I am William Murray, Natural Resources Counsel of the American Forest & Paper Association (AF&PA;). AF&PA; is the national trade association of the forest, pulp, paper, paperboard, and wood products industry. We represent approximately 130 member companies which grow, harvest and process wood and wood fiber; manufacture pulp, paper and paperboard products from both virgin and recovered fiber; and produce solid wood products. The association is also the umbrella for more than 60 affiliate member associations that reach out to more than 10,000 companies. AF&PA; represents an industry which accounts for more than eight percent of total U.S. manufacturing output. It directly employs about 1.4 million people and ranks among the top 10 manufacturing employers in 46 states. AF&PA; member companies, as a condition of membership, must also commit to conduct their business in accordance with the principles and objectives of the Sustainable Forestry Initiative (SFI) program.
The SFI program is a comprehensive system of principles, objectives and performance measures that integrates the perpetual growing and harvesting of trees with the protection of wildlife, plants, soil and water quality. It is based on the premise that responsible environmental practices and sound business practices can be integrated to the benefit of landowners, shareholders, customers and the people they serve. Professional foresters, conservationists and scientists developed the SFI program. These men and women were inspired by the concept of sustainability that evolved from the 1987 report of the World Commission on Environment and Development and was subsequently adopted by the 1992 Earth Summit in Rio de Janeiro. The SFI program participants support sustainable forestry practices on the lands they manage and actively promote such practices on other forestlands. This commitment to sustainable forestry stems from the participants' convictions that forest landowners have a critical stewardship responsibility to current and future generations of Americans.
Congress enacted the ESA to protect endangered and threatened species, a goal which we support. We believe the principles behind the ESA represent those qualities which make our society the finest in the world. However, support of that goal does not mean that the resulting law is perfect and immune from review. The ESA has been updated periodically since its enactment in 1973, most recently in 1988. Under Congress' own schedule, the law was due for review and updating in 1992. That date has long since past and the need for action grows each year.
S. 1100 focuses on moving the designation of critical habitat from the listing process to the recovery planning process. As outlined below, improving the recovery planning process is one the six key areas in the ESA which AF&PA; has identified as needing attention. Moving critical habitat into the recovery planning process is an important step, but we have some suggestions which we believe will ensure that this change has the desired effect.
I.
The ESA, often called the "pit bull" of environmental laws, grants sweeping powers and authority to federal agencies for endangered species protection. It is weighted heavily in favor of species protection at the expense of all other considerations. AF&PA;'s goal is to make the ESA work for species and people. AF&PA; believes that any amendment of the ESA must be based on the valuable lessons gained from 26 years of experience with the Act. Congress should update the Endangered Species Act in six key areas:
-- ensure that the best science is used, including peer review and quality control processes;
-- consultation on federal actions must be prompt and accurate and, when conducted over a federal permit required for a private activity, must have a limited scope;
-- private landowners must be given reasonable compliance and relief procedures that do not impose an unfair burden for protection of a public resource;
-- the recovery plan must be the focus of all management and regulatory efforts on behalf of a species, including consideration of social and economic impacts, relative risks, costs and alternative recovery strategies;
-- prohibited activities must be defined in a way that avoids speculative enforcement;
-- private landowners must be provided incentives to work cooperatively with the government to protect listed species.
II.
Critical habitat, as currently provided in the ESA and implemented by the U.S. Fish and Wildlife service ("FWS") and the National Marine Fisheries Service ("NMFS")(together, the "Services"), suffers from several problems. FWS believes that critical habitat "is not an efficient or effective means of securing the conservation of a species," particularly as compared to the controversy it causes and to the "monetary,. administrative, and other resources it absorbs." Final Determination of Critical Habitat for the Southwestern Willow Flycatcher, 62 Fed. Reg. 39129, 39131 (July 22, 1997). The agency does not even include critical habitat designations on its "Box Score" on the back cover of its Endangered Species Bulletin and on its web site. In its annual Listing Priority Guidance, FWS has ranked critical habitat designation as the lowest priority. Indeed, the Services have designated critical habitat for less than 20% of listed species, despite decisions from the U.S. Courts of Appeal for the 9th and 10th Circuits curtailing their ability to find designation is not prudent. Natural Resources Defense Council v. U.S. Department of the Interior, 113 F.3d 1121 (9th Cir. 1997); Forest Guardians v. Babbitt, 164 F.3d 1261 (10th Cir. 1999).
