Good morning Mr. Chairman and Members of the Subcommittee. My name is John Kostyack, and I am here to testify on behalf of the National Wildlife Federation, the nation's largest member-supported conservation advocacy and education organization. I thank you for inviting me here to share my organization's views concerning S. 1100, a bill to amend the critical habitat provisions of the Endangered Species Act of 1973.
The National Wildlife Federation considers the ESA's critical habitat protection to be an extremely valuable tool for conserving imperiled species, and therefore we are concerned that this bill would worsen rather than solve the problems that we are seeing with critical habitat implementation today. We also believe that it is a mistake to respond to the individual grievances of Members of Congress through piecemeal amendments to the ESA. This gradual chipping away at the ESA will not only weaken the Act's ability to protect species; it will also supplant the much-needed effort to update and strengthen the Act with a comprehensive reauthorization bill.
I. THE IMPORTANCE OF THE ESA AND CRITICAL HABITAT PROTECTION
The ESA recently reached its 25th anniversary, and there is much to celebrate. Hundreds of species that were once heading toward extinction are now either recovering or at least stabilized. The bald eagle, our nation's symbol, is at or near the point of total recovery, and the gray wolf has been successfully restored to the Yellowstone ecosystem and the wilderness of central Idaho. In the Pacific Northwest, we are witnessing an amazing groundswell of public support for the listing of salmon species and for the use of the ESA to recover this cultural icon. Across the country, the public is increasingly recognizing the ESA as a vitally important law for protecting the nation's precious biological heritage.
Despite the successes, there is still much work to do. Many of the species on the ESA list of threatened and endangered species are not yet on the path to recovery. Scientists tell us that the leading reason why so many of our animal and plant species are declining toward extinction is habitat loss and degradation. In other words, we need to do a better job protecting, managing and restoring habitats.
In enacting the ESA, Congress recognized the vital importance of protecting habitats. The first stated purpose of the ESA is to "provide a means by which the ecosystems upon which threatened species and endangered species depend may be conserved."
To achieve this purpose, Congress created three bottom-line safeguards: Section 9's prohibition against taking endangered species in the absence of a permit, Section 7's prohibition against federal actions jeopardizing the existence of any listed species, and Section 7's prohibition against federal actions resulting in "destruction or adverse modification" of critical habitat.
This last safeguard, the critical habitat protection, has a number of features that make it a vital tool for protecting, managing and restoring habitats of listed species. First, of all of the ESA's provisions, the critical habitat provisions provide the clearest direction to the federal agencies about their obligation to protect and manage habitat for the purpose of species recovery. The ESA requires critical habitat to be designated and protected in any areas with physical or biological features that are "essential to the conservation of the species" in other words, in areas needed for recovery and delisting. The other two safeguards of the ESA, the takings and jeopardy prohibitions, lack this clear and unambiguous directive to promote recovery.
Second, the definition of critical habitat explicitly calls for protection of areas "outside the geographical area occupied by the species at the time it is listed" if such areas are essential for the conservation of the species. For many listed species, this focus on unoccupied habitat is crucial if extinction is to be avoided and recovery made possible. Many listed species are migratory or otherwise highly mobile, and thus cannot survive without the habitat they sometimes use and otherwise leave unoccupied. In addition, many listed species occupy only the remnants of their former habitats, and thus are not likely to survive unless we develop a strategy to restore habitats that are degraded and no longer occupied.
To date, neither the taking prohibition nor the jeopardy prohibition has been interpreted by the agencies or the courts as providing the necessary protection of unoccupied habitats; only critical habitat has served this purpose. The importance of this role in saving unoccupied habitats was highlighted in Idaho Rivers United v. National Marine Fisheries Service, 1995 WL 877502 (W.D. Wa. 1995), where the U.S. Forest Service sought to allow a mine to be developed adjacent to the unoccupied habitat of a listed salmon species. The court relied on the fact that the habitat was designated as critical habitat as the basis for rejecting the agency's proposal. According to the court, if agencies were allowed to cite the temporary absence of a species from its native habitat as a reason for allowing further habitat degradation, they would effectively prevent the habitat from being restored and the species from ever being recovered.
