H.R. 4840 Sound Science for Endangered Species Act Planning

Craig Manson

Testimony of Craig Manson, Assistant Secretary for Fish and Wildlife and Parks, U.S. Department of the Interior, before the House Resources Committee, regarding H.R. 4840

June 19, 2002

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). I want to thank you for the opportunity to present the Administration's views on H.R. 4840, the "Sound Science for Endangered Species Act Planning Act of 2002." The Administration appreciates the Committee's interest in ensuring the continued use of the best available science in the protection and recovery of endangered and threatened species.

As discussed more fully below, the Administration supports H.R. 4840 with modifications to address our concerns. We believe that, if implemented, this legislation will broaden opportunities for scientific input and assure additional public involvement in Endangered Species Act implementation. We also believe it will also improve the U.S. Fish and Wildlife Service's (Service) decision-making process and result in increased public confidence in the Service's decisions.

As I noted several weeks ago when I appeared before you to discuss two related Endangered Species Act sound science bills, H.R. 2829 and H.R. 3705, it is important that the species conservation decisions we make are based on the best available science because our resource management decisions can have a great impact on species, communities, and individuals. One of Secretary Norton's highest priorities is improving the Department's science, and I am working with Steve Williams, the Service's Director; Chip Groat, Director of the U.S. Geological Survey; and Jim Tate, Science Advisor to Secretary Norton, to ensure that this priority becomes a reality.

At the March 20, 2002, hearing, I provided a brief description of the guiding principles that embody the Department's view of how "independent scientific review" should be integrated into our decisions. The Department believes that a framework for review should allow the Service to take advantage of the expertise of outside groups, such as state fish and wildlife agencies. It should also provide the opportunity for Department scientists and other stakeholders to air differences in interpretation of the science behind the Service's decisions, and it should provide the flexibility to allow a more robust independent review process for significant resource protection decisions. While we continue to move ahead with our administrative efforts, we believe that H.R. 4840 could be a significant step forward in meeting the Department's vision.

Before I discuss the specific provisions of the bill, I want to acknowledge that addressing these issues in any context is not an easy task, and I would like to commend the Committee for its efforts in this regard. It is also important to note that the independent review process will not be a political process, but one which is solely meant to ensure that the science behind our decisions is, in all cases, the best available to our decision-makers. In this respect, H.R. 4840 requires that an independent review of science be carried out by "qualified individuals," as determined by National Academy of Science (NAS) standards. The Department has had significant experience with the NAS review process, and is comfortable that this provision will help ensure a truly independent scientific review process.

In reviewing this bill, one is struck by the fact that a number of its provisions are familiar; many have been discussed, presented, and debated before. For example, Section 4 of this legislation, which requires solicitation of information from states and provides opportunity for affected persons to participate during consultations, is substantially similar to provisions contained in S. 1180, introduced in the 105th Congress by Senator Kempthorne with the backing of the previous administration and then-Secretary Babbitt. As a result, we believe that most of the provisions are reasonable, and should garner bipartisan support.

When I testified before you in March, I outlined some of the Department's concerns regarding the provisions in the two bills then being considered by the Committee. These concerns included a lack of flexibility and increased workload and costs, and our requirement to meet statutory time frames. While many of H.R. 4840's provisions are similar to the provisions in those two bills, the legislation addresses some of the Department's concerns with those bills. We still have concerns with increased workloads, costs, and timing requirements. If I may take a moment, I would like to mention briefly several of the key provisions of this bill followed by some of our concerns.

First, Section 2(c) of the bill would require that listing petitions contain certain uniform information. These provisions are similar to provisions in H.R. 4579, a bill that would amend and reauthorize the Endangered Species Act, recently introduced by Representative George Miller. These requirements are straightforward, common sense which dictates that they should be included in any listing petition.

Section 3, which establishes the requirements for independent scientific review of decisions, is really the cornerstone of H.R. 4840. These requirements are not a new proposal. Similar, albeit less extensive, provisions were found in S. 1180 in the 105th Congress. As noted above, the Department expressed some concern with the implementation of these provisions. Since the March hearing, however, additional language has been added to subsection (j)(1)(A)(iv) in Section 3 which provides that the Secretary must appoint a review panel for proposed jeopardy determinations and proposals of reasonable and prudent alternatives if the Secretary finds they contain "significant disagreement regarding the determination or proposal" or that it may have "significant economic impacts."

