Implementation of the Endangered Species Act

Mike Spear


July 9, 1999


Mr. Chairman and members of the Committee, I appreciate this opportunity to discuss how the U.S. Fish and Wildlife Service implements the Endangered Species Act (ESA) across the country and to address the Committee's concerns that we implement the law differently in California than in other parts of the country.


Let me first reiterate the major points Director Jamie Clark stated at the May 26 hearing in Washington, DC on this issue. The Service is working aggressively to improve the efficiency and effectiveness of the ESA. The bold reforms we instituted in recent years conserve species and provide flexibility and certainty to businesses and private landowners. The Service is committed to streamlining and improving the consultation and permitting components of the Federal endangered species program throughout the country. We are working harder than ever to achieve species conservation and recovery. We are also 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.

Over the past seven years, we have developed partnerships with the States, tribal governments, local communities and individual landowners to provide flexibility and certainty in the way we administer the ESA. Our reforms are paying off. We are working with many partners to develop recovery plans for listed species. In addition, we have issued 256 incidental take permits through 246 Habitat Conservation Plans (HCPs) and more than 200 HCPs are in some stage of development. Of these, 55 HCPs (65 permits) are in California ranging from the San Diego MSCP in southern California to the Pacific Lumber HCP in northern California. HCPs are a tool under the law to provide certainty to landowners while managing species conservation for the long term. We provided a list of all the approved HCPs to the Committee when Director Clark testified on May 26.

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 ESA.

FY 2000 Budget Request

To continue making progress on implementation of the ESA, an increase in funding for our endangered species program is necessary. As of June 30, 1999, there are 1,186 domestic species on the List of Endangered and Threatened Species; this represents a 30 percent increase in just 5 years. Consultations, HCPs 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 500 HCPs will be in some stage of development or implementation by fiscal year 2000. More than 40,500 Federal projects will be reviewed in fiscal year 2000. The Service's capability to meet the demand is critical to completing reviews in a timely manner. Furthermore, the interest among private landowners in two new conservation tools, Safe Harbor Agreements and Candidate Conservation Agreements with Assurances, is already great and is expected to grow. The demand for these new types of voluntary conservation agreements and the tremendous growth in the number of HCPs has combined to generate a significant increase in workload pressures.

While trying to deliver all of the Administration's reforms and to respond to this increased workload, the Endangered Species Program's budget experienced a decrease in fiscal year 1996 and only modest increases in fiscal years 1997, 1998 and 1999. The Administration recognizes that increased funding support is essential to continue our successful record of reform. The President's fiscal year 2000 budget request for 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.

In California, the need for more resources to provide a timely response to individual landowners is great. One of the biggest complaints we hear from the constituents whom we serve is that the time it takes to get an approved permit from us is too long. Time is money for many applicants. We appreciate their needs and try our best to fulfill the growing demand for technical assistance, permit approval and information. However, without increased funding in California and across the country, people will continue to be frustrated by our inability to respond quickly to their needs. At the May 26 hearing, a common theme from a number of the witnesses who testified was the need for the Service to have more money to provide better service.

I urge the Committee to address the needs of your constituents and urge Congress to adopt the President's budget request for the Endangered Species program for fiscal year 2000. The House and Senate Appropriations Committees last week passed the Fish and Wildlife Service's budget and included general increases for the Endangered Species program above 1999 levels but did not provide the increases we requested in the President's budget to fully address increased workload demands.

In her May 26 testimony, Director Clark gave a detailed explanation of how the Service implements 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
and 10 of the ESA throughout the country. Let me summarize her remarks and provide examples.

Section 10

Section 10(a)(2)(A) of the ESA requires an applicant for an incidental take permit to submit a Habitat Conservation Plan (HCP) that specifies, among other things, the impacts that are likely to result from the project and the measures the permit applicant will undertake to minimize and mitigate such impacts. One of the statutory requirements for obtaining an incidental take permit is that applicants minimize and mitigate the effects of their actions to the maximum extent practicable. Section 10(a)(1)(B) of the ESA outlines the other criteria and process for issuance of incidental take permits to non-federal parties.

Minimization and mitigation requirements can take many forms depending on the habitat needs and status of the species, and the size and scope of the project. Because applicants come to us with many types of projects that vary in size, scope and impact, and because we try to be flexible in meeting the needs of applicants, we don't use a cookie cutter approach in developing HCPs.

The law does not specify HCP minimization or mitigation standards but gives the Service the flexibility to work with applicants to develop the best plan appropriate to the project. Minimization and mitigation can include restoration and creation of habitat, preservation of habitat, research, and/or public education programs.

