Implementation of the Endangered Species Act

Jamie Rappaport Clark


May 26, 1999

Mr. Chairman and members of the Committee, I appreciate this opportunity to discuss 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
and 10 implementation under the Endangered Species Act (ESA). I am accompanied by Mike Spear, the manager of the California and Nevada Operations Office; Ken Berg, Field Supervisor for the Carlsbad, California Field Office, Diane Noda, Field Supervisor for the Ventura, California Field Office and Wayne White, Field Supervisor for the Sacramento, California Field Office.

The U.S. Fish and Wildlife Service (Service) is continuing to work 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. 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.

I have addressed these key reforms at past hearings:

  • using Candidate Conservation Agreements to remove threats and prevent species from becoming endangered or threatened;
  • providing certainty to landowners through Habitat Conservation Plans (HCPs) and the use of new tools like "No Surprises" assurances and "Safe Harbor" agreements;
  • instituting improved peer review processes and ensuring that sound science underlies all listing and recovery actions;
  • increasing the states' role in species conservation and recovery;
  • issuing a landmark Secretarial Order harmonizing ESA implementation with Tribal trust responsibilities;
  • streamlining processes for Habitat Conservation Plans and Section 7 consultation;
  • improving monitoring programs under sections 7 and 10, and increasing the use of adaptive management to ensure the successful implementation of Habitat Conservation Plans; and
  • increasing efforts to more promptly recover, downlist and delist species.

The Service has worked tirelessly over the past seven years to develop 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 254 incidental take permits through more than 244 Habitat Conservation Plans (HCPs) and more than 200 HCPs are in some stage of development. HCPs are a tool under the law to provide certainty to landowners while managing species conservation for the long term. A list of all the approved HCPs are attached as Appendix 1. 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.

Workload Pressures

To continue making progress on implementation of the ESA, an increase in funding for our endangered species program is necessary. As of March 31, 1999, there are 1,183 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 requests for consultations from federal agencies will be reviewed in fiscal year 2000, many of which could result in work delays in certain areas (e.g., timber harvest activities in California and the Pacific Northwest that may affect bulltrout) if not reviewed in a timely manner. Furthermore, the interest among private landowners in two new conservation tools, Candidate Conservation Agreements and Safe Harbor Agreements, 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 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 an important step in providing adequate funding to allow the Service to provide greater technical assistance to private landowners and to expedite consultation and permitting actions throughout the nation. A copy of our budget justification is included as Appendix 2 of my statement. A paper explaining the methodology used to allocate funds among our regions is attached as Appendix 3.

I urge Congress to adopt the President's budget request for the Endangered Species program for fiscal year 2000.

ESA Overview

The purpose of the ESA is to conserve endangered and threatened species and the ecosystems upon which they depend. The authors of the ESA envisioned a process that would protect these ecosystems and species for the good of the American public and ensure that our natural heritage would not be lost because of economic growth and development untempered by adequate concern and conservation. To that end, implementation of the ESA program includes a prohibition under Section 9 of the law that states that any person subject to the jurisdiction of the United States is not to "take" endangered and threatened species (16 U.S.C. 1531 et seq). Sections 7(b) and 10(a)(1) of the ESA provide for exceptions to that "take" prohibition where federal agencies or applicants, including private landowners, choose to carry out actions that incidentally take listed species. Associated with the provision for incidental take is a requirement to minimize the impacts of that take and, in the case of Section 10, minimize and mitigate for those impacts. The regulations that address incidental take under Section 7 are found at 50 CFR Part 402; the regulations that address incidental take under Section 10 are found at 50 CFR Parts 13 and 17.


I will address requirements under Sections 7 and 10 separately and in more detail, but first let me address the word that is the focus of discussion today -- mitigation. On May 14, 1999, Deputy Director John Rogers signed a letter to Chairman Young that provides detailed information about how we address mitigation under the ESA. I've attached that response to my testimony in Appendix 4.

