TESTIMONY OF WILLIAM J. SNAPE, III
U.S. SENATE COMMITTEE ON ENVIRONMENT & PUBLIC
WORKS
REGARDING CONSULTATION UNDER SECTION 7 OF THE ESA
JUNE 25, 2003
Introduction
Thank you, Mr. Chairman and Ranking Member of the
Subcommittee on Fisheries, Wildlife
and Water. On behalf of Defenders of
Wildlife (Defenders), where I am vice-president and chief counsel, as well as our approximately one million members & supporters, I
appreciate the opportunity to address the value of inter-agency consultation under the Endangered Species Act
(“ESA” or “Act”), 16 U.S.C. Sections
1531 et seq., pursuant to Section 7 of the Act. 16
U.S.C. § 1536. I am also
chairman of the board for the Endangered Species Coalition, which represents
approximately 400 citizen groups, scientific entities and small businesses on
behalf of a strong and vibrant Act. See
generally www. stopextinction.org. My biography was circulated to this
Committee earlier this year in connection with testimony on ESA critical
habitat.
By definition, my written testimony can merely touch
upon the many varied consultations now going on across the country. I would be happy to answer any questions
regarding the policy themes I raise herein.
Familiarity with Section 7 of the ESA is presumed in this testimony. For excellent background information, see,
e.g., American Bar Association, Endangered Species Act: Law, Policy and
Perspectives (2002); Stanford Environmental Law Society, The Endangered
Species Act (2002) at 78-103; and Daniel Rohlf, Jeopardy Under the ESA:
Playing a Game Protected Species Can’t Win, 41 Washburn Law Journal 114
(2001). Also relied upon was Senator
Crapo’s March 22, 2002 letter to the General Accounting Office (GAO).
I wish to make three basic points this morning about
the ESA consultation process:
1) Too frequently, the focus of consultation is
mere short-term survival of the species, not recovery, which is (and should be)
the true goal of the Act;
2) Species with critical habitat designations tend
to fare much better in consultation than species without such designations;
and
3) The consultation process itself is of value to
wildlife and humans alike.
Survival vs. Recovery
Case Studies: Woodland caribou and grizzly bear
In our estimation, the current problem over standards
in the consultation process derive from several questionable changes contained
in the 1986 Section 7 regulations. One
change pertains to the definition of “jeopardize”, which now means, as a result
of the 1986 rules purportedly still in effect, “an action that reasonably would
be expected, directly or indirectly, to reduce appreciably the likelihood of both
the survival and recovery of a listed species in the wild ...” 50 C.F.R. § 402.02 (emphasis added). At least one federal court has found the
Section 7 regulatory standards to be illegal because they conflate the notions
of “survival” and “recovery” contrary to Congress’ intent. Sierra Club v. U.S. Fish and Wildlife
Service (FWS), 245 F.3d 434 (5th Cir. 2001).
Nowhere is this legal problem more evident than in
northern Idaho, eastern Washington, and western Montana, where the highly endangered
woodland caribou hangs by a tether.
With only 30-40 individual adults left in the U.S. wild, by all
scientific accounts this species needs all the old growth forest habitat it can
get for breeding, feeding and sheltering.
U.S. FWS, Southern Selkirk Mountain Woodland Caribou Recovery Plan (1994). In this same area, a remnant population of
grizzly bears, numbering no more than a dozen or so in the U.S., is also
jeopardized by federal agency actions.
U.S. FWS, Grizzly Bear Recovery Plan (draft revised, 1993).
Yet, in example after example, the Forest Service –
which administers most of the woodland caribou’s remaining habitat – allows
actions on federal public lands that harm the species and prevents its
conservation, almost as if it is managing the species for fingernail
survival. For instance, the Colville
National Forest recently approved a request from the Stimson Lumber Company to
build a road and secure industry access in unroaded forest recovery areas for
the woodland caribou and grizzly bear; this project will definitely adversely
affect both species. U.S. FWS, Biological
Opinion on the Stimson ANILCA Access Easement Project at 58-68. In another instance of woodland caribou
habitat degradation, the Idaho Panhandle National Forest recently announced a
doubling of the Chips Ahoy timber sale.
