work,'' and that the Service was very complimentary
of, and they chose to list it, anyway.
We also have examples of the recovery credit system that
was initiated by the Texas Department of Agriculture, where we
actually worked very cooperatively with Fish and Wildlife, with
landowners, and with groups that, many times, have an adverse
opinion on the way to get things done. But we came together and
developed a recovery credit system to help develop habitat for
the golden-cheeked warbler in the central Texas area around
Fort Hood that has been very successful.
Our states worked together, and Oklahoma does a good job
working with Texas in getting our football players. Adrian
Peterson was from my home town, I might add to that.
[Laughter.]
Mr. Staples. Congressman, we still think about that----
Mr. Mullin. Well, I appreciate you all getting him ready;
we just finished him off.
You know, talking about the lesser prairie chicken,
landowners and the industry came together and put in roughly 7
million acres and they voluntarily took control. They pumped in
over $42 million into it, from the landowners, private, and the
industry. And the last reports, the lesser prairie chicken
hatch was up 20 percent this year.
Now, if I remember correctly, Chairman had stated that the
success rate so far has been somewhere around 2 percent with
the Endangered Species. That just goes to show how, when states
and landowners who care, who live in the area, when they come
together and they see a need, how they can plug the hole and
have better results.
Mr. Staples. And the example is that those five states do
not always agree on issues, but they did come together,
cooperatively, to present a solution that was viable.
We know that the analogy of the emergency room and doctor's
office has been used by Congressman Neugebauer and Professor
Fischman. I would submit to you that being in the emergency
room for 40 years is not anything you want to claim success
over.
Mr. Mullin. Right.
Mr. Staples. People die by staying too long there without
getting what they need. And we certainly need action here. And
these are sensible reforms that can make a difference and bring
the brightest minds working together cooperatively.
Mr. Mullin. Well, thank you for bringing a common-sense
approach, and thank you for Adrian Peterson, we really
appreciate him up in Oklahoma. And I know we are all cheering
him on now, right?
Mr. Staples. Absolutely.
Mr. Mullin. Thank you.
Mr. Staples. Thank you.
Mr. Mullin. And I yield back, sir.
The Chairman. I thank the gentleman for his statement. And
I was going to make the remark, if Mr. Staples had not
preempted me by suggesting that many of the Oklahoma football
team players come from south of the Oklahoma border.
With that, I will now recognize the gentleman from
California, Mr. Huffman.
Mr. Huffman. Thanks, Mr. Chair. Apologies for the technical
difficulties. And thanks to the witnesses for being here, and
for your testimony.
Mr. Frazer, I wanted to pick up with you, and actually
thank you for bringing an important note of reality regarding
the operations of the Central Valley and state water projects
in the Bay Delta of California to this discussion today. You
are correctly informed that the environmental restrictions and
the biological opinion have had minimal impacts on water supply
deliveries. In fact, you are corroborated on just about every
score in the statement that you made today.
The state and Federal water contractors have acknowledged
that there has been only minimal effects on water deliveries
over the past 6 months. The Director of the California
Department of Water Resources, who has served under both
Republican and Democratic administrations, has said the same
thing. It is a matter of basic fact, and yet it does not square
with the narrative of this hearing, which is all about
positioning the Endangered Species Act as a scapegoat. So, I
thank you for pointing out what you did point out.
We are going to consider a bill a little bit later this
morning that would basically shred the best available science
as embodied in biological opinion that has been affirmed by the
National Academy of Sciences and, so far, affirmed against
every legal challenge that we have seen thrown at it. In place
of that protection we have a bill that would hard-wire for 7
months of the year negative flow in one of the largest rivers
in California at the rate of at least 5,000 CFS flowing in the
wrong direction.
To give you a little context, because this is also part of
the context, along with your factual statements, sir, take a
look at the Potomac River when you leave the capital; 5,000 CFS
in the wrong direction is about twice as much flow as the
Potomac currently has in the right direction. So think about
that; 5,000 CFS is greater than the flow today in the Rio
Grand, it is greater than the flow of just about every river in
Oregon that I can find, and every river in California.
So, the factual context of this very political discussion
of the Endangered Species Act that we are having today is very
important to keep in mind.
With that, I would like to ask you about the legislation
involving settlements. Is it fair to say, Mr. Frazer, that if
this legislation were law, it would--well, I am going to ask
you to describe how it would affect your ability to settle
cases where, frankly, the Federal Government is going to lose,
and what that does to costs and to the budget of your agency
and your ability to carry out your Endangered Species Act
responsibilities.
Mr. Frazer. As we read the bill, it would remove any
incentive for plaintiffs to settle a case. And most of the
deadline cases in which we do enter into settlement agreements
are, as you said, ones for which we have no defense. There is a
hard statutory deadline, we failed to meet it for whatever
purpose, we have no defense.
We almost always find it to be in the interest of the
government, and ultimately in the interest of the taxpayer, to
settle and minimize the cost of addressing that complaint. And,
ultimately, all we are doing is committing to carry out a
responsibility that the Act gives to us. We don't make any
commitment with regard to our final decision, the merits of the
decision. We just commit to carry out the process, as required
by the Act.
Mr. Huffman. All right, thank you very much.
Mr. Fischman, I would like to ask you the same question.
Based on your expertise on the Endangered Species Act, how will
this affect the ability--and we know that the Fish and Wildlife
Service, for example, sometimes blows a deadline. Sometimes
blows a deadline because Congress hasn't given it enough
funding to actually do its job, and gets put in this impossible
situation, and then gets sued for blowing the deadline.
What does a piece of legislation like this do? What are the
broader ramifications for the agency's ability to stretch its
dollars and do its job?
Mr. Fischman. Well, I think to some extent it is like
dealing with the problem of weight gain by buying a longer
belt, and then deciding that the problem has been solved.
The combination of increased numbers of species becoming
scarce and endangered, along with flat budgets, creates the
problem of the listing agencies being unable to keep up with
their responsibility under the Endangered Species Act. Shutting
down lawsuits doesn't change that reality. And without dealing
with both issues, both the funding side and with the problem of
there not being any safety net until species get to the brink
of extinction, without dealing with those two issues, shutting
down lawsuits or altering the way conflict is managed, won't
get to the fundamental problem.
Mr. Huffman. Thanks very much.
The Chairman. The time of the gentleman has expired. I
recognize the gentleman from Texas, Mr. Flores.
Mr. Flores. Thank you, Mr. Chairman. And, by the way, the
last time that Commissioner Staples' alma mater and my alma
mater played a school in Oklahoma, the score was 41 to 13, with
Texas A&M on top. So I think we are a little prouder of our
football.
[Laughter.]
Mr. Flores. I have a question for Mr. Ray, and I thank you
for joining us today.
In a previous hearing in committee requests, the Fish and
Wildlife Service Director has refused to provide any details
regarding the Interior Department's 2011 mega-settlements with
the Center for Biological Diversity and the WildEarth
Guardians, including deadlines set for, literally, hundreds of
new listings and habitat designations, and they were stating
that Federal court rules prevent them from disclosing that
information. This includes information on the negotiation of
hundreds of thousands of dollars of attorneys' fees for just
agreeing to these mega-settlements.
In your view, Mr. Ray, should information surrounding the
negotiation of these settlements be made public? And is that
what H.R. 1314 would accomplish?
Mr. Ray. Yes, Congressman. I think those types of
information should be made public. I am an engineer by trade,
but my background is also in developing regional systems, and
working with stakeholders on projects, and dealing with
different types of Federal permitting requirements. And
consistently we see that if you have the information and you
bring in the stakeholders, the folks locally present to be able
to work on the problem cooperatively, we can find some
solutions.
Now, the litigation issue and the incentive for litigation
I understand. But litigation will not go away unless we have
cooperation, and I think that cooperation begins with
disclosure.
Mr. Flores. My next question for you is based--the publicly
available court records reveal that the Center for Biological
Diversity, one of the litigants that was a party to that mega-
settlement, has subsequently filed more than 87 lawsuits
against the Federal Government and numerous new listing
petitions, even after the 2011 settlements were filed. So this,
of course, runs contrary to what Professor Fischman and Mr.
Frazer were talking about, in terms of the efficiency in the
process.
The Fish and Wildlife Service states that the settlements
have helped them to prioritize their workload, yet they also
recognize that they are spending significant resources to
implement these settlements.
In your view--two things. One, is this good policy? And,
number two, does it promote a deliberative, science-based ESA
decision?
Mr. Ray. I think it rushes the process and puts a lot of
burden on Fish and Wildlife to move through the process. And,
you know, if you have 780--excuse me--757 species that have to
have settlement--or have to have work plans completed by 2018,
that is a huge burden on Fish and Wildlife and on that agency.
So, no, I don't think that it is good policy, if you will,
to put that agency in that situation, and certainly to leave
the locals out of that----
Mr. Flores. And one last question, and this is in your
opinion. Should a party that settles an ESA lawsuit with the
Federal Government be entitled to taxpayer-funded attorneys'
fees as the prevailing party?
Mr. Ray. No, Congressman. That, in my opinion, should not
be the case. The Federal taxpayer should not be burdened with
that.
Mr. Flores. And, Commissioner Staples, can't let you get
away. Was the State of Texas, to your knowledge, ever consulted
before the Fish and Wildlife Service finalized the settlement,
including the deadlines for hundreds of decisions regarding the
listings and habitat designations?
Mr. Staples. Not to--no, sir.
Mr. Flores. Are you aware of any steps the Fish and
Wildlife Service has taken to notify your state or other states
on the listing petitions received from litigious groups?
Mr. Staples. Not to the extent where we have participation
in the procedures, no----
Mr. Flores. OK, thank you, Commissioner Staples.
I have one final question, and I am running out of time,
so, Mr. Frazer, I am going to ask you to supplementally respond
to this. Your testimony appears to give great weight to the
concern of potential plaintiffs in ESA lawsuits and potential
settlements. These settlements and listing decisions, as a
result, ultimately impact the states and counties. Why
shouldn't they have a seat at the table when these settlements
are made? That is the first question.
The second question, who represents the interest and the
economic health of the hard-working American families who are
adversely impacted by these decisions, by these murky inside
deals that FWS has made with activist groups who value non-
human species more dearly than individuals and families? I
would ask you to supplementally respond. Thank you.
I yield back.
The Chairman. Does the gentleman want to respond?
Mr. Frazer. I am sorry, Congressman, I thought you wanted
me to respond for the record.
The Chairman. Well, if you--listen, that would be good for
the record, but if you can just briefly orally respond, just
very briefly, but since you offered to do it for the record, we
would ask you to do that in a very timely manner.
Mr. Frazer. Be happy to do that. So these sorts of lawsuits
are mostly deadline lawsuits. And we simply commit to carry out
the responsibilities that the Act requires of us.
The process for carrying out those responsibilities does
always involve public notice and comment, work with local
government, landowners, all those that would be affected by a
listing. And so, all the public participation processes that
are part of our listing determination process will still be
carried out, and none of those are constrained in any way by
the settlement agreements that we enter into for deadline
lawsuits.
Mr. Flores. But the settlements are still confidential.
The Chairman. I thank you. The committee looks forward to
your written response in more detail in that regard.
I recognize the gentleman from Arizona, Mr. Grijalva.
Mr. Grijalva. Thank you, Mr. Chairman. Professor Fischman,
as you noted in your testimony, Congress' failure to adequately
fund ESA work has hampered species recovery efforts. Do any of
the bills before us today increase the chances of recovering
threatened or endangered species? Question one.
And to follow up on that, is there a way to ensure better
conservation outcomes, better species recovery and protection
under ESA without any additional funding?
Mr. Fischman. I can't say that any of the six bills the
committee is considering today would as the bills, in their
entirety, promote recovery. I think there are some good ideas
in the bills that promote cooperation, and I think that we can
all agree that a cooperative process is at least a less
expensive way of addressing recovery needs.
A lot of the great recovery credit systems, area-wide
planning systems that do a good job for species recovery are
voluntary, but voluntary in the sense that they are negotiated
in the shadow of a somewhat more draconian outcome if the
parties don't agree. So, sometimes it is useful to have the
drastic threats, if you will, of the Endangered Species Act in
order to promote voluntary agreements.
There certainly is more that agencies could do, and that
Congress could do without additional appropriations. But I do
think there is a bit of a trade-off. There are costs to many of
the recovery challenges for endangered species. And if Congress
isn't appropriating funds for that, then who bears those costs?
Well, it is usually states or private landowners.
I think that flexible area-wide plans such as the ones that
are memorialized in 4(d) rules, like the one for the California
coastal gnatcatcher in San Diego County, the one for the lesser
prairie chicken, are a good approach. As I said in my oral
testimony, I think that we would be better off having those
kinds of plans before a species is listed when there is more
flexibility. The larger the area, the larger the population,
the more room there is for trade-offs.
There are other programs outside of the Endangered Species
Act that could prevent species from declining to the brink of
extinction that could be enhanced without great additional
appropriations. The National Wildlife Refuge System, for
instance, has as one of its major missions to preserve
ecosystems of the United States. Absent monies for
appropriating new habitat, there certainly is existing public
land that could be dedicated to refuges to avoid future
listings or provide habitat for----
Mr. Grijalva. I was going to----
Mr. Fischman [continuing]. Existing species.
Mr. Grijalva. Professor, I was going to--let me go back to
a point that you made a part of the answer. We have heard a lot
today about state efforts and whether it is the credit process
we heard about, that states know best through their
commissioners, through their state land departments, how to
best protect species and deal with its revival, if necessary.
Would a lot of these efforts--and I don't know at this
point that you can quantify it; probably not--would a lot of
these efforts have occurred? And you mentioned that, without
this looming threat, for lack of a better word, of more drastic
legal action regarding ESA and what those kinds of court
decisions and/or administrative decisions would have ended up
being, did it prod or was it just the goodness in the heart of
those particular people to do it that way?
Mr. Fischman. Well, it is certainly an incentive. And I
think, historically, if you look at the major compromises, the
major trade-off plans, whether it be in the Pacific Northwest
for, like, successional habitat for the northern spotted owl,
or in southern California for the California gnatcatcher, they
occurred with the looming hammer of the Endangered Species Act
that parties sought to be avoided.
At the same time, I think, for many species, recovery is
impossible unless states are on board. So there is a need for
compromise on both sides.
Mr. Grijalva. Regarding the litigation legislation, the
limits, constitutionally, in terms of public access, the
public's right to know, how does this litigation, in your mind,
affect those things?
Mr. Fischman. I don't understand your question. I don't
have an opinion on the constitutionality of those aspects of
the bill.
I would say, as a researcher and scholar, I am in favor of
more transparency. I would like to know more about settlements.
I would like to know more about the costs. I think that my
concern is that a sunshine law could get turned into a shut-
down law if it results in making settlements more burdensome.
That is going to create a lot of problems, in terms of expenses
for the United States, and in terms of providing the resources
necessary----
Mr. Grijalva. OK----
Mr. Fischman [continuing]. To litigate cases----
Mr. Grijalva. Thank you, Mr. Chairman.
The Chairman. I thank the gentleman. The Chair recognizes
the gentleman from Michigan, Dr. Benishek.
Dr. Benishek. Thank you, Mr. Chairman. Thank you for being
here, everyone.
I am looking at some of the stuff that is going on here in
this Endangered Species Act, and some of the reforms here, and
I am just going to relate one of the things that occurs.
Apparently, the Fish and Wildlife Service will only count
species on Federal lands for the purpose of ESA listing, but
when a species is proposed for a listing, both private and
public lands will often be set aside for the species. And,
apparently, in Utah, prairie dogs are overrunning many private
landowners, but the Fish and Wildlife Service doesn't count
those, it only counts those on Federal lands for recovery
purposes. And one rural electric co-op had to spend $150,000 to
airlift poles around Federal lands because of the endangered
prairie dogs, despite private landowners in neighboring areas
being able to obtain permits to kill them because of their high
numbers.
Mr. Staples, how does that make any sense to you?
Mr. Staples. Well, Congressman, it doesn't make sense. And
that is the difficulty that we find ourselves in.
For another example along the lines that you gave, the
dunes sagebrush lizard, private groups came together and did
find additional habitat that was not included. So there is just
too low of a scientific threshold if those are the criteria
that are being met, and if our goal really is to propagate the
recovery of the species.
Dr. Benishek. Right. Mr. Frazer, how does that make any
sense to you?
Mr. Frazer. Congressman, that really isn't an accurate
representation of the situation. We count all the prairie dogs
that are out there. In terms of knowing the status of the----
Dr. Benishek. Well, they didn't have to spend $150,000 to
airlift, and they are not killing the prairie dogs in the
adjacent areas? Are you telling me that is incorrect?
Mr. Frazer. I have never heard of that.
Dr. Benishek. OK.
Mr. Frazer. So I can't speak to that. I can say that the
prairie dogs that we count toward recovery are those that are
secured in some sort of conservation status.
Dr. Benishek. All right. Well, let me ask another question
here. About this prairie chicken, and these five states that
entered into a cooperative agreement, and apparently the Fish
and Wildlife Service was all in favor of this prairie chicken
plan that these five states put together, and they worked with
them. And yet, all the sudden, they changed their opinion,
apparently, and still listed it as a threatened species.
Why would a state or a community ever work with you again,
Mr. Frazer?
Mr. Frazer. The five states, which are the range of the
lesser prairie chicken, really did a landmark effort in working
together to develop range-wide conservation----
Dr. Benishek. And you did laud that plan, right?
Mr. Frazer. We lauded that----
Dr. Benishek. Why didn't you go along with the plan?
Mr. Frazer. Because our job is to determine whether a
species is threatened or endangered. And the population was
crashing.
Dr. Benishek. Well, you know----
Mr. Frazer. It declined by 50 percent from the previous
year----
Dr. Benishek. Let me just interrupt you. It is pretty clear
to me that your reason in your opening statement that you
oppose Mr. Mullin's bill is because it would overturn a
decision that you made in the Fish and Wildlife Service. That
is not a very good reason, to me. I just don't like that idea.
If you would have mentioned perhaps that you think the prairie
chicken population was crashing despite this plan, but I don't
see any incentive for people to work with you. And I know you
are fostering an adversarial relationship.
Mr. Veach, do you have any opinion about that, this
adversarial relationship that seems to be developing between
the Fish and Wildlife Service and individual states and Farm
Bureau people?
Mr. Veach. Yes, I think so. I think that they actually--
Director Ashe came to Arkansas, and we met with Director Ashe,
and had an opportunity to talk about some of the issues that we
were facing, and our concerns about how that affected
agriculture, and not only agriculture, but our counties and our
roads and bridges and all in those counties.
But I think that there is not enough communication, there
are too many things that are ambiguous, that have the
opportunity to spread that critical habitat all over the place,
and indiscriminately. And when that happens, then it affects
people's lives and livelihoods. But that is the issue that
we've got, and we've got to find that down a little lower----
Dr. Benishek. That touches on what Mr. Flores was talking
about before, and that is--as I understand it, the Fish and
Wildlife Service are supposed to take into account the economic
impact of the things that they do, as far as, you know, putting
this land into trusted areas. Do you think that they adequately
assess the economic input of their decisions, as far as you are
concerned?
Mr. Veach. Absolutely not. And the reason is that they are
not looking at all stakeholders. They are not looking at the
situation that, if you have to apply for permits, it takes that
length of time. If you are dealing with livestock or row crops,
you don't have that time to do those kind of things. And if we
don't continue to operate, and the best caretakers of the land
and the environment and the species there are those that own
that and make their living from it, from the land.
But we are being burdened down so much, and there are so
many things that could happen to us. And one of the biggest
risks is third-party litigation, also. Someone drives by and
sees something going on in critical habitat by a farmer or
rancher, and then they sue that farmer or rancher. And that has
happened and cost them their livelihood.
Dr. Benishek. Thank you for your time.
The Chairman. Thank the gentleman.
Dr. Benishek. Thank you, Mr. Chairman.
The Chairman. The Chair recognizes the gentleman from the
Northern Marianas, Mr. Sablan.
Mr. Sablan. Thank you very much, Mr. Chairman, and good
morning, everyone. I am going to use 4 minutes of my time and
then yield the remaining time to Mr. Costa.
But I am just--I apologize for being late. I was actually
in the office watching the news from back home, where two state
agencies, or two local agencies, were having a dispute in
public. One of them, a sub-grantee of Fish and Wildlife, the
other one a sub-grantee of NOAA, having a public dispute about
how to get their act together in pursuing the same thing. And
so, I would like to ask this question to Mr. Frazer, if I may.
Mr. Frazer, H.R. 4284 gives states more responsibility for
protecting threatened and endangered species, even though those
species have become imperiled. I understand on the states
that--how does that make sense in one way--in fact, like I just
said, back home I have two government agencies trying to do the
same thing, disagreeing on how to get the thing--and so how
does that make sense?
And are there ways in which we could improve state
involvement in species conservation?
Mr. Frazer. Thank you, Congressman. We really don't see the
conflicts between the Fish and Wildlife Service and our State
Fish and Wildlife agencies. We are both challenged with a very
large and complex job, doing our best----
Mr. Sablan. Yes, and generally states--I am talking about
H.R. 4284.
Mr. Frazer. Right.
Mr. Sablan. What--yes.
Mr. Frazer. So we strongly support the intent of this bill,
as we read, to encourage states to engage earlier and more
effectively in conservation of species that are in trouble, so
we don't need to address whether they need to be listed under
the Endangered Species Act.
Mr. Sablan. OK, but--and we have also repeatedly heard
witnesses testify that there are a number of ways all
stakeholders can participate in species conservation that is
compatible with development. And, obviously, we all need
development and support it too, but some say that they are cut
out of the process.
Could you, Mr. Frazer, please describe the ways in which
the ESA requires public comment and invites stakeholder
participation before and after listing determinations are made,
even when there is a lawsuit or settlement?
Mr. Frazer. When we are petitioned to list a species, we
determine that the petition has merit, then we ask for all
information to help us determine whether the action may be
warranted. If it is warranted, then we undertake a rulemaking
process to determine whether to add a species to the list. And
that has public notice and comment, as well.
Mr. Sablan. And that is even when there is a lawsuit or a
settlement?
Mr. Frazer. Absolutely.
Mr. Sablan. All right. I yield the remainder of my time to
Mr. Costa, if I may, Mr. Chairman.
Mr. Costa. I thank the gentleman from Northern Marianas,
Mr. Sablan, for yielding me the balance of his time.
First of all, I would like to submit a list of resolutions
from counties of Fresno, Tulare, Kings, Madera, Merced, and
others that believe that modification needs to be made in the
Endangered Species Act specifically related to my legislation
on the basis of the devastating drought that is taking place.
The Tulare School District, a comment from multiple cities that
have been largely impacted.
Mendota Mayor Silva, Robert Silva, said that food lines
have started in his city of 10,000, and the jobless rate will
hit 50 percent, largely among Latino farm workers. If we could
submit this for the record, Mr. Chairman, I would appreciate
that very much, and so would multiple cities and counties and
school districts that are being devastated by this drought.
Professor Fischman, you indicated in your testimony that
part of the problem in looking at the Endangered Species Act
that, too often, when it comes to the attention of trying to
focus on a species, that their population is already crashing.
