H.R. 1142 the Landowners Equal Treatment Act

Jamie Rappaport Clark


April 14, 1999

Mr. Chairman, I appreciate this opportunity to discuss H.R. 1142, the Landowners Equal Treatment Act.

The Administration is strongly opposed to enactment of H.R. 1142. This legislation will seriously and needlessly undermine endangered species conservation under the guise of protecting private property rights. The Secretary of the Interior will recommend a veto of H.R. 1142 if it is presented to the President.

I have a letter from the Department of Justice, which I understand has also been provided to the Committee, addressing the aspects of the bill relating to "takings", and the operation of the section 4(f) programs of the Department of Transportation. I will accordingly focus my testimony on our highly successful efforts to make the Endangered Species Act (ESA) more friendly to landowners, and how H.R. 1142 will compromise those efforts.

Before I begin, though, I would like to briefly address the situation at the Minnesota Valley National Wildlife Refuge, upon which H.R. 1142 appears, in part, to have been based. The Committee held a hearing on this issue February 3, at which both the Service and the FAA testified. It is essential to note that there was no requirement that the Metropolitan Airport Authority in Minneapolis compensate us for the impacts their airport expansion. Section 4(f) of the Transportation Act provides that park and wildlife areas - whether Federal, State or local - may be utilized for transportation projects only when there is no viable alternative, and that the project "engage in all possible planning" to minimize and mitigate impacts if such an area must be used.

There is no requirement in this statute that compensation be paid when conservation lands must be utilized for a transportation project. Government lands have no constitutional protection again being taken for use by other governmental projects, and section 4(f) does not require payment as if the lands were private lands taken for governmental purposes. The requirement to minimize and mitigate impacts could generally be met in many ways not involving cash payments, such as by altering designs, changing timing or location of activities, or similar measures.

In this particular case, the Department of Transportation was in a position to fulfill its statutory obligation under Section 4(f) to avoid harm to public park land by accepting the local airport authority's decision to replace the refuge recreational and environmental education facilities which would no longer be useable by the public after the airport was expanded. This was presumably due to the popularity of the refuge public use and environmental education programs with the local residents, to whom the airport authority is responsible.

Similarly, there was no connection between the decision to replace the facilities and the Endangered Species Act, for the simple reason that there are no listed species impacted by the new runway. The Service had concurred in a "no effect" determination under 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
of the ESA long before any decisions were made on replacement of the refuge public use facilities.

We cannot see any relationship between a statute that limits the use of park, recreation and wildlife areas for transportation projects and the provisions of H.R. 1142, which requires the Service to compensate landowners, from its budget, for its statutorily-required efforts to protect endangered species which are already present on their property.

This Administration has gone to great lengths to minimize the impacts of the ESA on landowners. We have instituted bold reforms that have provided greater flexibility and certainty to businesses and private landowners. We have streamlined the consultation and permitting components of the Federal Endangered Species Program. We are proud that our efforts have produced better species conservation and recovery, while promoting cooperation rather than confrontation.

Key landowner-oriented reforms include streamlining processes for Habitat Conservation Plans, the use of new tools like "No Surprises" assurances and "Safe Harbor" agreements, and greater use of Candidate Conservation Agreements and special rules under section 4(d) of the ESA.

Habitat Conservation Plans

Section 10 of the ESA accommodates landowners by authorizing the government to permit "taking" of individual endangered or threatened species by a landowner or local government incidental to otherwise lawful activities, when the effects of the taking are mitigated and minimized by conservation measures. The statutory requirements are interpreted and detailed in the Service's implementing regulations, administrative guidelines in the Services' Habitat Conservation Planning Handbook, and the final "No Surprises" rule. For those who are not familiar with it, a copy of that Handbook is Appendix 1 to my statement. The statutory requirements include provisions requiring an applicant to develop a conservation plan before an incidental take permit can be issued. Conservation plans under the ESA have come to be known as "habitat conservation plans" or "HCPs" for short.

In order to encourage HCP development, the Service has streamlined the development and application process and produced the previously-mentioned HCP Handbook as a guide. The handbook makes a number of improvements over the prior process. First, it establishes a category of "low-effect HCPs" applying to activities that are minor in scope and impact. These HCPs receive faster handling during the permit processing phase. Second, the handbook provides clear guidance to Service personnel about section 10 program standards and procedures. Third, the handbook outlines numerous mechanisms to accelerate the permit processing phase for all HCPs. Finally, specific time periods are established in the handbook for processing an incidental take permit application once an HCP is submitted to the Service:

HCP With an Environmental Impact Statement..............less than 10 months;

HCP With an Environmental Assessment.................................3 to 5 months; and

Low-effect HCP..................................................................less than 3 months.

