The Endangered Species Act

Craig Manson


July 17, 2003

Mr. Chairman and Members of the Committee, I am Craig Manson, Assistant Secretary for Fish and Wildlife and Parks at the U.S. Department of the Interior (Department). Thank you for the opportunity to testify before you today regarding the Endangered Species Act (ESA).

The Department appreciates the Committee’s interest in the impacts of the ESA on agricultural communities. As you may know, the Department of the Interior, along with the Department of Commerce for some fish and other marine species, is charged with administering the Act. I will discuss the how the Administration is working to make the implementation of ESA more efficient and effective, and identify areas of specific concern to the Department.

The ESA was passed in 1973 to conserve vulnerable plant and animal species that, despite other conservation laws, were in danger of extinction. The purpose of the ESA is to conserve and recover listed species. At the Department of the Interior, the ESA is administered by the U.S. Fish and Wildlife Service (Service).

Under the law, species may be listed as “endangered” or “threatened.” All species of plants and animals, except pest insects, are eligible for listing as endangered or threatened. Once listed, the species is afforded the full range of protections available under the ESA. These protections include prohibitions on killing, harming or otherwise taking a species.

We recognize that the resource management decisions made by the Department can greatly impact local communities and the people who live and work in them. While countless species depend on the land to sustain life, families – particularly farming and ranching families – depend on the same land for community and economic well-being. As a result, we know that we must work in partnership with the people who live and work on private and public lands.

The Department has been implementing this “partnering” approach in our land management practices. In this regard, Secretary Norton has often spoken of what she has termed the “4 C’s” — Communication, Consultation, and Cooperation, all in the service of Conservation. The focus of the Four C’s is the belief that enduring conservation springs from partnerships involving the people who live on, work on, and love the land. Some examples of our commitment to this process are outlined later in my statement.

At the same time, I must acknowledge that critical habitat is an extremely challenging program within which to apply cooperative approaches.

Many of our current concerns are focused on the flood of court orders requiring critical habitat designations. These court orders are undermining endangered species conservation by compromising the Service’s ability to protect new species and to work with states, Tribes, landowners, and others, to recover species already listed under the ESA.

Designation of Critical Habitat Provides Little Additional Protection to Species

In 30 years of implementing the ESA, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of conservation resources. The Service's present system for designating critical habitat is driven by litigation rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The Service believes that additional agency discretion would allow our focus to return to those actions that provide the greatest benefit to the species most in need of protection.

Currently, only 306 species or 25% of the 1,211 listed species in the United States under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,211 listed species through conservation mechanisms such as listing, Section 7 Section 7
Section 7 Consultation The Endangered Species Act (ESA) directs all Federal agencies to work to conserve endangered and threatened species and to use their authorities to further the purposes of the Act. Section 7 of the Act, called "Interagency Cooperation," is the mechanism by which Federal agencies ensure the actions they take, including those they fund or authorize, do not jeopardize the existence of any listed species.

Learn more about Section 7
consultations, the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, Section 6 funding to the states, and the Section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species.

Procedural and Resource Difficulties in Designating Critical Habitat

We have been inundated with lawsuits regarding critical habitat designation, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an ever-increasing series of court orders and

court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits and to comply with the growing number of adverse court orders. As a result, the Service's own proposals to undertake conservation actions based on biological priorities are significantly delayed. The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for additional public participation beyond those minimally required by the Administrative Procedure Act, the ESA, the Regulatory Flexibility Act, and the Service implementing regulations; to take additional time for review of comments and information to ensure the rule has addressed all the pertinent issues; and to conduct outreach to affected entities, including small business, before making decisions on listing and critical habitat proposals. These limitations are due to the risks associated with noncompliance with judicially imposed deadlines. This in turn fosters a second round of litigation in which those who will suffer adverse impacts from these decisions challenge them. The cycle of litigation appears endless, is very expensive, and in the final analysis provides little additional protection to listed species.

This is not a new problem. The previous administration also testified before Congress that this situation is detrimental to species conservation and needs to be resolved. However, the ever-increasing number of lawsuits has now brought this problem to a crisis where we are simply out of funds for this year. To cover this shortfall, the administration has requested authority from Congress to shift money from other endangered species programs. The President’s FY 2004 Budget Request for listing totals nearly $12.3 million, an amount that, if approved by Congress, is almost double the $6.2 million appropriated in FY 2000 and a 35 percent increase of FY 2003. This will allow us to complete the court mandated designations for this year and next. However, our long term challenge is to find a way to make better use of our limited resources, based upon the most urgent needs of the species, rather than litigation-driven priorities.

Cooperative Approaches to Habitat Protection and Critical Habitat Designation

It has been our view that areas not in need of special management considerations or protections are outside the definition of critical habitat. For that reason, we exclude from critical habitat areas covered by plans that adequately manage for the species concerned. In recent rules, exclusions have included lands covered by the Department of Defense’s Integrated Natural Resource Management Plans, areas with active Habitat Conservation Plans approved by the Service or by the National Marine Fisheries Service, and those with other management plans, including private landowners.