How do you make the tough scientific calls that undoubtably
we will have to make as the pressure of further urbanization
takes place, and climate change, and which I have read a number
of very noted scientists, biologists, indicating with
temperature change, for example, in streams and rivers, that it
may be impossible--and we know the climate is changing and it
will continue to change, it always has--to maintain certain
water temperatures, to maintain certain species. How do you
make those tough calls?
Mr. Fischman. Well, thankfully, I don't have to make those
tough calls, Mr. Frazer does. But I guess I would have two
different points to make to the two different questions, the
first having to do with residential, commercial, and industrial
development.
I think the best way to accommodate that development, as
well as ecological resilience--oh, OK. The best way to
accommodate both is to accommodate them early, when there is
room, geographically, and in terms of the----
Mr. Costa. But you can't change the temperatures of the
water.
Mr. Fischman. Right. And as to your second question, it is
true that climate change will complicate these issues in ways
that we still do not grasp and understand. And it may very well
be that some of the species on the list are conservation-
dependent species, in the sense that we can't reasonably expect
to move them off the list in the foreseeable future. And then
Congress will face the difficult choice of deciding to what
extent we want to continue----
Mr. Mullin [presiding]. The gentleman's time has expired.
Mr. Fischman [continuing]. To fund those efforts.
Mr. Mullin. The congresswoman, Mrs. Lummis, is recognized
for 5 minutes.
Mrs. Lummis. Thank you, Mr. Chairman. And I too want to
thank the panel for being here today. We really appreciate your
testimony.
We have seen a growing number of bills while I have been
here in Congress to amend and reform the Endangered Species
Act. And I think that is an indication that it is not working
well any more, and it is in need of reforms.
I also would like to say, Mr. Frazer, that I can't
overstate how injurious the mega-settlement was to the
implementation of the Endangered Species Act. Up until the
mega-settlement, we didn't see as much acrimony in the country
about the Endangered Species Act as we have seen since the
mega-settlement. And there seems to be a rigid adherence by the
Service to the mega-settlement deadlines, on one hand, but
then, with regard to other deadlines that are statutory, the
Department seems to let them slip. And let me give you an
example.
Under the deadline provisions of Section 4 of the
Endangered Species Act, wasn't the Service required to make a
decision on the gray wolf listing by June of 2014?
And let me give you the background here. The Service
proposed a national delisting in June of 2013. Now, 1 year
after issuing a proposal to delist, the Service is required to
publish in the Federal Register one of the following: a final
delisting rule; or a withdrawal of the rule; or, if the
Secretary finds substantial disagreement over data, a 6-month
extension for purposes of gathering more data.
None of those has happened. And, yet, the deadline has
slipped. Can you explain why that has happened?
Mr. Frazer. Well, two points. Under our settlement
agreement, what we committed to is to take actions that meet
the statutory deadlines for acting on petitions and making
listing determinations.
With regard to the gray wolf, you are absolutely correct
that the statute also directs that we make final a rule that we
have proposed or withdraw that within 1 year. We have not met
that time line. Because of the controversy and complexity of
this rulemaking we have over 1.6 million comments that we also
have an obligation under the Administrative Procedure Act to
address and respond to in any final determination we make. So
we simply have been overwhelmed with the volume of public
comments, and have not been able to meet that deadline.
Mrs. Lummis. This is now 11 years after the gray wolf met
objective, and coming on 20 years since the wolf was introduced
into Yellowstone. It was introduced in January of 1995.
Mr. Frazer. So we have delisted wolves in the Northern
Rockies. We have delisted wolves in the Western Great Lakes.
This has to do with the proposal to delist the remaining
entity. And we published that proposal about 15 months ago, and
so we have missed the 12-month deadline for making final----
Mrs. Lummis. You have, indeed. And so, my question is, why
implement rigidly the deadlines in the mega-settlement, while
letting an important deadline, an important deadline to the
American people, like this one slip?
And I hear you say you have had a lot of comments. But it
is not like those comments are a change or a new addition to 20
years of history with regard to the wolf.
Mr. Frazer. Well, we certainly carry out our
responsibilities to satisfy all our statutory deadlines
equally. We don't choose one over the other. Some----
Mrs. Lummis. Well, it does seem like----
Mr. Frazer [continuing]. Are more challenging to do----
Mrs. Lummis. It does seem like you are.
Mr. Frazer. So, 1.6 million comments, even a very small
percentage of 1.6 million comments having the substantive
issues that we have to address is a lot of comments, and we
simply do not have the resources to be able to do all that in a
defensible fashion----
Mrs. Lummis. OK, so is that the reason that so much of what
happened in the mega-settlement is still non-disclosed?
How can you justify doing a mega-settlement, rigidly
adhering to the criteria and deadlines in the mega-settlement,
while ignoring other deadlines?
Mr. Frazer. Congresswoman, I don't think that we ignore any
deadlines. The records associated with the negotiations for the
settlement agreement were subject to a confidentiality
agreement of the local rules of the court.
Mrs. Lummis. Confidentiality with regard to public policy.
I yield back.
Mr. Mullin. Mr. Lowenthal is recognized for 5 minutes.
Dr. Lowenthal. Thank you, Mr. Chairman, and thank you,
panel, for coming here to testify before us today.
Unfortunately, my opinion, this hearing appears only to be
focused on weakening the Endangered Species Act. We are
considering six different bills today, and six different ways
to weaken the Endangered Species Act. I could go into the
details of each bill, but suffice to say that none of the bills
will help save unique species from being wiped off the face of
the earth forever. Instead, they are going to make it harder
for endangered animals and plants to recover from the brink of
extinction.
So, I am disappointed, although not surprised. This has
been the theme of the Majority since they took control of this
House and the committee. In this Congress alone we have already
held four hearings that looked at other ways to weaken the
Endangered Species Act.
What I want to briefly say is how important it is for all
of us to be responsible stewards of our natural world, and how
important the Endangered Species Act is to preserving the
natural treasures we have for now and for future generations to
enjoy.
When species are gone, they are gone forever. You cannot
bring them back; they are gone from the planet earth. Some of
the species that our forefathers walked the fields and forests
with we do not now have with us today. And some of the birds
that sing today and the plants we marvel at today our children
will not know, if we let these species become extinct.
This is not a theoretical experiment; many animals have
been driven to extinction by humans. For example, the Carolina
parakeet, the eastern elk, the blue pike. The list goes on and
on.
Eight days ago, September 1, was the 100th anniversary of
the death of the very last passenger pigeon, once one of the
most abundant birds in all of North America. There were once so
many passenger pigeons that the sky would turn gray as flocks
of millions flew overhead. But the population went from over
five billion to zero in less than a century, as the birds were
hunted to extinction. There are now no passenger pigeons, none.
You and I and no one in this room will ever see the great
migrations of the passenger pigeon. The only way we are going
to see a passenger pigeon is when it is stuffed and on display
in the Smithsonian Museum.
I want my grandchildren to have the opportunity to see the
amazing mating display of the prairie chicken. I want my
grandchildren to see salmon jumping out of the waters of the
Pacific on the way back from their epic journey. And I want my
grandchildren to have the opportunity to be awed by the
graceful 8-foot wingspan of the iconic whooping crane flying
overhead. I will support our rich American natural heritage by
supporting a strong Endangered Species Act.
Thank you, and I yield back the balance of my time.
Mr. Mullin. Thank you. Mr. Crawford is now recognized for 5
minutes.
Mr. Crawford. I thank the Chairman. I also want my
grandchildren--so I agree with you, I want my grandchildren.
Don't have any yet. I am afraid that we are not doing a very
good job to make sure that our own species is protected, but
that is a debate for another time.
Mr. Veach, can you offer an example to this committee of
where the proposed designation of critical habitat and the
economic impact could be out of balance, and any other
implications you would like to offer in your observations?
Mr. Veach. Well, I think the most blatant example would be
the dusky gopher frog, the critical habitat designation of the
dusky gopher frog that is on 1,500 acres of private land in St.
Tammany Parish, Louisiana. It is currently unoccupied,
unsuitable, and inaccessible to that species. And in the words
of the agency, ``The designated non-habitat''--as they
designated, non-habitat is critical habitat, subject to the
pervasive Federal regulation. By the agency's own estimation,
restrictions on the use of property could cost the landowners
as much as $34 million.
This is hard to imagine, a more irrational decision than
this critical habitat in that area of that 1,500 acres of land.
But I think that the vast critical habitat that is being
considered and still under public comment at this time, also in
the State of Arkansas, as I alluded to in my testimony, with 31
counties and all that it affects in the State of Arkansas, is
also overreaching of the critical habitat.
Mr. Crawford. Thank you. Real quick, Mr. Frazer, does Fish
and Wildlife have the expertise to propagate certain species?
Mr. Frazer. Yes, we do.
Mr. Crawford. Would you rather do that, or would you rather
acquire more land?
Mr. Frazer. We use all the tools that are appropriate for
trying to recover and conserve species. In some cases, captive
propagation is important. In some cases we only have a very
limited amount of habitat available right now, and we need to
have animals in refugium.
But, ultimately, what we are trying to do is conserve and
recover species in their natural habitats.
Mr. Crawford. To your knowledge, has Fish and Wildlife ever
ordered a Fish and Wildlife biologist to stop propagating a
certain species that may have been on a endangered species
list?
Mr. Frazer. Not to my knowledge.
Mr. Crawford. OK, I am just curious.
Mr. Veach, Mr. Frazer, in his testimony, he stated that
Fish and Wildlife Service ``agrees areas should be excluded
when the benefits of the exclusion outweigh the benefits of
including habitat,'' yet he opposes H.R. 4319 requirements for
mandatory consideration of both.
Currently, do you believe Fish and Wildlife adequately and
fairly quantifies economic costs meaningfully be excluded?
Mr. Veach. No, they do not. You know, we have to make an
economic study that would consider all stakeholders and those
it involved in this critical habitat designation. And not only
do we have to do that, but we have to actually really consider
those costs. I mean we have to weigh those against what we are
trying to accomplish. And so I think that both of those are not
being done. But that cost is certainly not being determined, of
what that critical habitat designation would be.
And in addition to that--and which your bill does,
Congressman--is it asks for that public comment, and then
listens to that public comment, and weighs those. And we are
doing so--and consider these costs to all stakeholders in that
critical habitat designation.
Mr. Crawford. OK. Mr. Frazer, real quick, have you been to
Arkansas?
Mr. Frazer. I have, sir.
Mr. Crawford. You have? So you have viewed the proposed
critical habitat area, and----
Mr. Frazer. I am familiar with that part of the state, yes.
Mr. Crawford. OK. Mr. Veach, last May the Obama
administration proposed three new regulations that would
significantly alter the definition of how they impose critical
habitat designations. Some were concerned that these rules,
which could be finalized as early as next month, would make it
more difficult for areas to be excluded from habitat
designations. Are you concerned with Fish and Wildlife Service
and National Marine Fisheries Services proposed critical
habitat changes?
Mr. Veach. Yes, I am. One of those would actually change
the adverse modification to include harassment of species. So
you can imagine how broad that critical habitat could become,
if we are also including not only what is habitated by the
Endangered Species, but that critical habitat that one day they
could move into, and then also even harassment of the species.
And this continues to grow and grow and grow, and then that
regulatory burden up on farmers and ranchers, and not only
them, but our counties as well in roads and bridges and things
like that, is going to continue to increase.
Also it does not require species to exist or ever have
existed in a location for critical habitat to be designated,
and that is part of that, with the dusky gopher frog that I
have mentioned, in Louisiana, and that continued to do that.
But also it is all pretty ambiguous. And it gives the
latitude to do whatever they want to do about that critical
habitat. And I think we cannot leave that wide open like that,
we cannot.
Mr. Crawford. Thank you. Thank you. My time has expired.
Mr. Mullin. Thank you. I would like to thank this panel of
witnesses for their valuable testimony. Members of the
committee may have additional questions for the witnesses, and
we ask that you respond to these in writing. The hearing record
will be open for 10 business days to receive these responses.
I would like to ask Mr. Frazer to remain seated at the
witness table as we call up our second panel of witnesses.
Call this meeting back to order. I would like to welcome
Mr. Frazer back to the second panel. No need to give your
testimony; I think everybody is well aware of you now. Thank
you for staying around.
I would like to welcome the Honorable Dave Miller, the
Commissioner of the Iron County, Utah, from Cedar City, Utah;
Mr. Jennison, Secretary Jennison, from the Kansas Department of
Wildlife and Tourism, from Topeka, Kansas. We had an
opportunity yesterday to visit. Obviously, we talked a lot
about my bill and the lesser prairie chicken, but I found the
most interesting thing is he likes to sit around and brag about
how he used to ride bulls and stuff.
I know he doesn't look like it, but he was actually, at one
time, a pretty good guy that rode bulls a little bit with me,
except his dad convinced him to quit riding, because he blew
his knee out, and his dad bought him a horse and he thought he
could pay it back by roping. That didn't work either. So, he
really wasn't that good at rodeoing. I hope you are a better
Secretary for Kansas, right, sir? Welcome to have you here.
Mr. Ya-Wei Li? OK, I am sorry about that, I was working on
that. Director of Endangered Species Conservation with the
Defenders of Wildlife in Washington, DC. Good to have you here,
sir.
Ms. Donna Whitney? Wieting, Director of the Office of
Protected Resources and National Oceanic and Atmosphere
Administration in Washington, DC, and Mr. Tom Birmingham,
General Manager and General Counsel of the Westlands Water
District from Fresno, California. Mr. Tom Ray--no? That was
first panel?
So, I think that is it. I appreciate you guys being here.
We would like to remind everybody that your testimony will be--
as a reminder--where am I at? Witnesses are reminded that their
complete written testimony will appear in the hearing record,
and I will ask that you keep your oral comments to 5 minutes.
As a reminder, when you begin to speak, our clerk will
start the timer and the green light will appear. After 4
minutes a yellow light will appear. And at that time you should
begin to conclude your statement. At 5 minutes the red light
will come on, and you will complete your sentence, but I may
ask that you stop, and you stop thereafter.
We would like to let Mr. Stewart introduce your witness,
sir.
Mr. Stewart. Thank you, Mr. Chairman, and thank you and the
others of the committee for allowing me to speak, even though I
don't sit on the committee any longer, something that I miss,
and appreciate the great work that you and other members have
done. And it is an honor for me to be able to introduce a good
friend of mine, someone who we have worked closely with for
several years now, Commissioner Dave Miller from Iron County,
in the center of my district.
He has the great honor of representing, really, one of the
beautiful and unique districts in, really, I would say, the
entire country. He is doing such a fabulous job of this that he
is running unopposed this year, something that many of us are
obviously envious of, but it is because he has a reputation for
being a serious commissioner, and a serious leader, and we
thank you, Dave, for your example in that.
He and I have worked together on a couple different issues
that are very meaningful to his county, and also my district,
and one of them is PILT, and another is the subject we are
talking about today, and that is the enormous impact that
Endangered Species has had on his county and on other counties
throughout the district, particularly with Utah prairie dogs.
And he has been a valuable ally in this, and we have had
success, and I would think meaningful success, in the last 6 or
8 weeks in resolving some of these issues, working not only
with other commissioners, but with Gary Frazer and Director Dan
Ashe, who has been a valuable ally for us, as well.
So, we look forward, Commissioner, to hearing your
testimony today. Thank you once again for the great work that
you have done in representing Iron County and also the great
State of Utah.
Thank you, Mr. Chairman, I yield back.
The Chairman. Commissioner, you can begin your testimony.
STATEMENT OF DAVE MILLER, COMMISSIONER, IRON COUNTY, UTAH,
CEDAR CITY, UTAH
Mr. Miller. Mr. Chairman, Congressman Stewart, appreciate
each one of you, also all the esteemed members of the
committee. It is really an honor and a privilege for me to come
back and spend time here, in this setting. Despite the comments
of Mr. DeFazio, where this may be a waste of time, I hope it is
not. We came here, took time away from my family, flew all
night last night, got in at 8:00 this morning. And, frankly,
this is a very important item of discussion for our community
and--as is apparent that it is important across our beautiful
and beloved Nation.
I preface my remarks by saying that the Endangered Species
Act, with the good intentions that it originally was intended
to bring forward, and still continues to offer, does require
some improvement. And a couple things that I want to speak to
will, I think, help illustrate that.
First of all, for nearly 40 years, the particular species
in our community that was literally at the listing status prior
to the inception of the Endangered Species Act in 1973, the
Utah prairie dog, that was defined as a distinct and endangered
species, that development of that condition in Iron County, the
county that I represent, has proved that, for these many
decades, very little was occurring in the actual recovery and
progress being made in doing what the intent of the ESA is
intended to do.
And nearly a year ago, just over a year ago, shortly after
I became involved on the Commission, we made a decision that we
were no longer going to accept the status quo. And I think,
overall, I think that is the importance of this congressional
hearing today, is that accepting the status quo is not
acceptable. And we pointed out and proved that we can
accomplish the beneficial effort of protecting species and
helping to move them toward the recovery that is intended
without having to subject citizens to all of the inconveniences
and flat-out damages that have occurred by impacting their
private property. And I have heard that from many of the other
testimonies, that that is occurring across the land.
And as we set forward in a summit, where we met with
Ranking Members of the state, we had high-level representatives
from the Fish and Wildlife, and we said we will not accept
moving forward--or staying where we are at, the status quo,
without moving forward and getting to some goals. We set those
goals, and we have had tremendous success. And I think that
this is an example of where this particular issue that I am
here to testify to is valid and, really, the need to improve
the Endangered Species Act on a whole.
One issue, one significant issue, is the fact that the Utah
prairie dog exists on nearly 70--70 percent of the population
exists on private property, and that species, as it exists, it
literally inhibits the use of private property to the degree
that we have had tens, if not hundreds of millions of dollars
of economic impact, while we have had exponential growth of the
numbers of Utah prairie dogs in their population.
So, we have set forward several goals. But the most
important part of this particular bill that I am here to
testify to is that, as we work together to delist the species,
and we recover the species, and we look at the fact that those
that are on private property, as we make the argument that
those species are critical to the overall recovery, and that
they are protected, and as a state, and as county, as local
governing bodies we provided added regulatory assurity that
that particular species will not be relisted at some future
time, it becomes very important and imperative for us to work
on this together.
And, as we do that, it ultimately will provide for the end
goal of allowing for all species to be counted, all numbers of
the species to be counted. And it actually removes that
adversarial situation that is apparent in our community, and
apparent throughout the Nation.
So, those are my remarks.
[The prepared statement of Mr. Miller follows:]
Prepared Statement of David Miller, Chairman, Iron County Board of
Commissioners on H.R. 4256
As Chairman of the Iron County Board of Commissioners, a political
subdivision of the State of Utah, acting on behalf of citizens of Iron
County, I submit this written testimony in connection with verbal
remarks I intend to share at the Legislative Hearing to be held on
September 9, 2014 before the Committee on Natural Resources.
I preface my remarks by saying that I am honored to speak in favor
of work that is moving forward in the House of Representatives by each
Congressman presenting improvements to the Endangered Species Act.
Americans with few exceptions, especially in rural America, understand
what it means and what it takes to care for the land, the environment
and the species, both plant and animal, that inhabit shared space. The
unintended consequences resulting from the current processes under the
Endangered Species Act especially where preemption of fundamental
rights of U.S. citizens has reached a feverish pitch undermining the
very purposes of America and downplaying the value of the ESA. It is
causing alarm and disgust amongst countless Americans experiencing
irreparable damage many of whom are found powerless to participate in
the process for the good of all involved. With that introduction let it
be stated for the record that there does need to be dramatic
adjustments made to the ESA shifting from the broad, expensive
federally driven political solutions to localized state and interstate
agreements for many reasons some of which follow.
By its very definition a species that is endangered or threatened
has vulnerable populations and habitat leading to the risk of becoming
extinct. Based on this simple understanding there are limited
geographical locations where these species are found. Some are found
highly localized, others are found interstate or even international.
Whatever the case may be as far as geographical locations are
concerned, in large part, should be driven by the respective affected
jurisdictions. Sadly, it has become increasingly evident that Non-
Governmental Agencies are driving the agenda and continue to enrich
themselves on the backs of American taxpayers through sue and settle
arrangements with USFWS invoking the protections afforded under the
Equal Access to Justice Act. This litigious model, by so called non-
profit organizations, has not only harmed the American economy by
nearly shutting down our Primary and Secondary sectors of Industry but
it has further divided the Nation because of the disregard many of the
outspoken environmental advocates have for private property and the
protections afforded by both Federal and State Constitutions for the
same.
That leads me to address the current reality and how the proposed
improvements suggested by Congressman Stewart to the Endangered Species
Act are not only crucial but legitimate adjustments to an Act that has
been in existence long enough to identify the shortcomings and
instigate much needed improvements. This bill known as H.R. 4256 simply
illustrates a way to improve a severe inconsistency in the way the
living populations of species are counted. Currently internal rules
exclude counting populations toward recovery objectives because they
may be found on state, tribal or private property. Suffice it to say
those private property owners who are restricted, impacted and often is
the case found damaged as a result of the poor processes and
coordination efforts are less than enchanted with the so-called
protections of life, liberty and property or lack thereof.
The argument that populations found on private property, if
delisted from a listing status, would instantly be reduced because of a
lack of protections demonstrates the divide between interested parties.
It is preposterous that local interests would allow, once a species is
delisted, the population to merit a listing status again. Further, it
is at the local level that the best and most effective management
policies and practices can be put in place with the least cost. However
the more the damage to the affected, local economy continues the less
likely the resources necessary to expedite the betterment of efforts
for recovery at the local level will be available thereby forcing more
Federal dollars to be expended. Dollars the United States does not
have.
Although I could speak ad infinitum to the immediate impacts in our
community and the expanded negative effects throughout our country of
what was intended to be a good law but is in fact a poorly conceived
and administered program, I will conclude my written remarks by saying
that I believe in the idea of America. I believe in America. I believe
in the culture, the freedom, the goodness, the foundational principles
and the constitutional organization that, when implemented, continues
to shine a light in a world of ever expanding dismal darkness. Adopting
this measure addresses the inconsistency that architecturally currently
place endangered species in an adverse relationship with state, tribal
and private property owners and allows the advantages of localized
involvement, shared responsibility and opportunity for recovery of
endangered and threatened species while mitigating the negative
relationship with the USFWS and the Congress of the United States.
______
Mr. Mullin. Thank you for your testimony.
We will now recognize Mr. Huelskamp to introduce your
guest.
Mr. Huelskamp. Well, thank you, Mr. Chairman. It is a
pleasure to introduce Secretary Robin Jennison from the State
of Kansas. Of course, I know Rob in different capacities. I
would say he is first an environmentalist. In his real life he
is a farmer. He is also an avid outdoorsman, and he has done a
superb job of enhancing our game bird and other populations
across the State of Kansas.
I think today we are going to hear about some innovative
solutions, as well as some very interesting history, and put
some truth in the matter here, and identify the source of the
problem, and what the State of Kansas would like to do, and
have the freedom to do that, and develop the lesser prairie
chicken, or other populations across the State of Kansas.
So, it is a pleasure to have you here, Mr. Secretary, thank
you for coming all the way here and delivering some
enlightenment of the history of the lesser prairie chicken in
our great state. Thank you so much.