In addition, the Service has proposed a Draft Addendum (otherwise known as the 5-point policy guidance) to the HCP Handbook, so that the HCP process can even better conserve wildlife while ensuring certainty for landowners and other applicants. The proposal would improve the way HCPs are developed and administered in five areas: establishment of measurable biological goals and objectives, use of adaptive management, monitoring, public participation and determination of the duration of the incidental take permits. Explicit goals and objectives will provide clear guidance for both the applicant and the Service regarding the purpose and direction of the HCP's operating conservation program. Incorporating adaptive management into an HCP gives applicants certainty about what we will require them to do under changing circumstances and allows the applicant to better assess the potential economic impacts of such adjustments before agreeing to the HCP; all parties are assured of a suitable outcome and the HCP process is not needlessly delayed. Providing opportunities for education and input in the development of HCPs will lead to plans having stronger public support.

Regulatory Certainty

In just a few years, the HCP process has been transformed from relative obscurity to one of tremendous prominence in species conservation. Prior to 1992, only 14 HCPs were in place. The Service has now implemented more than 240 HCP's with landowners and is developing about 200 more. For example, International Paper, a privately owned forest products company, recently completed an HCP for the red-cockaded woodpecker that will allow the company to continue its timber harvest operations by voluntarily expanding and enhancing the woodpeckers' habitat on the company's own property. HCP's are proving to be a popular voluntary conservation tool for both the private property owner and the Service.

In addition to the streamlining of procedural requirements for developing and approving HCPs, another major reason for the vast growth in the use of HCPs by landowners is the incentive provided through the "No Surprises" policy. This policy guarantees certainty for private landowners who provide conservation benefits to species. It was developed to reduce the concerns and fears of private landowners that further regulatory restrictions might be imposed if they enter into an agreement with the government.

The Services' No Surprises final rule (February 23, 1998, 63 FR 8859) establishes a simple principle. The Federal Government will not require, without the consent of the permittee, the commitment of additional land, water or financial compensation or additional restrictions on the use of land, water, including quantity and timing of water delivery, or other natural resources beyond the level otherwise mutually agreed upon for the species covered by the conservation plan. These assurances will be provided if the permittee is abiding by all of the permit terms and conditions in good faith or has fully implemented their commitments under an approved HCP when negotiating provisions for unforeseen circumstances.

HCPs have evolved from a process adapted primarily to address single developments, to one that includes broad-based, landscape-level planning tools utilized to achieve long-term biological goals. Large-scale, regional HCPs have significantly reduced regulatory burdens on small landowners by providing efficient mechanisms for compliance, distributing the economic and logistical impacts of endangered species conservation, and bringing a broad range of landowner activities under legal protection of HCPs.

One of the great strengths of the HCP process is its flexibility. Conservation plans vary enormously in size and scope and in the activities they address--from half-acre lots to millions of acres, from forestry and agricultural activities to beach development, and from a single species to dozens of species. Another key is creativity. The ESA and its implementing regulations establish basic biological standards for HCPs but otherwise allow creativity on the part of the applicants. As a result, the HCP program has produced remarkable innovation. The booklet "The Quiet Revolution" provides many HCP examples (this is Appendix 2 to my statement).

The Safe Harbor Policy will soon be finalized and will create an incentive for non-Federal landowners willing to proactively conserve listed species by providing them with regulatory certainty. Landowners who restore, enhance or maintain habitats for listed species will receive assurances that the conservation work they undertake will not result in additional regulatory restrictions on the use of their land. Landowners are currently implementing almost 40 Safe Harbor agreements encompassing over 1 million acres for such species as the red-cockaded woodpecker in the Southeast, the Attwater's greater prairie-chicken in Texas, and the Aplomado falcon, also in Texas. The Service believes that this policy will provide substantial benefits for both endangered species and landowners.

The Service is emphasizing the use of Candidate Conservation Agreements (CCA's), to conserve declining species before they have to be listed. Early conservation preserves management options, minimizes the cost of recovery, and reduces the potential for restrictive land use policies in the future. Addressing the needs of species before the regulatory restrictions associated with listed species come into play often allows greater management flexibility to stabilize or restore these species and their habitats. For example, two CCA's with Federal and State agencies and coal companies allowed the Service to withdraw the proposal to list the southern population of the copperbelly water snake.

For species which do need to be listed, the Service is expanding its use of Special 4(d) Rules to minimize the regulatory impact on landowners of listing species as threatened while providing the protection necessary for the species' conservation. Section 4(d) of the ESA authorizes the Secretary to issue such regulations as he deems necessary and advisable for the conservation of threatened species, which need not include all of the protections the ESA provides for species listed as endangered. As an example, the Service is pursuing a Special 4(d) Rule for the Preble's meadow jumping mouse in Colorado and Wyoming to allow continuation of certain on-going activities (such as agriculture) and a level of new development in the mouse's habitat consistent with the species' conservation needs. The flexibility to accommodate landowners provided by this section was rarely used by prior Administrations.