For example, part of the mitigation associated with the Washington County, Utah HCP includes fees to acquire and manage land and implement an education program regarding desert tortoise conservation. The Service uses the best scientific information available during the development, review, and monitoring of HCPs and ensures that the minimization and mitigation strategies of a plan are as effective as possible. This is reflected in the Service's new 5-point policy proposal for HCPs that improves the process even further. Our purpose is to help the applicants comply with the law and conserve listed species while allowing development to occur. We've done that successfully throughout the country.

There are a number of tools or strategies that landowners may use to minimize and mitigate the impacts of their actions. In the southeast, International Paper is establishing a mitigation bank as part of their red-cockaded woodpecker HCP. International Paper will actively manage approximately 5,300 acres of habitat for the red-cockaded woodpecker and has established a target population of 25-30 red-cockaded woodpecker family clusters. If the number of family clusters exceeds the number necessary for implementation of the HCP, International Paper will use those family clusters to support a private mitigation bank.

Individual HCPs for the Florida scrub jay in Brevard County, Florida typically contribute to a larger preserve strategy and a management endowment based on the scope of the proposed project area. By providing applicants with this type of option of contributing to a large preserve strategy, the effort into developing and implementing their HCP is greatly simplified, without on-going responsibility for habitat maintenance.

The Service provides assistance and support to applicants who are seeking an incidental take permit under the ESA. In many instances, the Service helps the applicant identify the actions that the applicant needs to undertake to reduce or offset adverse effects of a proposed activity on the species covered by the HCP. The Service encourages applicants to discuss their applications at the earliest time possible, so that we can help them design an HCP that will meet the permit issuance criteria and advise them on the permitting process. However, regardless of the extent to which an application incorporates Service input, if the application meets the issuance criteria, we will issue a permit.

Section 7

Section 7(a)(2) requires Federal agencies to consult with the Service to ensure proposed Federal activities are not likely to jeopardize the continued existence of listed species or result in destruction or adverse modification of critical habitat. The Service encourages Federal action agencies to work with us early in the project development phase to ensure that discussions about the potential impacts of a Federal project or permit on listed species are addressed. In this way, we are able to identify potential problems and solutions without delaying projects unnecessarily. The action agency is responsible for determining the effects of a proposed action. If they determine that the action is not likely to adversely affect threatened and endangered species and the Service concurs in that determination, the section 7 obligation is fulfilled. In fact, during fiscal year 1998, 97.2% of the consultations across the country were completed at the informal stage (i.e., the proposed project was determined to have no effect or not likely to adversely affect).

When a proposed project is likely to adversely affect listed species or critical habitat, the Service and an action agency enter formal consultation. During formal consultation, the action agency and the Service may work together to identify what steps may be incorporated into a proposed project or into the biological opinion to minimize effects on listed species or critical habitat. These steps are often minor adaptations to the project that the action agency and the applicant are willing to undertake in order to reduce the harmful effects, and in some cases provide benefits, to listed species. Action agencies and applicants often refer to these modifications as "mitigation." This is especially true when agencies and applicants are also complying with other statutes, such as the Clean Water Act and the National Environmental Policy Act, where mitigation is a key requirement. In this context, the term "mitigation" is broadly applied to include avoidance and minimization of adverse effects to listed species or critical habitat. Unfortunately, this has led to confusion over the difference between minimization and mitigation under section 7 of the ESA.

Mr. Chairman, let me clarify for the Committee that when working through the formal consultation process with the action agency and the applicant it may appear that the project will jeopardize a listed species early in the talks. When this occurs, we work with the action agency and applicant to identify changes to the proposed project that would avoid jeopardy. Alternatively, the action agency or applicant may develop their own measures to avoid jeopardy. If these or other appropriate changes are incorporated into the project, we then issue a non-jeopardy opinion. In most cases this process works well and is the best approach to ensure that the project proceeds in a timely manner and without significant adverse effects on the species. For example, the Prairie Du Chien consultation in Region 3 analyzed the proposed maintenance and on-going operation of the east channel of the Mississippi River (a side channel used for commercial barge traffic). Due to those impacts, we determined that the indirect effect of commercial barge traffic would result in jeopardy. The Army Corps of Engineers and their applicant were involved with developing project changes, and as a result, the project was modified such that jeopardy was avoided. The Army Corps of Engineers and applicant were supportive of the results.

When preparing a biological opinion, the Service is required by the ESA and its implementing regulations to include an incidental take statement that specifies reasonable and prudent measures and implementing terms and conditions to minimize the impacts of incidental take. Our Interagency Consultation Handbook clarifies that reasonable and prudent measures and implementing terms and conditions must minimize effects to the specific individuals that we anticipate will be incidentally taken and must not involve mitigation for the impacts of any anticipated take. The Service is committed to ensuring that we follow the policy direction in our handbook.