The ESA directs the Secretary to take into account the economic impact before designating critical habitat and to exclude land if the benefits of exclusion outweigh the benfits of designation, provided extinction will not result. However, in their economic analyses, the Services only consider the "incremental" impacts over and above those caused by the actual listing. Since listing must be based solely on biologic factors, the government rarely, if ever, considers the full economic effects of actions under the ESA. Perhaps as a result, there has not been extensive use of the authority to exclude land. Indeed, the Service's joint regulations only provide for preparation of the economic analysis after issuance of the proposed designation. 50 C.F.R. 424.19. This would preclude public review and comment on the analysis, except the Services now ignore their rule and provide an opportunity for comment on the analysis when they propose the designation.
The only statutory role for designated critical habitat is provided by ESA section 7(a)(2). This paragraph requires federal agencies, in consultation with the Secretary, to ensure that their activities are not likely to jeopardize the continued existence of a listed species "or result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, as critical." The Services have defined "destruction or adverse modification" and "jeopardize" in substantially the same terms, thus combining the consultation criteria into one. 50 C.F.R. 402.02. As noted above, FWS believes that critical habitat adds little to the conservation of the species beyond that achieved when the species was listed. NMFS, on the other hand, finds some benefit in providing federal agencies an early alert in their planning processes. Designated Critical Habitat: Central California Coast and Southern Oregon/Northern California Coasts Coho Salmon, 64 Fed, Reg. 24049, 24050 (May 5, 1999).
Since the consultation on jeopardy and critical habitat occurs at the same time, the existence of critical habitat does not normally cause any additional delay. However, if the species is listed first and critical habitat designated at a later time, problems can arise. For example, there were instances in the Pacific Northwest where proposed federal actions underwent consultation on the listing of the northern spotted owl, a second consultation after the designation of critical habitat for the owl, a third consultation after the listing of the marbled murrelet, and a fourth consultation after designation of critical habitat for the murrelet. Admittedly, serial consultation to this extent rarely happens anymore because the timber sale program in the Northwest has come to a virtual halt.
The Services acknowledge that designation of critical habitat has no statutory effect on private land, unless the landowner seeks an action from a federal agency, such as a permit or funding. (As the Services insinuate themselves into the permitting programs delegated to the States, such as the National Pollution Discharge Elimination System under the Clean Water Act, the number of permits for activities on private land resulting in some form of consultation may well increase.) Nonetheless, designation produces a map with lines drawn by a federal regulatory agency. Most landowners, and their bankers, find it difficult to believe that the lines mean nothing. Indeed, NMFS recently touted the lines as a benefit of designation because it helps "focus Federal. tribal, state and private conservation and management efforts in such areas." Id. While this statement carries no threat of regulatory action, it exemplifies "targeting" the land which in turn generates the controversy. (In a new approach to critical habitat, NMFS only drew lines in the regulation for the water portion of coho salmon critical habitat. For the dry land portion, the agency merely designated the "adjcent riparian zone." In the premable to the rulemaking, NMFS described these zones as any area adjacent to designated riverine critical habitat which contains certain functional qualities, leaving landowners guessing as to the location and extent of qualifying zones.)
Given the overall disarray of the critical habitat concept and the lack of support from the expert agencies, we recommend that it be merged entirely into the recovery plan. Many would say that the Services have effectively accomplished this in any event. However, it continues to drain resources from the Services as litigation mounts. Retaining critical habitat as a separate rulemaking process makes no sense if the ultimate goal is recovery. S.1100 makes only a tentative step in this direction.
First, S. 1100 only changes the timing of designation by moving it from the listing process to the recovery process. The Subcommittee should be aware that there are some who value the opportunity to submit economic information at the time a species is proposed. Since listing may only be based on biologic considerations, such comments will only be taken by the Services if critical habitat is also proposed. This opportunity could be preserved by retaining proposal of habitat and potential impact in the proposed rulemaking for listing, with comments to be considered during development of the recovery plan. (If a separate rulemaking for critical habitat is eliminated, a discussion and comment opportunity could still occur in the proposed listing rule.)