Thank you, Mr. Chairman.
STATEMENT OF ROBIN JENNISON, SECRETARY, KANSAS DEPARTMENT OF
WILDLIFE PARKS AND TOURISM, TOPEKA, KANSAS
Mr. Jennison. Thank you, Mr. Chairman, and Congressman
Mullin. Appreciate you taking the initiative to get this
important legislation introduced. And, Congressman Huelskamp,
thank you.
Appreciate the opportunity to testify on H.R. 4866. The
Kansas Department of Wildlife Parks and Tourism supports H.R.
4866. In short, and on a practical basis, it gives the lesser
prairie chicken the opportunity to rebound from a drought
unlike the plains have seen since the dust bowl of the
thirties, or the droughts of the fifties.
To more completely explain the Kansas Department of
Wildlife and Parks' support for H.R. 4866, it is important to
emphasize two points. First, philosophically and most
important, our department has the authority and is equipped to
more appropriately manage the wildlife within the borders of
Kansas than the U.S. Fish and Wildlife Service. Second, the
reduced numbers of prairie chicken at the time of the listing
decision were the result of an extended drought. This resulted
in not only a decrease in lesser prairie chicken numbers, but
similar declines in other game birds, such as pheasant and
quail. And it was noted at the time of the listing decision
that the prairie chicken that year had dropped by 50 percent.
This last year it has increased by 20 percent.
Both of those were the result of climactic conditions at
the time. The 50 percent reduction was about a 5-year drought
in the southwest part of the state, and with a modest return to
moisture in the western part of the state, in a little more of
the prairie chicken range we saw a 20 percent increase.
As you know, Congress passed the Endangered Species Act in
1973. Kansas followed closely behind in 1975. We are authorized
to conduct investigations in order to develop biological and
ecological data to determine conservation measures necessary
for a species' ability to sustain themselves. Additionally, the
department has the jurisdiction to implement conservation.
And it was noted in the previous testimony a lot of people
think that if U.S. Fish and Wildlife isn't there to implement
the Endangered Species Act, you would think that no one is
there. Well, that is not true, because the states are there.
And, in fact, in Kansas, we have listed 24 species as
endangered, 36 as threatened, and we have 76 species in need of
conservation. So the question that was asked, ``Is it the
looming litigation that is causing all this to answer,'' at
least in Kansas the answer is no.
Kansas, the Kansas Department of Wildlife Parks and
Tourism, and the 400 professionals that make up our department,
take very seriously the charge that authorized our agency to
improve the natural resources and to plan and provide for the
wise management thereof. Dating back to 1905, the department,
its leadership, and its employees have a distinguished history
of conservation, innovation, and being at the forefront of
wildlife management. That record is even more remarkable when
you consider that 97 percent of the land in Kansas is in
private ownership.
Time does not permit to scratch the surface on this
distinguished history, but one of the things that I was not
going to bring up, but am going to because it was brought up
earlier, was the whooping crane. Kansas has a 20,000-acre marsh
that we have created, the biggest inland marsh in North
America. We just spent $4.5 million to upgrade a ditch system
to pipe. And one of the visitors to that is the whooping crane.
I think it goes to the importance that the states put on these
species, just as much as the Federal Government.
Those of us charged with conservation of our natural
resources and authorized to use the regulatory process to
implement those endeavors, must be cognizant of the social and
economic impacts or the weight of public opinion will result in
its undoing. Should that occur, the losers will be our children
and grandchildren. The Kansas Department of Wildlife Parks and
Tourism and other state wildlife agencies are far better
equipped to find that balance than the U.S. Fish and Wildlife
Service. The one-size-fits-all approach of the Federal
Government cannot find the balance in the various states.
Conservation is too important to jeopardize its future with
burdensome regulation or continual litigation.
Environmentalists, conservationists, and natural resource
agencies should unite behind voluntary incentives, so we can
have a true partnership with private property owners to
preserve the diversity of our natural resources.
And, real quickly, to address specifically the lesser
prairie chicken in Kansas, it is hard for Kansans to understand
this listing, when we have a growing range of prairie chicken,
and a growing number of prairie chicken. We did not count
prairie chicken before 2001 in the short grass/CRP mosaic,
because there weren't any. Now we have over 10,000 prairie
chicken in that. The range grew about 100 miles from the
Arkansas River to Interstate 70.
Mr. Chairman, thank you for the opportunity to testify on
this issue.
[The prepared statement of Mr. Jennison follows:]
Prepared Statement of Robin Jennison, Secretary, Kansas Department of
Wildlife Parks and Tourism on H.R. 4866
Chairman Hastings and members of the Committee on Natural
Resources, thank you for the invitation to testify on H.R. 4866. The
Kansas Department of Wildlife Parks and Tourism (KDWPT) supports H.R.
4866. In short, and on a practical basis, it gives the Lesser Prairie
Chicken (LPC) the opportunity to rebound from a drought unlike any the
plains have seen since the 1930s dust bowl or the 1950s drought.
To more completely explain KDWPT's support for H.R. 4866, it is
important to emphasize two points. First, and philosophically most
important, KDWPT has the authority and is equipped to more
appropriately manage the wildlife within the borders of Kansas than
U.S. Fish and Wildlife Service (USFWS). Second, the reduced numbers of
prairie chicken at the time of the listing decision were the result of
an extended drought. This resulted in not only decreased LPC numbers,
but similar declines for other game birds such as pheasant and quail.
As you know, Congress passed the Endangered Species Act in 1973.
Kansas followed closely with its passage of the Kansas Nongame and
Endangered Species Act in 1975. KDWPT is authorized to conduct
investigations in order to develop biological and ecological data to
determine conservation measures necessary for a species' ability to
sustain themselves. Additionally, the department has the jurisdiction
to maintain a list of species in need of conservation, as well as the
rule and regulatory authority to implement such conservation.
Currently, Kansas has listed 24 species as endangered, 36 as
threatened, and 76 as species in need of conservation. These 134
species include invertebrates, fish, amphibians, birds, and mammals.
Kansas, the KDWPT, and the 400 professionals that make up the
department, take very seriously the charge articulated in KSA 32-702 to
improve the natural resources and to plan and provide for the wise
management and use of the state's natural resources. Dating back to
1905, the Department, its leadership, and its employees have a
distinguished history of conservation, innovation, and being at the
forefront of wildlife management. That record is even more remarkable
when you consider that 97 percent of the land in Kansas is in private
ownership. Time does not permit me to even scratch the surface of that
distinguished history, but one example is noteworthy.
During the 1940s and 1950s, the State of Kansas acquired 19,857
acres northeast of Great Bend, Kansas, and dikes were constructed to
impound water in five pools. Canals and dams were built to divert water
from the nearby Arkansas River and Wet Walnut Creek to supplement water
provided by two intermittent streams, Blood and Deception creeks.
During the 1990s, extensive renovation sub-divided some of the
pools. In addition, pump stations were built to allow for increased
management flexibility and water level manipulation. This renovation
effort also provided increased water conservation to better meet
wildlife needs during dry periods. KDWPT just completed a $4.5 million
project to replace the canal from the Arkansas River with a more
efficient underground pipe system. You may or may not recognize the
name of the location, Cheyenne Bottoms, but I am certain you will
recognize one of the species that rely on it for its migration, the
Whooping Crane. Cheyenne Bottoms is the largest marsh in the interior
of the United States. Cheyenne Bottoms was designated a Wetland of
International Importance in 1988 by the Ramsar Convention on Wetlands,
one of two sites in the state (the other being Quivira National
Wildlife Refuge). Cheyenne Bottoms is also considered to be a wetland
of global importance by the Western Hemispheric Shorebird Reserve
Network (WHSRN).
This one example clearly illustrates the dedication of our
Department and is intended to make the point that the USFWS and its
employees are not any more dedicated or committed to conservation than
KDWPT or our counterparts in the range of the LPC. Much of what KDWPT
or any of the other state wildlife agencies have accomplished could not
have been done without the partnership we have shared with USFWS.
However, separate roles serve a purpose and some issues are better left
to the states.
In 1997, the Kansas Legislature recognized that public support was
important to the continued success of our conservation efforts and an
effective Nongame and Endangered Species Act. KSA 32-960a included
language for an advisory committee. One of the more significant charges
of the committee is to ``work with the secretary to adapt the listing
of the species and the recovery plan for the species to social and
economic conditions of the affected area.''
Those of us charged with conservation of our natural resources and
authorized to use the regulatory process to implement those endeavors,
must be cognizant of the social and economic impacts or the weight of
public opinion will result in its undoing. Should that occur, the
losers will be our children and grandchildren. KDWPT and other state
wildlife agencies are far better equipped to find the balance than the
USFWS. The one-size-fits-all approach, cannot find that balance in the
various states. Conservation is too important to jeopardize its future
with burdensome regulation or continual litigation. Environmentalist,
Conservationist, and Natural Resource Agencies should unite behind
voluntary incentives so we can have a true partnership with private
property owners to preserve the diversity of our natural resources.
H.R. 4866 recognizes the potential of those partnerships and instructs
the Secretary of Interior to monitor and report on their progress.
The annual fluctuation of LPC numbers is not new. Kansas' attention
to the LPC is not new either. In the early 1950s a department
publication stated, ``In southwest Kansas where the lesser prairie
chicken, Tympanuchus pallidicinctus, holds forth, it is commonplace for
the numbers of this bird to fluctuate widely.'' In that time period
Kansas trapped and transplanted LPC to spread seed stock and bring the
birds back more quickly. Under Director Dave Leahy, the department even
experimented with propagation of the LPC.
In a press release dated October 3, 2012, Bill Van Pelt, Western
Association of Fish and Wildlife Agencies (WAFWA) Grassland
Coordinator, stated, ``Historically, we saw conditions like we are
observing now in the 1930s and we thought the species went extinct.''
In reviewing KDWPT 1950 archives, we found a statement from State Game
Protector Eddie Gebhard. Gebhard believed there were only two small
flocks that survived the 1930s in Kansas, one in Meade County and one
in Seward County. Gebhard went on to say, ``Since these drought years
these two small flocks and possibly some migrants from Oklahoma, have
made a considerable comeback in Kansas.'' This is relevant as it
highlights two historical weather extremes. Relatively speaking the LPC
are in a much better position to recover today as compared to the time
immediately following the 1930s when Gebhard noted they made a
considerable comeback. Additionally, wildlife biologists would note
that prairie chicken numbers can fluctuate up and down from year to
year, mainly due to grassland habitat conditions influenced by
rainfall.
Kansas currently harbors the most extensive remaining range and
largest population of the lesser prairie chicken among the distinct
populations found in the five states where it occurs (KS, TX, NM, OK,
CO). The highest densities of LPC occur north of the Arkansas River
where seeded CRP grasslands are present in close proximity to native
mixed prairies of the Pawnee, Walnut, and Smoky Hill drainages in west-
central Kansas. This has been the case for most of the last 12-15
years. However, the densities get equally as high in our native
rangelands to the south when we string together a couple of good
production years. The fact that the highest densities across the range
occur north of the Arkansas River is a testament to the success of
voluntary conservation programs. The LPC was thought to have been
extirpated from that portion of its historic range until CRP came
along. This expansion of lesser and greater prairie chicken populations
in west-central Kansas has brought these two historically overlapping
species back together in a zone ranging from 20 to 40 miles in width.
Some mixed leks with cocks of both species now occur in this zone of
overlap.
Lesser prairie-chickens occupy two basic types of habitat which are
native rangeland and planted native grasses that have been established
primarily through the conservation reserve program (CRP). The total
amount of grassland within Kansas' LPC range is nearly 10 percent
greater now than in 1950 due to the addition of CRP to the landscape
(Kansas State University, unpublished data). In recent years, much
concern has arisen about the future of CRP due to a 28 percent decline
in enrolled acres within Kansas' LPC range from 3,124,812 in 2008 to
2,242,373 in 2014 (USDA data). However, a recent assessment of images
from the National Agricultural Imagery Program (NAIP) found that 90
percent of the CRP acres expired from 2008-2011 were still being
maintained as grasslands in 2012. Similarly high percentages ranging
from 73-97 percent were calculated for the other four LPC states (WAFWA
LPC Plan).
Additionally in 2008, the Natural Resource Conservation Service
(NRCS) launched the Lesser Prairie-Chicken conservation Initiative
(LPCI). The objective of this initiative is ``to increase the abundance
and distribution of the LPC and its habitat while promoting overall
health of grazing lands and long-term sustainability of ranching
operations. Through the LPCI, NRCS is partnering with all five wildlife
agencies within the LPC range, Kansas Forest Service, USFWS Partners
for Fish and Wildlife Program, LPC Interstate Working Group, National
Fish and Wildlife Foundation, National Wildlife Foundation, Pheasants
Forever, Playa Lakes Joint Venture, Rocky Mountain Bird Observatory,
The Dorothy Marcille Woods Foundation, Texas Wildlife Association, and
The Nature Conservancy. Since the inception of LPCI, a total of 84,000
acres of prescribed grazing has been implemented within Kansas' LPC
range (NRCS data). These LPCI acres are additive to the >350,000 acres
across Kansas' LPC range that were contracted through traditional NRCS
programs over the same time period (NRCS data).
Development impacts within suitable patches of vegetation can also
eliminate LPC usable habitat. The data available from numerous
industries indicates that an average of a few hundred thousand acres is
impacted by development each year in LPC range (WAFWA LPC plan). That
sounds like a large figure by itself but the range encompasses roughly
40 million acres. Thus, development impacts have only compromised a
very small percentage of the range over the last couple of years
corresponding with the sharp annual decline in the LPC population. It
would take many years of development alone at the current rate to
affect enough of the LPC range to cause population level effects.
Given this information, it is likely that the recent LPC population
decline of nearly 50 percent from 2012 to 2013 is almost totally
related to drought conditions. Wide population fluctuations are not
uncommon for LPC or other gallinaceous birds. The birds in this Order
have wide population fluctuations because they depend upon annual
production which is heavily influenced by rainfall due to its effect on
nesting structure and foraging habitat. For example, in Kansas, the
regional populations of pheasant and quail exhibit the same annual
fluctuation as LPC illustrating the influence of weather (See Figs. 1 &
2). This year under a return to a more normal weather pattern the LPC
saw a population increase of 20 percent.
Notwithstanding KDWPT's belief that the LPC is a state trust
species of which Kansas has a long history of active and successful
management, USFWS did not give appropriate consideration to the impact
the severe record setting drought had on necessary habitat. KDWPT
believes H.R. 4866 will allow time for both the LPC to recover from the
drought and voluntary conservation efforts to take effect.
Kansas Department of Wildlife Parks and Tourism
January 31, 2014
Fig. 1
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Fig. 2
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
.epsThe recent declines are due primarily to weather as illustrated
by other gallinaceous birds in the LPC range. The greater prairie-
chicken trend for the Kansas Smoky Hill region, which is the region
immediately adjacent to the eastern edge of the LPC range, also
correlates with the LPC trends.
______
Mr. Mullin. Thank you, Mr. Secretary. The Chair will now
recognize Mr. Ya-Wei Li. I apologize about earlier, about
messing up with your name. But by the end of this thing I will
have it down right.
Mr. Li. You had it right, thank you.
STATEMENT OF YA-WEI LI, DIRECTOR, ENDANGERED SPECIES
CONSERVATION, DEFENDERS OF WILDLIFE, WASHINGTON, DC
Mr. Li. Mr. Chairman and members of the committee, thank
you for inviting me to testify today. My name is Ya-Wei Li, and
I am the Director of Endangered Species Conservation at the
Defenders of Wildlife.
The timing of this hearing is very ironic, because it was
100 years ago last Monday that Martha, the last passenger
pigeon, died at the Cincinnati Zoo. It was a tragic end for a
species that was once the most common bird in all of North
America. People reported seeing flocks so large that they
eclipsed the sun for hours. But in less than 50 years, 5-0, we
brought the bird from billions to none. It was America's first
famous extinction and we were responsible. We decimated the
bird faster than they could reproduce. We lacked knowledge to
properly balance our needs with those of the lesser prairie
chicken.
But we learned from that hard and shameful lesson. We
learned how we affect the natural world, and to correct course,
if needed. Today we have tools to head off extinction, tools
like the Endangered Species Act.
The ESA was not passed as part of some radical, anti-
development, anti-corporate agenda. It was passed with
overwhelming bipartisan congressional support, and signed into
law by a Republican president as an expression of the
quintessential American value that we protect what is ours. It
was a statement that America's wildlife and natural resources
have value.
The six bills before us reject those values. They abolish
protections for endangered species and obstruct recovery
efforts. They sunset the protections of the ESA, as if the
extinction crisis were over, as if no more imperiled species
needed further protection, as if we have learned nothing from
the passenger pigeon.
In reality, we need every tool under the ESA and every
dollar we can muster to prevent more extinctions and accelerate
more recoveries. We need to do things like promptly listing
species that, in fact, warrant protection, to safeguard their
habitats, to incentivize private landowners to voluntarily
conserve species on their lands, to fund recovery efforts at
meaningful levels, and to set strong recovery goals so that no
species needs to revisit the ESA emergency room after it has
been delisted.
Unfortunately, none of the bills embraces these common-
sense strategies. And none adopts the many recommendations for
improving ESA implementation from the National Academy of
Sciences and the U.S. Government Accountability Office, even
though Congress has entrusted these very entities with
providing independent, non-partisan advice.
The bills do not reflect serious efforts to advance the
ESA's goal of preventing extinctions and recovering species.
Let me just give you a few examples of some of these problems.
H.R. 4256 is so poorly drafted that it is hard for me to
say exactly what it does. At a minimum, the bill seems to
require the services to count all individuals of a species in
determining whether it is recovered. The problem is that
individuals on unprotected--that is right, unprotected--lands
must also be counted toward recovery goals, even in areas that
are destined to be bulldozed in the future. This requirement
would be disastrous for species like the Utah prairie dog,
which has most of its populations right now on unprotected
lands facing development pressure.
And what about H.R. 1927? Well, the ESA is often a
scapegoat for an array of environmental problems, and this bill
is a classic example of that blame-shifting. California is in a
historic drought that has diminished water supplies to farmers
and cities across the state. Nature, not environmental
regulations, is the principal cause of this suffering. The bill
would do virtually nothing to help farmers in this severe
drought, while driving endangered species in the Bay Delta
estuary closer to extinction.
And H.R. 4866, well, it seems to contradict nearly
everything that the science tells us about the lesser prairie
chicken. Sixteen years ago the Fish and Wildlife Service
already found that the species warrants listing as a threatened
species--16 years ago. Now that the listing has been finalized,
the bill seeks to unravel those protections, gambling the
bird's fate on a recently adopted range-wide plan that would be
unenforceable, unproven, and unable to stop the hemorrhaging.
So, in closing, the bills undercut not only the ESA, but
America's belief that our wildlife have value, that we must
balance our economic growth with protecting our natural
resources, and that we must never accept another tragedy like
the one that happened on September 1, 1914.
Thank you for hearing my testimony.
[The prepared statement of Mr. Li follows:]
Prepared Statement of Ya-Wei Li, Director, Endangered Species
Conservation, Defenders of Wildlife
``When the last individual of a race of living things breathes no
more, another heaven and another earth must pass before such a one
can be again.''
--William Beebe (1906)
Mr. Chairman and members of the committee, thank you for the
invitation to testify today. I am Ya-Wei Li, the Director of Endangered
Species Conservation at Defenders of Wildlife, an organization
dedicated to protecting and restoring imperiled animals and plants in
their natural communities. The Endangered Species Act (ESA) is central
to that mission.
This hearing comes at an ironic time. It was 100 years ago last
Monday that a lone bird named Martha, the last passenger pigeon, died
at the Cincinnati Zoo. It was a tragic end for what was once the most
common bird in North America, numbering in the billions. American
homesteaders reported seeing flocks so large they eclipsed the sun for
hours, and so numerous they took 3 days to pass.
But in less than 50 years, unchecked expansion brought the bird
from billions to none. It was America's first famous extinction, and
humans were responsible. We decimated the birds faster than they could
reproduce. We lacked the knowledge to properly balance our needs with
those of the passenger pigeon, to ensure economic growth while
protecting our natural heritage.
But we learned from that hard and shameful lesson. We learned how
we affect the natural world and to correct course if needed. Today, we
can often diagnose species in decline before they pass the point of no
return. We also have tools to head off extinction, tools that came too
late for the passenger pigeon but not for the bald eagle, American
alligator, peregrine falcon, and hundreds of other species that thrive
today--tools like the Endangered Species Act.
The ESA, like the Clean Air Act and Clean Water Act, was not passed
as part of some radical anti-development, anti-corporate agenda. It was
passed by wide bipartisan majorities in Congress and signed into law by
a Republican president as an expression of the quintessential American
value that we protect what is ours. It was a statement that America's
wildlife and natural heritage have value and should be protected for
future generations, sentiments that are still echoed strongly in public
opinion surveys today.
The six bills before us reject those values and do nothing to
conserve imperiled species. They abolish protections for endangered
wildlife and seriously obstruct recovery efforts. They sunset the
protections of the ESA, as if the extinction crisis were over,\1\ as if
no more imperiled species needed further protection,\2\ and as if we
had learned nothing from the passenger pigeon. In reality, we need
every tool under the ESA and every dollar we can muster to prevent more
extinctions and recover more species. We need to promptly list species
that warrant protection, safeguard their habitats, fund recovery
efforts at meaningful levels, encourage landowners to voluntarily
conserve species, and set strong recovery goals so that no species
needs to revisit the ESA emergency room after it has been delisted.
Regrettably, none of the bills embraces these common-sense strategies.
And none aligns with the myriad of recommendations for improving ESA
implementation from the National Academy of Sciences and the U.S.
Government Accountability Office--even though Congress entrusts these
entities with providing independent, nonpartisan advice. Instead, the
bills reflect the recommendations from a report finalized in February
by a partisan and self-appointed ``ESA Working Group.'' The
recommendations threaten to radically alter the ESA for the worse,
undercutting decades of conservation progress by the U.S. Fish &
Wildlife Service and the National Marine Fisheries Service (Services)
and their many partners. The bills do not reflect serious efforts to
advance the ESA's goals of preventing extinctions and recovering
species. Below are a few examples of the many problems with the bills.
---------------------------------------------------------------------------
\1\ Rodolfo Dirzo et al., Defaunation in the Anthropocene, 345
Science 401 (2014) (``We live amid a global wave of anthropogenically
driven biodiversity loss: species and population extirpations and,
critically, declines in local species abundance.'').
\2\ David S. Wilcove & Lawrence L. Master, How Many Endangered
Species are There in the United States?, 3 Frontiers in Ecology & the
Environment 414 (2005) (``We review the best available data on the
status of plants, animals, and fungi in the US and conclude that the
actual number of known species threatened with extinction is at least
ten times greater than the number protected under the Endangered
Species Act (ESA).'').