68 Fed. Reg. 33906 (2003).
Other so-called “salvage” timber sales in prime woodland caribou
recovery habitat are still pending. See, e.g., 65 Fed. Reg. 34654
(2000). Expanded snowmobiling use and
trails, some of it illegal, is also harming woodland caribou on Forest Service
lands. See, e.g., Trevor
McKinley, Snowmobile – Mountain Caribou Interactions, (May 9, 2003
draft). The grizzly bear is now
threatened by a number of increased uses on federal public lands, including the
exponential increase in oil and gas permits being issued by the Department of
the Interior and related agencies.
The Importance of Critical Habitat
Case Studies: Pygmy Owl and Silvery Minnow
One need read no further than the plain language of
the ESA Section 7(a)(2) to understand the importance of critical habitat during
the consultation process: “Each federal agency shall, in consultation with and
with the assistance of the Secretary, insure that any action authorized,
funded, or carried out by such agency is not likely to jeopardize the continued
existence of any endangered species or threatened species or result in the
destruction or adverse modification of (critical) habitat ...” (emphasis added). As the FWS has stated in the context of the
northern spotted owl critical habitat designation, “the adverse modification
standard may be reached closer to the recovery end of the survival continuum,
whereas the jeopardy standard traditionally has been applied nearer the
extinction end of the continuum.” 57 Fed. Reg. 1822 (1992).
Two species in the Southwest – the Rio Grande silvery
minnow and the cactus ferruginous pygmy owl – both vividly demonstrate the
importance of critical habitat for most species during Section 7
consultation. With regard to the pygmy
owl, the Army Corps of Engineers ended consultation on several important estate
development projects that would negatively impact identified pygmy owl recovery
habitat immediately after a federal court vacated the pygmy owl critical
habitat designation. National
Association of Home Builders v. Norton, slip op. (D. Arizona Sept. 19,
2001). With just approximately 18 adult
pygmy owls identified in the United States, and habitat loss and destruction
being the key factors in the species’ decline, this imperilled bird
(like the woodland caribou and grizzly bear) needs all the prime desert habitat
it can get. See, e.g., 62 Fed.
Reg. 10730 (1997)(final listing rule for pygmy owl, emphasizing the central
importance of habitat protection for the species).
With regard to the silvery minnow a recent U.S. Court
of Appeals decision reinforces how critical habitat helps not only individual
species, but also entire ecosystems. Rio
Grande Silvery Minnow et al. v. Keys, slip op. (10th Cir. June
12, 2003). It should also be noted here
that, despite the rhetoric by some to the contrary, this decision is balanced
and requires only that the Bureau of Reclamation consider wildlife imperilled
with extinction when dealing with water shortages under federal water
contracts. Id.
Thus, we are extremely concerned by the Bush
Administration’s announcement last month that it will seek to delay once again
its work on the critical habitat designation for over thirty threatened and
endangered species. Having
successfully engineered its own budget crisis, the Administration now seeks to
deny affirmative habitat protection for those species that most need it,
including the pygmy owl, including many species that contribute to California’s
biological diversity, and including the bull trout that is negatively impacted
by U.S. and Canadian forestry actions alike.
Many Benefits of the Consultation Process
Case Studies: Sonoran pronghorn, Lynx, Migratory Birds
With all due respect, we disagree that: 1) most “no jeopardy” findings under the
Section 7 process are “inevitable” or that 2) “more and more of these unneeded
consultations” provide “no benefit” imperilled wildlife species. Crapo Letter to GAO at 1.
First, the high incidence of “no jeopardy” opinions
has as much to do with the political and economic pressure that project
applicants apply upon the action agency as it does with the biological
integrity of the agency actions in question.
