Endangered Species Act

November 5, 2005

Senator Ken Salazar 702 Hart Senate Office Building Washington, DC  20510 

Dear Senator Salazar:

This letter addresses our concerns and suggestions regarding Endangered Species Act (ESA) legislation that will be discussed in the Senate in the near future.  The House of Representatives approved H.R. 3824 (Threatened and Endangered Species Recovery Act) with amendments on September 29, 2005, on a very fast track that did not include the opportunity for meaningful public input.  The Colorado Wildlife Federation believes that the bill as currently written is seriously flawed.  However, in addition to pointing out the major problems in the bill, we also are providing some recommendations that we believe would make the Endangered Species Act more efficient and effective for all affected parties.   The Colorado Wildlife Federation is one of the oldest conservation organizations in the state.  Our membership consists mainly of hunters, anglers, and those who enjoy photographing and viewing wildlife.  The mission of our organization is to promote the conservation, sound management, and sustainable use of Colorado's wildlife and wildlife habitat through education and advocacy.  We enjoy a solid reputation with the Wildlife Commission, Department of Natural Resources, and the public as a credible, middle of the road, conservation organization that provides rational input to wildlife management issues.   The Colorado Wildlife Federation is concerned about non-game species of wildlife as well as the game that we love to hunt and fish.  Therefore, we have a long history of supporting protection and recovery of threatened and endangered species.  For example, we have consistently supported State efforts to reintroduce and recover Canada lynx, wolverine, and native fishes, such as our State fish, the greenback cutthroat trout.  We would appreciate your consideration of the following comments.   The major problems with the bill include:

• Repeal of protection from the harmful impacts of pesticides
• Removal of consultation requirements and, thus, adequate review by the U.S. Fish and Wildlife Service (USFWS) and National Marine Fishery Service (NMFS) of categories of federal actions
• Use of taxpayers' money to reimburse developers for potential opportunities forgone or for developments that are harmful to listed species
• Weakening of the jeopardy standard for projects that are harmful to listed species
• Removal of critical habitat designations

