Examining the Endangered Species Act

Michael Bean

Testimony of Michael J. Bean

Counselor to the Assistant Secretary for Fish and Wildlife and Parks

Department of the Interior

Before the House Committee on Oversight and Government Reform

Subcommittee on Energy Policy, Health Care, and Entitlements

February 27, 2014


Chairman Lankford, Ranking Member Speier, and Members of the Subcommittee, I am Michael J. Bean, Counselor to the Assistant Secretary for Fish and Wildlife and Parks at the Department of the Interior.  It is my pleasure to testify before you today regarding the implementation of the Endangered Species Act (ESA).

The Department is committed to making the ESA work for the American people to accomplish its purpose of conserving threatened and endangered species and protecting the ecosystems upon which they depend.  This job has never been easy, and it grows more difficult and complex every day.  In passing the ESA, Congress recognized we face an extinction crisis.  With the pace and extent of environmental change threatening the continued existence of more and more of our Nation’s biological wealth, we must effectively manage limited resources to carry out our mission.  The unprecedented challenge of climate change climate change
Climate change includes both global warming driven by human-induced emissions of greenhouse gases and the resulting large-scale shifts in weather patterns. Though there have been previous periods of climatic change, since the mid-20th century humans have had an unprecedented impact on Earth's climate system and caused change on a global scale.

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and its broad, complex impacts on species and habitat make it even more imperative to have an effective, collaborative approach to conserving imperiled species.  The nature of this work often results in strongly held views on all sides and frequent challenges to our decisions through the administrative, judicial, and political process.  

In the face of all these factors, the U.S. Fish and Wildlife Service (Service) does an excellent job of making decisions that are scientifically sound, legally correct, transparent, and capable of withstanding challenge.  The Service works diligently with project proponents through the consultation provisions of the ESA to help projects achieve their goals while achieving ESA compliance and minimizing impacts to listed species.  And the Department strongly supports the Service’s long track record of using the flexibility of the ESA to create innovative programs and processes that make the law more predictable for private citizens and businesses and to encourage long term cooperative conservation that helps species on their long road to recovery. 

The ESA provides a critical safety net for America’s native fish, wildlife, and plants. And we know it can deliver remarkable successes. Since Congress passed this landmark conservation law in 1973, the ESA has prevented the extinction of hundreds of imperiled species across the nation and has promoted the recovery of many others – like the bald eagle, the very symbol of our Nation’s strength.

Earlier this month, the Service published a proposal to recognize the recovery of, and to remove from the protection of the ESA, the Oregon chub, a fish 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 some cases, landowners agreed to cooperate in reintroducing the fish into suitable waters on their property.  The help of private landowners and the cooperation of state and federal partners were critical to the success in bringing this fish to the point at which it is no longer endangered and no longer in need of the protection of the ESA.

The recovery of the Oregon chub has taken a little more than twenty years of sustained effort.  That is relatively speedy time frame within which to undo the effects of habitat loss and degradation and the other threats that are responsible for the endangerment of many species.  The recovery and delisting of the bald eagle was the culmination of a 40-year conservation effort.  The Aleutian Canada goose recovery took 34 years.  Efforts to recover the whooping crane have been underway since the 1940’s when fewer than 20 cranes remained.  Those efforts have been dramatically successful, with a wild population today of several hundred birds.  Likewise, the California condor and black-footed ferret, both of which were so perilously close to extinction that no individuals of either species survived in the wild, have made extraordinary progress.  Today condors and ferrets have been successfully bred in captivity and reintroduced to the wild, where they have successfully produced wild-born offspring.   Despite the dramatic progress toward recovery that each of these species has made, the whooping crane, California condor and black-footed ferret are still endangered species and will likely remain so for many more years.  That is the virtually inevitable consequence of waiting until a species has been greatly depleted before beginning efforts to recover it.

