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TESTIMONY OF JAMIE RAPPAPORT CLARK  DIRECTOR OF THE U.S. FISH AND 
WILDLIFE SERVICE BEFORE THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC 
WORKS ON S. 1180 THE ENDANGERED SPECIES RECOVERY ACT OF 1997 
September 23, 1997
 
Mr. Chairman and members of the Committee, thank you for the opportunity 
to speak with you today about this very important legislation to 
reauthorize the  ESA. It is fitting that I would be appearing before you 
today at my first  legislative hearing after my confirmation to give our 
views on the Endangered  Species Recovery Act of 1997. Having served as 
the lead program manager for the Endangered Species Program, I have, 
along with many of you, been deeply involved with the five-year quest for 
a reauthorized and strengthened Endangered Species  Act. I would like to 
pay tribute to you Mr. Chairman and Senators Kempthorne,  Baucus, and 
Reid and your staffs for the dedication and hard work that made the 
introduction of this bill possible. 
 
I am very encouraged that bipartisan legislation has been introduced to  
reauthorize one of the nation's premier conservation laws. For too long, 
we  heard only complaints from parties on all sides of this issue and 
there were  precious few who offered constructive solutions. Instead of 
more of the same,  the leadership of the Environment Committee rolled up 
their sleeves in a serious effort to address concerns associated with 
current implementation of the Act.  We appreciated your inviting staff 
from the Departments of the Interior,  Commerce and Justice to provide 
technical assistance and support to the process. We also welcomed the 
opportunities the Committee provided to Secretary  Babbitt, myself and 
other officials to work with you during this process. We  are also 
pleased that another bipartisan bill, H.R. 2351 has been introduced in  
the House by Congressman Miller and that the leadership of the House 
Resources  Committee has begun tentative, bipartisan discussions in an 
effort to seek  common ground on reauthorization. All of these events are 
positive developments and suggest that at long last, legislative gridlock 
on ESA reauthorization is  coming to an end.
 
The result of your efforts in the Senate is legislation that has been  
carefully crafted to maintain the essential strengths of the current law 
while  taking steps to make it work better for species conservation, the 
States, and  affected landowners. The Administration is very pleased that 
the bill maintains as the foundation of the listing process the 
requirement that decisions be grounded solely on biological 
considerations and sound science; that the  essential protections under 
Sections 7 and 9 remain intact; that the  opportunity for participation 
by the States, affected landowners, and the  general public is increased; 
and foremost, that species recovery receives  enhanced recognition as the 
centerpiece of the Act. 

On balance, we believe that S. 1180 will strengthen our ability to 
conserve endangered, threatened and declining species. The Administration 
supports  enactment of the bill subject to the reconciliation of several 
issues set forth  in this testimony. Prior to the Committee markup of S. 
1180, the Administration will provide the Committee with a list of other 
technical and clarifying  amendments, as well as suggested report 
language to accompany key provisions of  the bill. We will also provide 
additional technical amendments as the other  federal agencies complete 
their review.
 
Reform of the implementation of the Endangered Species Act has been a  
major focus of this Administration and we were pleased to see that your 
bill  contains many of the reforms and policies that the Administration 
has proposed  and carried out over the past few years to improve the 
Act's effectiveness in  species conservation and fairness for landowners. 
When the Departments of the Interior and Commerce announced our 10 point 
plan to improve implementation of  the Endangered Species Act in March of 
1995, we recognized that the Act needed  to be more effective in 
conserving species and that we needed to engage  landowners as partners 
in conservation, not as adversaries. We acknowledge that we must provide 
landowners with greater certainty and work with them in a more  open, 
flexible manner with new incentives to increase their involvement in  
conservation actions. After five years of developing a "new ESA" through  
Administrative reforms, we would welcome the codification of many of the 
reforms we have now established. 
 
We believe S. 1180 will strengthen our ability to conserve threatened 
and  endangered species by including provisions that: 
Enhance Recovery. Twenty-three years of experience has taught us that  
conserving multiple species in a comprehensive programmatic fashion is 
not only  more efficient, it is better for the species. This bill 
authorizes and  encourages conservation plans that address multiple 
species associated with the  same habitat such as the Natural Communities 
Conservation Planning (NCCP)  program currently being implemented in 
southern California. Since 1991 this innovative ecosystem based 
management program has been successfully balancing  the need to preserve 
the unique species of the coastal sage scrub ecosystem with the desired 
economic development of the area. The bill also: provides for  increased 
federal, state and public involvement in the recovery planning and  
implementation process; clarifies the role of federal agencies in 
species  recovery efforts; specifies deadlines for the completion of both 
draft and final plans; and provides for biological benchmarks to measure 
progress on the  road to recovery.
 