See Oliver Houck, The Endangered Species Act and Its
Implementation by the U.S. Departments of the Interior and Commerce, 64 University
of Colorado Law Review 277, 326 (1993)(“Taken together, Interior’s
regulations present a composite picture of an agency doing everything possible
within law, and beyond, to limit the effect of protection under Section
7(a)(2).”). Second, even when a no
jeopardy opinion is validly written, the statutory language (and practice) of
the ESA is that “reasonable and prudent alternatives,” “reasonable and prudent
measures,” and “terms and conditions” by FWS or the National Marine Fisheries
Service (NMFS) can all positively impact the final agency action going through
consultation. See, e.g., ESA, 16
U.S.C. § 1536(b)(4). Avoidance,
minimization and mitigation are important concepts in the Section 7 and 10
processes. See generally Michael
Bean and Melanie Rowland, The Evolution of National Wildlife Law (1997).1
A case in point is the highly endangered Sonoran
pronghorn, of which as few as twenty individual adults now inhabit the United
States. Listed since 1967 when the
original voluntary endangered species law was passed by Congress, this desert
species has declined due to a number of individual agency actions that have
degraded its habitat, most of which is on federal land (e.g., DOD, FWS, BLM,
NPS, Border Patrol). A federal court
has ruled, consequently, that the federal family must do a much better job
cumulatively assessing and acting upon threats to the Sonoran pronghorn. Defenders of Wildlife v. Babbitt, 130
F.Supp. 2d 121 (D.D.C. 2001). If anything, the subsequent consultations
pursuant to this judicial decision have usefully identified threats and actions
impacting the pronghorn. The problem
has been getting the action agencies to do the right thing. As one of several examples, despite recognition
that hot desert cattle grazing in the Sonoran Desert is adversely impacting the
Sonoran pronghorn (an earlier GAO study already has concluded that hot desert
grazing is an economic disaster for the federal government), the Bureau of Land
Management in its “no jeopardy” opinion has essentially allowed “business as
usual.” U.S. FWS, Biological Opinion
for Five Livestock Grazing Allotments in the Vicinity of Ajo, Arizona (2002).
Another example of proper consultations leading to
wiser governmental decisions pertains to the lynx and northern national forest
management. Under court order to
designate critical habitat for this species, we believe the FWS (and the Forest
Service, which tends to be the action agency with regard to this species) would
help both the lynx and the national forest program by rigorously analyzing the
impact of certain projects upon meso-carnivore protection. See generally
Leonard Ruggiero et al., Ecology and Conservation of Lynx in the United
States (1999). However, the recent
proposal by the Bush Administration to allow the Forest Service to make its own
consultation decisions on actions “likely to adversely affect” listed species
turns the notion of independent wildlife analysis on its head, and is illegal. 68 Fed. Reg. 33806 (2003).
Similarly, it is blatantly illegal for the Services to
allow the Environmental Protection Agency (EPA) to opt out of consultations
altogether with regard to its pesticide approval program. 68 Fed. Reg. 3786 (2003). As Defenders has noted in detailed comments
to the EPA and the Services, our federal government’s top biologists cannot be
written out of the process to evaluate the safety of new chemicals that come on
line almost every day. This is an issue
not only for many wildlife species, and particularly the migratory birds
discussed by Rachel Carson almost forty years ago, but also for human health.
Conclusion
We believe Section 7 of the ESA is fundamentally
sound. With adequate financial
resources, we believe the FWS and NMFS possess the ability to streamline
consultations (and related environmental reviews) when necessary to do so. Long opposed by many industry applicants, we
believe the time has come to add sunshine to the relatively closed Section 7
process in order to better understand the process and to potentially fine tune
it. Self-consultation by action
agencies is not the way to go. Holding
action agency expenditures accountable to good fiscal and ecological oversight
is where we should be heading.
Thank you for your time and attention. I would be happy to answer questions or respond to comments.
1 See
also David Malin Roodman, Paying the Piper: Subsidies, Politics and the
Environment (1996); Elizabeth Losos et al., Taxpayers’ Double Burden:
Federal Resource Subsidies and Endangered Species (1993); Thomas Power, Not
All That Glitters: An Evaluation of the Impact of Reform of the 1872 Mining Law
on the Economy of the American West (1993)(all three reports highlight
examples of federal agency expenditures that are economic and ecological
losers).