Demands in California

Already the most populous state with over 36 million residents, or one out of every eight people in the United States, California continues to grow at an unprecedented rate. Reasonable estimates expect an additional 18 million residents by 2025. Much of the growth is expected to occur in southern California, which now has five of the six most populous counties in the nation, four of which are also the fastest growing. As one of the most ecologically diverse areas in the country, California is also home to a high number of unique species. Twenty percent of all federally listed species are found in California, more than any other state except Hawaii. Conserving California's natural resources, while accommodating the projected population growth, will require planning and cooperation.

As of June 30, 1999, California is currently home to 260 listed, 18 proposed, and 11 candidate species, many of which are narrow endemics restricted to small remnants of their former range. The needs of the rapidly expanding human population in California have created many resource conflicts. These conflicts are magnified by the booming economy and resulting development pressures. The Service does not believe that conservation of imperiled species and a healthy economy are mutually exclusive. However, the successful meshing of these two objectives will require the Service to continue working with the business community to develop creative solutions. Our hardworking Service staff in California work closely with California Fish and Game to expedite the permitting process to the extent possible and have approved an assortment of conservation programs and banking agreements that ensure conservation of listed species while allowing development projects to proceed.

The nature and extent of resource conflicts in California challenge the Service's ability to make the ESA work. This challenge is especially difficult in offices like Carlsbad where we do not have the staff to address the demands from the many entities seeking immediate assistance in project planning related to listed species, wetlands and other resource issues. The demands for information and assistance in the Carlsbad office are high and continue to increase. For example, in 1998, the Carlsbad office worked on 57 formal consultations; provided 205 informal consultations/technical assistance responses; prepared documents for the listing of 7 species (6 plants and 1 mammal); issued 3 incidental take permits; finalized 6 candidate conservation agreements; and prepared draft recovery plans for southern maritime chaparral species, peninsular bighorn sheep, carbonate endemic plants, Stephen's kangaroo rat, and alluvial fan scrub species. In addition, Carlsbad staff are responsible for overseeing the implementation of 20 approved HCPs covering 1,367,946 acres. This involves dedicating staff to work with local jurisdictions to ensure timely implementation of the HCP. Despite this challenging task, we administer the ESA to the best of our ability, focusing on conservation of species but providing for development to go forward.

The Director and I have spoken many times about the concerns raised by the Committee that we in California administer the ESA differently than in other parts of the country. We have provided testimony and answered questions about this issue many times in the past and will continue to work with the Committee to clarify and address your concerns. I want to reiterate what the Director testified to at the May 26 hearing; the Service is intent on administering the ESA fairly and consistently throughout the country. Different needs dictate different solutions; however, we have nationwide ESA implementation policies and we intend to implement them fairly nationwide.

We regret that we may have inadvertently and inappropriately confused members of the Committee or the public by using terms like "mitigation" in the context of ESA when we should have used the narrower definition of minimization which is required under Section 7 of the law. Again, this confusion may be the result of the Service working closely with the State of California and other Federal agencies to provide a streamlined process for applicants to receive Federal and State permits where other Federal and State laws requiring different standards and actions apply. These various Federal laws, such as the Clean Water Act and the National Environmental Policy Act (NEPA), often use the word "mitigation" and involve review and coordination from the Service. We appreciate that addressing the various requirements of the Clean Water Act, NEPA, and ESA can be complicated and be a source of misunderstanding between applicants and the Service. For example, wetland mitigation under section 404 of the Clean Water Act may also provide conservation benefits for listed species that occupy wetlands. Regardless of the reasons for our use of the wrong term, let me assure the Committee that we will redouble our efforts to be more accurate in our use of the correct terminology and to ensure that we do our part to provide the fair and consistent implementation of the ESA that the Director has promised.

In closing, Mr. Chairman, the Service is making great efforts, with limited resources, to ensure that implementation of the ESA is scientifically sound, flexibly applied, and consistently enforced throughout the country. The Service, under this Administration, has endeavored to fairly protect landowners' interests in their land, while providing incentives to manage their lands in ways that benefit endangered species. The Service is fully committed to finding this balance between economic development and endangered species protection. Finding that balance requires early, open discussions between all parties involved in order to mesh the two needs, either through section 7 or section 10. I am confident that with full implementation of the Administration's reforms, the Endangered Species Act will continue to protect the most vulnerable biological resources of the nation without imposing undue burdens on individual citizens.

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.