Mitigation is a longstanding device of federal environmental law used to address the environmental impacts of projects. For example, mitigation is discussed in the implementing regulations for the National Environmental Policy Act (NEPA), codified in regulations for the Clean Water Act's wetland regulatory program, and addressed in legislation relating to the Water Resources Development Act and its amendments. In its most general sense, mitigation can incorporate one or more of the following actions: avoid the impact, rectify the impact, reduce or eliminate the impact over time; or compensate for the impact.

However, within the context of the ESA, mitigation refers only to activities that may be done to offset, rectify, or compensate for the impact of an action. Avoiding or reducing the impact is referred to as minimization.

Though the Service tries to distinguish among the many forms of the term "mitigation," applicants and action agencies often seek input from the Service regarding what they call "mitigation plans," whether the plan stems from compliance with other federal or state laws, or is specific to compliance with the ESA. As a result, the term "mitigation" is broadly applied, regardless of how the Service describes it or whether it is part of an applicant's initial project proposal or subsequent project requirements. This leads to confusion over the difference between minimization and mitigation under the ESA.

Requirements for Mitigation Under Section 10 of the ESA

Section 10(a) of the ESA outlines the criteria and process for issuance of incidental take permits for non-federal parties. These parties are required to both minimize and mitigate actions that affect listed species. These statutory requirements are interpreted and detailed in implementing regulations published jointly by the Service and the National Marine Fisheries Service, administrative guidelines in the Services' Habitat Conservation Planning Handbook, and the Services' final "No Surprises" rule. Section 10(a)(2)(A) of the ESA requires 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.

Authority to approve HCPs and issue incidental take permits is delegated to the Service's Regional Directors and those decisions are based on several explicit findings found in the law:

  • any take of threatened and endangered species will be incidental to an otherwise lawful activity;
  • impacts will be minimized and mitigated to the maximum extent practicable;
  • adequate funding will be provided to properly implement the HCP;
  • take will not appreciably reduce the likelihood of survival and recovery of the species; and
  • other necessary or appropriate measures in the HCP are met.

The Service works cooperatively with an applicant to provide technical assistance during the development of an HCP. In many instances, the Service helps the applicant identify the minimization and mitigation actions required under Section 10 that the applicant needs to undertake to reduce or offset potential adverse effects of a proposed activity on the species covered by the HCP. This cooperation helps to reduce surprises toward the end of the process.

The law requires that applicants minimize and mitigate the effects of their actions to the maximum extent practicable. Only then can the permit be issued.

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 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 conservation. In another setting, the Santa Ana River Watershed in Orange County, California, a HCP incorporates a mitigation account that funds measures to restore riparian riparian
Definition of riparian habitat or riparian areas.

Learn more about riparian
habitats and control exotic plants and animals. 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.

Requirements to Avoid Jeopardy Under Section 7 of the ESA

Section 7 outlines procedures for Federal agency cooperation to conserve listed species.

Section 7(a)(1) directs all federal agencies to utilize their authorities in furtherance of the purposes of the ESA by carrying out programs for the conservation of listed species.

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 as required by law. Through Section 7(a)(2), the Service consults on any action that is federally funded, authorized, or carried out that may affect a listed species. The Service encourages federal action agencies to work with us early on in the project development phase to ensure that discussions about the potential impacts of a federal project or permit on listed species are addressed early on. In this way, we are able to identify potential problems and solutions without delaying projects. The action agency is responsible for determining the effect of a proposed action. If they determine that the action is not likely to adversely effect threatened and endangered species and the Service concurs in that determination, consultation is complete.

When a proposed project is likely to adversely affect listed species, the Service and an action agency enter formal consultation. Under formal consultation, the Service works with the action agency to develop a biological opinion on whether or not the federal action is likely to jeopardize the continued existence of listed species, or result in the destruction or adverse modification of critical habitat. During formal consultation, the action agency and the Service may work together to identify what voluntary steps may be incorporated into a proposed project to minimize effects on listed species. These voluntary 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 of the project on listed species. Action agencies and applicants often refer to these modifications as "mitigation." However, because it is voluntary and incorporated into the project before the Service completes a biological opinion, it is not mitigation in the same way that it is used under Section 10 of the ESA.