Through its Pilot ESA Private Landowner Incentives Program, the Service is encouraging the conservation of listed and non-listed species on private lands. This $5 million program provides incentives for private landowners to enter into Safe Harbor Agreements and Candidate Conservation Agreements with Assurances (CCAA).

A significant number of private landowners have expressed an interest in receiving assurances and in helping to implement conservation and recovery activities for listed and nonlisted species. The Safe Harbor and CCAA program will respond to the needs of private landowners who are interested in managing their lands in an environmentally-friendly manner and are concerned about the potential of future land- or resource-use restrictions that may result because of their proactive initiatives. We expect that during FY 1999, the majority of the funds and efforts will go to Safe Harbor programs since many are already underway, but we also will strongly encourage more active use of CCAA and the expansion of the Safe Harbor program to new parts of the Nation.

Critical Funding Needs

The Administration recognizes that increased funding support is essential to continue our successful record of reform. Last year we requested significant funding increases to carry out these reforms, to provide greater technical assistance to private landowners and to greatly expedite recovery of species and their eventual delisting.

The President's FY 2000 Budget Request for Endangered species is another very important step in providing adequate funding to allow the Service to provide technical assistance to landowners, to provide for financial incentives for private landowners to enter into Safe Harbor Agreements, for candidate conservation agreements, increases in the consultation program to assist other Federal agencies and to increase recovery actions.

A copy of our complete budget justification for the Endangered Species program is Appendix 3 to my statement.

The Administration has taken great efforts to ensure that their implementation of the ESA is scientifically sound and consistently enforced throughout the country. We believe that with the full implementation of our reforms and provision of adequate appropriations, the Endangered Species Act will protect the biological resources of the Nation without imposing undue burdens on individual citizens.

Effect of H.R. 1142

Unfortunately, H.R. 1142 does not contribute to these objectives. It instead undercuts the entire Act. It goes far beyond the Constitutional standards for takings, instead reviving the more expansive concepts brought forth in the 104th Congress. The Administration has testified before this Committee and other committees of the Congress repeatedly in opposition to these concepts, and I will not repeat those arguments here.

I would point out that the bill, if enacted, would likely have drastic consequences for the public as well as the Service. Many agency actions which have not been considered "takings" by the courts would nonetheless require payment of compensation under H.R. 1142. The bill's provision that the funding for this compensation program comes from the annual appropriation of the agency could well result in a diversion of most, if not all, of the funds appropriated for operation of the endangered species program into compensation for landowners.

We would have little control over this result because most of the agency actions which would trigger the compensation are not discretionary under the ESA; we have no choice but to list, to deny permits, or to suggest reasonable and prudent but alternatives to development projects needing Federal permits if that is where the facts take us. If we were to not take these actions when they were warranted out of concern for budgetary impacts, we would be in violation of the law, and could be subject to citizen suit and court orders compelling us to take the action in question. The adoption of requirements for compensation does not alter our responsibilities under the ESA.

Taxpayer money spent on compensation for legally required agency actions is money not spent protecting and recovering the species needing the protections of the ESA. But the impacts of this legislation would go far beyond this. While the operation of H.R. 1142 might well result in no new listings, section 7 consultations or HCP approvals, the net result would be chaos and paralysis in significant elements of the development community.

The ESA section 7 requirement that Federal agencies consult with us before issuing permits for or funding projects which may affect listed species, and the section 10 requirement for an incidental take permit for non-Federal actions which might take listed species, are permanent law. They do not become inoperable because the Service does not have sufficient funds to conduct the consultation or evaluate the HCP. Any developer or landowner with a project which might affect a listed species would have the unhappy choice of postponing their project or attempting to proceed without the Service's involvement, a violation of the law subject to suit and injunction by any interested party and prosecution by the Department of Justice. Similarly, other Federal agencies would be unable to proceed with their own projects which might affect listed species, or grant permits or permissions to private developers for such projects.

Employing the flexibility that past Congresses have built into the law, the Clinton Administration has used innovation and administrative reforms to craft a "New Endangered Species Act". As a result, America now enjoys the success of an ESA that works much better. Major steps have been taken to make the ESA more effective in conserving endangered and threatened species while enhancing its flexibility for businesses and private landowners. The ESA now produces cooperation instead of confrontation and conservation rather than chaos. Enactment of H.R. 1142 would reverse this situation, to no one's benefit.

Mr. Chairman this concludes my prepared testimony. I would be pleased to respond to any questions you might have.

Disclaimer: All statements are not the opinions or position of those testifying, rather they are the official positions taken by the Administration.