Background
Of the 53 million acres that is Idaho, 41 percent, or 22 million acres, is forested. Some 14 million acres of those forested lands are considered commercial forest, lands capable of growing repeated crops of commercially valuable timber, and not used for any other commercial purpose.
We at IFA are committed to finding the balance between productive use and natural sustainability. We recognize that there is a rising tide of "environmental chauvinism" in this country that has had a very serious impact on our businesses and is actually harmful to the forests it claims to benefit. What we call environmental chauvinism is the preference, in some quarters, for the importation of minerals or timber from countries without laws to protect workers or the environment. It is the fulfillment of our national need for these products while implicitly participating in the literal destruction of global ecosystems. We at IFA stand ready to provide American jobs in an environmentally responsible fashion.
Idaho's timber businesses employ 16,500 people, and from Boise northward, approximately 40 percent of the economy is dependent upon timber. Although much of the forested land in Idaho is owned and regulated by the Forest Service, a portion of state land is also in productive use as well as private timber landholdings. Over three million acres, or 23 percent, is privately owned by commercial and non-commercial private landowners. The State of Idaho and other smaller public ownerships account for about 1.6 million acres of forested land.
As a responsible Sustainable stewardship" association, IFA supported this Committee's bill in the last Congress. In no small part, one of the reasons we supported that legislation is because of the emphasis that legislation placed on Habitat Conservation Plans (HCPs).
Making the Act Work for Species and People
It is indisputable that the Endangered Species Act needs improvement. We must work to make the Act more effective for species and for people. Every member of this Committee, the Secretary of the Interior and the business and environmental communities all agree that pragmatic reform of the Endangered Species Act is a necessity. I was always struck by the testimony delivered by Michael Bean of the Environmental Defense Fund in the 105th Congress that the only alternative to habitat conservation was no habitat conservation.
Although there are many areas of the Act that need reform, the testimony that has been offered to this subcommittee reflects the critical need for reform of Section 10, the Habitat Conservation Plan provisions of the Act, in this Congress. Congress has a responsibility to address the attacks that have been levied against a policy that remains, in the words of the subcommittee chair, "one of the few options to property owners in the Act."
1. Making the Act Work Better for Small Landowners.
A bill to reform Section 10 of the ESA should allow smaller landowners to get a tried-and-true conservation plan -- an affordable plan already made for the wildlife in their backyards that will allow him or her to build a house or harvest trees without the
threat of interference. It should provide for natural systems and multiple species conservation plans that would allow landowners to negotiate comprehensive agreements so that they can conduct activities (usually on large sites) that will affect more than one spears.
2. Providing Certainty
A bill to reform Section 10 of the ESA should provide landowners, and any non-federal person, the assurances they need to be enticed by such a plan. The bill must authorize a no surprises policy included in all conservation plans. Without the certainty of no surprises, no private landowner would agree to the potentially endless mitigation requirements of an incidental take permit. With no surprises, landowners know that they will not be required to do anything else for species included in a conservation plan. Without that certainty, the law would continue to disenfranchise private landowners and place more and more reliance on public lands to save species. This committee is aware that the no surprises policy is being attacked in litigation in the Federal District Court in D.C.
3. A Commitment to Planning.
A bill to reform Section 10 of the ESA would revive the commitment to habitat conservation and the HOP process which once existed in the Administration but has been lost over the last few years The direct result of this loss of direction has been extended delays in developing and completing HCPs, and the issuance of incidental take permits. The Fish and Wildlife Service and the National Marine Fisheries Service (the Services) are widely viewed as lacking the early momentum that they had to complete HCPs in a timely manner. Staff turnover, reassignment and reprioritization have slowed the process. Lack of commitment to the process means lack of ownership in the results. The record is replete with complaints about HCP science issues, once resolved, being revisited and previously agreed upon management or mitigation measures being re-reviewed.
Without a commitment from Congress, the Administration's commitment to HCPs will continue to flag. The cost of HCPs will be pushed higher and away from private landowners who might see HCPs as a viable alternative to their existing disenfranchisement.
Instead of trying to address an agency's perceived problem with a particular HOP, landowners may be left to "stab in the dark" by submitting a new proposal with little or no guidance.
Furthermore the existing permit process includes no mandatory deadline established by statute or regulations. This must be changed in the reform act. Although the "Habitat Conservation Planning Handbook" calls for HCPs to be completed in less than 10 months, negotiating periods as long as 3 to 6 years are becoming more frequent.
A bill to reauthorize the ESA must re-establish the commitment to multi-species HCPs. Multi-species HCPs, and Natural Systems HCPs are cost effective for large landowners and can deliver the highest quality of habitat conservation. In Idaho's forests, a multiple species plan to protect different species of non- anadromous fish as well as indicator species of fish prey species could have an enormously beneficial effect on the habitat of the watersheds. Multi-species HCPs save money because they are self- sustaining without having to be amended for each new species which is added to the plan.
Unfortunately, because of the criticism the Services have taken from HCP opponents, they have begun to require extensive data on each specific species. Landowners are considering limiting the scope of their HCPs to limit the cost of the plans. This decision results in less protection for landowners, less conservation for species and, ultimately, duplication of effort for the Services if the landowner chooses to amend the plan to add species at a later date.
4. A Commitment to Science.
Sometimes the Services substitute standardization for science. We have been told of a rhetorical comment by one of the Services to a Senate office that the Service would reject innovative solutions to problems if it would cost them more time or more effort to verify the result than it would to impose a pre-existing "one-size- fits-all'' solution.
