H.R. 3160 Amend Endangered Species Act of 1973

Jamie Rappaport Clark


March 1, 2000

Good morning Mr. Chairman and Members of the Committee. Thank you for inviting me to testify today regarding the views of the Administration on H.R. 3160, introduced by Chairman Young. While we appreciate the Committee's interest in reauthorization of the Endangered Species Act, we have serious concerns about the provisions in H.R. 3160. H.R. 3160 would change or eliminate provisions of the existing law in ways that the Service believes would undermine public and private efforts to conserve endangered and threatened species. My testimony will describe the negative impacts that H.R. 3160 would have on endangered and threatened species conservation and provide examples of how the bill would severely weaken the Act's essential protections, as well as eliminate incentives for Federal agencies and private landowners to protect listed species. The Administration strongly opposes H.R. 3160, and the Secretary would recommend that the President veto the bill.

No Consensus-Based Approach

The Service spent a considerable amount of time in the 105th Congress working with the Senate on comprehensive improvement and updating of the Endangered Species Act. The resulting legislation, S. 1180, had wide bipartisan support and reflected participation by many constituencies. As you know, the Administration supported the bipartisan Senate bill and provided extensive technical assistance to the bill's sponsors. In addition, S. 1180 was vetted with many constituent groups before being introduced. As far as we are aware, no analogous, consensus-based approach was used in drafting H.R. 3160.

The Service supports reauthorization of the Endangered Species Act as long as the essential protections for species under the current law are maintained. H.R. 3160 reverses the essential conservation thrust of the Endangered Species Act and tips the balance from one that errs on the side of protecting the species to one that places economic considerations and development needs first. In addition, H.R. 3160 does not include our key reforms or accurately represent the Administration's policies. We believe that H.R. 3160 would reverse the progress we've made in species conservation and could lead to the extinction of many species.

The Service has identified many perilous components of H.R. 3160. We will describe the most egregious components here.

H.R. 3160 is Fundamentally Flawed and Would:

Undermine Federal Agencies' Responsibilities to Conserve Listed Species: An underlying principle of the Endangered Species Act since 1973 is that Federal agencies bear primary responsibility for the conservation of listed species. H.R. 3160 would abandon this fundamental principle by amending 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…

Learn more about Section 7
to: 1) shift the burden to the Secretary of the Interior to demonstrate the impact of other Federal agencies' actions on listed species, 2) allow a Federal agency to ignore its obligation to species conservation if it deems it contrary to its primary mission, and 3) allow a project to proceed without a biological opinion if the Secretary has not completed consultation within the statutory time frame. H.R. 3160 would also eliminate the duty of Federal agencies to reinitiate consultation if new information or circumstances arise regarding the effects posed to listed species by their actions, thereby giving the equivalent of "No Surprises" assurances to Federal agencies.

These provisions would dramatically alter the current framework of endangered species conservation and recovery by removing the responsibility Federal agencies currently have to conserve listed species. The burden would then fall on private landowners, the States, Tribes, local governments and the public. The consequences would be severe both for these groups and listed species. Together, these changes would constitute an invitation to Federal agencies to abandon their conservation efforts. The likely result would be an increase in the number of species facing extinction and the lack of Federal programs and initiatives to stem this decline. Innovative, cooperative efforts along the lines of the Northwest Forest Plan would have been unlikely had H.R. 3160 been law.

There are many examples of Federal agencies using their authorities to recover listed species. Most agencies see real benefits to species conservation. For instance, the Department of Defense has a number of programs on its lands that are recovering listed species. Army biologists are surveying bald eagles on Aberdeen Proving Ground in Maryland and seeing record numbers of this species, which was proposed for delisting in July 1999. Eglin Air Force Base in Florida is one of the largest military installation in the United States and at 460,000 acres is home to many important wildlife resources. The Air Force conducts wildlife surveys for such important species as the red-cockaded woodpecker, black bear and flatwoods salamander; coordinates a fire management program to restore native habitat; and contracts with local universities to conduct biological research. Defense Department lands include some of the most productive fish and wildlife habitat in the country.

The U.S. Forest Service has also contributed to the conservation and recovery of listed species on their lands. For example, habitat protection and prescribed fires in the Pisgah National Forest in North Carolina are helping to recover the threatened mountain golden heather, a plant which has a limited range and occurs only on Forest Service lands. Intense management on Forest Service lands has also benefited MacFarlane's Four O'clock, another threatened plant found only on Forest Service lands. In addition, the Forest Service has significantly improved the recovery status of the black-footed ferret on national grasslands in South Dakota and Nebraska and contributed to the conservation of other species such as the Puerto Rican parrot, peregrine falcon and southwestern willow flycatcher. Not only has the Forest Service contributed to conservation of listed species, but its activities have also precluded the need to list species that were once in decline such as the Arizona willow in Utah, the Cossatot leafcup in Arizona, the Junaluska salamander in North Carolina and the Peaks of Otter salamander in Virginia.