Under current practice, the Service seeks independent review of listings and the development of recovery plans. Thus, while this provision would include both proposed jeopardy determinations and reasonable and prudent alternatives, the above language will likely significantly narrow the number of these actions that will be "covered actions" under this legislation. We believe this provision provides balance and, from the Department's perspective, it is an important addition to H.R. 4840.
Further potential for ensuring a streamlined review process is found in Section 3's new subsection (j)(4)(B), which requires the Secretary to develop protocols for independent review and ensure that review panels are provided with clear guidelines that are consistent with the protocols. I believe that if clear protocols and guidelines are presented to review panels at the beginning of the process, it will expedite review and reporting and will keep those panels focused on their true role — reviewing the adequacy of the science underlying the decisions.

Another provision that the Department greatly favors is Section 3(b), which provides that when an agency prepares a Biological Assessment, it must solicit and review scientific and commercial data that a prospective permit or license applicant believes is relevant, and it must make that information available to the Secretary. According to Service career staff, the Service often has problems getting complete information from other agencies. Because a robust Biological Assessment is essential to preparation of the Biological Opinion, other agencies should ensure that their Biological Assessments are complete. Moreover, a complete and comprehensive Biological Assessment means a more timely Biological Opinion. The Department enthusiastically supports this provision.

Finally, there is growing recognition that effective results in species conservation can be achieved by enabling those who live on and work the land to play a larger role in the conservation of species. H.R. 4840 works toward that goal by creating opportunities for potentially affected parties to participate in the collection of data for use in the listing and recovery processes as well as in the 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
consultation process. The Department believes this type of public involvement leads to better species conservation decisions.

For example, Section 4(a) of the legislation provides that, when conducting a consultation, the Secretary shall actively solicit and consider information from state agencies in each affected state. Secretary Norton has often cited her belief in the "Four C's" — Communication, Consultation, and Cooperation, all in the service of Conservation. Consistent with this philosophy, we believe this provision will further the Department's cooperative relationship with states in the conservation of species.

Similarly, Section 4(b) of H.R. 4840 requires the Secretary to provide applicants an opportunity to participate early in the development of draft biological opinions, and it provides for access to certain information used by the Service in the development of the biological opinion. It also provides applicants with the opportunity to submit comments on and discuss findings in the draft biological opinion with the Secretary and the federal agency. Finally, H.R. 4840 ensures that the Secretary provides reasonable justification based on the best data available when she declines to include in the biological opinion alternatives proposed by a person during the development of that document. The Department believes that this type of enablement will lead to better species conservation decisions.

If the Chairman will allow me to make several suggestions regarding specific provisions of the bill to address some of our concerns. As I noted back in March, we do have concerns with the timelines provided in the bill and how those periods would work in light of the statutory timelines in the Endangered Species Act, and we would like to work with you to revise the bill on this point. Specifically, we would like to have the review for listing and delisting concluded no later than the end of the public comment period, and to eliminate the 90 day period for the Secretary to consider the findings.

Additionally, I would recommend that the Committee also provide the Secretary with the ability to convene a review panel in cases where similar questions may exist when a "no jeopardy" determination is made. This small change will allow the Department, when warranted, to ensure that sound science supports those decisions and provides adequate protection to species.

Subsection (j)(3)(E) under Section 3 would require the Secretary to compensate reviewers at a rate equivalent to a GS-14 pay grade. While we understand and agree with the intent to improve responses from independent scientific reviewers by providing compensation, current Department of the Interior budget constraints would make implementation of this provision difficult. Therefore, this provision must be removed.

In addition, we have reviewed this bill and have identified some technical issues which need further clarification and correction. We are committed to working with you and the Committee to address them. Implementing this legislation will undoubtedly present both the Department and the Service with challenges, particularly in light of existing statutory time frames and budgets. We believe this is balanced legislation will ensure public involvement and use of the best available science in the Service's Endangered Species Act decisions, both now and into the future. As such, we support H.R. 4840 with modifications to address our concerns.

Mr. Chairman, this concludes my statement. I am happy to answer any questions that you may have.

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