Third, critical habitat designation helps focus the attention of federal, state and private conservation agencies on special management efforts that a species may require. For example, in designating critical habitat for the green sea turtle and hawksbill sea turtle, the National Marine Fisheries Service explained that one of the benefits of this designation was that it provided an opportunity to alert federal, state and private agencies about affirmative management steps needed in the designated areas. Among other things, the critical habitat designation highlighted the need for habitat restoration in sea grass beds destroyed by boat propellers and coastal development.
Fourth, a critical habitat designation draws clear lines on a map so that land managers have the direction they need about what habitat is needed to save species. An example of the problems that arise when the Services fail to designate critical habitat is found in the Natomas Basin, an agricultural region outside of Sacramento, California. Despite the fact that the giant garter snake (a species that relies heavily on Natomas Basin habitats for its survival) has been listed for over 5 years, no critical habitat has been designated. Meanwhile, urban development is proceeding apace in and around Fisherman's Lake, an area of the Natomas Basin that has long been identified as key nursery habitat for the species. The ESA's taking prohibition is of no avail because the Fish and Wildlife Service has approved a Habitat Conservation Plan (HCP) that allows habitat destruction throughout the Natomas Basin. In return for permission to destroy habitat, developers must pay a mitigation fee that ultimately will be used to acquire habitat but no effort has been made to identify and protect those areas needed for species recovery. If employed, the critical habitat tool would provide those implementing the HCP with the direction they need to ensure that Fisherman's Lake and other key habitat areas are acquired and protected.
Fifth, and finally, critical habitat designation provides an essential "early warning signal" to agencies and others involved in land use planning that certain areas deserve special attention. As stated by the National Marine Fisheries Service in designating critical habitat for the Umpqua cutthroat trout, "[w]ith a designation of critical habitat, potential conflicts between Federal actions and endangered or threatened species can be identified and possibly avoided early in the agency's planning process." Thus, if designated in a timely manner, critical habitat can provide a useful mechanism for minimizing the social and economic costs of habitat protection.
II. S. 1100 WOULD WEAKEN THE ESA'S SPECIES SAFETY NET -- A DIFFERENT APPROACH IS NEEDED TO ENSURE THAT CRITICAL HABITAT WORKS FOR SPECIES AND LANDOWNERS
The above discussion about the benefits of critical habitat is not meant to obscure the fact that we have had serious problems with implementation of this safeguard. The fact that only 9 percent of listed species have received designations of critical habitat suggests that serious attention to critical habitat is needed. However, the problems that have arisen in implementing critical habitat would not be solved by S. 1100; in fact, this bill would exacerbate some problems and leave many other challenges unaddressed. Alternative approaches ought to be considered to help ensure that the critical habitat safeguard is better implemented -- for the benefit of both imperiled species and landowners.
A. S. 1100 Would Exacerbate Problems with Critical Habitat and Other Aspects of ESA Implementation
S. 1100 has four key provisions, each of which contains flaws that could make species recovery more difficult. First, the bill adds new delays to the Act's requirements concerning designation of critical habitat. Under the current ESA, critical habitat must be designated at the time of listing, subject to a possible one-year extension. Under S. 1100, critical habitat designation is postponed until after a recovery plan has been completed or until three years have passed after listing, whichever comes sooner. Although the bill sets a timetable for completing recovery plans and for designating critical habitats for species lacking recovery plans, the bill does not specify when the Services are required to designate critical habitat for species that currently have recovery plans. Unless the bill is amended to set a timetable for such designations, it will leave open the possibility that the Services will continue to neglect the major backlog of species awaiting critical habitat designations.
Second, the bill would reopen a loophole, previously closed by Congress, that would expand the ability of the Services to avoid designating critical habitat altogether. Under the current ESA, critical habitat designation can be avoided altogether if one of the Services determines that such designation would be "not prudent" (e.g., if it finds that designation would make a plant species susceptible to illegal collection). If one of the Services makes a finding that critical habitat is "not determinable," this merely entitles it to postpone designation for one year after listing. Under S. 1100, designation can be avoided altogether if one of the Services determines that it would either be "not prudent" or "not determinable." There is no scientific justification for allowing the Services to avoid designations altogether based on a "not determinable" finding. In fact, Congress recognized this absence of a legitimate need in 1982 when it amended the ESA to eliminate the "determinable" loophole. Reinstating this loophole now would only invite further politically-motivated refusals to designate.