H.R. 3160 would undermine the basis for many of these activities and remove Federal responsibilities for recovery of listed species. It would emulate the inadequate measures of the Endangered Species Preservation Act of 1966 that the passage of the 1973 Endangered Species Act was intended to remedy. Under H.R. 3160, a Federal agency would only be required to support species conservation if it were part of its primary mission. The Administration opposes any amendments that would diminish the responsibility of a Federal agency to conserve listed species.

In addition, H.R. 3160 would change the standard for Federal agency compliance with Section 7 by altering the definition of "jeopardy." Whereas the jeopardy standard is now defined in regulation to prohibit actions that will appreciably reduce the likelihood of species' survival and recovery in the wild, this bill would only prohibit actions likely to significantly diminish the probability of survival (and not recovery), and would remove the proviso that this evaluation be based on the status of the species in the wild. These changes would seriously limit the utility of Section 7 to maintain essential habitat and species distribution in the wild.

In some cases under this scenario, it is possible that the existence of a reasonably secure captive or cultivated population could render a jeopardy biological opinion impossible. The last wild occurrences of some of our nation's most severely depleted species could be allowed to disappear, and the Act's intent to conserve the ecosystems upon which endangered and threatened species depend would be abandoned. This seemingly simple redefinition could lead to devastating consequences for rare plant and fish species; many of which are represented by populations in botanical gardens and hatcheries. Many populations in "captivity" are held for the sole purpose of reintroduction into the wild. Ironically, under H.R. 3160, these propagation efforts could make destruction of their natural habitats easier.

To further erode Section 7, H.R. 3160 would exempt from Section 7 consultation the issuance of incidental take permits under Section 10 of the Act for Habitat Conservation Plans. Section 7 requires Federal agencies to address impacts to all species that may be affected by a proposed action, even those species that are affected by HCP activities but not covered by the HCP and its permit. Completing Section 7 consultations on HCPs is the only opportunity to analyze the indirect effects of the activity on species not covered by the plan. We believe that completing comprehensive Section 7 consultations on all Federal activities, including HCPs, benefits listed species and adjacent landowners.

Bog Down Listing Decisions:

Since 1982, the Endangered Species Act has been clear that scientific decisions on the conservation status of a particular species must focus solely on the best available scientific and commercial data. The Administration opposes any erosion of this basic precept of Section 4. H.R. 3160 would require a social and economic analysis at the time of listing a species. Introducing such a time-consuming, difficult process would delay and undermine the Service's ability to identify species in need of the Act's protection. If the basic premise of the Endangered Species Act is to be upheld, it is important that the Service be able to deal expeditiously with listings so that the Act's protection can be brought into play for species that are on the brink of extinction. H.R. 3160 would slow down the listing process for questionable benefit and could lead to some species going extinct. It is essential that species protection needs be determined only by relevant science regarding the species, not by other factors unrelated to the species biological status.

The listing provisions in H.R. 3160 do not only affect future listings, but also could reverse many current listing decisions. The Service would have to delist a species if "the original listing of the species was not subject to adequate peer review required under this Act." The new standards imposed in H.R. 3160 would set the stage for potentially endless disagreement over the extent to which data were "field-tested" or the Service's effectiveness in identifying "data that have yet to be collected."

H.R. 3160 adopts a requirement that listed subspecies be reproductively isolated. In doing this, the bill would establish a scientifically uninformed framework for interpreting taxonomic categories, for the purpose of "...establishing scientifically valid standards...". Many subspecies are capable of interbreeding, and scientists take this into account in constructing classifications. H.R. 3160 ignores modern scientific understanding of the relationships among organisms.

Further, current law gives the "benefit of the doubt" to the species in our listing decision-making process when there are data gaps. H.R. 3160 would abandon this precautionary standard, seriously weakening the Section 4 listing process. In practice, data gaps are quickly filled through the recovery and consultation programs, and it is rare that giving the "benefit of the doubt" to species has later proven to be unwarranted.

Allow Take of Listed Species:

Section 9 of the Endangered Species Act prohibits the "take" of threatened and endangered species. This prohibition provides important protections for listed species and is an essential component of the law. H.R. 3160 would abandon this essential principle by waiving the taking prohibition for a broad category of activities including: any activities that address a threat to public health or safety; ongoing maintenance, routine operations, and emergency repair of existing pipelines, flood control facilities or projects, fire breaks, transmission and distribution lines, groundwater recharge facilities and areas, water storage and recycling facilities, water drainage or water conveyance structures and channels, and appurtenant facilities; road and right-of-way maintenance, use, and repair; and emergency repair or restoration of any property or non-Federal facility to the condition in which it existed or operated immediately before the emergency or disaster.

This very long list of broad categories of actions would allow an astounding number of exemptions from the Act with great potential impacts on species. At the same time, the exemptions would benefit certain constituencies by eliminating their responsibilities under the Act, and would place a larger burden on other constituencies whose projects would not qualify for one of these exemptions, to bear all the costs for species protection. The Service has worked diligently and creatively with landowners for years to develop ways of allowing important activities to go forward while offsetting their effects on listed species and the ecosystems upon which they depend. In most cases, only minor project modifications are required to avoid serious impacts to listed species.