---------------------------------------------------------------------------
H.R. 4256
This bill is poorly written, rife with ambiguity, and biologically
indefensible. At one level, it seems to require the Services and state
wildlife agencies to count every individual of a species before
listing, downlisting, or delisting it. This mandate would be impossible
to meet for many listed and candidate species because they are often
extremely difficult to find and costly to count. Fish and aquatic
invertebrate species would be particularly challenging because many are
microscopic in their larval stage. Another major hurdle is that Federal
and state agencies generally need landowner consent to access private
property, where many listed species live. Because of these obstacles,
new listings, downlistings, and delistings would come to a halt.
Extinctions would become ordinary, while recoveries extraordinary.
The bill also seems to require the Services to count all
individuals of a species in determining whether it has met recovery
criteria. Individuals on unprotected lands must be counted, even in
areas destined to be bulldozed in the future. This requirement would be
disastrous for species like the Utah prairie dog, with less than 4
percent of individuals on protected lands and much of the remaining
populations in areas facing growing pressure from agricultural and
urban development. By prematurely delisting the prairie dog and many
other species, the bill will reverse decades of recovery progress and
leave the species at high risk of extinction.
H.R. 4866
H.R. 4866 contradicts nearly everything that science tells us about
the lesser prairie chicken. As early as 1998, the Fish & Wildlife
Service found that the bird met the ESA's definition of a threatened
species. But without Federal protections, the species continued to lose
habitat and decline. The situation became so dire in 2008 that the
agency escalated the bird's priority for ESA listing to 2 out of 12, a
number reserved only for species facing threats that are both
``imminent'' and of a ``high magnitude.'' The bird's population crashed
again in 2012, this time by 50 percent. A few months ago, the Fish &
Wildlife Service finally listed the bird as threatened.
Despite the overwhelming evidence that the lesser prairie chicken
has slipped closer to extinction, H.R. 4866 reverses the agency's
recent listing decision and suspends ESA protections for the species
until 2020 or later. The bill gambles the bird's fate on the recently
adopted Range-Wide Plan for the Lesser Prairie Chicken, which is
unenforceable, unproven, and unable to stop the hemorrhaging. The plan
does not require developers to avoid the most important habitats for
the species or limit the amount of total habitat disturbed. It even
allows permanent impacts from oil and gas development to be offset by
short term mitigation measures, based on the theory that ``unlike other
grouse species, [lesser prairie chicken] appear to be adaptable to
changing habitat conditions (i.e. structure, grass species composition
etc.), which can be created in a relatively short time period (within
2-8 years).'' \3\ The only citation for this ``moving conservation
concept'' is a paper about a proposed mitigation system for the saiga
antelope in Uzbekistan. To base a recovery strategy on the absurd
notion that a prairie chicken is like a Uzbekistan antelope defies
logic, but this is the flimsy biological foundation of H.R. 4866.
---------------------------------------------------------------------------
\3\ Van Pelt et al., The Lesser Prairie-Chicken Range-wide
Conservation Plan (Oct. 2013), pg. 93.
---------------------------------------------------------------------------
H.R. 1927
The ESA is often a scapegoat for an array of environmental
problems, and H.R. 1927 is a classic example of that blame-shifting.
California is in its third year of a historic drought that has
diminished water supplies to farmers and cities across California,
including in the San Joaquin Valley. Drought, not regulations, is the
primary cause of those woes. The Director of the California Department
of Water Resources has stated that ``the great majority of water
shortage this year is purely a basis of drought. It's not regulation.''
\4\ Even the State Water Contractors, an association of agencies that
purchase water from the California State Water Project, recently
acknowledged that ESA protections ``have minimally affected water
deliveries over the past six months . . .'' \5\ Unless the bill can
summon rainfall, it will do nothing for farmers and more damage to
California's native fisheries, which support thousands of jobs in the
state.
---------------------------------------------------------------------------
\4\ Alex Breitler, ``It's not regulation,'' Environmental blog,
Apr. 1, 2014, available at: http://blogs.esanjoaquin.com/san-joaquin-
river-delta/2014/04/01/its-not-regulation/.
\5\ Doc. # 166, Motion for Leave to File a Reply in Support of
Appellees Kern County Water Agency, Coalition for a Sustainable Delta,
State Water Contractors, and Metropolitan Water District of Southern
California's Petition for Rehearing En Banc, Case No. 11-15871, San
Luis & Delta Mendota Water Authority et al. v. Salazar, Ninth Circuit
Court of Appeals, June 23, 2014, at pp. 1-2.
---------------------------------------------------------------------------
The ``ESA Working Group'' recently recommended legislation to
``empower states'' on ESA decisions. Ironically, H.R. 1927 does the
exact opposite. It would preempt existing state and Federal laws that
regulate water diversions at the Bay-Delta estuary. The State of
California, for example, could not protect its state-listed endangered
species that inhabit the estuary. This year, water districts and
conservation groups worked together to support a $7.5 billion water
bond recently approved by the state legislature, a measure to fund safe
drinking water projects, new ground and surface water storage,
watershed restoration, water conservation, and other real solutions to
the water crisis. H.R. 1927 is a divisive measure that jeopardizes
passage of the water bond at the upcoming November election. Similar
House legislation such as H.R. 3964, which overrides environmental
protections in current California State law, was opposed by the state's
Governor, both senators, a majority of the state's house of delegation,
and dozens of citizen groups. The bill is foisting upon California what
it clearly does not want. There is no ``empowerment'' here.
H.R. 1314
This bill undermines the efficient resolution of ESA listing and
critical habitat disputes, delaying protections for species and wasting
Federal Government resources. Any state or county could veto a proposed
settlement to list a resident species or designate its critical
habitat. There is no requirement to intervene in the lawsuit, consult
with the litigants, or justify the veto. A county, at its whim, could
derail a proposed settlement even if all plaintiffs and defendants
agree to it. Because of this likelihood that a proposed settlement
could fail for reasons beyond the control of the litigants, their
incentive to settle is vastly diminished. Listing disputes that
typically would have been resolved at the outset will now continue for
months, if not years, draining government resources and delaying
protections for imperiled plants and animals.
H.R. 4284
This bill creates a cynical detour around the protections of the
ESA, sending species down a dead end road. It would allow the Services
to decide whether to list a species based on vague and undefined State
Protective Actions, instead of the ESA's definitions of threatened and
endangered. The Services could approve State Protective Actions as a
substitute for listing, even if those actions are not enough to
adequately conserve a species. For example, the Fish & Wildlife Service
could conclude that a species no longer requires listing based on the
unenforceable promise of landowners to restore the species' habitat.
The restoration need not have even occurred or proven effective for the
species. The bill creates the illusion, but not the reality, of
conservation.
The bill also sets the stage for returning primary management
responsibility of listed species to states. Unfortunately, most states
lack the resources and legal authority to adequately protect listed
species. In general, their laws do not regulate habitat destruction
that directly harms an endangered species and do not protect plants,
which make up 56 percent of all U.S. listed species. Another shortfall
is state spending on imperiled species, which is generally only a small
fraction of what Federal agencies spend. Further, Fish & Wildlife
Service data from 2012 show that 13 states spent less than $100,000 on
endangered species conservation. Kansas, for example, reported spending
only $32,000. If states want to resume primary management
responsibility for imperiled species, they should enact stronger laws
and commit more resources to protect those species before they decline
to the point of becoming threatened or endangered.
H.R. 4319
As with many of the bills being considered, H.R. 4319 overrides the
Services' scientific judgment about how best to conserve listed
species. It would require the Services to exclude any area from
critical habitat if the benefits of exclusion outweigh the benefits of
inclusion--even if the exclusion would jeopardize the species'
recovery. In no way does the bill help prevent extinctions or recover
species. In fact, it contradicts the recommendations of the National
Academy of Sciences:
Because habitat plays such an important biological role in
endangered species survival, some core amount of essential
habitat should be designated for protection at the time of
listing a species as endangered as an emergency, stop-gap
measure. As discussed below, it should be identified without
reference to economic impact.\6\
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\6\ National Research Council, Science and the Endangered Species
Act 7 (1995).
The bill is nothing more than a concession to those who seek to
develop or destroy endangered species habitat without having to
consider how their actions affect the species.
The bill would also cripple the Services' conservation programs
with the requirement to consider the economic effects of every critical
habitat designation on land and property values, water and other public
services, employment, and government revenue. The Services would need
to increase their staff considerably to meet this obligation. Instead
of spending their limited resource to recover species, the Services
would use it to complete analysis that does nothing for recovery. The
tragic result is that critical habitat designations would slow to a
crawl, especially because the Services already lack the resources to
complete all listing and critical habitat decisions within the
statutory deadlines.
What have we learned since 1914?
We could have saved the passenger pigeon with the Endangered
Species Act and our current understanding of conservation biology. Yet
the six bills rob us of these tools, as if we learned nothing from
Martha's death. They override the scientific judgment of Services
biologists on listings, critical habitat, consultations, and recovery
planning. They prevent citizens from helping to enforce violations of
the ESA. They even deny the lesser prairie chicken the protections for
which it has waited 16 years. Perhaps most importantly, they eviscerate
America's belief that our wildlife have value, that we must balance
economic growth with the need to protect our natural heritage, and that
we must never accept another tragedy like the one on September 1, 1914.
______
Mr. Mullin. Thank you. Ms. Donna Whitney--Wieting, I am
sorry----
Ms. Wieting. That is quite all right.
STATEMENT OF DONNA WIETING, DIRECTOR, OFFICE OF PROTECTED
RESOURCES, NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC
AND ATMOSPHERIC ADMINISTRATION, WASHINGTON, DC
Ms. Wieting. Good morning, Mr. Chairman and members of the
committee. Thank you for the opportunity to testify before you
today. My name is Donna Wieting, and I am the Director of the
Office of Protected Resources for the National Oceanic and
Atmospheric Administration's National Marine Fisheries Service.
The purpose of the Endangered Species Act is to conserve
threatened and endangered species and their ecosystems.
Congress passed this law on December 28, 1973, recognizing that
the natural heritage of the United States was of aesthetic,
ecological, educational, recreational, and scientific value to
our Nation and its people. It was understood that, without
protection, many of our Nation's living resources would become
extinct.
The Endangered Species Act has been successful in
preventing species extinction. Less than 1 percent of the
species listed under this law have gone extinct, and over 30
species have recovered.
The National Marine Fisheries Service recently delisted the
Eastern population of Steller sea lion. This is the first
delisting that has occurred because of recovery since 1994,
when we delisted the now thriving population of Eastern Pacific
gray whales.
Actions taken under the Endangered Species Act have also
stabilized or improved the downward population trend of many
marine species. For example, in 2013, when we saw record
returns of nearly 820,000 adult fall chinook salmon passing the
Bonneville Dam on their way up the Columbia River to spawn.
This is the most fall chinook salmon to pass the dam in a
single year since the dam was completed in 1938, and more than
twice the 10-year average.
Recovery of threatened and endangered species is a complex
and challenging process. We engage in a range of activities
under the ESA that include listing species, designating
critical habitat, consulting on Federal actions that may affect
a listed species or its designated critical habitat, and
authorizing research to learn more about protected species.
We also partner with a variety of stakeholders, including
private citizens, Federal, state, and local agencies, tribes,
interested organizations, and industry. These partnerships are
critical to implementing recovery actions and achieving species
recovery goals.
For example, several NMFS programs provide support to our
partners to assist with achieving these recovery goals. From
2000 to 2013 the Pacific Coastal Salmon Recovery Fund has
provided over $1 billion in funding to support partnerships in
the recovery of listed salmon and steelhead. From 2003 to 2014,
the Species Recovery Grants Program, a Section 6 program, has
awarded approximately $42 million to support states and tribal
recovery and conservation efforts for other listed species. And
from 2001 to 2014, the Prescott Grant program has awarded over
$44 million in funding through 483 competitive and 28 emergency
grants to stranding network members to respond and care for
stranded marine mammals, many of those listed under the
Endangered Species Act.
The National Marine Fisheries Service is dedicated to the
stewardship of living marine resources through science-based
conservation and management. There are 2,179 species listed
under the ESA, and we in NMFS are responsible for 122 of them--
from whales and sea turtles to salmon, corals, and Johnson's
sea grass. The ESA is a mechanism that helps guide our
conservation efforts for these marine species, and reminds us
that our children deserve the opportunity to enjoy the same
natural world we experience.
We are currently analyzing the six legislative proposals
introduced into the House of Representatives regarding the
Endangered Species Act, and we would be happy to work
cooperatively with you on these draft bills.
Thank you again for the opportunity to discuss
implementation of the ESA. I am available to answer questions,
of course, if you may have them.
[The prepared statement of Ms. Wieting follows:]
Prepared Statement of Donna Wieting, Director, Office of Protected
Resources, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce
introduction
Good morning, Mr. Chairman and members of the committee. Thank you
for the opportunity to testify before you today. My name is Donna
Wieting and I am the Director of the Office of Protected Resources for
the National Oceanic and Atmospheric Administration's (NOAA) National
Marine Fisheries Service (NMFS) in the Department of Commerce. NMFS is
dedicated to the stewardship of living marine resources through
science-based conservation and management.
The purpose of the ESA is to conserve threatened and endangered
species and their ecosystems. Congress passed the ESA on December 28,
1973, recognizing that the natural heritage of the United States was of
``esthetic, ecological, educational, recreational, and scientific value
to our Nation and its people.'' It was understood that, without
protection, many of our Nation's living resources would become extinct.
There are 2,180 species listed under the ESA. A species is considered
endangered if it is in danger of extinction throughout all or a
significant portion of its range. A species is considered threatened if
it is likely to become endangered in the foreseeable future. The U.S.
Fish and Wildlife Service (USFWS) within the Department of the Interior
and NMFS share responsibility for implementing the ESA. NMFS is
responsible for 122 marine species, from whales and sea turtles to
salmon, corals and Johnson's sea grass.
nmfs implementation of the esa
NMFS conserves and recovers marine resources by doing the
following: listing species under the ESA and designating critical
habitat (section 4); developing and implementing recovery plans for
listed species (section 4); developing cooperative agreements with and
providing grants to states for species conservation (section 6);
consulting on any Federal agency actions where the agency determines
that the action may affect a listed species or its designated critical
habitat and to minimize the impacts of incidental take (section 7);
partnering with other nations to ensure that international trade does
not threaten species (section 8); enforcing against violations of the
ESA (sections 9 and 11); cooperating with non-Federal partners to
develop conservation plans for the long-term conservation of species
(section 10); and authorizing research to learn more about protected
species (section 10).
How Species are Listed or Delisted
Any individual or organization may petition NMFS or USFWS to
``list'' a species under the ESA. If a petition is received, NMFS or
USFWS must determine within 90 days if the petition presents enough
information indicating that the listing of the species may be
warranted. If the agency finds that the listing of the species may be
warranted, it will begin a status review of the species. The agency
must, within 1 year of receiving the petition, decide whether to
propose the species for listing under the ESA. NMFS may, on its own
accord, also initiate a status review to determine whether to list a
species. In that instance, the statutory time frames described above do
not apply. The same process applies for delisting species.
NMFS or the USFWS, for their respective species, determine if a
species should be listed as endangered or threatened because of any of
the following five factors: (1) present or threatened destruction,
modification, or curtailment of its habitat or range; (2)
overutilization for commercial, recreational, scientific, or
educational purposes; (3) disease or predation; (4) inadequacy of
existing regulatory mechanisms; and (5) other natural or manmade
factors affecting its continued existence. The ESA requires that
listing and delisting decisions be based solely on the best scientific
and commercial data available. The Act prohibits the consideration of
economic impacts in making species listing decisions. The ESA also
requires designation of critical habitat necessary for the conservation
of the species; this decision does consider economic impacts.
The listing of a species as endangered makes it illegal to ``take''
(harass, harm, pursue, hunt, shoot, wound, kill, trap, capture,
collect, or attempt to do these things) that species. Similar
prohibitions usually extend to threatened species. Federal agencies may
be allowed limited take of species through interagency consultations
with NMFS or USFWS. Non-Federal individuals, agencies, or organizations
may have limited take through special permits with conservation plans.
Effects to the listed species must be minimized and in some cases
conservation efforts are required to offset the take. NMFS' Office of
Law Enforcement works with the U.S. Coast Guard and other partners to
enforce and prosecute ESA violations.
Interagency Consultation and Cooperation
All Federal agencies are directed, under section 7 of the ESA to
utilize their authorities to carry out programs for the conservation of
threatened and endangered species. Federal agencies must also consult
with NMFS on activities that may affect a listed species or its
designated critical habitat. These interagency consultations are
designed to assist Federal agencies in fulfilling their duty to ensure
Federal actions do not jeopardize the continued existence of a listed
species or destroy or adversely modify designated critical habitat.
Biological opinions document NMFS' opinion as to whether the Federal
action is likely to jeopardize the continued existence of listed
species or adversely modify their designated critical habitat. Where
appropriate, biological opinions provide an exemption for the ``take''
of listed species while specifying the extent of take allowed, the
Reasonable and Prudent Measures necessary to minimize impacts from the
Federal action, and the Terms and Conditions with which the action
agency must comply. Should an action be determined to jeopardize a
species or adversely modify critical habitat, NMFS will suggest
Reasonable and Prudent Alternatives, which are alternative methods of
project implementation that would avoid the likelihood of jeopardy to
the species or adverse modification of critical habitat. Nationally,
NMFS conducts approximately 1,200 ESA consultations per year.
species recovery
Recovery of threatened and endangered species is a complex and
challenging process, but one which also offers long-term benefits to
the health of our environment and our communities. Actions to achieve a
species' recovery may require restoring or preserving habitat,
minimizing or offsetting effects of actions that harm species,
enhancing population numbers, or a combination of all of these actions.
Many of these actions also help to provide communities with healthier
ecosystems, cleaner water, and greater opportunities for recreation,
both now and in future generations.
Partnerships with a variety of stakeholders, including private
citizens, Federal, state and local agencies, tribes, interested
organizations, and industry, are critical to implementing recovery
actions and achieving species recovery goals. Several NMFS programs,
including the Species Recovery Grants to states and tribes and the
Pacific Coastal Salmon Recovery Fund, and the Prescott Marine Mammal
Rescue Assistance Grant Program provide support to our partners to
assist with achieving recovery goals. From 2000-2013 the Pacific
Coastal Salmon Recovery Fund has provided $1.09 billion in funding to
support partnerships in the recovery of listed salmon and steelhead.
From 2003-2014 the Species Recovery Grants Program has awarded
approximately $42 million to support state and tribal recovery and
conservation efforts for other listed species. From 2001-2014 the
Prescott Program awarded over $44.8 million in funding through 483
competitive and 28 emergency grants to Stranding Network members to
respond and care for stranded marine mammals.
endangered species act successes
The ESA has been successful in preventing species extinction--less
than 1 percent of the species listed have gone extinct. Despite the
fact that species reductions occurred over often very long time
periods, in its 40 year existence, the ESA has helped recover over 30
species. NMFS recently delisted the Eastern population of Steller sea
lion, our first delisting since 1994 when NMFS delisted the now
thriving eastern population of Pacific gray whales. Between October 1,
2010, and September 30, 2012, of the 70 domestic endangered or
threatened marine species listed under the ESA, 27 (39 percent) were
stabilized or improving, 16 (23 percent) were known to be declining, 6
(8 percent) were mixed, with their status varying by population
location, and 21 (30 percent) were unknown, because we lacked
sufficient data to make a determination.
In addition to Pacific gray whales and Eastern Steller sea lions,
ESA recovery actions have stabilized or improved the downward
population trend of many marine species. For example, listed humpback
populations are currently growing by 3-7 percent annually. In 2013, we
saw record returns of nearly 820,000 adult fall Chinook salmon passing
the Bonneville Dam on their way up the Columbia River to spawn. This is
the most fall Chinook salmon to pass the dam in a single year since the
dam was completed in 1938, and more than twice the 10-year average of
approximately 390,000. A substantial number of Hawaiian monk seals are
alive today because of direct interventions by the NMFS Recovery
Program. Because of these efforts directed at monk seals, the
population is 30 percent larger than if we had not acted, offering hope
for future recovery and assurance our actions are making a difference.
We face continuing challenges in recovering numerous other species.
Declines in habitat in coastal areas from wetlands to coral reefs is
often a major causative factor. As stresses on coastal ecosystems
increase, it is important to place a priority on habitat protection and
restoration in order to prevent listings and facilitate recovery and
delisting.
pending legislative proposals
NMFS is currently analyzing the six legislative proposals that were
recently introduced into the House of Representatives: H.R. 1314, to
amend the Endangered Species Act of 1973 to establish a procedure for
approval of certain settlements; H.R. 1927, the More Water and Security
for Californians Act; H.R. 4256, the Endangered Species Improvement Act
of 2014; H.R. 4284, the ESA Improvement Act of 2014; H.R. 4319, the
Common Sense in Species Protection Act of 2014; and H.R. 4866, the
Lesser Prairie Chicken Voluntary Recovery Act of 2014.
conclusion
Extinctions are currently occurring at a rate that is unprecedented
in human history. Each plant, animal, and their physical environment is
part of a much more complex web of life. Because of this, the
extinction of a single species can cause a series of negative events to
occur that affect many other species. Endangered species also serve as
``sentinel'' species to indicate larger ecological problems that could
affect the functioning of the ecosystem and likely humans as well. As
importantly, species diversity is part of the natural legacy we leave
for future generations. The wide variety of species on land and in our
ocean has provided inspiration, beauty, solace, food, livelihood and
economic benefit, medicines and other products for previous
generations. The ESA is a mechanism to help guide conservation efforts,
and to remind us that our children deserve the opportunity to enjoy the
same natural world we experience.
Thank you again for the opportunity to discuss implementation of
the Endangered Species Act. We would be happy to work cooperatively
with the committee on these draft bills and would welcome the
opportunity to discuss the legislation in more detail. I am available
to answer any questions you may have.
______
Mr. Mullin. Thank you so much. The Chair will now recognize
Mr.--oh, sorry, Mr. Birmingham----
Mr. Costa. Mr. Chairman, for the introduction?
Mr. Mullin. Oh, Mr. Costa, you may introduce your guest.
Mr. Costa. Witness. Thank you very much, Mr. Chairman, and
to the panel members.
Mr. Tom Birmingham is the General Manager of Westlands
Irrigation District, which I have represented over the years,
both in the State legislature and in Congress. He is well
respected among water managers throughout the State of
California for his focus, his tenacity, his problem-solving,
and his legal knowledge of water law in California, which is
complex, as we all know.
A graduate of UCLA and McGeorge School of Law, I can tell
you that I know he is an avid supporter of the environment,
personally. His passions are fishing and hunting, and I know
that he wants to ensure that there is sustainability of all the
species, as we look forward to the next generation of
Californians, as we try to plan under difficult, difficult
circumstances our water needs in California.
So, I am pleased to have invited Mr. Birmingham to be a
witness on this panel.
Mr. Birmingham. Thank you.
Mr. Mullin. Thank you.
STATEMENT OF THOMAS W. BIRMINGHAM, GENERAL MANAGER/GENERAL
COUNSEL, WESTLANDS WATER DISTRICT, FRESNO, CALIFORNIA
Mr. Birmingham. Mr. Chairman and members of the committee,
good afternoon. I will attempt to summarize my testimony as
briefly as possible.