We are continually working to find new and better ways to encourage voluntary conservation initiatives. Cooperative conservation of fish and wildlife resources is critical to maintaining our Nation’s biodiversity. A proactive, preventative approach based on incentives could harness the voluntary spirit of the public to help stem the tide of species extinction.

The Service currently has many conservation tools available which provide for close cooperation with private landowners, state and local governments, and other non-federal partners and that are particularly important in our implementation of the ESA. For example, through the Candidate Conservation program, the Service can work with the states, landowners, and others to voluntarily conserve candidate and other declining species. It is with these species that we have the greatest flexibility in supporting our mutual partners on proactive conservation actions. Thus, a collaborative approach to conservation might result in removing the threats that necessitate listing. Similar to preventative medicine that hopes to save patients from the need for expensive procedures, hospitalization, or even a trip to the emergency room, species can be protected by interested partners working with the Service before they need the protections of the ESA.

Conservation efforts on non-federal property are also essential to the survival and recovery of many listed endangered and threatened species. The majority of the Nation's current and potential threatened and endangered species habitat is on property owned by non-federal entities. The Service strongly believes that collaborative stewardship involving the proactive management of listed species is the best way to achieve the ultimate goal of the ESA – that is, recovery of threatened and endangered species. The recovery of certain species can benefit from short-term and mid-term enhancement, restoration, and/or maintenance of terrestrial and aquatic habitats on non-federal property.

For example, Safe Harbor Agreements (SHA) provide a means to garner non-federal property owners’ support for species conservation on their lands. They allow for flexible management by providing assurances to private landowners who implement conservation measures for listed species that their actions will not lead to additional ESA restrictions. SHA’s have contributed significantly to the conservation of the red-cockaded woodpecker in the southeast as well as other species inhabiting private lands.

The Habitat Conservation Planning Program provides a flexible process for permitting the incidental take of threatened and endangered species during the course of implementing otherwise-lawful activities. The program encourages applicants to explore different methods to achieve compliance with the ESA and to choose the approach that best meets their needs. Perhaps the program’s greatest strength is that it encourages locally developed solutions to listed species conservation while providing certainty to permit holders.


The Service has several grant programs that directly address ESA issues. Recently, through the Cooperative Endangered Species Conservation Fund authorized by Section 6 of the ESA, more than $70 million in grants to 29 states to support conservation planning and acquisition of vital habitat for threatened and endangered fish, wildlife, and plant species. The grants will benefit species ranging from the endangered red-cockaded woodpecker in the Southeast to the threatened spectacled eider in Alaska.

Under the new Private Stewardship Grant program, envisioned by President Bush when he was still Texas governor, earlier this year we made 113 grants, totaling more than $9.4 million, to individuals and groups to undertake conservation projects on private lands in 43 states for endangered, threatened and other at-risk species.

Another conservation grant program that assists states, Tribes, conservation organizations, and private landowners in conservation projects and programs is the Landowner Incentive Program. As part of the Administration’s overall Cooperative Conservation Initiative, and funded through the Land and Water Conservation Fund, this program provides cost-share grants on a competitive basis to states and territories to establish or supplement existing landowner incentive programs that provide technical and financial assistance, including habitat protection and restoration, to private landowners for the management of habitat to benefit federally listed and other at-risk species on private lands. This year, $34.8 million in grants were awarded under the Landowner Incentive Program.

These grants are yet another way the Department seeks to promote cooperative action for species conservation.

Conservation Banking Guidance

Conservation banks are lands acquired by third parties, managed for specific endangered species and protected permanently by conservation easements. They may also help avoid the need for designation of critical habitat. Banks may sell a fixed number of mitigation credits to developers to offset adverse effects on a species elsewhere.

On May 8, 2003, the Service announced a new conservation banking guidance to help reduce piecemeal approaches to conservation by establishing larger reserves and enhancing habitat connectivity, while saving time and money for landowners. This guidance details how, when, and where the Service will use this collaborative, incentive-based approach to species conservation.

Code of Scientific Conduct

Secretary Norton recently announced the development of a code of scientific conduct for the Department – independently reviewed and approved by a panel of leading scientists and ethicists – to help ensure the integrity of all scientific work done by its employees and contractors.

The Department developed the code in accordance with the federal policy on conduct of science published on December 6, 2000, by the White House Office of Science and Technology Policy. In addition, the Department's Office of Inspector General recommended that the Department develop a scientific code of conduct in its report on its investigation of the submission of unauthorized samples to a laboratory during population surveys for the Canada lynx in 1999 and 2000.

The code is being developed through a unique process involving both peer review by an independent panel and employee involvement. The code will be a new addition to the Departmental Manual, and this will be the first time employees have had a chance to comment on a change to the manual. In addition to the employee comment process, there will also be an opportunity for public comment on a similar code being prepared for consultants and contractors to the Department. Their code will go through the ordinary administrative rulemaking process.

As I have stated on numerous occasions, the Department is committed to working with the Congress to find a solution to the problems associated with critical habitat and other related issues. I want to reiterate that offer here today.

Mr. Chairman, this concludes my prepared testimony. I would be pleased to respond to any questions you and other members of the Subcommittee might have.