Ensure the Use of Sound Science. The use of sound science has been  
highlighted by our reforms through the addition of peer review to 
listing  decisions, new petition management guidelines, and increased 
information sharing with states. The bill's incorporation of peer review 
and enhanced state  involvement recognizes the importance of these 
measures in decision making.  Although we support the peer review 
requirement in the bill for listing  decisions, we remain concerned that 
requiring that the National Academy of  Sciences produce a list from 
which qualified experts are chosen is unnecessary  and potentially costly 
and burdensome. We would suggest requiring that three,  independent and 
qualified experts be chosen by the Secretary, in keeping with  our 
current procedure.
 
Provide incentives and certainty for landowners. Many private interests  
are willing to help conserve species, but landowners and businesses need  
regulatory certainty upon which they can base long-term economic 
decisions.  Such certainty is vital to encouraging private landowners to 
participate in  conservation planning. The bill addresses one of the 
major concerns regarding conservation plans and the "No Surprises" policy 
by requiring  monitoring of conservation plans to better assess their 
impacts on species  conservation. S. 1180 also adopts a number of 
important Administration  reforms, including our "No Surprises" policy, 
candidate conservation agreement  policy and "no-take" agreement program, 
thereby providing incentives for public  support and involvement in 
species conservation. 

The Act has been criticized for inadvertently encouraging landowners to  
destroy wildlife habitat because they fear possible restrictions on the 
future  use of their property if additional endangered species are 
attracted to improved habitat. S. 1180 incorporates the Administration's 
"Safe Harbor" policy, which  removes the regulatory disincentive 
associated with enhancing habitat for  endangered species and thus 
encourages pro-active conservation efforts. We  interpret the language in 
the bill as being consistent with our Safe Harbor  policy. This policy 
has already generated considerable success in the  southeast where 20,000 
acres have been improved as endangered red-cockaded  woodpecker habitat 
under these agreements. Similar agreements are in place in Texas and are 
helping to restore the Aplomado falcon to Texas for the  first time in 50 
years. The bill also authorizes a number of incentive programs to 
encourage landowners to participate in species conservation, including  
conservation and recovery planning, that if adequately funded could 
greatly aid  species conservation efforts.
 
Improve Governmental and Public Involvement. Involvement of other Federal 
agencies, states, the tribes, affected public landowners and 
environmental and  scientific communities is key to endangered species 
conservation and has been a  cornerstone of our 10 point plan. S. 1180 
furthers this goal by enhancing  public participation processes and by 
emphasizing State-Federal partnerships for endangered species 
conservation especially in the areas of recovery and  conservation 
planning, as well as many others. 

Eliminate threats to species. Species are conserved most efficiently and  
least expensively when we can remove threats facing them through 
conservation  measures undertaken before they have declined to very low 
numbers. We can act  before species require listing and before recovery 
options are limited, and  sometimes expensive. This bill endorses our 
candidate conservation agreement  initiative which encourages federal 
agencies and our partners to reach agreement on measures to conserve 
candidate and proposed species that remove threats to species and that 
can preclude the need to list these species in the future. The Department 
has a number of these agreements including an agreement in Utah which 
removed the threats facing the Virgin River spinedace and avoided the 
need to  list this fish due to the efforts of local governments working 
closely with the  Service. In the Midwest, a successful conservation 
agreement is bringing  together the States of Kentucky, Illinois, and 
Indiana with the Farm Bureau and  the coal industry to protect the copper 
belly watersnake.  A key factor leading to our support of this 
legislation has been the  willingness of the sponsors to make a number of 
improvements since the January  draft. The Committee leadership is to be 
commended for allowing technical  comment and discussion upon the January 
draft and responding to many concerns  that were raised through that 
process. For example, the bill no longer includes a water rights 
provision, which avoids changing the status quo on the  interrelationship 
of the Act and state water laws, thereby minimizing conflicts  between 
the Act and water projects in the West. The recovery section has been  
greatly improved by requiring that recovery goals be based solely on 
sound  science. Then, within this biological context, social and economic 
factors will be considered as we work together to find ways to 
expeditiously achieve the  species' recovery goal. Retaining the current 
emergency listing standard is  appropriate since this is an extremely 
important tool in the very few crisis  situations where we may need it. 
After thorough examination of the Section 9  take standard by your 
Committee, we are pleased to see that the bill has  reaffirmed the 
current law. Your bill does not waive other environmental statutes and we 
commend you for this decision. Finally, the bill contains no  
compensation provision or other problematic property rights language; we 
would  strongly object to such provisions.
 