As the committee is aware from prior hearings, biological
opinions adopted by the Fish and Wildlife Service and NOAA
Fisheries have devastated the water supply that sustains the
agricultural economy of the San Joaquin Valley. In some years,
those biological opinions reduce water for the people who
receive water from the Central Valley Project and the State
Water Project by more than a million acre-feet. And in those
years, the biological opinions reduce flow to water that used
to go to our farms and to our cities by as much as one-third.
I say ``people'' who receive water from the Central Valley
Project and the State Water Project, because it is people who
are suffering the consequences of chronic water supply
shortages. It is accurate to describe acreage that will be
fallowed because of water supply shortages, but that does not
begin to tell the real story.
The real story is about once vibrant rural communities that
are today literally drying up and blowing away. The real story
is about small businesses that are barely surviving or, worse,
failing. The real story is about thousands of hard-working farm
workers who have lost their jobs because farmers do not have
sufficient water to irrigate their land. And people who have
lost their jobs in small businesses because those farmers don't
need new trucks, tractors, tires, or fertilizer. And, most
tragically, the real story is about families who do not have
enough to eat, people who today have to stand in food lines to
put food on their own tables. And, ironically, it is these
people who would otherwise be growing food to feed the Nation.
Many members of the committee have seen for themselves the
consequences of the implementation of these biological opinions
while visiting the San Joaquin Valley. Mr. Costa sees these
consequences every week that he returns to his district. And I
suspect it is having seen those consequences that have
motivated him to introduce H.R. 1927. But for members of the
committee who have not witnessed these consequences, I
encourage you to go to Mendota, Firebaugh, or Huron, walk up to
any house, and simply go in and ask to look in their
refrigerators.
I realize this sounds like hyperbole, but there is human
suffering in these small towns, suffering which never could
have been imagined in 1973, when Congress enacted the
Endangered Species Act. H.R. 1927 would begin to address this
human suffering. But I would like to start by talking about
what H.R. 1927 will not do.
I want to emphasize H.R. 1927----
Mr. Mullin. Can the gentleman please explain the map up
here?
Mr. Birmingham. Yes, Mr. Chairman. Actually, it is a
satellite photo taken in July of 2014 of the area on the west
side of the San Joaquin Valley served by Westlands Water
District. And what is depicted in that satellite photo are the
areas that have been fallowed, the lighter colored areas,
including the light green areas, and those areas that remain in
production in 2014 with irrigation coming primarily this year
from groundwater.
But again, I would like to go back and talk about H.R. 18--
I am sorry, 1927, in the context of what it will not do. H.R.
1927 will not suspend the Endangered Species Act. H.R. 1927
will not undermine the scientific basis for the biological
opinions. Rather, H.R. 1927 will limit water supply losses to
what is actually prescribed in the biological opinions so that
these losses are not more severe than they need to be.
H.R. 1927 will prevent restrictions on reverse flow on Old
and Middle River that exceed what past experience and science
has shown to be effective. And H.R. 1927 will protect our water
supplies from the Federal regulators' own experiments that may
waste water when water is in short supply.
Like other bills considered by this committee and this
Congress and the last Congress, Westlands supports H.R. 1927,
because it will restore some semblance of balance to the
allocation of water in California between people and the
environment.
Thank you, and I would be happy to entertain any questions.
[The prepared statement of Mr. Birmingham follows:]
Prepared Statement of Thomas W. Birmingham, General Manager, Westlands
Water District on H.R. 1927
Mr. Chairman and members of the committee, my name is Thomas W.
Birmingham, and I am the General Manager of Westlands Water District
(``Westlands'' or ``District''). Thank you for the opportunity to
appear before you today to testify today on H.R. 1927, the ``More Water
and Security for Californians Act.'' This legislation would provide
congressional direction concerning implementation of the Endangered
Species Act (``ESA'') as it pertains to the operations of the Central
Valley Project (``CVP'') and the California State Water Project
(``SWP''). Enactment of H.R. 1927 would restore balance and flexibility
to operations of the CVP and SWP, thereby restoring water supply and
water supply reliability and creating thousands of jobs in one of the
most economically depressed regions of the country.
As I have previously testified before the Subcommittee on Water and
Power, Westlands is a California water district that serves irrigation
water to an area of approximately 600,000 acres on the west side of the
San Joaquin Valley in Fresno and Kings counties. The District averages
15 miles in width and is 70 miles long. Historically, the demand for
irrigation water in Westlands was 1.4 million acre-feet per year, and
that demand has been satisfied through the use of groundwater, water
made available to the District from the Central Valley Project under
contracts with the United States for the delivery of 1.19 million acre-
feet, and annual transfers of water from other water agencies.
Westlands is one of the most fertile, productive and diversified
farming regions in the Nation. Rich soil, a good climate, and
innovative farm management have helped make the area served by
Westlands one of the most productive farming areas in the San Joaquin
Valley and the Nation. Westlands farmers produce over 50 commercial
fiber and food crops sold for the fresh, dry, and canned or frozen food
markets; domestic and export. These crops have a value in excess of $1
billion, and they are an important factor in ensuring that American
families will continue to enjoy a food supply that is abundant, safe,
and affordable. However, like most regions of the arid West, the
production of these crops depends on the availability of water for
irrigation.
Prior to the application of the ESA to operations of the CVP in
approximately 1992, the principal source of irrigation water for
farmers in the District was water made available from the CVP under
contracts with the United States. This source of water was highly
dependable, and in all but the most critically dry years, it was
adequate to meet the total demand for irrigation water in the District.
The ESA dramatically changed the reliability and adequacy of the
CVP as a source of water. Reductions in water supply under ESA have
steadily increased, becoming progressively more and more damaging.
South-of-Delta CVP irrigation water service contractors, like
Westlands, have gone from an average supply of 92 percent of the
contract quantities in 1992 to 35-40 percent today. For Westlands, this
represents an average loss of approximately 675,000 acre-feet of water
on an annual basis; for all south-of-Delta CVP irrigation water service
contractors this represents a loss of approximately 1.1 million acre-
feet. And the price paid for those losses is measured in lost jobs,
diminished productivity, and higher costs of food production.
The legislation authored by Representative Jim Costa, H.R. 1927,
addresses one of the root causes of water supply shortages that affect
not just farmers in the San Joaquin Valley, but people who live and
work in vast regions of California, including the San Joaquin Valley,
the Silicon Valley, the central coast, and southern California. H.R.
1927 provides well-thought-out direction on how the ESA will be applied
to the CVP and the SWP. If H.R. 1927 were enacted, it would
significantly increase water supply for the benefit workers, farmers,
and consumers alike. And it would do so while providing significant
protections for listed fish species that are consistent with prior
actions to prevent CVP and SWP operations from causing jeopardy to
those species or harming their critical habitat.
application of the endangered species act to the cvp and swp
The CVP and the SWP, operated respectively by the Bureau of
Reclamation (``Reclamation'') and the California Department of Water
Resources (``DWR''), are perhaps the two largest and most important
water projects in the United States. These projects supply water
originating in northern California to more than 20,000,000 agricultural
and domestic consumers in central and southern California. In 2008,
Reclamation initiated consultations under section 7 of the ESA with the
U.S. Fish and Wildlife Service (``FWS'') and NOAA Fisheries, an agency
within the Department of Commerce, on whether the coordinated
operations of the CVP and SWP would jeopardize the fish species listed
under the ESA. In lengthy biological opinions, the FWS and NOAA
Fisheries concluded that the CVP and SWP operations would jeopardize
the Delta smelt, winter run Chinook salmon, San Joaquin River
steelhead, and other listed species. As required by the ESA, the FWS
and NOAA Fisheries issued biological opinions, respectively on December
15, 2008, and on June 4, 2009, that prescribed ``reasonable and prudent
alternatives'' that Reclamation and DWR should implement to ameliorate
the effects on the listed species and their critical habitat.
The reasonable and prudent alternatives prescribed by 2008 FWS
biological opinion and the 2009 NOAA Fisheries biological opinion
reduce the water that may be diverted or re-diverted by CVP and SWP
pumping plants situated in the southern Delta for delivery to central
and southern California. Inter alia, the reasonable and prudent
alternatives, during the period from December 1 through June 30, limit
pumping rates to restrict reverse flow in Old and Middle Rivers to
rates ranging from -1250 cubic feet per second to -5000 cubic feet per
second, and during the period from April 1 through May 30, the 2009
NOAA Fisheries biological opinion imposes an inflow/export ratio, which
limits pumping rates to a percentage of flow measured in the San
Joaquin River at Vernalis. The water supply reductions resulting from
these reasonable and prudent alternatives can be enormous.
It is estimated that during the period from December 1, 2012
through February 28, 2013, restrictions on reverse flow in Old and
Middle Rivers imposed by the biological opinions resulted in a combined
water loss for the CVP and SWP of more than 815,000 acre-feet, compared
to operations under prior biological opinions issued in 2004 and 2005.
As it turned out, calendar year 2013 was the driest year in
California's recorded history, and according to Reclamation's records,
the CVP and SWP were able to pump only 4,190,000 acre-feet. In other
words, the loss of 815,000 acre-feet reduced exports by nearly 20
percent, and the loss of this water provided no apparent benefit for
Delta smelt. The 2013 fall abundance index for this species was the
second lowest number, 18, since record keeping began in 1967. The
lowest number, 17, was recorded in 2009, another year in which pumping
was limited to restrict reverse flow in Old and Middle Rivers for the
purported protection of Delta smelt.
Water supply losses resulting from the April-May I/E ratio can also
be significant. In 2010, when the I/E ratio limited pumping to rates
equivalent to one-quarter of flow measured at Vernalis, it is estimated
that the loss to the CVP and SWP was 351,000 acre-feet, compared to
project operations under the 2004 and 2005 biological opinions. This
loss reduced exports by 7.5 percent. When combined with losses
resulting from limits on pumping to restrict reverse flow in Old and
Middle Rivers, 1,043,000, the loss of 351,000 acre-feet, means that the
2008 FWS biological opinion and the 2009 NOAA Fisheries biological
opinion reduced exports in 2010 by 30 percent.
Enactment of H.R. 1927 would ameliorate the water supply losses
resulting from the implementation of the reasonable and prudent
alternatives prescribed by the 2008 FWS biological opinion and the 2009
NOAA Fisheries biological opinion. H.R. 1927 provides the requirements
of the ESA relating to operations of the CVP and SWP are deemed
satisfied if the projects are operated pursuant to the 2008 FWS
biological opinion and the 2009 NOAA Fisheries biological opinion. It
also provides, however, that neither biological opinion shall restrict
flow in Old and Middle Rivers to a 14-day average of the mean daily
flow to achieve flow less negative than -5,000 cubic feet per second.
Under H.R. 1927, the 2009 NOAA Fisheries biological opinion could not
be implemented to impose an April-May I/E ratio except as required to
implement California State Water Resources Control Board Water Rights
Decision 1641 or a superseding water rights decision. And finally, H.R.
1927 would limit application of the 2 requirements in the 2008
FWS biological opinion to only those circumstances where the action
would not diminish the capability of either the CVP or SWP to make
water available for other authorized project purposes.
It is important to note that H.R. 1927 would modify, not eliminate,
actions prescribed by the reasonable and prudent alternatives described
in by the 2008 FWS biological opinion and the 2009 NOAA Fisheries
biological opinion. Moreover, there is a scientific basis for these
modifications. On March 19, 2010, the National Research Council of the
National Academies issued a report entitled ``A Scientific Assessment
of Alternatives for Reducing Water Management Effects On Threatened and
Endangered Fishes in California's Bay-Delta,'' (``NRC Report'') in
which the NRC evaluated the scientific basis for the reasonable and
prudent alternatives prescribed by the biological opinions. With
respect to restricting reverse flow in the Old and Middle Rivers to
protect Delta smelt, the reported stated it was ``scientifically
reasonable to conclude that high negative OMR flows in winter probably
adversely affect smelt,'' but ``the available data do not permit a
confident identification of the threshold values to use in the action,
and they do not permit a confident assessment of the benefits to the
population of the action.'' NRC Report at 51. In addition, the NRC
observed, ``[t]he historical distribution of smelt on which the
relationship with OMR flows was established no longer exists. Delta
smelt are now sparsely distributed in the central and southern delta .
. ., and pump salvage also has been extremely low, less than 4 percent
of the 50-year average index.'' NRC Report at 50. H.R. 1927 would
maintain some limits on pumping to restrict reverse flow in Old and
Middle Rivers, but at the upper end of the range prescribed by the
biological opinion, -5000 cubic feet per second. This is consistent
with scientific analysis that at flows less negative than -5500 cubic
feet per second, there is simply no relationship between flow and the
salvage rate of Delta smelt.
With respect to the April-May I/E ratio, the NRC Report stated that
``increasing San Joaquin River flows has a stronger foundation than the
prescribed action of concurrently managing inflows and exports,'' and
there is a ``weak influence of exports in all survival relationships .
. ..'' NRC Report at 60, 59. The NRC Report concluded export pumping
rates could be increased ``without great risk to steelhead.'' NRC
Report at 60. The direction in H.R. 1927 that the 2009 NOAA Fisheries
biological opinion not be implemented to impose an April-May I/E ratio
except as required to implement California State Water Resources
Control Board Water Rights Decision 1641 or a superseding water rights
decision would be consistent with this conclusion, while still
providing a 1:1 inflow/export ratio for a 30-day period from mid-April
through mid-May for protection of anadromous species out-migrating from
the San Joaquin River.
The fall 2 requirements in the 2008 FWS biological opinion
are in essence an experiment.\1\ The NRC Report also examined the basis
for these requirements and stated:
---------------------------------------------------------------------------
\1\ The 2008 FWS biological opinion states: ``The Service shall
conduct a comprehensive review of the outcomes of the Action and the
effectiveness of the adaptive management program 10 years from the
signing of the biological opinion, or sooner if circumstances warrant.
This review shall entail an independent peer review of the Action. The
purposes of the review shall be to evaluate the overall benefits of the
Action and to evaluate the effectiveness of the adaptive management
program. At the end of 10 years or sooner, this action, based on the
peer review and Service determination as to its efficacy shall either
be continued, modified or terminated.'' 2008 FWS biological opinion at
283.
The controversy about [Action 4 of the FWS RPA] arises from the
poor and sometimes confounding relationship between indirect
measures of delta smelt populations (indices) and 2.
The weak statistical relationship between the location of
2 and the size of smelt populations makes the
---------------------------------------------------------------------------
justification for this action difficult to understand.
NRC Report at 53. H.R. 1927 would not prevent implementation of
this 2 experiment, but it would prevent the experiment from
being conducted if it would diminish the capability of either the CVP
or SWP to make water available for other authorized project purposes.
This provision of H.R. 1927 would also eliminate the potential for the
2008 FWS biological opinion and the 2009 NOAA Fisheries biological
opinion to impose conflicting requirements on operations of the CVP and
SWP. The 2008 FWS biological opinion requires that during September and
October in years when the preceding precipitation and runoff period was
wet or above normal, the monthly average of 2 be no more
eastward than 74 km from the Golden Gate. It is estimated that this
action would require that the CVP and SWP release 800,000 acre-feet of
water to comply with this requirement. However, the 2009 NOAA Fisheries
biological opinion provides that the CVP maintain in storage specified
quantities of water to protect cold water for the propagation of
salmonid species below CVP dams. There is great potential that the fall
2 requirements of the 2008 FWS biological opinion could result
in the CVP's inability to maintain water in storage to protect cold
water pools, and H.R. 1927 would eliminate that potential.
need for congressional action
The socio-economic impacts of water supply shortages resulting from
implementation of the 2008 FWS biological opinion and the 2009 NOAA
Fisheries biological opinion in the San Joaquin Valley have been
profound. In 2009, a dry year, the allocation of water for south-of-
Delta CVP agricultural water service contractors was only 10 percent.
This allocation compares to allocations in other recent dry years,
before implementation of the biological opinions, 2001, 2002, and 2007,
when the allocations were 49 percent, 70 percent, and 50 percent,
respectively. In 2009, nearly half of the irrigable lands in Westlands
were fallowed, and large areas of other agricultural water districts
were also fallowed. The most tragic consequence of the 2009 crisis was
that thousands of people who live and work on the westside of the San
Joaquin Valley lost their jobs; unemployment rates in the city of
Mendota and the city of San Joaquin soared to more than 40 percent.
Small, local businesses were plunged into an economic crisis. And
tragically, many people went hungry. Indeed, long food lines in small,
disadvantaged rural communities on the westside of the San Joaquin
Valley were a common sight.
Oliver Wanger, a former U.S. District Judge to whom numerous ESA
cases involving the CVP and SWP were assigned, has observed on numerous
occasions that it is up to Congress to determine how the ESA should be
applied to these two major water projects. Recently, in San Luis &
Delta-Mendota Water Authority v. Jewell, 747 F.3d 581 (9th Cir. 2014),
the U.S. Court of Appeals for the Ninth Circuit upheld the lawfulness
of the 2008 FWS biological opinion. In doing so, the court stated that
it was ``acutely aware of the consequences'' and ``recognize[d] the
enormous practical implications of [its] decision.'' Id. at 592, 593.
But the consequences were prescribed by Congress and that resolution of
`` `fundamental policy questions' about the allocation of water
resources in California `lies . . . with Congress . . .' '' Id. at 593.
Enactment of H.R. 1927 would provide the congressional direction
that Judge Wanger called for and would be an expression by Congress on
the fundamental policy question that the Ninth Circuit stated lies with
Congress. Stated succinctly, if Congress does not concur with the
consequences imposed on California, indeed the Nation, as a result of
the application of the ESA to the CVP and SWP, it is up to Congress to
change those consequences.
conclusion
I want to express Westlands' support for the efforts of
Representative Costa, as well as Representatives Devin Nunes, Kevin
McCarthy, Jeff Denham, David Valadao and other members, to provide
important congressional direction concerning application of the ESA to
operations of the CVP and SWP. I also want to express Westlands' strong
support for H.R. 1927. I would welcome any questions from members of
the subcommittee.
______
Mr. Mullin. I will now recognize the Ranking Member for any
questions they may have. Oh, I can go--I am not used to going
first.
[Laughter.]
Mr. Mullin. So, Mr. Costa, I am going to go first.
Mr. Costa. You are first.
Mr. Mullin. This is new. Wow, I am Chairman now. I've got
the gavel.
Mr. Li, I would like to visit with you just a second. I
understand you are Defender of Wildlife, based here in
Washington, DC. Is that correct?
Mr. Li. Correct.
Mr. Mullin. Do you live here, in Washington, DC?
Mr. Li. I do.
Mr. Mullin. Have you always lived in Washington, DC?
Mr. Li. I have not. I grew up in New York.
Mr. Mullin. So, in the city?
Mr. Li. In the city, correct.
Mr. Mullin. All right. And you are going to try telling me
how the lesser prairie chicken needs to be raised right?
Because that would be like me trying to tell you how to run a
taxi or something, because we don't have those in Oklahoma, not
where I am from, but I understand you have a lot of them in New
York. Is that correct?
Mr. Li. We do have chickens in New York. Not lesser prairie
chickens.
Mr. Mullin. Sure. I understand what you are saying. But
what you are saying is that you are basing everything, all your
decisions, based on science, and you have never lived in the
environment. You have lived in New York City, you lived in
Washington, DC, and you are going to come to the five states
that are affected by the lesser prairie chicken and say that
science outruns what we actually know is happening.
Have you been there during a severe drought?
Mr. Li. You don't have to----
Mr. Mullin. No, sir. Have you been there--have you been to
Kansas, have you been to Oklahoma?
Mr. Li. I have not, personally.
Mr. Mullin. And so you are saying that it all has to do
with science. It would amaze you that things could even live in
the severe drought we have had in this area. And you are saying
that it is based on science that we don't care about the lesser
prairie chicken, because the guy from New York and Washington,
DC cares more about it than we do.
Mr. Li. I didn't----
Mr. Mullin. Sir, you are sadly mistaken. And I take a
little bit of offense to somebody that is from New York or from
Washington trying to tell me what the best habitat is for a
lesser prairie chicken, when I have lived there my entire life.
No offense, sir, but talk about things that you actually have
dealt with firsthand, not things that you just studied in the
lab.
Secretary Jennison, we have worked closely with your state
and the other states around us with the lesser prairie chicken.
Could you kind of tell me some things that the state has done
with the other five states to help improve the habitat for the
lesser prairie chicken?
Mr. Jennison. Well, certainly. There are a variety of
things that have been done over the last number of years. And
some of them, to give credit where credit is due, USDA--some of
the programs, CRP in particular, has been a great thing for the
prairie chicken, the lesser prairie chicken initiative. But
most recently, the states came together in the range to form
the range-wide plan. And I would say that they work very
closely with U.S. Fish and Wildlife.
I would also say, had we been on our own, it would have
looked different. I don't think it would have had quite the
impact to industry that this one could have. But, even giving
that, the range-wide plan was developed. And while the U.S.
Fish and Wildlife never said to anyone, ``If you guys do this
we are not going to list it,'' we certainly were working under
that assessment, that if we could do a good job of the states
coming together, putting something together that they agreed
to, that we could avoid a listing.
I think it was a big mistake on the part of U.S. Fish and
Wildlife at that point, when they listed, because I do think
that we had a mechanism for a new generation of conservation in
this country to go forward without the heavy-handed regulation
that we are seeing.
Mr. Mullin. What have you heard from the landowners and the
industry that not only participated, but actually ponied up the
$42 million to help with this project?
Mr. Jennison. I think the problem that we see--and it is
this way with everything, to bring up another issue, water--
when things like this happen, the opportunity or the potential
that people are going to volunteer--in Kansas, where we have 97
percent of our grounds in private hands, what we have done for
natural resources and wildlife management in the State of
Kansas depends a good deal with volunteers that own that
private ground. And when things like this are happening, they
are less likely to volunteer.
Mr. Mullin. Thank you. Thank you for your testimony. I
yield back the rest of my time, and the Chair will now
recognize the Ranking Member, Mr. Costa.
Mr. Costa. Thank you very much, Mr. Chairman. I would like
the staff to put on the monitor the next slide that I think
exemplifies the drought conditions we are facing in California.
[Slide]
Mr. Costa. And, clearly, three consecutive dry years is a
large part of the problem. But we have a broken water system in
California, and we have had this for years, a water system
designed for 18, 20 million people. Today we have 38 million
people. By the year 2030, we will have over 50 million people.
And the whole sustainability of the state and sustainability of
our urban centers, as well as our agricultural areas is at
risk.
In the last 3 years, they have been the driest in recorded
history; Governor Brown has declared a statewide drought
emergency. But for more than 20 years the National Marine
Fisheries and the U.S. Fish and Wildlife, managing the
protection of smelt and salmon and species recovery, sadly, has
not progressed. Despite billions of dollars being spent by
public agencies and the taxpayers, it is sadly in a state of
decline. And after more than 7 years of regulating the Central
Valley Project, State Water Project, under biological
conditions, the species have continued to deteriorate.
So, clearly, there are multiple factors that are a result
of this decline. And it is estimated that the export of water,
which one of my colleagues spoke of earlier, is about 8 percent
of the cause of the decline of the fisheries.