    1.  Repeal of Pesticide Registrations from ESA Requirements   The Environmental Protection Agency (EPA) and the USFWS have been working together on how best to comply with ESA requirements for pesticide registrations for many years.  The process certainly has been cumbersome.  However, to remove the requirements for pesticide registrations and approval of application practices from ESA is not the right answer.  Several of these chemicals have been proven to be extremely harmful to many forms of fish and wildlife, including listed species.  Two notable examples that occur in Colorado are the bald eagle and the peregrine falcon.  Both these species were dramatically reduced because of DDT and similar pesticides.  These chemicals caused eggshell thinning resulting in mortality in chicks.  A major factor in recovery of both species was the prohibition against sales of these harmful chemicals in the United States.   We strongly recommend that pesticide registration and use compliance not be removed from ESA requirements.  Instead the law should require that the EPA and USFWS establish a more efficient but still environmentally sound process for ensuring that pesticides that are applied to this nation's lands do not cause jeopardy or extinction of listed species.   2.  Removal of USFWS and NMFS Review of Federal Actions   This provision probably is a reaction to the length of time some section 7 consultations consume.  However, it is important to understand that the major factor that causes delay in timing of section 7 consultations is the inadequate funding and personnel that Congress provides to the USFWS and NMFS, rather than the law, regulations and rules that currently govern these consultations.  There are also some consultations that are extremely complex and require more time to complete.  Two notable consultations in Colorado are the Animas La Plata Project in Southwest Colorado and the "Front Range Consultations" that led to the Platte River Recovery Program.    In the Animas La Plata Project, the solution not only resulted in a project that was better for listed species, but also resulted in a better project for the Native American tribes of Southwestern Colorado and Northwestern New Mexico.  Inadequate flows in the Platte River have been a problem for listed species for many years as well as for the many competing water users.  The Platte River Recovery Program will help the listed species and provide more certainty to the water users in Colorado, Wyoming and Nebraska.   We are very concerned that federal agencies whose missions are not oriented towards wildlife protection may not have the capability or desire to make adequate determinations of effects and to fashion solutions that would conserve the species.   Many of these agencies do not possess staff expertise to assess project effects on listed species.  Moreover, some agencies are more motivated to advance the building or permitting of their projects in an expeditious manner rather than conduct a fair evaluation of effects on listed species.  In the latter situation, the metaphor of the fox guarding the chicken house comes to mind.    There is a very good reason why Congress has designated the USFWS and NMFS to review projects proposed by other federal agencies.  They do have the expertise and mandates from Congress to ensure that our nation's fish and wildlife resources, especially listed species, gain equal footing with other project purposes.  Removal of the requirements for such project reviews and section 7 consultations would result in many projects having harmful effects on listed species.  As history has shown, many of these adverse effects can be eliminated while allowing the project to move forward to meet its intended purpose.    Project delays sometimes occur, but such delays may be attributed as much to an unwillingness by project proponents to negotiate, as well as to zealous protectionists.  Further, we believe that stories about projects halted because of the section 7 consultation process are almost always erroneous or at least greatly exaggerated.  Two of our Issues and Advocacy Committee members worked professionally with the Act for several decades in this interstate region.  Neither one of them can remember a single project that was stopped purely because of the ESA or the presence of listed species.  More often than not, other factors were dominant such as zoning laws, economics, and local opposition.   Therefore, we strongly recommend that the current section 7 consultation provisions in the ESA remain unchanged.  We further recommend that Congress provide significantly more funding to the USFWS and NMFS for their section 7 consultation responsibilities.   3.  Taxpayers Subsidy for Forgone Development Profits   The bill would require the USFWS and NMFS either to abandon enforcement of the ESA or to compensate developers for any portion of their proposed development that the agency determines would violate the ESA.  In other words, the USFWS or NMFS would have to pay for any private land takings, even if the majority of a project could be built and is highly profitable.  The resolution of a taking of private lands is best left to the courts.  Further, the two agencies are already financially strapped and lack the funds to carry out such a mandate.  Such actions would require the Congress to provide more funds to the two agencies.  We all must be mindful that in this current proposal it would be taxpayers' money that would pay a developer to refrain from harming a listed species.   If this requirement remains in the legislation, it is almost certain that some unscrupulous developer will propose a project that he knows cannot gain ESA clearance merely to obtain taxpayer financing for his speculative plan.   4.  Weakening of the Jeopardy Standard   When evaluating projects and their effects on listed species, the USFWS and NMFS assess not only the immediate project but also the cumulative impacts of that project in conjunction with other projects.  The proposed bill would tie these agencies' hands and not allow this important baseline analysis.  They would only be allowed to evaluate the existing project and not even be able to look at project alterations or seek more information that would be needed to properly evaluate project impacts on listed species.  The best method to determine solutions of projects and determine mitigation needs is through negotiations among the parties involved and these agencies. By applying this approach in Colorado, mutually agreeable solutions were determined in 100 percent of all section 7 analyses over the past 17 years.  Not all of these projects were easy to solve, but the USFWS and NMFS possess substantial  experience participating in open discussions and proposing creative solutions.   The Colorado Wildlife Federation strongly recommends that the jeopardy standard used for section 7 determinations in the current Act not be changed.   5.  Designation of Critical Habitat   Critical habitat designations under current law have been a "lighting rod" and have cost a great deal of money and time because of lawsuits.  The problem is that ESA mandates the designation of critical habitat for all species.  While the current law allows the USFWS and NMFS to not designate critical habitat in a few cases, the federal government and the courts have very narrowly interpreted the definitions of those exceptions.  Another problem is that these agencies are required to conduct a very expensive economic analysis (e.g., greater than one million dollars in some instances) for critical habitat designations that have no biological value.  Further, the economic analyses themselves can be virtually meaningless with respect to the decision making process.   All listed species do not need to have critical habitat designated to recover; nor is it possible to realistically determine critical habitat for some species.  The latter is especially true for species that have small populations but wide distribution such as the Canada lynx.  The potential habitat for lynx is essentially all of the boreal forests of North America.  Trying to delineate habitat into essential and defined areas does not make much sense, and it may be biologically infeasible or impracticable.   Another problem with critical habitat designations in the current ESA is that the designation is mandated before there is a recovery plan in place, enabling a determination of what recovery is needed.  This is backwards and should be remedied in any new act.     In its simplest form the Act could be fixed with a change of one word.  Currently the Act states, "...critical habitat shall be designated unless it is not prudent or indeterminable."  Merely changing the word shall to may would provide the flexibility for realistic critical habitat designations.  However, we recommend a further change.  Critical habitat designations should only be proposed if recommended specifically in a recovery plan, and they should be based upon the biological needs of the species, not on politics or economics.  The USFWS and NMFS also should be given at least one year after finalization of the recovery plan to recommend a critical habitat designation.