Second, S. 1100 does not sufficiently ensure that economic impacts are adequately addressed. Consideration of social and economic impacts is essential if conservation is to have any credibility to the public at large, and to the particular members of the public affected. If the bill does not require consideration of these impacts in the recovery planning process, then the Services will likely retain their current practice of analyzing only "incremental" economic impacts. It might also revive the balancing process if the Secretary were required to exclude areas from critical habitat when the benefits outweigh those of designation, unless extinction would result, rather than given the discretion to do so as in the current law. Third, S. 1100 contains no requirement that the Secretary appoint a balanced, multi-disciplined Recovery Team. Yet the bill gives the Recovery Team the first crack at not only drawing lines on the map, but also at establishing management and protection measures. Even if the bill assured a balanced Recovery Team, requiring these recommendations only nine months after the listing, and only seven months after appointment of the Team, does not provide sugfficient time for data collection and analysis. If critical habitat is retained as a separate rulemaking, the Services should be provided the full 18 months to develop the necessary data, in consultation with the Recovery Team, without being influenced by public preliminary recommendations.
III.
AF&PA; seeks balance and common sense in endangered species protection. Our members are united in their belief that the national interest is best served by policies that protect wildlife along with jobs and the economy. Objective 4 of the SFI program requires AF&PA; members to: "Enhance the quality of wildlife habitat by developing and implementing measures that promote habitat diversity and the conservation of plant and animal populations found in forest communities."
With AF&PA; members' emphasis on stewardship through the SFI program, we urge the Subcommittee to consider amendments to the ESA which would address stewardship issues as well. The Endangered Species Act regulates activities of private parties and states which do not require a federal permit or funding by prohibiting any action which would "take" listed species. The law provides, in section 10, an incidental take permit process which requires the landowner to prepare a habitat conservation plan (HCP) focusing on mitigation of the take to be caused to the listed species by the applicant's activities.
Unfortunately, the HCP process generally is expensive, lengthy, and complex. Many land owners simply cannot afford to pursue it. For example, the government considers an HCP to be subject to consultation as a proposed federal action under ESA section 7, a process which is redundant and which creates several difficulties for the landowner, such as ongoing second-guessing by the agency and application of the irreversible commitment of resources prohibition. Also, the authority to require mitigation in the HCP and permit is relatively unqualified and has resulted in requirements which exceed by several degrees the effect of the activity which would be allowed under the permit.
Given the expense and commitment inherent in an HCP, landowners understandably are often willing to address more species than merely those listed. The government must recognize the benefit of addressing a number of species when the landowner chooses to do so. Current policies tend to create impediments to multi-species HCPs. Moreover, the Services have not applied HCP policies in a consistent manner, causing considerable delay and frustration among HCP applicants.
While Secretary of the Interior Bruce Babbitt has instituted various policies which improve the HCP process, legislative changes are necessary to guarantee those improvements. For example, Secretary Babbitt has issued a "No Surprises" regulation which provides landowners, particularly those who depend on continuing access to natural resources on their land, certainty when agreeing to conditions in an HCP, but it is now subject to a challenge in federal court. We, therefore, also suggest the Committee consider amendments to the Endangered Species Act in the following areas:
-- provide statutory authority for the "No Surprises" policy;
-- authorize the Secretary to issue rules providing incidental take relief for categories of actions which would have little effect on listed species;
-- recognize that since an HCP provides analyses equivalent to a biological opinion and since the agencies are consulting with themselves, consultation on an HCP is redundant and unnecessary;
-- clarify that mitigation in an HCP be proportionate to the effect on the species of the take authorized by the HCP and permit;
-- authorize recognition that the HCP will provide benefits for unlisted species and provide assurance that the permit will cover those species in the event they are later listed without additional mitigation and without the imposition of excessive assessment procedures on the applicant; and
-- authority should be consolidated in the Secretary of the Interior, at least with respect to implementation of the ESA in non-ocean areas, regardless of the species involved to ensure consistent application of policies. On behalf of the American Forest & Paper Association, I appreciate the opportunity to offer our views on H.R. 1100. I would be happy to answer any questions you may have.