Notwithstanding that fact, it is satisfactory--it is not
satisfactory to say that we can and we must do better. But we
have to focus on the improvement and the current science, if we
are going to do so. Currently, we can't lose sight of the fact
that people throughout California have been impacted, and a lot
of folks have been working hard. But we have 25 million people
and 3 million acres of the Nation's most productive
agricultural land that has gotten a zero--zero--water supply
under the Federal projects. And next year, if we have an
average rainfall, operating under the current requirements,
water districts in the San Joaquin Valley will still have a
zero allocation.
There are homes and schools whose wells are literally
drying up in every region of California. That is a result of
the drought. But can we make our water system work more
efficiently and effectively? Of course we can.
Can we increase our water supply? Of course we can. That is
why Governor Brown and the State legislature last month passed
a $7.1 billion water bond measure--we hope the voters will
approve it in November--of which $2.7 billion is for additional
new water storage and supply. It passed the legislature
overwhelmingly on a bipartisan basis, 37 to 0 in the State
Senate, and 77 to 2 in the Assembly.
But people are wondering: Are we in Congress capable of
coming together and providing solutions? We owe them hope to
restore the fact that the American Dream still lives on in
California, and that we can solve these problems. Clearly, the
Governor and the legislature think they can. And it is
incumbent upon us to do that, as well.
The President himself traveled to the Valley to witness
firsthand the devastation about the effect of the drought in
California, and said that the effect of the drought, and I
quote, ``California is our biggest economy. California is our
biggest agricultural producer. So what happens here matters to
every working American, right down to the cost of the food that
you put on your table.'' End of quote.
Even the 9th Circuit, in its most recent ruling of
upholding the legality of the biological opinions, acknowledged
that there are serious flaws in the opinions. But the court
said it is up to Congress. It is up to Congress to set the
policy for the operation of these water projects. And therein
lies the dilemma.
There are many different ideas on how to operate these
projects in a way that provides a better balance. My
legislation is but one of those ideas. What is important,
though, is that we act, and that we act now, so that the
flexibility can be in place, so that whatever rain comes next
year, at the end of the day common sense will prevail. And,
hopefully, we can do this on a bipartisan basis, because it is
the only way we will get anything done.
Now, let me ask a question here of Mr. Birmingham. In your
written testimony you indicate that there has been significant
negative impacts on the ability of California's water system to
move water since the biological opinions were put in place--
actually, that were part of the previous administration. I have
read reports that indicate that there is an above-average
chance of an El Nino effect next year that may bring average or
above-average rainfall to California. What would that result
in, a water supply, in the Valley?
Mr. Birmingham. If it begins to rain in the----
Mr. Costa. And we pray it does.
Mr. Birmingham. And we pray it does. But if it begins to
rain in November, December, January, February, we have average
precipitation in the State of California, the allocation for
south of Delta Central Valley Project Water Service contractors
next year will be zero. It may improve, as the year goes along,
if precipitation goes along.
But if we have an average water year next year, in terms of
hydrology and runoff, the allocation for south of Delta Central
Valley Project Agricultural Service contractors will start at
zero and will likely remain at zero. The drought will be over,
but we still will have no water supply.
Mr. Costa. As it relates to the Endangered Species Act,
there are improvements that can be made to help species
recovery. What would you suggest would be a more common-sense
way to approach this?
Mr. Birmingham. Well, to develop a comprehensive method, or
a comprehensive program of looking at all of the factors that
limit the abundance of the species. To date, the focus of
protecting species that are at risk in the Sacramento/San
Joaquin Delta has been to limit the operations of the water
projects. Yet we have ignored many other factors that limit the
abundance of these species.
If we are serious about recovering the species, then we
need to develop a program that would begin to look
comprehensively, and address all of the factors that limit the
abundance of those species.
Mr. Costa. Thank you. My time----
Mr. McClintock [presiding]. As much as it pains me to
interrupt, Mr. Costa, you had an extra minute-and-a-half,
because the timer didn't start until then. So I am going to
have to call time on you. But perhaps we can go to a second
round later, if there is time, and----
Mr. Costa. Well, if there is a second round----
Mr. McClintock. But I will pick up where you left off, by
pointing out that the opposition to the reforms that are
presented to the committee today seem to set up a straw man
that doesn't exist, and attributes to that straw man a position
that nobody has taken.
Let me make it very clear: no one has suggested that the
ESA does not serve a vital cause, and that is to assure that no
species goes extinct because of human activity. But, as Eric
Hoffer said, ``Every great cause begins as a movement, becomes
a business, and eventually degenerates into a racket.'' And, as
I look at the long list of litigation that one of our
witnesses--organizations has been involved in, you see exactly
what Mr. Hoffer means by a racket.
Tom Barcellos, on behalf of the Friant Water District, has
submitted written testimony to the committee which I think sums
up the situation rather clearly when he writes, ``The
unprecedented lack of surface water deliveries from the Central
Valley Project is only partly due to drought conditions. It is
in large part the result of regulatory and policy decisions by
Federal agencies charged with enforcing the Endangered Species
Act. These agencies are accountable to no one, are not required
to consider the consequences of their decisions on human uses,
and appear to be motivated mainly by a desire to avoid being
sued by environmental organizations that don't believe they are
enforcing the ESA with sufficient vigor. As a result, these
agencies have the absolute, unassailable authority to make bad
decisions that have a direct effect on the water supplies and
well-being of millions of Californians. The agencies are free
to curtail vital water deliveries from the Sacramento/San
Joaquin Delta using outdated science, questionable standards,
and admittedly, poor knowledge of the actual condition and
location of protected fish species.''
I will ask at this point unanimous consent to include his
statement in the committee record.
[No response.]
Mr. McClintock. Without objection.
[The testimony of Mr. Barcellos, submitted by Mr.
McClintock for the record, follows:]
Prepared Statement of Tom Barcellos, on behalf of Barcellos Farms,
Lower Tule River Irrigation District and the Friant Water Authority on
H.R. 1927
Chairman Hastings, Ranking Member DeFazio and members of the
committee, thank you for the opportunity to appear before you today to
testify in support of H.R. 1927, the More Water and Security for
Californians Act. My name is Tom Barcellos, and I am a family dairy
farmer from Tipton, California, on the east side of the San Joaquin
Valley. I serve on the board of directors for the Lower Tule River
Irrigation District, which is a member of the Friant Water Authority. I
represent both of those organizations here today.
Lower Tule River Irrigation District and the other member-agencies
of the Friant Water Authority are served by the Friant Division of the
Central Valley Project (CVP), which diverts water from the San Joaquin
River at Friant Dam in the Sierra foothills and delivers it via the
Friant-Kern and Madera Canals to more than 15,000 farms on about 1
million acres in the San Joaquin Valley. Historically, Friant water
users receive an average of 1.2 million acre-feet annually from the
CVP. The Friant Division is a conjunctive-use project, meaning that it
is designed to store surface water supplies in groundwater aquifers
during good years so that water can be available to farmers and
communities during dry years.
This year, for the first time in its 62-year history, the CVP
delivered no water to Friant Division farms and communities. As a
result, farmers on east side of the San Joaquin Valley have turned to
their groundwater--where it's available--to sustain their dairies and
keep their high-value citrus, fruit and nut trees alive. But we began
2014 with groundwater supplies already reduced by unusually dry
conditions in 2012 and 2013, and as the summer of 2014 comes to a
close, groundwater levels are dangerously low.
The unprecedented lack of surface water deliveries from the CVP is
only partly due to drought conditions. It is in large part the result
of regulatory and policy decisions by Federal agencies charged with
enforcing the Endangered Species Act (ESA). These agencies are
accountable to no one, are not required to consider the consequences of
their decisions on human uses, and appear to be motivated mainly by a
desire to avoid being sued by environmental organizations that don't
believe they are enforcing the ESA with sufficient vigor.
As a result, these agencies have the absolute, unassailable
authority to make bad decisions that have a direct effect on the water
supplies and well-being of millions of Californians. The agencies are
free to curtail vital water delivers from the Sacramento-San Joaquin
Delta using outdated science, questionable standards, and an admittedly
poor knowledge of the actual condition and location of protected fish
species.
The water supply crisis of 2014 has made it plain that the Federal
fishery agencies are unwilling or incapable of making reasonable,
balanced decisions when it comes to applying the ESA in the Delta.
Congress wrote the law; it's time for Congress to provide clear
direction on how it should be carried out. H.R. 1927 and the other
bills before the committee today, as well as drought legislation (H.R.
3964) passed by the House earlier this year, provide that badly needed
direction. I acknowledge that there may be other ways to address the
problem, but the problem needs to be addressed. Now. Immediately.
Without any water from CVP this year, the situation in the east
side of the Valley is dire. Groundwater, even in the best of times, is
just not sufficient to sustain the whole Valley. The impacts of the
policy decision not to provide any CVP water to the Friant Division are
being felt throughout the Valley, and not just by agriculture. There is
no aspect of life in the Valley that has not been be touched by this.
Everyone and everything depends on water. 2014 has been a disaster. If
nothing changes, 2015 will be a catastrophe.
Within the Friant service area, and throughout the east side of the
Valley, domestic wells are going dry. Some people have had to move out
of their homes. Others are having emergency water supplies brought in.
A lot of temporary tanks are being placed for individual homeowners.
Who knows what the source of that water is? But people are
understandably desperate. Some homes have been out of water for weeks
or even months.
My own son-in-law came home one night and found they didn't have
water at their home. The groundwater level had gone below the depth of
the pump. We were fortunate enough that a couple of days later, they
were able to lower the well. Other people don't have the wherewithal to
lower their wells, or there is nothing left to tap into. One of my son-
in-law's neighbors saw he was lowering the well, and she indicated that
she had been out of water for 3 months. Her son had been bringing her
water 50 gallons at a time.
In addition to my position as a board member on the Lower Tule
River Irrigation District, I also sit on the board of the Pleasant View
School District. We have a grammar school that serves 565 children that
is entirely dependent on a well for its water service. We have been
monitoring the water level in that well since mid-year. In June and
July, the water level was dropping at about 1 foot per week. Now that
school is back in session, we have to draw from that well to serve the
students. Currently, we have 17 feet of water left before we hit
bottom. Nearly 100 percent of the students at this school are on the
free or reduced lunch program, and we need the kitchen to have water to
be able to prepare food safely so these children can get fed. By the
first of the year, if we don't get any other water supply, we are going
to be in a lot of trouble. This is not an isolated situation. The same
thing is going on with Rockford School, and I have heard of other
schools in other parts of the Friant service area, from Madera to
Delano. In fact, the Tulare County Superintendent of Schools has noted
his growing concern with this situation. (See attached August 11, 2014
letter from Jim Vidak, Tulare County Superintendent of Schools.)
Schools and their surrounding communities and residents cannot just go
without water.
These schools aren't served by Friant water directly. But the
fastest way to boost the groundwater levels in these areas is to
deliver water to the Friant irrigation districts, and institute full
use of their recharge basins so the groundwater can recover. If we
don't get a Friant water supply this year, these areas will be left
without any access to water at all next year.
Obviously, the California drought is having serious impacts on the
businesses and economy of the San Joaquin Valley. This year, I have 300
acres fallowed, which normally would be planted. That leaves me unable
to generate income off that 300 acres. I have been able to use my
employees in other aspects of my business, but many less diversified
operations have had to lay people off.
The effects of the California drought will also extend far beyond
the Valley. The five counties of Tulare, Fresno, Madera, Kings, and
Kern produce about 58 percent of the milk that California produces.
California is the largest dairy state in the Nation, and these five
counties alone produce about 12 percent of the total milk supply for
the United States. Western United Dairymen estimates that the total
economic output of the dairy industry for these five counties is about
$35 billion per year, and it generates 255,880 jobs. None of this works
without Friant water. Cows can't be fallowed. They can't go for even
half a day without water. Cows aren't alone in this. In the Valley, all
of the agriculture needs permanent, reliable water supplies. Even
though the annual crops are planted seasonally, they have been
replanted every year for generations. Reliable water supplies are
critical to supporting this agriculture, which is the lifeblood of our
economy.
I will close by thanking this committee and members of the San
Joaquin Valley Delegation for working to restore balance and
reliability to the operation of the CVP and the State Water Project.
But please act quickly. We're running out of time.
Attachment: Aug. 11, 2014 Letter from Jim Vidak, Tulare County
Superintendent of Schools
ATTACHMENT
Tulare County Office of Education,
Visalia, California,
August 11, 2014.
To Whom It May Concern:
Much has been written about the effects of California's drought on
agriculture. The same cannot be said about the effects of the drought
on California's school districts.
Dotted among California's vast agricultural region are dozens of
rural school districts. In Tulare County alone, we have 44 school
districts--30 of them are rural districts that serve more than 12,000
students. These rural school districts operate private wells or belong
to small water districts. I am writing to relay the challenges our
school districts have experienced in the past six months and to
encourage you to work collaboratively to ensure students in
California's rural districts have safe and reliable sources of water.
Several of our school districts that operate private wells have
seen critical shortages. As farmers, municipalities and school
districts compete for the same severely strained groundwater supplies,
some of our districts have faced water loss and increased levels of
bacteria. While bottled water is available for students at a
considerable expense, districts still need running water to help
operate dishwashers, lavatories and toilets. The cost of drilling
deeper wells (approximately $200,000) is often prohibitive for the
smaller districts.
The situation in Tulare County's rural schools is not unique.
Districts in numerous San Joaquin Valley counties are facing the same
water supply challenges.
Central California educators appreciate all the hard work you have
done on this critical issue. We encourage you to continue to work
together to find solutions to California school districts' water
needs--solutions that include better use of the available natural water
resources and support for increased water storage.
If you would like to speak further about the immediate water needs
of Tulare County school districts, please feel free to contact me.
Sincerely,
Jim Vidak,
Tulare County Superintendent of Schools.
______
Mr. McClintock. One example is the Klamath River, where
there has been a continuing movement to tear down four
perfectly good hydroelectric dams because of the impact on
salmon, despite the fact that we have a fish hatchery at the
Iron Gate Dam that produces five million salmon smolts a year.
Seventeen thousand return as fully grown adults to spawn in the
Klamath every year. But they are not allowed to be included in
the population counts for the ESA purposes.
Another of the pulse flows out of California dams amidst
the worst drought in recorded history of California, all to
meet ESA requirements to adjust water temperature for the fish.
This past fall 800,000 acre-feet was released out of dams,
knowing we were going into a potentially catastrophic drought.
More recently, 70,000 acre-feet was released from the
Stanislaus and American Rivers for the same purpose, to adjust
water temperature for the fish, knowing that we were in the
worst drought in the state's history, and knowing that the
snowpack had been completely exhausted. Last month, pulse flows
were released from dams on the Trinity. And the irony is if the
dams hadn't been built, in a drought like this there would be
no river, and therefore, no fish.
Mr. Birmingham, you have seen this a lot in your region.
The desiccation of the Central Valley began long before the
drought was declared. Why was that?
Mr. Birmingham. Well, I can't specifically say why it was.
But I think it is important to recognize that nothing in this
circumstance is black and white. No one can say this year it is
drought that caused the water supply reductions for Central
Valley Project contractors. That is just fundamentally wrong.
1977 was a year that was much drier than this year, and we had
a 25 percent supply in 1977.
You can look at the history of water year types and
allocations for the Central Valley Project contractors and see
that, as time has progressed over the last 22 years, the
ability of the project to deliver water has diminished
dramatically, and it is because of the implementation of laws
that were intended to rebalance the way in which we were
utilizing water: the Central Valley Improvement Act,
implementation of the Endangered Species Act.
But I think----
Mr. McClintock. Well, let me cut right to the chase. Have
these diversions and pulse flows away from the Central Valley
materially improved the condition of the delta smelt, for
example?
Mr. Birmingham. No. In fact, the conditions of the delta
smelt have continued to decline. Despite all of the water and
all of the money that we have thrown at the delta smelt, the
population of delta smelt has continued to decline.
Mr. McClintock. Meanwhile, the human population has been
devastated.
Mr. Huffman?
Mr. Huffman. Thank you, Mr. Chair. I would request
unanimous consent to submit into the record a statement that I
presented, I believe earlier, from Representative George Miller
in opposition to H.R. 1927.
[No response.]
Mr. McClintock. Without objection.
[The prepared statement of Mr. Miller submitted by Mr.
Huffman for the record follows:]
Prepared Statement of the Hon. George Miller, a Representative in
Congress from the State of California on H.R. 1927
Mr. Chairman, members of the committee, I appreciate the
opportunity to submit written testimony on the subject of H.R. 1927,
``More Water and Security for Californians Act.'' For many years, as
former Chairman and Ranking Member of this committee, I have strongly
advocated for California water policy that is balanced, ensures a
healthy Delta ecosystem and a sustainable water supply, and I would
like to offer my perspective to the committee during its discussion of
this important issue.
I do not believe that H.R. 1927 is the appropriate solution to the
drought crisis that has imperiled the communities and livelihoods of my
great state. In fact, this bill will do much more harm than good and we
cannot afford to cause any further damage to an ecosystem that is
oversubscribed and in jeopardy. This bill would significantly weaken
protections for California's salmon populations and other native fish
and threatens the thousands of jobs in the fishing industry. This bill
will sacrifice the environment, commercial and sport fishing, and other
stakeholders to benefit certain parts of California.
California Governor Jerry Brown and the Director of the California
Department of Water Resources have both publicly stated that the
drought--and not environmental laws--is the primary cause of
California's water supply shortage. California is in the third year of
a historic drought and it is this drought that is causing low water
supplies for many communities and the environment. While we can agree
that protections for salmon and other endangered species have had
minimal impacts on water supply this year, these impacts do not justify
overhauling protections that have sustained the health of the Delta and
the communities and livelihoods that depend upon it.
Specifically, this bill would prohibit implementation of pumping
restrictions and other protections required under both state and
Federal law. H.R. 1927 explicitly preempts state law, preventing the
state from protecting salmon and other wildlife. For example, this bill
will allow unlimited numbers of fish like salmon and steelhead to be
killed, while the Federal and state water projects will not be able to
reduce pumping to reduce the number of fish kills. Another provision in
the bill significantly harms fish survival through the Delta and
increases mortality rates of numerous species at the pumps. These
provisions are short-sighted and will devastate a fragile ecosystem
that California has fought hard to protect with effective state
legislation.
Congress should not be in the business of mandating what scientists
and engineers are doing at the state and local level. Scientists need
flexibility to respond to ever-changing conditions in real time. As we
have seen this year, California water agencies have been able to
successfully stretch water supplies while still abiding by the
biological opinions. This can only be done if experts are able to
manage operations based on sound science and not political conviction.
Additionally, this bill threatens thousands of jobs across
California. Water protections for fish in the Bay-Delta protect
thousands of jobs for fisherman, tourism, hospitality, and many
communities in California that depend upon a healthy Bay-Delta. We
cannot shift the burden of the drought in order to save one economy at
the cost of another. Mandating larger water exports from a fragile Bay-
Delta is not a forward-thinking statewide solution.
We owe our communities real solutions that will actually solve our
water challenges. For example, the California legislature recently
approved a $7.5 billion water bond that includes substantial funding
for new groundwater and surface storage, water conservation, water
recycling, and other regional water supplies. This bond, if approved in
November, will represent a major step forward in sustaining
California's economy and environment. The collaborative effort behind
the bond reaffirms the support of the Legislature and Governor for
current state law that prioritizes the co-equal goals of protecting the
Delta and providing a sustainable water supply. It also demonstrates
that both sides of the state can come together to support solutions
that successfully combat the underlying issue--that there is less water
to go around in California.
As I have discussed above, H.R. 1927 is a dangerous attempt at
overriding state and Federal laws in order to benefit one part of the
state at the cost of other communities, livelihoods, and the health of
the Delta. I hope this discussion takes into consideration these
concerns. Thank you.
______
Mr. Huffman. Thank you. I have a lot of respect for my
colleague, Mr. Costa. Nobody goes to bat for their district
more zealously and passionately than he does. But I think we
need to remember that this drought that is depicted in the map
we see is a big drought, a real drought that is affecting a
huge area, including most of my district. If you look at that
category of exceptional drought, most of my district is in that
most extreme category, along with Mr. Costa's.
And I will just tell you that this drought is very real in
the communities that I represent. Last week the Eel River, one
of our largest rivers in the state, stopped flowing at Fortuna.
People tell me that has never happened before. Tributaries to
many of our major rivers aren't flowing any more. I have met,
during the August work period, with water districts that I
represent who are trucking water to people whose wells and
springs aren't running any more.
So, when we hear about the impacts that we have heard a lot
about today, let's remember that those are impacts shared by
communities and people around the state, including the ones
that I represent. There is another side to this story about
salmon and the delta and the projects that are at issue here.
In 2009 we heard about a lot of the same types of suffering
in the San Joaquin Valley, suffering that is very real, and
that we all care about. But after the smoke had cleared, and
the Fox News cameras went away, independent studies, including
by the state, confirmed that the losses of jobs from the
consecutive closures of the salmon fishery, including lots of
communities I represent, were about the same as the losses of
farm worker jobs that had been so much the subject of the
discussion during that drought. And I suspect, if we are faced
with salmon closures as a result of this terrible drought in
the years ahead, we will see a similar loss of jobs in my
communities, in my district, that will correspond with the loss
of farm worker jobs. Both are real. These are real jobs, these
are real communities, these are real families, and real people.
So that is a context that I really want to emphasize as we
proceed with this discussion.
You know, when we face crises like this unprecedented
drought, we are faced with a choice of how to respond.
Sometimes people come together and solve problems out of
necessity. But other times they retreat to their entrenched
positions and look for opportunities to overreach. Nowhere is
that choice represented better than the debate that we are
seeing back home in California, which is on the constructive
side of that continuum, and the debate that we are seeing here
in Washington, DC, which, sadly, is on the overreaching and
opportunistic side of that continuum.
Back in California, the last time we saw a major drought, I
worked with Mr. Birmingham and others across party lines to put
some historic reforms on the table. And this year we have seen
a great bipartisan outcome in a $7 billion water bond that is
going to be going to the voters. We saw a historic groundwater
reform bill passed on a bipartisan basis. So it is wonderful to
see that hopeful problem-solving occurring back in the home
state.
Unfortunately, here we continue to deny that this critical
drought even exists. We continue to represent that somehow it
was caused by the Federal Government. Well, folks, we didn't
fake the moon landing, and the Federal Government didn't cause
this exceptional drought, I promise you. It is an insult to
science and to fact when we continue to represent things in
that way. And unfortunately, we continue to look at
overreaching attacks on the ESA, scapegoating, attempts to
preempt state law, attempts to essentially redirect the impacts
of this drought in a way that helps one set of water
stakeholders in the San Joaquin Valley at the expense of other
stakeholders and the environment. That, unfortunately, is what
this is all about.
The biological opinions we are talking about with this bill
are not a robust plan for the recovery of these fish species.
They are an attempt to avoid extinction. They are the thin
green line that the best available science tells us must
happen, the things--the least we must do to avoid extinction.
And they are flexible, by the way. This spring the
protections under those opinions were largely waived so that we
could deliver some more water to exporters from the delta. That
hasn't been mentioned. It is only the cries of ``More, more,''
and the scapegoating using the Endangered Species Act that we
have heard about today.