Third, the bill requires completion of recovery plans three years after listing. For species that have already been listed but lack recovery plans at the time the bill would become law, the bill imposes a deadline of five years for completing recovery plans. These new deadlines would be a useful step toward cleaning up the backlog of species without recovery plans -- if they were accompanied by substantial increases in funding. Because S. 1100 does not provide for such funding, but instead adds new unfunded procedural burdens to the recovery planning process, it essentially sets up the Services for failure. The result could be that the Services prepare shoddy recovery plans in their haste to meet statutory deadlines with inadequate resources, or that they simply fail to meet the statutory deadlines. The bill specifies no remedy for the Services' failure to meet deadlines, thus forcing the courts to determine when to order completion of specific recovery plans and how to prioritize among recovery plans.
Fourth, and finally, the bill precludes citizens from enforcing the ESA's requirements concerning the content of critical habitat designations unless they simultaneously file claims concerning the timing or content of recovery plans. The intended purpose of this limitation is unclear, but the outcomes are likely to be arbitrary and unfair. Under this limitation, citizens would be denied the ability to challenge improper designations whenever designation is required in advance of the completed recovery plan. In other cases where a recovery plan has been completed, citizens could be forced into adding claims concerning the timing or content of recovery plans even when no legitimate dispute exists on those issues.
B. Postponing Critical Habitat Designations So That They Can Be Timed With Recovery Planning Makes Sense -- But Only If Core Habitats Are Protected During the Period of Delay
Despite its serious flaws, S. 1100 does attempt to address a legitimate concern about the need for better information in designating critical habitat. In introducing S. 1100, Senator Chafee stated that designations require "knowledge of the conservation needs of the species as well as an assessment of economic impacts of the designation, neither of which is generally known, or can be determined, at the time of listing." The bill attempts to address this problem by postponing critical habitat designations until either a recovery plan has been completed or three years have passed since listing, whichever is sooner.
Senator Chafee is legitimately concerned about the absence of complete information about the needs of species and economic impacts of habitat protections at the time of listing. However, although we are likely to have a better understanding of these issues when S. 1100's three-year deadline for critical habitat designation is reached, our knowledge will still likely be far from complete. Regardless of which deadline for critical habitat designation is chosen, the ESA must be implemented in an arena where important data about conservation strategies is missing. The real issue facing Congress is what kind of risks should we be taking with the fate of endangered species during the continual processes of data-gathering and recovery planning?
The scientific community has answered this question unambiguously. In the 1995 report Science and the Endangered Species Act, an esteemed panel of scientists from government, academia and private industry convened by the National Research Council (NRC) explicitly addressed the question of whether critical habitat ought to be designated at the time of listing or whether it should be deferred to the time of recovery planning. According to the NRC panel, the importance of an "early warning" system was too great to defer habitat protection until recovery planning. On the other hand, it recognized the complexities of the critical habitat analysis and difficulties of completing it by the time of listing. The panel therefore recommended an interim designation of what it called "survival" habitat to protect a core amount of essential habitat during the period between listing and completion of the recovery plan. It suggested that once a recovery plan is adopted, the critical habitat designation (with its more sophisticated analyses of conservation needs and economic impacts) could replace the "survival" habitat designation.
This precautionary approach is preferable to the approach of S. 1100 because it recognizes that habitats, once lost, are often irreplaceable. The need for such a precautionary approach is particularly appropriate in implementing the ESA because, by the time species are listed, they have usually declined to extremely small population numbers, have typically lost significant percentages of their historic ranges, and are by definition in danger of extinction. In light of the substantial declines that many species face in the lengthy process of attaining the ESA list, it is essential that Congress require protection of their core habitats upon listing.
This precautionary approach to critical habitat designations, which has been incorporated into H.R. 960, the Endangered Species Recovery Act of 1999, would provide benefits to landowners as well as imperiled species. By ensuring that a core of essential habitat is protected from the moment of listing, it would maximize the chances of successful recovery and delisting. It also would preserve the widest array of conservation strategies, so that landowners and other stakeholders can help devise a strategy that it is tailored to local economic and social objectives.
C. Congress Should Encourage Creative Uses of Critical Habitat Designations To Ensure That This Safeguard Works for Both Imperiled Species and Landowners
Perhaps the most serious problem with S. 1100 is that it purports to address the critical habitat issue without grappling with the real obstacles to successful implementation. The main problem with critical habitat implementation is not (as suggested by S. 1100) because more time is needed after listing for information-gathering and recovery planning. Roughly 85 percent of listed species have been listed for over a year and are covered by finalized recovery plans, and yet the vast majority of these species still lack critical habitat designations.