Funding Needed to Continue Progress

As we have testified at previous hearings, we believe the Endangered Species Act must retain the flexibility necessary to conserve listed species and allow economic development to move forward. The Service is committed to streamlining and improving the consultation and permitting components of the Federal endangered species program. We are improving our efforts to promote and achieve cooperation, rather than confrontation, when working with the many entities that have a vital role in species recovery. Just as we are providing certainty for species and landowners, we are also ensuring that development does not stop because of endangered species. The U.S. economy has never been stronger. At the same time, more species are being protected and recovered than ever before. The American public has demonstrated that they want to preserve our natural heritage while allowing economic development to continue. We are achieving that goal through the Endangered Species Act.

We recognize that private landowners face conflicts and competing needs when dealing with the Endangered Species Act. According to a 1993 study by the Association for Biodiversity Information and The Nature Conservancy, half of listed species have at least 80% of their habitat on private lands. The Clinton Administration has developed a number of tools to help landowners conserve listed species while allowing economic development to continue. Several Service programs provide mechanisms for increased cooperation with private landowners, Tribes, States, local governments and agricultural interests. These programs include:

Safe Harbor Agreements -- which encourage voluntary management for listed species and promote their recovery on non-federal lands by giving landowners assurances that no additional future regulatory restrictions will be imposed.

Candidate Conservation Agreements with Assurances -- which provide incentives for non-federal property owners to conserve candidate species, thus potentially making listing unnecessary.

Habitat Conservation Plans -- which allow private landowners to develop land supporting listed species provided that they undertake conservation measures. The No Surprises Policy assures participating landowners that they will incur no additional mitigation requirements beyond those they agreed to in their HCPs, even if circumstances change.

Private Landowner Incentive Program -- which complements Safe Harbor Agreements and Candidate Conservation Agreements with Assurances programs by providing financial assistance for landowners who implement management actions on their lands to benefit listed and non-listed species.

The Cooperative Endangered Species Conservation Fund (Section 6 of the Act) -- which provides grants to States and U.S. Territories to participate in a wide array of conservation projects for candidate, proposed and listed species.

To continue making progress on implementation of the Endangered Species Act, we need, and have requested in the Administration's Fiscal Year 2001 budget, an increase in funding for our current endangered species program. As of December 31, 1999, there were 1,205 domestic species on the List of Endangered and Threatened Species, 264 candidate species, and 53 proposed for listing. Consultations, Habitat Conservation Plans (HCP) and recovery workloads have increased tremendously at the same time that the Administration has been working to streamline and expedite the consultation and HCP processes. The Service anticipates that approximately 550 HCPs will be in some stage of development or implementation in fiscal year 2001. More than 40,500 Federal projects will be reviewed in fiscal year 2001, and we will conduct over 75 programmatic consultations. The Service's capability to meet the demand is critical to completing reviews in a timely manner.

The Administration recognizes that continued funding support is essential to continue our successful record of reform. The Administration's fiscal year 2001 budget request for our endangered species is essential to allow the Service to provide greater technical assistance to private landowners and to expedite consultation and permitting actions throughout the nation, and to expand many of these programs to encourage more participation by non-federal partners. For instance, we are asking for an increase of $42 million for the Cooperative Endangered Species Conservation Fund from an enacted level of $23 million in fiscal year 2000 to a request for $65 million in fiscal year 2001.

Another key tool in our ability to meet the needs of private landowners and listed species is the potential dedicated and protected funding proposed under the President's Lands Legacy Initiative.

In the interim, the Administration's fiscal year 2001 budget request includes some bold initiatives that will allow the Service to provide incentives to landowners for species conservation and enable the States, Tribes, and U.S. Territories to work on programs that might render listing unnecessary for some species. One program identified in the Administration's fiscal year 2001 budget request, the State Non-Game Wildlife Grants program, would provide $100 million in grants to States, Tribes and U.S. territories for non-game habitat restoration, planning, monitoring, inventories, and wildlife-related recreation.

This Administration has made great strides in reaching out to our partners to conserve listed species. The Endangered Species program is not without its problems and critics. However, we are solving problems and working with more partners than ever before. We want to continue this progress, and the potential to move forward on species conservation and recovery is high. However, H.R. 3160 would erode that progress and take a step back from the balanced approach to species conservation and economic development that we have achieved in the past seven years.


H.R. 3160 eliminates the essential protections that are available to listed species under current law. It shatters the underlying principle of Section 7 that requires Federal agencies to take primary responsibility for the conservation and recovery of listed species. It bogs down the listing process under Section 4 by creating so many obstacles and procedural requirements that it becomes onerous to add species to the list, and the requirement to retroactively apply those standards to species already on the list would lead to premature delisting of many species. It alters the important requirement of the current law that decisions be based only on sound scientific principles. And, it erodes the Section 9 take prohibitions to such an extent that listed species would no longer have the essential protection from take that is the very foundation of the Endangered Species Act. The impact to our nation's most imperiled species would be immediate and disastrous. Without adequate protections for listed species, we would lose much of the unique biodiversity of our nation.

Thank you for soliciting the views of the Administration on this important issue. I will be happy to answer any questions.

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