I think it is very unfortunate that, here in Washington, we
are making the wrong choice in this drought, in this crisis. We
are choosing to overreach, to look for opportunities to stick
it to other folks that are also affected by this drought. And I
urge my colleagues to oppose this bill.
Mr. McClintock. Gentleman's time has expired. Mr.
Huelskamp?
Mr. Huelskamp. Thank you, Mr. Chairman. I appreciate the
opportunity to join your committee on a very important issue
for my district, the listing of the lesser prairie chicken.
I want to ask Secretary Jennison, State of Kansas, has
there been a point in time in the history of the state where we
have had very low numbers of the lesser prairie chicken?
Mr. Jennison. Yes, there are, Congressman. In the fifties,
in looking at our research, in Kansas there was a significant
study and work done concerning the chicken and some writing.
And the reports were that after the thirties, after the dust
bowl, there was only left in Kansas two very small flocks.
One--and both in your area--one in Meade County, one in Seward
County. Those two flocks, with some help from the department,
as I said, this is not new for us to be concerned with the
prairie chicken in Kansas, but through some transplanting of
chickens captured, and transplanting, those two flocks made a
considerable comeback. There was some discussion that a few
migrants from Oklahoma may have come up, but by and large it
was those two flocks. And we built the prairie chicken back up,
you know, up to the fifties. And of course, we had the big
drought in the fifties.
The species is certainly better off today than it was after
the dust bowl of the thirties, and it was rebuilt after that.
And, actually, there is about 10 percent more grass area in
Kansas today than there was in the fifties, even considering
the CRP that has been taken out.
Mr. Huelskamp. So, as I understand, efforts by the state
and voluntary efforts by property owners, and not much Federal
action, actually took two small flocks, one in my home county,
and actually developed today to where we have thousands of
lesser prairie chicken across the state. Is that correct?
Mr. Jennison. That is correct. And, actually, the
department, at that point, experimented with propagation, you
know, discovered that they could actually raise them; there are
a lot of difficulties with raising prairie chicken as opposed
to pheasant or quail, because they like to see something move,
but they never did implement a release program at that point.
But there was considerable research and time spent with the
chicken.
Mr. Huelskamp. Well, thank you, Mr. Secretary. I know
yourself and many others across the five-state area worked very
hard and very diligently, not just in the last year or two, but
for decades to do what constituents were wanting to do long
before the Endangered Species Act. And again, this was before
1973. This is in the thirties and forties and fifties and
sixties, and before 1973.
I would like to ask, though, the representative of U.S.
Fish and Wildlife Service, in October 2013 is it correct you
endorsed the five-state plan for the lesser prairie chicken?
Mr. Frazer. We did, as an effective conservation strategy.
Mr. Huelskamp. And why did you endorse that plan?
Mr. Frazer. The state fish and wildlife agencies have great
expertise in lesser prairie chicken. They came together and
worked to develop a conservation strategy that applied across
the full range, and we applauded that.
Mr. Huelskamp. Do you think it would work in order to
achieve the goal of meeting these--well, the numbers you are
trying to achieve for the lesser prairie chicken?
Mr. Frazer. That is why we endorsed it, and why we, when we
listed the species as a threatened species, we included a
Section 4(d) rule that basically says that if landowners,
companies sign up and participate in the state-led conservation
strategy, there will be no additional regulation under the
Endangered Species Act. It was to give incentive to sign up and
to work with the states and to have them continue to work with
the states, as opposed to having to work with the Fish and
Wildlife Service.
All we care about is conservation of the bird. They have an
effective conservation strategy. We encourage landowners to
participate----
Mr. Huelskamp. So you--and I am about out of time here, Mr.
Frazer--so you endorsed the plan, but then you went ahead with
the listing.
I want to ask Secretary Jennison what kind of message does
this send to you and the four other states, when you had a
plan, they endorsed it, but then they proceeded with a listing.
Mr. Jennison. Well, we were certainly disappointed. And I
would say we have always had a great partnership with U.S. Fish
and Wildlife. The best way to explain it--and I think,
Congressman, you will understand it--it is kind of like being
in a family farm partnership with your dad. You are in a family
farm partnership, but what Dad says goes.
And in this particular instance, I believe the U.S. Fish
and Wildlife is wrong. And while I said earlier in my
testimony, ``No one ever said, `If you guys do this we are not
going to list it,' '' it might even be strong for me to say it
was implied, but it was certainly the goal behind what all the
states were working for, is to work with the Service on
developing a range-wide plan, recognizing what it would mean
for that area if it was listed, and the challenges that it
would create. And I do think that they made a mistake.
When the range-wide plan was done, and you look at it, you
look at this as this is a great model to move forward with
conservation. And I think that, you know, with being in the
saddle that far with the Service, and then for them to not
recognize just the sheer potential of the range-wide plan and
go ahead and list the chicken, I think was a mistake, and I
think it has probably set us back in dealing with the
volunteers.
Mr. McClintock. Thank you.
Mr. Huelskamp. Thank you, Mr. Secretary, thank you Mr.----
Mr. McClintock. The gentleman's time has expired. Mr.
Stewart?
Mr. Stewart. Thank you once again, Mr. Chairman, and to the
members of the panel, for your testimony and for those of you
who participated, and to the committee for considering my bill,
the Endangered Species Improvement Act of 2014.
We understand that there are various opinions on this. But,
honestly, I just don't know how anyone can oppose this piece of
legislation. It is such common sense, and hardly controversial
to say that if we are listing a species as endangered, that we
would want to know how many of them there are, and that we
wouldn't distinguish between those that are living on private
land, or those that are living on public lands.
That is the intent of this piece of legislation. And again,
I don't see why that would raise much ruckus or much
opposition. But, you know, when it comes to environmental
issues and endangered species, of course, there is much
controversy.
Mr. Li, I appreciate your testimony, although I have to
tell you that I disagree with the presumption that there would
be a wholesale effort or slaughter of these animals just
because they exist on private lands versus public lands. I
think it belies the fact that none of us want to see a species
go extinct. I don't know a single person who would consider
that a desirable outcome.
And, in fact, quite the opposite. Those of us who live in
the West live there because we love the West, because we love
the environment, we love the nature and the other good things
that surround us.
For 41 years the Federal Government has acted as if the
people of Utah--and this came out in Commissioner Miller's
testimony, and others--as if the people of Utah wanted to do
just that, as if we didn't care about these species, whether it
is the prairie dog, or the tortoise, or many others, including
the prairie chicken and some of the others that we are
considering for future listings.
And I have to commend Director Dan Ashe and Mr. Gary Frazer
once again. I mentioned them in my introduction to the
commissioner, that they have been really a breath of fresh air
in working with us, and in recognizing that there is a better
solution than what we have been doing for the last 20 years.
And just--honestly, it is amazing what can happen when the
Federal Government comes and acts as a partner, rather than
acting in opposition, or as a critic of some of the efforts
that the local or state governments are trying to do.
So, with that introduction, I would turn to you, Mr.
Miller, and I would ask you to just briefly update us on this
current situation in Iron County in regards to the Utah prairie
dog, and the progress that you have made in that. And I think
we could end on an encouraging note, if you would.
Mr. Miller. Just over the last--as I mentioned in my
previous testimony, just over the last year to year-and-a-half,
as we have really buckled down and worked together, Fish and
Wildlife did come to the table, and I will give them my
compliments for the added effort that they have put forward.
But I think it was clarified in previous testimonies that
the Fish and Wildlife is not going to recover species without
states, private citizens, tribal communities getting involved
to protect the species. And, frankly, as we have worked
together, and as we have adamantly driven toward that two-
pronged approach that, yes, we want the recovery of the
species, but more along the lines that they have that
responsibility and we, as local governing officials, have the
right and the obligation, constitutionally, to protect the
life, liberty, and property of our constituents. We can meet
together, we don't have to have mutually exclusive objectives.
And we can find ways to work these things through. And, as we
have done that, we have accomplished that end.
It is very concerning to me that we do have many, many non-
governmental organizations that have got into the middle of
these good relationships and, for their own ends and their own
purposes--which I, frankly, see as the most profitable non-
profit program in the world, where they can feed themselves on
the backs of U.S. taxpayers in order to continue the
propagation of their own enterprise. And many are well-
intended, I understand that. But, unfortunately, we are seeing
litigious nature, a litigious nature, and I would like to see
those efforts necessary to help minimize those interventions
and those impacts.
Let's work with U.S. Fish and Wildlife as they do their job
well. I am sure there is room for some improvements. But as we
work together, and as we focus in, we can see just the--and
again, we need to work with Congress, and I appreciate and laud
the efforts of those who have brought forth these very
important bills. And I just want to emphasize how important
improving the Endangered Species Act is. It was a big, rough
rock rolling, and those rough edges need to be chipped off, and
we need to be able to work through these things together.
Mr. Stewart. Commissioner, thank you again to those and
others for your efforts, and you have been--you and others have
been leaders on this. We, again, have the same objective, and
that is to protect these species, but to protect the
individuals that surround them, as well.
So, Mr. Chairman, thank you. I yield back.
Mr. McClintock. The gentleman's time has expired. Are there
any further questions of the witnesses?
[No response.]
Mr. McClintock. Seeing none, I would like to thank the
witnesses for their valuable testimony today.
Members of the committee may have additional questions, and
we would ask that you respond to those in writing. The hearing
record will be kept open for 10 business days to receive those
responses.
And if there is no further business, without objection, the
committee stands adjourned.
[Whereupon, at 12:58 p.m., the committee was adjourned.]
[ADDITIONAL MATERIALS SUBMITTED FOR THE RECORD]
Statement of Dan Nelson, Executive Director, San Luis & Delta-Mendota
Water Authority on H.R. 1927
May 10, 2013
WATER LEGISLATION PROVIDES SENSIBLE WAY TO BALANCE FISH, WATER SUPPLY
NEEDS
The major legislation introduced today by Congressman Jim Costa
creates a sensible way of balancing the protection of fisheries while
providing reasonable water supplies for families, farms and
disadvantaged rural communities throughout the San Joaquin Valley.
The legislation maintains core provisions of the fish protections
governing water deliveries while providing long-absent reliability for
the thousands of farmers, farmworkers and millions of Californians who
rely upon a secure delivery of water to create jobs, expand the economy
and feed a nation.
While public water suppliers continue to work with state and
Federal agencies to develop long-term environmental and water supply
solutions for the Delta, meaningful and vital steps must be taken now
to protect California's future.
After 20 years of nearly continuous water shortages driven by
Federal environmental regulations, our coping strategies are all but
exhausted. Our farmers have installed drip irrigation on several
hundred thousand acres, have permanently retired a hundred thousand
acres from irrigation and annually leave hundreds of thousands of acres
unfarmed depending on the severity of the cutbacks. Sadly, the social
and economic pain inflicted on our communities has not resulted in any
gains for the fisheries as the regulators had hoped.
We all want to see a healthy ecosystem, but we should all
acknowledge the failed approaches in that pursuit. It is time for
reasonableness, sensibility and balance.
****
The San Luis & Delta-Mendota Water Authority serves 29 member
agencies reliant upon water conveyed through the California Bay-Delta
by the United States Bureau of Reclamation's Central Valley Project.
These public water agencies deliver water to approximately 1.2 million
acres of prime farmland, 2 million California residents, and millions
of waterfowl dependent upon the more than 100,000 acres of managed
wetlands within the Pacific Flyway.
______
Letters Submitted for the Record on H.R. 1927
City of Dos Palos
Dos Palos, California,
August 28, 2014.
Requesting that Congress Act on Drought Legislation
Dear Officials:
I am the Mayor of the City of Dos Palos, California. This is small
town America at its best. Our community's economy is based on
Agriculture. Our area is known for its production of Cotton, Tomatoes,
Corn, Canteloupes, Alfalfa Hay, Milk, Cattle, Almonds, Pomegranates,
and Rice. We also produce large quantities of Honey, Garlic, Onions,
Wheat, Peppers, Honeydew, Watermelons, Cucumbers, Squash, Pumpkins,
Zucchini, Pistachios, Peaches, Apricots, Figs, Grapes, Quince, and
Sheep! Our local Agribusinesses include irrigation systems, harvesting,
baling, trucking, ginning, processing, farm credit and commercial
lending, crop insurance, inspection, scientific analysis, farm
equipment sales and repairs, steel fabrication, welding, training, and
computer technology! Our people work as farmworkers, supervisors,
managers, owners, mechanics, truckers, dairymen, farmers, computer
technicians, bankers, sales staff, and more. Together we produce the
food, fiber, and fuel that drive the economy, meet payrolls that keep
people employed, and provide the tax base for our schools and
government services. All of this is possible because of water!
Right now we are experiencing California's most devastating drought
and the hottest year since records have been kept. Our domestic food
supply is threatened. Our farms and businesses have been hanging on,
barely surviving for the last few years, but can't hang on much longer.
Our resources are limited. Once these operations go out of business,
they will not come back. Our area is too isolated and alternatives are
few.
State and Federal Mandates have further complicated our water
availability and quality. Much of our problem is manmade and can be
fixed. Imbalanced implementation of the Federal Endangered Species Act
has reduced or prevented water deliveries to the Exchange Contractors.
This impact reaches far beyond agriculture. Our City receives its
drinking water from this same surface water source. In the past year
alone, we have seen reduced flows and lower quality water. Substituted
sources loaded with algae have clogged our siphons and filters. We've
endured periods without water, experienced water rationing, and have
implemented the most stringent water conservation measures. While our
families and children have gone without water, other environmental and
wildlife protection agencies have not had to face similar conditions.
We become outraged as we watch a mainline break at UCLA ``waste''
water, but we allow ten times that amount daily to be released to the
Ocean unchecked! It doesn't have to be this way.
Let's start by working together to reduce the impacts of bad
decisions and reach solutions. The House has passed H.R. 3964 the
Sacramento/San Joaquin Valley Emergency Water Delivery Act. The Senate
has passed S. 2198 the Emergency Drought Relief Act. Now Members must
reconcile these separate bills into one Drought Relief measure
acceptable to both houses and which the President will sign. This needs
to be done now!
Sincerely,
Jerry Antonetti,
Mayor of the City of Dos Palos.
______
City of Fresno,
Fresno, California,
July 10, 2014.
TO:
Hon. Dianne Feinstein Hon. Howard McKeon
Hon. Barbara Boxer Hon. Gary Miller
Hon. Kevin McCarthy Hon. Ed Royce
Hon. Doug LaMalfa Hon. Ken Calvert
Hon. Tom McClintock Hon. John Campbell
Hon. Paul Cook Hon. Dana Rohrabacher
Hon. Jeff Denham Hon. Darrell Issa
Hon. David Valadao Hon. Duncan Hunter
Hon. Devin Nunes Hon. Jim Costa
Dear Member of Congress:
We write in our individual capacities to thank each of you for the
effort you have made to address the dire water situation facing the
State of California. The passage of S. 2198, the Emergency Drought
Relief Act out of the U.S. Senate, and H.R. 3964, the Sacramento-San
Joaquin Valley Emergency Water Delivery Act out of the U.S. House of
Representatives, are significant and commendable milestones. The
efforts you have taken are greatly appreciated. We are, however,
acutely aware of the need for you to promptly resolve the differences
between these bills before any legislation will become law. We also
know that we are in urgent need of a change in law.
Therefore, we are asking each of you to work diligently and in good
faith to bridge your differences. Failure will ensure that the current
regulatory and policy regimes that were put in place to improve the
health of the Delta and the Central Valley, but have actually done the
opposite, will continue unchecked. As a result, more acreage will be
fallowed further diminishing our ability to provide a safe and
sustainable food supply and threatening our national security. In
addition, the demands on food banks, existing high unemployment, the
inability of families to pay utilities and stay in their homes, and the
lack of job opportunity that already exists in disadvantaged
communities will all be exacerbated.
To facilitate the resolution of your differences, we have come
together to emphasize the concepts we believe are essential to any
legislation that moves forward. To be meaningful, any bill must:
Provide congressional direction concerning the operation
of the Central Valley Project and the State Water Project
to ensure sufficient operational flexibility to restore
water supply and water supply reliability. The operators of
these projects must be able to capture water from the Delta
during periods of higher flows and move water from north to
south in a rational way.
Extend the provisions of any legislation for a period of
time that will allow communities to establish sound long
term water supplies for their future;
Establish a process that could lead to increased storage
in a reasonable timeframe;
Ensure that additional burdens are not placed on the State
Water Project as a result of congressional action; and
Recognize that the reasonableness and efficacy of the San
Joaquin River Restoration Program must be reevaluated in
light of changed conditions since its authorization,
including the reality of federal budget constraints.
We are optimistic that if you focus on addressing these concepts,
you can resolve your differences in time to provide our communities the
needed relief. It is time for you to move forward with policies that
restore regulatory balance, achieve benefits, and improve the social,
economic, and environmental health of much of California.
Respectfully,
Georgeanne White Dan Errotabere
Dir., Friant Water
Authority Partner, Errotabere Ranches
Kimberly Brown Paul Adams
Paramount Farming Company Booth Farms
Loren Booth Kent Stephens
President, Booth Farms Sunview Vineyards of Calif.
Cannon Michael Ashley Swearengin
President, Bowles Farming Mayor--City of Fresno
Jim Nickel Earl Perez
President, Nickel Family President, Perez Farms
Mark Watte Sarah Woolf
Partner, Watte & Sons Partner, Clark Bros. Farming
John Bennett William D. Phillimore
President, JFB Ranch Paramount Farming Company
Mike Stearns Tom Barcellos
General Manger, Hammonds
Ranch T-Bar Dairy/Barcellos Farms
Harvey Bailey Ted Page
President, Bailey Brothers
Farming Partner, Bookland Farms
City of Fresno,
Fresno, California,
September 7, 2014.
Hon. Jim Costa,
U.S. House of Representatives,
1314 Longworth House Office Building,
Washington, DC 20515.
Re: H.R. 1927
Dear Congressman Costa:
Thank you for allowing the City of Fresno the opportunity to submit
testimony regarding H.R. 1927, the ``More Water and Security for
Californians Act.'' The City appreciates your efforts, and the efforts
of your colleague Mr. Valadao through H.R. 3964 to provide
congressional direction for implementation of the Endangered Species
Act as it relates to operation of the Central Valley Project, and to
develop water supplies that are desperately needed here in the Valley.
As you know, this area is currently suffering through the worst
water supply crisis in its history. The combination of the drought, the
mismanagement of the scarce supplies that were available this year, and
the need to provide water for the fifth largest city in the State of
California are all critical issues that must be addressed.
The Fresno area has relied on groundwater to meet the community's
water supply needs since the first water system was placed into
service. The Fresno area's reliance on groundwater for approximately
140 years has resulted in severe over-drafting of the groundwater
aquifer. Unfortunately, groundwater levels continue to fall in the
Fresno area at the rate of approximately 1 foot per year.
The City of Fresno holds a contract for 60,000 acre-feet per year
surface water supply allocation at Millerton Lake (Friant Division)
from the United States Bureau of Reclamation (USBR). Initially, the
water supply allocation was used by the City to recharge the
groundwater aquifer through the use of constructed recharge basins.
Today, the City's current water resources management strategy is based
on recharging approximately 55,000 acre-feet per year, utilizing the
Millerton Lake allocation via a multi-million dollar capital
improvement plan funded by our ratepayers.
In 2004, the City of Fresno constructed a 30 million gallon per day
surface water treatment facility to treat surface water from Millerton
Lake using the Friant-Kern Canal as the primary raw water conveyance
delivery system. This is the City's primary surface water treatment
facility, and was constructed for the sole purpose of using the City's
surface water allocation so that groundwater over drafting could be
reduced.
This year, the United States Bureau of Reclamation's (USBR)
decision to provide a 0% allocation to Friant Division contractors has
wreaked havoc on the water resource management strategy for the City.
The current 0% allocation and the possibility of a second year of 0%
allocations reduces our ability to operate our surface water treatment
facility and comply with the legal mandates stipulated in the new
Sustainable Groundwater Management Act recently signed into law by
Governor Brown.
In addition to new groundwater regulations, the California State
Water Resources Control Board has identified 1,2,3-trichloropropane
(1,2,3-TCP) as a pollutant of concern known to cause cancer. Based on
the cancer-causing concern, the State Water Resources Control Board is
developing a maximum contaminant level (MCL) regulation for 1,2,3-TCP
to protect public health, and the proposed regulation is expected to be
released for public comment in late 2014 or 2015. Regrettably, there
are approximately 56 groundwater wells in Fresno that have detected the
presence of 1,2,3-TCP. The City's plan to eliminate the risks of 1,2,3-
TCP is to replace the groundwater supply from these groundwater wells
with surface water supply from the City's water supply allocation from
Millerton Lake. Again, the USBR's possible elimination of the City's
surface water allocation for a second year severely damages and calls
into question our ability to use our surface water allocation to
mitigate the health risks associated with this pollutant of concern
known to cause cancer.
The residents of Fresno have made significant investments in water
supply, treatment, and recharge facilities based on representations
that the USBR would honor its commitment to deliver the City's water
supply allocation from Millerton Lake. We believe it is unconscionable
that the USBR would now--after significant time and expense have been
invested by the community--not honor their historic commitment and
allow our residents' investments to become stranded assets to the
detriment of the community.
In closing, we believe the USBR should honor its water supply
commitments to the City of Fresno so that we may provide our 505,000
residents a clean, safe and affordable water supply. Clearly, the
Central Valley Project is not being operated as intended. Any direction
from Congress that will develop desperately needed water supplies would
be welcomed.
If you have any questions, please do not hesitate to contact me or
my Chief of Staff, Georgeanne White.
Sincerely,
Ashley Swearengin,
Mayor.
______
Fresno Council of Governments,
Fresno, California,
August 19, 2014.
Hon. Dianne Feinstein,
Hon. Barbara Boxer,
U.S. Senate,
Washington, DC.
Hon. David Valadao,
U.S. House of Representatives,
Washington, DC.
Dear Senators Feinstein and Boxer, and Representative Valadao:
The Fresno Council of Governments encourages you and your
colleagues to do everything possible to achieve successful passage of
the drought relief legislation now within the Congressional Conference
process.
The Fresno COG's membership includes the County of Fresno and all
15 cities located within Fresno County. Our organization's role is that
of a consensus builder as our board members--all of whom are elected
officials--seek to frame acceptable programs and find solutions to
issues that do not respect political boundaries such as water
resources.
The current water shortages now being experienced and the growing
water crisis enveloping all parts of Fresno County and California are
adversely affecting everyone of our constituents. There may be little
that can be done to allay the immediate water-related problems we are
facing but you certainly have the opportunity to ease or even resolve
future problems by re-crafting federal law.
We are not seeking federal handouts or other temporary short-term
aid. We are asking that the fundamental flaws in federal water
management, including administration of the Endangered Species Act, be
addressed and settled in a common-sense manner that protects the needs
of the people we serve.
We are extremely pleased with the passage of H.R. 3964, the
Sacramento-San Joaquin Valley Emergency Water Delivery Act, and S.
2198, the Emergency Drought Relief Act; however, now we ask you to take
the next vital step. We expect you to successfully meld these widely
differing Senate and House bills into what has the potential, for water
users in Fresno County and throughout the central San Joaquin Valley,
to perhaps be the most important federal legislation of 2014.