6.      Other Issues and Colorado Wildlife Federation Recommendations.

A.  Emphasize cooperative recovery efforts:  The Colorado Wildlife Federation recommends that the major theme of the ESA should be recovery of species and that there should be a greater emphasis on development of recovery plans and implementation of conservation measures, which requires substantially more funding than currently appropriated for this purpose.  While the USFWS and NMFS are working diligently on recovery plans, the focus of funding and the attention from outside groups has been on petitions for listing, lawsuits, and critical habitat designations, thus severely hamstringing the agencies from conducting more productive work in recovery actions and plans. We strongly recommend that cooperative efforts be encouraged such as Habitat Conservation Plans, Candidate Conservation Agreements, partnerships with other federal, state and local governments and with private citizens, especially landowners.    We cite two excellent examples of cooperative agreements that have benefited all signatory parties in Colorado.  The first is the Preble's meadow jumping mouse conservation bank on East Plum Creek in Castle Rock.  This bank was created as a result of an agreement among the USFWS, the Colorado Department of Transportation (CDOT), and the Federal Highway Administration (FHWA).  The purpose was to restore riparian habitat along East Plum Creek and to provide a mitigation bank for future highway projects along I-25.  The habitat restoration has been a tremendous success.  It exceeded the expectations of the signatory parties, and it also resulted in benefits to many non-listed species as well as to the enjoyment of the citizens who hike in that open space.  Wes Goff, who recently retired from CDOT, received the Excellence in Environmental Leadership Award from FHWA in 2003.  One of the main reasons he received this award was this work in East Plum Creek.   The second example is the Central Short Grass Prairie Initiative, which is another effort among the USFWS, CDOT, and FHWA, as well as The Nature Conservancy and the Colorado Division of Wildlife.  The major species addressed are current and possible future listed species.  The gist of the project is to acquire and manage land for native species in the Eastern Plains of Colorado in the near future while mitigating for future highway projects that could occur 20 to 30 years into the future.  This approach would eliminate or reduce the environmental analyses for those future highway projects, saving the taxpayers many thousands of dollars.  At the same time, lands would be managed to benefit wildlife species that are in trouble and other wildlife in the area.  As a result of this precedent-setting agreement, the participating agencies received the Environmental Excellence Award from FHWA in 2003.  The Colorado field office of USFWS also received the first Transportation Environmental Stewardship Excellence Award presented by the Washington Office of the USFWS.

B.  More flexibility in listing decisions:  With the exception of petitions for emergency listings, the USFWS and NMFS should not be required to make a decision whether to propose a listing for a species in response to a petition for five years, unless they make a scientific decision that sufficient information accompanied the petition to warrant moving forward.  Currently, the USFWS and NMFS are often sued by environmental groups sue for failing to meet deadlines for proposing or listing a species or designating critical habitat.  Such lawsuits siphon time and money from other important ESA conservation work.  Further, if the court rules in favor of the environmental groups, (as is often so), the NGO's attorneys recover their fees from USFWS and NMFS, which in turn, providing an additional incentive to file such suits. 

C.  More incentives for landowner cooperation:  Although the Colorado Wildlife Federation opposes most of the provisions in H.R. 3824 for the reasons stated above, we do strongly support language in the bill that would provide greater financial incentives for private landowners to protect species at risk and their habitats through a fully funded grant program.  We suggest adding a provision for funding a program for willing seller acquisitions (either fee title or easements) of lands and waters that provide habitat for listed and candidate species.  Acquiring such habitat could accelerate delisting and, in the latter case, help preclude the need to list in the first place.  The wetland, riparian, and forest conservation provisions of the Farm Bill provide a good example of how the habitat of listed species could be conserved in a manner that also would benefit the landowners in a noncontroversial manner.

Conclusion

Thank you very much for considering our concerns and recommendations for making the Endangered Species Act more workable for wildlife and citizens of Colorado and the nation.  We would be happy to meet with you or your staff to discuss these comments.  If you are interested in such a meeting, please contact Dennis Buechler, Co-Chair of our Issues and Advocacy Committee, at (303) 627-0997 or at wetlandsandwater@comcast.net.

Sincerely,

Suzanne O'Neill
President

cc: Office of Senator Ken Salazar
2300 15th Street, Suite 450
Denver, CO  80202

Senator Wayne Allard

E-mail: U.S. Representatives
Director, Colorado Division of Wildlife
Regional Director, USFWS