5. Avoiding Disincentives.
A bill reforming Section 10 of the ESA must avoid the temptation to impose a recovery standard in HCPs. I can think of no disincentive more persuasive, no greater invalidation of HCPs as a workable system for habitat conservation than the imposition of a
recovery standard for HCPs. I know that this committee has received testimony from people who support such a standard. These people compare mitigation for an incidental take permit with other activities where the, "federal government regulates third party activities that are deemed potentially harmful to societal interests" (Testimony of Eric Glizenstein, Senate Environment and Public Works Committee, Subcommittee on Fisheries, Wildlife and Drinking Water, October 19, 1999)."
A property owner is required by the statute to minimize or mitigate the impact of his or her activities on private property. A property owner is not required, nor should they be required, to mitigate against the past acts of untold numbers of parties, over untold numbers of years, which might have lead to the listing of a species on the Endangered Species List. To require this of an individual property owner shifts the burdens of societal mismanagement on to one party. To require this is not to regulate Third party activities that are deemed potentially harmful to societal interests", but, rather, to ignore the actual impact of contemplated third party activities in order to find a deep pocket for federal priorities.
7. Assuring Voluntary Participation
In Idaho, and elsewhere in the West, there are people who are deeply suspicious of HCPs. There are many reasons for this distrust. Some reasons are valid. HCPs can be extremely expense and time consuming for small landowners. Without the technical expertise necessary to compete with federal negotiators, some people might feel that they would be overwhelmed at the bargaining table.
For others, distrust of HCPs is not borne out of fact but of unreasoned fear. Many in the West feel abused by the Act and the administration of the Act by those responsible for its regulation. Many feel that any agreement with federal regulators is tantamount to federal interference and cannot be tolerated. Unfortunately, that unreasoned fear only results in a failure to respond to challenges and fosters a fortress mentality that will deprive public policymakers of initiative and innovation. There is no way to reason with this fear. But we can assuage it.
We must make it clear that the HCP negotiation process is voluntary. This fear may be borne out of a lack of familiarity with
The Fish and Wildlife Service, or any citizen litigant, could seek an injunction in court prohibiting further use of this land until the state proves that there is no "take". This is a difficult and time consuming burden particularly in the face of a recent listing.
Until a court finds that the activities complained of do not create a Take" of the habitat of a member of the species, the state could be enjoined from allowing uses of state land which might modify habitat. It will be expensive to defend these cases, despite the strong professionalism of Idaho's forest managers. The attendant revenue stream to the state from state land use could be temporarily, or permanently, halted. The ramifications to the educational system in the State of Idaho, from a challenge by an independent third party to activities that permit a "take" of habitat of this species as a result of state land uses, are very serious.
The State of Idaho, and the State of Montana have been active in finding ways to save the bull trout. But the sheer size of the habitat, over a million acres in Idaho alone, means that finding ways to move quickly enough to address the needs of the fish and the needs of the schools is beyond the ability of just one state. Including personnel and direct expenditures, the State of Idaho last year spent approximately $400,000.00 on bull trout recovery. This expenditure does not include many of the ongoing activities of state agencies working on habitat reconstruction, water quality, best management activities, etc., which would benefit bull trout.
Faced with the above facts, Idaho's Governor Dirk Kempthorne came to the inescapable conclusion that an HCP with an incidental take permit under Section 10 of the Endangered Species Act, negotiated with the Fish and Wildlife Service, administered and monitored by the state, would be appropriate and necessary in Idaho to protect an educational system that is funded from receipts from the state endowment fund.
The preferred strategy is to have the State of Idaho negotiate an HCP for state lands. There would be no requirement that once negotiations have begun that an HCP would be agreed to. If the federal agencies demand more mitigation than the states are willing to offer, the states could terminate the negotiations and would be no worse off than they are in today.
The state-negotiated HCP would not include private property owners. However, private property owners could still negotiate their own HCPs, as Plum Creek has chosen to do, or choose to proceed without an HCP.
The goal is to have the State of Idaho successfully negotiate an HCP, simultaneously with development of a voluntary enrollment HCP available to private landowners, that would include state-owned land for which the state would receive an incidental take permit. The state would administer and monitor the private land enrollment program. Private landowners who wished to participate in the HCP for their private land would be eligible to subscribe into the HCP and recede and incidental take permit by complying with the mitigation requirements, and other requirements, in the state land HCP.
I am pleased to announce that just such a plan has been included in the FY 2000 Interior Appropriations Bill for the State of Montana. The money will allow Montana to explore a partnership plan with federal and state agencies to negotiate and implement a voluntary, statewide HCP for the threatened bull trout and other cold-water fish. The plan also would be available on a voluntary basis to private forest interests.
This plan will be a way for Montanans to work together to protect an important species in a common-sense way that encourages small landowners to get involved. It will also help the Montana highway program because the listing of the bull trout has caused concern about the potential effect on highway construction. By providing clear guidance, the habitat conservation plan should ensure that the bull trout and the state's highway program both can thrive.
Montanans have long recognized the need to balance their dependence on renewable natural resources with the necessity to maintain wildlife habitat, like that of the bull trout. The bull trout HCP will allow us to use sound scientific principles to preserve important habitat, while also preserving a way of life that many Montanans depend on.
Mr. Chairman, I feel confident that in the not too distant future Idahoans will also be able to share in the opportunities provided by such a program and will do so in a way that protects species, jobs and school kids. It is a very promising opportunity. Starting with the foundation of good science, we are eager to begin exploring ways to provide good fish habitat while still allowing other forest uses. Our environmentally responsible forest practices can continue to guide habitat management where bull trout and our members live.