As the Oregon chub example makes clear, private landowners can hasten the recovery of endangered species through their cooperative efforts.  The Oregon chub is just one of many endangered species that landowners are helping recover through voluntary agreements with the Service known as “safe harbor agreements.”  Safe harbor agreements with Texas ranch owners have helped restore the northern aplomado falcon to the United States, from which it had been absent for roughly a half century.  In the southeastern United States, more than 400 landowners have enrolled nearly 2.5 million acres of their land in safe harbor agreements for the endangered red-cockaded woodpecker.  These landowners have effectively laid out the welcome mat for this endangered bird on their land, as a result of which populations of this endangered bird are growing on many of these properties.  Many others are doing similarly for other endangered species.

However, there is no reason to wait until a bird or other species is listed as an endangered species before beginning to enlist the cooperation of landowners.  As the examples above make clear, a likely consequence of postponing conservation action is simply to prolong the time that a species remains on the endangered list.  By beginning conservation efforts early, it may be possible to shorten the time that a species spends on the endangered species list, or even to avoid the need to place it on that list at all.  The Service has fashioned tools to enlist the cooperation of private landowners and others in conservation efforts before species are listed, and landowners have been willing to use them.  A case in point was the Service’s decision last year with respect to the dunes sagebrush sagebrush
The western United States’ sagebrush country encompasses over 175 million acres of public and private lands. The sagebrush landscape provides many benefits to our rural economies and communities, and it serves as crucial habitat for a diversity of wildlife, including the iconic greater sage-grouse and over 350 other species.

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lizard in Texas and New Mexico.  Although the Service had originally proposed to list the lizard as an endangered species, in the end, because of the substantial acreage encompassed by Candidate Conservation Agreements, the Service concluded that those agreements had sufficiently addressed the threats to that species so as to preclude the need to list it. 

Important as voluntary landowner agreements are, the law is very clear that decisions whether to list or not list species are to be based on the best available science.  If the best available science shows that a species is in danger of extinction or likely to become so in the foreseeable future, the duty of the Service is clear: it must extend to that species the protection of the ESA by listing it as endangered or threatened.  The law also allows anyone to petition the Service to list – or delist or reclassify – a species, and it imposes strict deadlines for responding to petitions and for making a final listing decision once a proposed listing has been published.

At times, the volume of incoming petitions has exceeded the capacity of the Service to meet these statutory deadlines.  When that happens, petitioners have often turned to the courts to secure new, judicially-enforceable deadlines for making these decisions.   While the Service would prefer to be able to make its decisions within the deadlines specified by Congress, the establishment of court-imposed deadlines puts all affected interests on notice as to when listing decisions will in fact be made.  That can have the salutary effect of catalyzing significant efforts to put in place conservation measures that could beneficially affect the ultimate listing decision. 

A current example of that concerns the greater sage grouse, a species that occurs in eleven Western states.  Under the terms of a 2011 court order, the Service must decide by September 30, 2015, whether or not to propose to list that species as a threatened or endangered species.  Because listing of the sage grouse could have significant consequences for a number of industries in the region, all eleven states, the Bureau of Land Management, U.S. Forest Service, the Natural Resources Conservation Service and others are working closely together to do what they can to address the several threats to that species in advance of the late-2015 deadline.

Similar efforts have been underway for some time with respect to the lesser prairie chicken, a related bird that occurs in five states in the southern plains.  The Service must decide later this year whether to list that species as threatened or endangered.  The Service has proposed to list it as a threatened species, and if so listed, to accompany that listing with a special rule – known as a “4(d) rule” – that would give the five states the ability to manage the prairie-chicken under the terms of a rangewide conservation plan developed by the states.  Although the ESA has since 1973 had two categories of listed species – threatened and endangered – in practice there has been little difference in how they are treated.  Recently, however, the Service has made more innovative use of the flexibility provided by Section 4(d) to fashion the rules applicable to individual threatened species so as to address major threats effectively without burdening activities that pose little threat. 

In closing, Mr. Chairman, 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.  In implementing the ESA, the Service endeavors to adhere rigorously to the congressional requirement that implementation of the law be based strictly on science.  At the same time, 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.