The main problem with critical habitat implementation is that, due to fierce resistance from certain developers and the lack of any champions in the Administration, no one has tried to make it work. Enormous resources have been squandered by the Fish and Wildlife Service battling environmentalists in court over its repeated refusals to designate, with the courts uniformly siding with the environmentalists and holding that the Service's excuses lack merit.
It is time for developers, the Fish and Wildlife Service and environmentalists to call a truce on critical habitat and for all sides to come together to find a way to make these provisions work for both imperiled species and landowners. FWS is reportedly contemplating a dialogue with the public about the future of critical habitat. We fully support this idea and hope that it can provide a forum for developing these kinds of solutions.
The current ESA itself provides a number of ideas that could be pursued. For example, the concept of "special management considerations or protection" found in the ESA's definition of critical habitat could be the focus of a multi-stakeholder discussion about how critical habitat might be managed once it is designated. Contrary to prevailing myths, a critical habitat designation does not lead to a suspension of all economic activities in the designated area. Serious work needs to be done in resolving how designated areas could be managed for the benefit of imperiled species and landowners.
Another idea found in the current ESA that has never been seriously pursued is the Section 4(b)(2) provision calling for the exclusion of certain areas from critical habitat if the benefits of such an exclusion outweighs the benefits of specifying those areas as part of critical habitat. This provision could potentially provide the impetus for a carefully-structured planning process in which economic needs are balanced with the recovery needs of imperiled species.
These are simply initial thoughts. For critical habitat to succeed, the Services will ultimately need to develop and articulate their own positive vision for critical habitat designation. With the leadership of the Services, we can take the critical habitat issue out of the courtrooms and into the realm of effective conservation planning. In the meantime, Congress should reject S. 1180 and any other proposals that would promote postponement and avoidance of critical habitat decisions.
III. S. 1100 SHOULD BE REJECTED AS AN INAPPROPRIATE ATTEMPT TO AMEND THE ESA ON A PIECEMEAL BASIS
In addition to the substantive problems with S. 1100, the National Wildlife Federation is also concerned that the bill is being considered outside the ESA reauthorization process. S. 1100 raises a host of ESA issues that can only be addressed effectively in a full reauthorization debate. This is because each of S. 1100's provisions depends on the successful implementation of other provisions of the ESA not dealt with in the bill. For example, the deadlines imposed for completion of recovery plans will not further the ESA's conservation goals unless they are accompanied by ESA amendments to ensure that recovery plans are meaningful and to ensure that the recovery planning process is properly funded.
To successfully amend the ESA, Congress needs to take a holistic view of the Act and ensure that it understands the potential effects of each proposed change on the ability of the rest of the Act to function. For example, before establishing recovery teams (as proposed by S. 1100), Congress must consider how their memberships will be determined, and such decisions will affect the formation of the advisory committees that the Services are promoting for HCPs and the peer review panels that the Services are promoting for listing decisions.
Reauthorization is long overdue and the difficult task of completing it is only made more difficult if Members of Congress are allowed to resolve their individual grievances with the ESA through targeted amendments. If this Subcommittee and the full Committee move forward with S. 1100, every member with a desire to weaken the ESA will sidestep the reauthorization debate and will instead come forward with his or her amendment. Considering that the issues raised in S. 1100 have no priority claim over other issues that have long been debated, it may be difficult to fend off those amendments. At the very least, those members will demand a hearing and markup in the Senate Committee on Environment and Public Works and, like S. 1100, these proposals too will be considered without an understanding of how they inter-relate with the rest of the ESA. The only way to provide a comprehensive assessment of the ESA with a process that is fair to all sides of the debate is to reject the piecemeal approach altogether and to move forward on a full ESA reauthorization.
V. CONCLUSION
The National Wildlife Federation urges this Subcommittee to reject S. 1100. Although the bill could conceivably be improved to ensure that endangered species and their habitats are adequately protected, such an effort would not make sense -- and in fact would likely be unfair and counterproductive -- outside the context of a broader discussion of ESA reauthorization.
Thank you again for the opportunity to testify.