When making a determination of jeopardy or adverse modification of designated critical habitat, the Service is obligated by law to identify reasonable and prudent alternatives in the biological opinion. These reasonable and prudent alternatives must: (1) be implemented in a manner consistent with the intended purpose of the action; (2) be implemented consistent with the scope of the federal agency's legal authority and jurisdiction; (3) be economically and technologically feasible; and (4) avoid the likelihood of jeopardizing the continued existence of listed species or the destruction or adverse modification of designated critical habitat. The Service works closely with the action agency and an applicant, if one is involved, to develop the reasonable and prudent alternatives included in the biological opinion. If the action agency is unable to avoid jeopardy by minimizing their effects, the reasonable and prudent alternatives may call for some type of mitigation in order to bring the species above the jeopardy threshold. This is the only instance where the Handbook provides that mitigation is used under Section 7.

Section 7(b)(4) of the ESA requires that the Service, when consulting with a federal agency on a proposed action, provide the federal agency and the applicant concerned, if any, with a written statement that specifies those reasonable and prudent measures necessary or appropriate to minimize the impact of incidental take. Terms and conditions are provisions to implement the reasonable and prudent measures. If the action agency adopts the biological opinion, the terms and conditions also become binding conditions of any grant or permit issued to any applicant, as appropriate, for the incidental take exemption to apply.

When preparing incidental take statements, the Service is required by the ESA to specify 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. I am mindful, Mr. Chairman, that the Committee believes that the Service required mitigation through reasonable and prudent measures on some occasions.

I have received the letter from Chairman Young dated May 19, 1999 that raises this concern in detail. I take this issue very seriously and will look into it closely, in concert with the Regional Directors who are responsible for implementing the Consultation Handbook in the regions. Specifically, I will review the projects raised in the letter to determine if the guidance concerning the scope of reasonable and prudent measures is being adhered to consistently. This Consultation Handbook has been in effect for a little over one year now, and we continue to conduct in-depth training sessions for our staff members to ensure they understand and properly implement this, and other complex consultation issues.

Mitigation Banks and Endowments

Now that I have addressed the legal requirements under Sections 7 and 10, I would like to specifically address the issue of requiring applicants to pay into mitigation banks or mitigation endowments, or make other types of payments as a condition of obtaining permits or approvals from the Service. We have developed HCPs that mitigate the impacts of incidental take to the maximum extent practicable through a variety of mitigation strategies, including mitigation banks and endowments.

A mitigation bank is a creative mechanism whereby numerous applicants make a financial or other contribution to a "bank" to acquire or protect an area because of its unique habitat value. This option can be an attractive means for ESA applicants to obtain a permit without having to take conservation measures on their own property. This has proven particularly valuable for small landowners. Mitigation banks are also effective means to protect listed species in areas where habitat has become so fragmented that protecting larger tracts of land results in a greater conservation benefit to the species than protecting numerous small areas. Depending on the case-specific circumstances, a "borrower" in the bank may contribute via land acquisition, funds for management, on-the-ground habitat manipulation, or other measures. The "banker" is often a non-profit conservation agency, such as The Nature Conservancy, that is experienced in the role of third-party liaison for land transactions. It can also be a landowner or for-profit entrepreneur who enters into this process as a business venture.

Essential to any mitigation bank is the requirement that preservation or management of a bank site will result in long-term benefits to species that would otherwise not occur. Service approval of a mitigation bank requires completion and implementation of a project agreement, an agreed upon management plan, a funding mechanism to carry out the management plan, and a Service-approved perpetual conservation easement conservation easement
A conservation easement is a voluntary legal agreement between a landowner and a government agency or qualified conservation organization that restricts the type and amount of development that may take place on a property in the future. Conservation easements aim to protect habitat for birds, fish and other wildlife by limiting residential, industrial or commercial development. Contracts may prohibit alteration of the natural topography, conversion of native grassland to cropland, drainage of wetland and establishment of game farms. Easement land remains in private ownership.