You are well aware of Fresno County's long-standing state and
national leadership in agricultural production as well as its growing
population and business communities in cities and towns, of which all
are dependent upon safe, reliable supplies and quantities of water.
That is simply not occurring as a result of the near record drought
but, more importantly, because of resource management by federal
agencies that has relied upon questionable regulatory mandates. In many
cases, these mandates have curtailed and even eliminated allocations of
water supplies in large portions of Fresno County. Fresno County
residents and those in agriculture have had to over-use groundwater to
survive, resulting in a separate crisis involving plunging water
tables. Scores of wells have failed.
The situation we face is devastating. Many of the dry-year woes we
are facing are, of course, related to the drought but many more can be
blamed directly on policy decisions of the state and federal water
project operators that have impacted the ability to provide water to
the San Joaquin Valley at crucial times this year. The domino effect of
this drought is impacting employment and business activity, as well as
social and economic harm to the people of Fresno County.
Please act now in the best interest of all water users. Act in good
faith to set aside political differences in order to bridge and resolve
differences in this important legislation to protect the health and
welfare of the citizens of our cities, Fresno County and the San
Joaquin Valley.
Sincerely,
Amarpreet Dhaliwal,
Chair, Fresno Council of Governments,
Mayor, City of San Joaquin.
______
County of Fresno,
Board of Supervisors,
Fresno, California,
August 7, 2013.
Hon. Dianne Feinstein,
U.S. Senate,
331 Hart Senate Office Building,
Washington, DC 20510.
Re: Water Crisis Facing Fresno County
Dear Senator Feinstein:
The Fresno County Board of Supervisors is very concerned that the
County is facing a repeat of the disaster suffered in 2009 resulting
from a 10% allocation to Central Valley Project (``CVP'') water service
contractors that serve water to farmers in western Fresno County. As a
result of reduced water supplies in 2009 more than 300,000 acres of
land in Fresno County were fallowed, tens-of-thousands of farm workers
lost their jobs, disadvantaged communities experienced unemployment
rates in excess of 40%, the poor were forced to stand for hours in food
lines, the Fresno County Sheriff reported an increase in crime,
including domestic violence, and there was an increase in mental health
problems. This situation cannot be allowed to repeat itself.
Congressman Jim Costa has introduced H.R. 1927, the More Water and
Security for Californians Act. If enacted, as currently written this
legislation would:
Provide congressional direction concerning application of
the Endangered Species Act to the CVP and the State Water
Project (``SWP'');
Restore operational flexibility to California's two major
water projects; and
Provide reasonable protection to threatened species.
We hope that you will introduce similar legislation.
Westlands Water District has projected that if California has
average precipitation in October, November, December, and January, the
initial allocation for CVP water service contractors next year will be
zero, and if the remainder of the winter and spring is dry or average,
the final allocation will be from zero to 10%. We understand that the
Bureau of Reclamation has confirmed this analysis. This projection is
already affecting western Fresno County's agricultural industry.
Farmers, who are currently planning next year's farming operations, are
deciding to not plant row crops, such as fall lettuce, tomatoes, and
garlic. Additionally, many farmers are struggling to find financing for
their operations because lenders are reluctant to make loans in the
light of inadequate water supplies. These decisions will undoubtedly
affect the most vulnerable residents of western Fresno County in ways
that are identical to impacts in 2009.
This disaster is avoidable. If in 2014 the CVP is allowed to
operate as it did in 2010 and 2012, which were average water years,
farmers could reasonably expect to get a 40%-45% allocation if we have
an average water year. The legislation Mr. Costa has introduced would
allow this to happen by prescribing operational rules that are nearly
identical to operations that occurred in 2010 and 2012. Moreover, if
enacted, as currently written this legislation would enable the Bureau
to forecast operations that would allow it to make a higher allocation
earlier in the year because it would not face the unknown of how the
biological opinions will apply to operations of the CVP Delta pumping
plant. For example, under the existing biological opinion for Delta
smelt, management of reverse flow in Old and Middle Rivers can range
from -1250 cubic feet per second to -5000 cubic feet per second during
the period from December through the end of June. With this
uncertainty, the Bureau has to wait until the end of May or June to
make the higher allocations which is too late for planting.
It must also be noted that the operations of the CVP that occurred
in 2010 and 2012 did not place the threatened or endangered fish at any
risk. In fact, those operations were consistent with the existing
biological opinions, and Mr. Costa's legislation would direct that the
CVP and the SWP to be operated in way that has provided adequate
protection for fish. The only exception is that the inflow/export ratio
imposed by the Salmon biological opinion in April and May would not
apply. However, when the National Academy of Sciences reviewed this
fishery action in response to your request that the Academy review the
efficacy of the biological opinions, the Academy raised significant
questions about the need for this action. Specifically, the Academy
described the influence of rates of export on salmonid survival rates
as ``weak.''
We are aware of all that you have done over the course of the last
two decades to ensure that farmers on the westside of the San Joaquin
Valley would have enough water to farm and to put people to work. We
know, for example, that the Delta-Mendota Canal, California Aqueduct
Intertie was constructed and is being operated under legislation that
you introduced, that achieving a 45% allocation in 2010 was a result of
your intervention with the Department of the Interior, and that
legislation you authored has facilitated numerous water transfers to
westside farmers. Your leadership on this issue has helped sustain
irrigated agriculture in western Fresno County and other parts of the
San Joaquin Valley. But we fear that those actions have not been
enough. Without immediate, further action, the people who live and work
in western Fresno County will experience needless suffering of the type
experienced in 2009.
We also are aware that introducing legislation that provides
congressional direction concerning application of the Endangered
Species Act to the CVP and the SWP will be vigorously opposed by
environmental organizations as an attack on the Act itself. But we are
prepared to support you if you determine that taking on this ``heavy
lift'' is required to avoid that needless human suffering.
We absolutely need legislation that will restore some sanity to
achieving a reasonable balance between meeting the needs of the
environment and the needs of our people. Worth noting is that we
support this effort and others, that have or may be introduced. We look
forward to working with you and encourage you to work with our entire
Valley delegation to bring resolution on this vitally important issue.
Sincerely,
Henry Perea, Chairman,
Supervisor, District 3.
Andreas Borgeas, Vice-Chairman,
Supervisor, District 2.
Phil Larson,
Supervisor, District 1.
Judith G. Case,
Supervisor, District 4.
Deborah A. Poochigian,
Supervisor, District 5.
______
Grassland Water District,
Los Banos, CA,
August 6, 2013.
Hon. Jim Costa,
U.S. House of Representatives,
1314 Longworth House Office Building,
Washington, DC 20515.
Re: Support for H.R. 1927, More Water and Security for Californians Act
Dear Representative Costa:
I am writing on behalf of the Grassland Water District (GWD) and
the Grassland Resource Conservation District (GRCD) to express our
support for H.R. 1927, the ``More Water and Security for Californians''
act.
As you know, the Central Valley Project Improvement Act (CVPIA) was
signed into law by the 102nd Congress on October 30, 1992 to address
the impacts of the Central Valley Project (CVP) on fish and wildlife
and associated habitats. CVPIA called for full Level 4 water supplies
for state and federal refuges and the private wetlands of the GRCD by
2002. Sadly, 11 years later federal officials have yet to carry out
this critical CVPIA mandate.
The Grassland Water District delivers water to state, federal, and
privately managed wetlands located within the Grassland Ecological Area
(GEA) of western Merced County, California. The GRCD represents over
2,000 members and 67% of the wetland habitat south of the Delta. For
more than 60 years, the private landowners and sportsmen within the
Grasslands, working with public agencies, as well as the environmental
and farming communities, have been responsible for preserving and
maintaining the largest freshwater marsh on the Pacific Flyway. The GEA
has achieved international recognition by the RAMSAR convention and the
Western Hemisphere Shorebird Reserve Network, and as a Globally
Important Bird Area by the American Bird Conservancy and National
Audubon Society.
Because the Grassland Water and Resource Conservation Districts are
passionate about protecting this precious wildlife resource for
generations to come, and H.R. 1927 will provide more flexibility for
managing California water, we wholeheartedly support your fair approach
to solving this ongoing water crisis.
Sincerely,
Ricardo Ortega,
General Manager.
______
Kern County,
Board of Supervisors,
Bakersfield, California,
July 29, 2014.
Hon. Barbara Boxer,
Hon. Dianne Feinstein,
U.S. Senate,
Washington, DC 20510.
Hon. Kevin McCarthy,
Hon. David Valadao,
U.S. House of Representatives,
Washington, DC 20515.
Re: Support for Compromise on S. 2198, H.R. 3964
The Kern County Board of Supervisors thanks you for your efforts to
address California's increasingly severe water crisis. The passage of
S. 2198, the Emergency Drought Relief Act out of the U.S. Senate, and
H.R. 3964, the Sacramento-San Joaquin Valley Emergency Water Delivery
Act out of the U.S. House of Representatives, are significant and
commendable milestones. Our Board now urges you to resolve the
differences between these bills so that this emergency legislation can
swiftly become law.
We call upon each of you to work diligently and in good faith to
bridge your differences. Failure will ensure that the current
regulatory and policy regimes that were put in place to improve the
health of the Delta and the Central Valley, but have actually done the
opposite, will continue unchecked. As a result, more acreage will be
fallowed, further diminishing our ability to provide a safe and
sustainable food supply and threatening our national security. In
addition, the demands on food banks, existing high unemployment, the
inability of families to pay utilities and stay in their homes, and the
lack of job opportunity that already exists in disadvantaged
communities will all be exacerbated.
Our Board supports the concepts below as essential elements of any
legislation that moves forward. To bring meaningful relief, any bill
must:
Provide congressional direction regarding operation of the
Central Valley Project and the State Water Project to
ensure sufficient flexibility to restore water supply and
water supply reliability. The operators of these projects
must be able to capture water from the Delta during periods
of higher flows and move water from north to south in a
rational way.
Extend the provisions of any legislation for a period of
time that will allow communities to establish sound long-
term water supplies for their future;
Establish a process that could lead to increased storage
in a reasonable timeframe;
Ensure that additional burdens are not placed on the State
Water Project as a result of congressional action; and
Recognize that the reasonableness and efficacy of the San
Joaquin River Restoration Program must be reevaluated in
light of changed conditions since its authorization,
including the reality of federal budget constraints.
We hope that by addressing these concepts, you can resolve your
differences in time to provide our communities the needed relief. For
the sake of California's current and future water supplies, we urge you
to move forward with policies that restore regulatory balance, achieve
benefits, and improve the social, economic, and environmental health of
much of California.
Sincerely,
Leticia Perez,
Chairman.
Mick Gleason,
First District Supervisor.
Zack Scrivner,
Second District Supervisor.
Mike Maggard,
Third District Supervisor.
David Couch,
Fourth District Supervisor.
______
Latin Business Association,
Los Angeles, California,
August 18, 2014.
Hon. Dianne Feinstein,
Hon. Barbara Boxer,
U.S. Senate,
Washington, DC 20510.
Hon. David Valadao,
U.S. House of Representatives,
Washington, DC 20515.
Dear Members of Congress:
The Latin Business Association has closely followed progress of the
drought relief legislation that has passed the House (H.R. 3964, the
Sacramento-San Joaquin Valley Emergency Water Delivery Act) and Senate
(S. 2198, the Emergency Drought Relief Act) and which is now in
conference. Our organization sees the opportunity presented by this
legislation as critically important to Latino Californians and the
800,000 Latin businesses in California that we are privileged to
represent.
As you may know, the Latin Business Association (LBA) is a
501(c)(6) private non-profit organization. Since the LBA's
establishment in 1976, our Association has become one of the nation's
most active Latin business trade associations. We serve as a unifying
voice for Latin businesses, advocating for opportunities that set
business owners at a higher class of competitiveness. The LBA is
committed to the success of its members, partners and supporters.
California's water shortages and the repeated crises that have
resulted are the products of federal and state regulatory mandates and
water supply curtailments as well as the current drought which has now
gripped every inch of California for three terribly dry years.
Shortages of water have hit all parts of the state--both urban and
rural--unmercifully. Latinos and Latin-owned businesses have been among
most negatively impacted economically by the crisis through growing
unemployment, and businesses declines and failures. By the millions,
lives of Latinos and other Californians are being adversely affected.
The LBA is increasingly troubled and concerned with this situation.
As so much of the current water crisis stems from what have proven to
be ineffective and even misguided federal policies and regulatory
mandates, we believe the legislation now being framed in conference
must result in restoration of a reliable, secure and safe water supply
to the health, prosperity, and well being of Californians.
Our organization is based in Los Angeles. Much of the water
delivered within Southern California originates in Northern California
and can only be conveyed to Southern California and the City if
adequate supplies are permitted by federal and state agencies to be
exported from the Sacramento-San Joaquin Delta. Southern California's
well-being depends largely upon this water supply, which is delivered
by the Metropolitan Water District of Southern California under a State
Water Project contract.
This year, Metropolitan's Delta water supply from the State Water
Project has been withheld under a zero allocation as a result of
natural drought and federal and state regulatory mandates. That
allocation is to be increased on September 1, but only to 5% of
contract amounts. This minimal State Water Project supply is in
addition to greatly reduced Colorado River supplies delivered to
Metropolitan as well as much lower than normal availability of Los
Angeles Department of Water and Power supplies from the Owens Valley
system. These water supply curtailments are negatively impacting
groundwater levels of the region, creating further adverse effects on
the water supply situation.
The federal legislation your conference is considering must
address, repair and modify federal policies that have led to so much
failed management by federal and state agencies in the Sacramento-San
Joaquin River Delta, particularly as a result of imbalanced
implementation of the federal Endangered Species Act. We are incensed
that because of management decisions and actions made and taken earlier
this year under the ESA, capture of hundreds of thousands of acre-feet
of early spring 2014 runoff that occurred during this drought year's
only significant storms were permitted to flow unimpeded to the ocean,
unnecessarily worsening California's water crisis.
Southern California's residents and food distribution businesses
rely upon California agriculture as a major source of safe and high
quality food and related products but these same Delta water supply
curtailments have also led to fallowing of large acreages of Central
California farmlands that rely for irrigation supplies on the federal
Central Valley Project and State Water Project. Neither project to date
has been unable to provide any contract water supplies.
Action in Congress must be taken immediately if these and so many
other water-shortage problems, plus another year of regulatory drought,
are to be avoided. While we appreciate that both the House and Senate
have passed legislation, these bills significantly differ. All members
of California's Congressional delegation must set aside political
differences for the benefit of all Californians. You simply have to
agree on a joint drought relief measure that can be adopted by both
houses of Congress and signed by the President.
Sincerely,
Ruben Guerra,
Chairman and Chief Executive Officer.
______
Paramount Farming Company,
Bakersfield, CA,
July 30, 2013.
Hon. Jim Costa,
U.S. House of Representatives,
Washington, DC 20515.
Dear Representative Costa:
I am writing on behalf of Paramount Farming Company (Paramount) in
support of H.R. 1927, ``More Water and Security for Californians Act,''
as introduced on May 9, 2013. Paramount, and its related entities, is
one of the largest growers and processors of almonds, pistachios,
citrus and pomegranates in California.
Paramount takes pride in our environmental conservation and
sustainability practices, and makes it our passion to provide high
quality products through responsible agricultural processes. As an
agricultural entity in the San Joaquin Valley, water access and
reliability issues are constantly areas of great concern. We appreciate
the work you have done in the past supporting similar legislation that
would bring more water to farmers, farm workers, and farm communities
in the Valley, and would like to express our support for H.R. 1927.
Sincerely,
William D. Phillimore,
Executive Vice President.
______
Porterville Irrigation District,
County of Tulare, California,
September 7, 2014.
Hon. Jim Costa,
U.S. House of Representatives, 16th District,
1314 Longworth House Office Building,
Washington, DC 20515.
Re: H.R. 1927
Dear Congressman Costa:
We appreciate the opportunity to submit testimony in support of
H.R. 1927, the ``More Water and Security for Californians Act''. Water
is the lifeblood of our communities here in Tulare County, and it is
critically important to be assured of a reliable supply.
The water districts on the east side of the San Joaquin Valley have
contracts with the Bureau of Reclamation and normally receive, on
average, 1.2 million acre-feet of water from the Friant Division of the
Central Valley Project (CVP). The Bureau of Reclamation makes this
water available by diverting the San Joaquin River at Friant Dam and
delivers it through the Friant-Kern and Madera Canals. This provides
critical supplies to more than 15,000 farms on about 1 million acres;
six cities, including the fifth largest city in California, the city of
Fresno; and countless rural communities. This surface water is vitally
important to our people because the Friant Division is a conjunctive-
use project, where both groundwater and surface water are used to
provide needed supplies.
When the federal government stepped in to build the CVP in the
1930s, it made promises to the people in our area that if they paid for
the project, it would deliver a permanent, reliable water supply. We
upheld our end of that bargain and we developed a vibrant and highly
productive agricultural economy. This year, for the first time ever,
the government broke its promises to us. The CVP delivered no water to
the Friant Division. The system was never designed for this much
strain--the entire demand of the east side of the Valley--to be placed
on our groundwater, and it has crumbled under the weight. Groundwater
levels in our area are now perilously low.
Within the Porterville Irrigation District service area, staff is
aware of 55 domestic wells that have already failed. In the surrounding
community, there are over 300 documented cases of families losing their
wells. Even by conservative estimates, Tulare County already has over
1400 people without any access to water in their homes, and we continue
to hear of new cases every day. When these people turn the faucet on,
no water comes out. They have no water to cook, no water to wash their
dishes or clothes, no water to brush their teeth, no water to bathe or
shower, no water to flush their toilets. This is an intolerable
situation for them, and it is unacceptable.
Of course, the extent of this disaster reaches far beyond
individual homes. Municipal wells are also starting to fail. For
example, the city of Tulare has lost four of its municipal wells due to
the drought, and their production has dropped from 3.9 million gallons
per day to 3.3. We understand that in the northern part of the Friant
service area, the city of Madera has lost seven of its municipal wells.
This is simply not sustainable.
Rural schools that rely on wells are also losing service or are on
the verge of having their wells fail. The Columbine Elementary School
in Delano has not received any Friant water since the start of this
season in March, so it is having to rely on its two wells to meet all
its water needs. One of these wells failed during the summer session.
It is vital for the school to maintain water service since it must
provide meal programs for the roughly 55% of the student body that
needs them. As a result, the school had to cut all outdoor water use.
This has resulted in dry, dusty playgrounds. Columbine is not the only
school that is suffering from a lack of water. We are personally aware
of another school in Strathmore that is in the exact same situation,
for the exact same reasons. In fact, according to the Tulare County
Superintendent of Schools, dozens of rural schools throughout the
County rely on wells and are facing similar impacts. Schools are also
experiencing drops in attendance as the poor air quality triggers
health concerns like asthma.
While our people are facing the grim reality of trying to figure
out how they can live without water, we are hearing rumors that the
Restoration Program may take several thousand acre-feet to ``test''
fish flows this fall. It is absolutely unacceptable to waste water on
tests when right now, people in our area lack water to meet their most
basic needs. This water cannot be wasted on tests to determine what
some potential future fish might be able to tolerate; that water must
be delivered to the Friant districts, now, so it can be used by the
people who so desperately need it.
Our communities cannot survive another year like this. People in
our area, like people everywhere, need water to survive. We urge you to
take immediate action to ensure that the Valley has a safe, reliable
water supply to serve its communities in 2015, and beyond.
Sincerely,
Mike Ennis,
Tulare County Supervisor, Fifth District.
Eric Borba,
Director, Porterville Irrigation District.
______
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
Resolutions and News Articles Submitted for the Record by Rep. Costa
Resolutions
RESOLUTION 14-80--a Resolution of the City of
Clovis Requesting Action by Congress on Drought
Legislation, dated August 25, 2014
RESOLUTION 2014-40--a Resolution of the City
Council of the City of Dinuba Requesting Action by
Congress Concerning Drought Relief Legislation,
dated August 26, 2014
RESOLUTION 14-40--a Resolution of the City Council
of the City of Firebaugh Requesting Action by
Congress on Drought Legislation, dated August 18,
2014
RESOLUTION 2309--a Resolution of the City Council
of the City of Fowler Requesting Action by Congress
on Drought Legislation, dated August 19, 2014
RESOLUTION 2014-143--a Resolution of the Council
of the City of Fresno, California to Request Action
by Congress on Pending Water Legislation, dated
August 28, 2014
RESOLUTION 14-314--a Resolution of the Board of
Supervisors of the County of Fresno, State of
California in the Matter of Emergency Drought
Relief and Water Delivery Legislation, dated August
26, 2014
RESOLUTION 1852--a Resolution of the City of Huron
Requesting Action by Congress on Drought
Legislation, dated September 3, 2014
RESOLUTION 14-51--a Resolution of the City Council
of the City of Kerman Requesting Action by Congress
on Drought Legislation, dated August 20, 2014
RESOLUTION 14-045--a Resolution of the Board of
Supervisors of the County of Kings, State of
California in the Matter of Emergency Drought
Relief and Water Delivery Legislation, dated August
19, 2014
RESOLUTION 2014-32--a Resolution of the City
Council of the City of Kingsburg, California
Requesting Action by Congress on Drought
Legislation, dated August 20, 2014
RESOLUTION--a Resolution of the League of
California Cities--Latino Caucus Requesting Action
by Congress on Drought Legislation, dated July 10,
2014
RESOLUTION 14-31--a Resolution of the City Council
of the City of Mendota Requesting Action by
Congress on Drought Legislation, dated July 10,
2014
RESOLUTION 2014-42--a Resolution of the City of
Orange Cove Requesting Action by Congress on
Drought Legislation, dated August 18, 2014
RESOLUTION 2014-50--a Resolution of the City
Council of the City of Parlier Requesting Action by
Congress on Drought Legislation, dated August 20,
2014
RESOLUTION 7629--a Resolution of the City Council
of the City of San Fernando Requesting Action by
Congress on Drought Legislation that Corrects Delta
Water Management Problems, dated August 18, 2014
RESOLUTION 2014-34R--a Resolution of the City
Council of the City of Selma Requesting Action by
Congress on Drought Legislation, dated August 18,
2014
News Articles
-- Grossi, Mark. ``House panel meeting in Fresno hears
emotional impact of Calif. drought,'' The Fresno Bee. March 19,
2014.
-- Grossi, Mark. ``Food lines have begun in Mendota,'' The
Fresno Bee. May 2, 2014.
-- Rodriguez, Robert. ``Drought drying up small Central Valley
farmers' future,'' The Fresno Bee. July 19, 2014.
-- Villa, Juan. ``Zero water allocation protested at Tulare
water rally,'' Visalia Times-Delta. March 28, 2014.
-- Villa, Juan. ``Local farmers needed to keep blackbird off
endangered list,'' Visalia Times-Delta. April 9, 2014.
-- Villa, Juan. ``Drought relief food comes to Tulare County,''
Visalia Times-Delta. April 22, 2014.
-- Villa, Juan. ``High temperatures add to drought woes for
farmers,'' Visalia Times-Delta. June 17, 2014.
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