These are all very positive parts of a bill that maintains and actually  
improves the essential protections and integrity of the Act while also 
seeking  to make the Act work better for the affected public and 
landowners. I would  now like to discuss the Administration's 
recommendations on the bill, which we  believe are important to our 
ability to implement a comprehensive ESA.  

Securing adequate funding to support this legislation will be the 
greatest  challenge facing all of us. This legislation calls for an 
authorization level  that is more than double the current resource 
agencies' ESA budgets. Even if  this level of increase is realized in 
appropriations, we remain concerned that  the cost and complexity of some 
of the changes, particularly process changes,  may actually exceed the 
authorized levels. Without adequate appropriations, we  will face 
significant litigation backlogs, and some species' recovery may be  
stalled. In addition, response and technical assistance to landowners,  
applicants, and federal action agencies will be delayed. Also, a number 
of  agencies will require additional funds to adequately implement this 
bill because of increased responsibilities for land management agencies 
such as the Forest Service, the Bureau of Land Management and the Fish 
and Wildlife Service. In  short, absent adequate funding or a reduction 
in the complexity of some of the  processes, we can not support this bill.
 
The greatest strength of this bill is its increased emphasis on 
recovery,  but this comes with additional requirements that will be 
expensive to implement  and new deadlines that may be difficult to meet 
even with adequate funding. The bill should be amended directing the 
Secretary to develop and implement a  biologically based recovery 
planning priority system using the biological  priorities as set forth in 
S. 1180 as a template for this system. Also, the  Administration would 
like to see the recovery process streamlined as explained  below. 
 
One method for streamlining the bill's process requirements is to  
consolidate the designation of critical habitat with the development of 
recovery plans. Although the bill allows for the regulatory designation 
of critical  habitat at the time of recovery rather than listing, a 
significant improvement,  we remain concerned that the cost and 
administrative burden of designating  critical habitat by regulation in 
this bill is not warranted. Habitat is "the  key" for all species and as 
such needs to be thoroughly addressed in all  recovery plans. Continuing 
to carry out a regulatory critical habitat  designation process 
simultaneously with the new recovery plan development  process is 
duplicative and escalates costs for little resource or stakeholder  
benefit. Both processes include consideration of economic costs and 
provide  for public participation. The two should be integrated into one 
process. We  will be glad to suggest the necessary technical changes that 
would better  incorporate this process into recovery planning and save 
time and money, while  ensuring protection of species and habitat.
 
The bill provides that a Federal agency can go forward with an action if  
the agency makes a determination that the action is not likely to 
adversely  affect the species and the resource agencies do not object. 
The bill provides  an increased role for Federal agencies in species 
conservation by requiring  inventories of species present on federally 
managed lands, recovery  implementation agreements, and increased 
responsibility for their decisions  under Section 7. We believe we can 
work with other agencies to make the new  trigger and the plan 
consultations work well for the involved agencies,  applicants and the 
resource. However, an endorsement of our recent practice of  working 
together with other federal agencies early in the consultation process in 
a pro-active manner that is both more efficient and better for species  
conservation needs should be codified. Even where early coordination 
occurs,  the bill could be read to require that action agencies wait an 
additional 60  days for resource agencies to object to their findings. 
Language that stresses  the importance of early proactive coordination 
and cooperation among federal agencies and the ability of agencies to 
still request and receive  expedite concurrence letters would alleviate 
these concerns.  Finally, I would like to urge that the spirit of 
cooperative discussion  that produced this bill extend to the development 
of the Committee report, so  that our mutual understandings of these 
complex issues are strengthened, not  eroded, as the bill proceeds 
through the legislative process.  I am very encouraged that the Senate is 
moving forward to reauthorize the  ESA. We in the Administration stand 
ready to continue to assist in any way  possible in seeing the process 
through to completion. We are optimistic that we can reach closure on 
these issues before final consideration of this bill in the Senate so 
that the Administration can support its enactment. Together, we can  make 
the Act work even better for species and people and get on with 
conserving our resources for future generations. 

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