Learn more about conservation easement
recorded on the bank site. When the number of available credits and the service area are agreed upon by the Service and the bank owner, and all mitigation banking documents are finalized, the bank is approved. It can then sell credits within its designated service area, or as otherwise approved by the Service. When all the credits in the bank are sold, the bank is closed and typically remains as a preserve in perpetuity.

A variation on the mitigation bank concept is a "management endowment." An endowment is established and funded to provide for funding of habitat management over a protracted time period. The principal of the endowment earns interest and remains untouched. The interest is used to implement a management regime that maintains habitat values (e.g., prescribed burning, exotic species control etc.).

In addition to the conservation value of properly implemented mitigation banks and endowments, participating applicants can be relieved of monitoring and other requirements associated with creation and maintenance of on-site mitigation. Also, certain entrepreneurs who control the areas included in a mitigation bank are able to sell credits to those needing them, thus turning endangered species habitat into a valuable financial asset.

The mitigation bank concept has also been utilized in relation to Section 7. However, the context is quite different than for Section 10 because under Section 7, incidental take is only minimized through required measures that reduce the amount or extent of take and do not require more than a minor change to the proposed action. I stated previously in this testimony that mitigation may only be used under Section 7 in a reasonable and prudent alternative to avoid jeopardy. One example of mitigation in the form of a reasonable and prudent alternative may be participation in a mitigation bank. For example, in southern California habitat has become so fragmented that saving and recovering endangered and threatened species are critically dependent on our conserving large tracts of habitat by using creative mechanisms such as mitigation banks. We are learning that the best solutions to resource conflicts are holistic ones and mitigation banking can be an especially valuable tool.

Challenges in California

Now I would like to address the criticism of the Service's activities in California, and specifically in the Carlsbad field office.

The State of California is currently home to 252 listed, 19 proposed, and 11 candidate species (as of March 31, 1999), many of which are narrow endemics restricted to mere wisps of their former range. California is rich in ecosystem diversity and thus in species diversity. The State of California has its own strong environmental laws, including the California Endangered Species Act and the California Environmental Quality Act, that protect these natural resources. The passage of these laws indicates that Californians feel strongly about maintaining the integrity of their resource base. Nevertheless, 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.

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 have limited staff and many entities seeking immediate assistance in project planning related to listed species, wetlands and other resource issues. Despite this daunting task, we administer the ESA to the best of our ability, focusing on conservation of species but providing for development to go forward.

Solutions to the meshing of high development pressure and conservation may look different in different regions because different species, communities, development pressures, state and local ordinances can dictate a solution in one case that is not appropriate in another. Our hardworking Service staff in California have approved an assortment of mitigation funds, mitigation banks, and mitigation endowments that, under Sections 7 or 10, ensure conservation of listed species while allowing development projects to move forward.

I am aware of the questions raised by this Committee and other Members of Congress about the work of our field offices. The Service will cooperate fully in providing you with responses to the best of our ability. I have seen a copy of the letter sent to this Committee by 26 California members that asks you to enlist the General Accounting Office to review the work of our Carlsbad office. We welcome the opportunity to have an objective third party look at and explain to the public the demands and expectations put on our Carlsbad field office. I am proud of the hard work that these dedicated Service employees do to further our mission while addressing the needs of private landowners.


In closing, Mr. Chairman, with limited resources, the Service is making great efforts to ensure that implementation of the ESA is scientifically sound, flexibly applied, and consistently enforced throughout the country. I understand that there has been confusion over the term mitigation. I believe our policy has been consistently applied, and I intend to confirm that that is the case. 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.


Appendix 1: Chart of Approved Habitat Conservation Plans

Appendix 2: FY 2000 Budget Justification

Appendix 3: White Paper on Funding Allocation

Appendix 4: May 14, 1999 Letter to Resources Committee

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