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AMENDING THE ENDANGERED SPECIES
ACT OF 1973
HEARINGS
BEFORE THE
SUBCOMMITTEE ON RESOURCE PROTECTION
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
NINETY-FIFTH CONGRESS
SECOND SESSION
ON
S. 2899
A BILL TO AMEND THE ENDANGEItED SPECIES ACT OF 1973
TO ESTABLISH AN ENDANGERED SPECIES INTERAGENCY COM-
MITTEE TO REVIEW CERTAIN ACTIONS TO DETERMINE
WHETHER EXEMPTIONS FROM CERTAIN REQUIREMENTS OF
THAT ACT SHOULD BE GRANTED FOR SUCH ACTIONS
APRIL 13 AND 14, 1978
SERIAL NO. 95-H60
Printed for the use of the Committee on Environment and Public Works
* 0 *O7~-i~/~~'i
U.S. GOVERNMENT PRINTING OFFICE
29-319 0 WASHINGTON: 1978
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COMMII1~EE ON ENVIRONMENT AND PUBLIC WORKS
JENNINGS RANDOLPH, West Virginia, Chairman
ROBERT T. STAFFORD, Vermont
HOWARD H. BAKER, JR., Tennessee
JAMES A. McCLUR~, Idaho
PETE V. DOMENICI, New Mexico
JOHN H. CHAFEE, Rhode Island
MALCOLM WALLOP, Wyoming
Jo~ss~ W. YAGO, ~!` Staff Director
BAILEY GUARD, Min~rity Staff Director
PHILIP T. CUMMINGs, RICHARD M. HARRL~, KATHERINE Y. CUDLIPP (Minority), and
RIchARD E. HEROD (Minority), Counsels
HARoU H. Bas~mw~ (Minority), Senior Professional Staff Member
Professional and research staff: J~u~s K. Asss~LsTINE (Minority Nuclear Counsel), JosapH N.
BOWMAN, KARL R. Bi~ iwArrE, KATHERINE CAPLE5, MICHAEL A. CHOUKAS, E. KEVIN CORNELL,
PAUL L. FADELLI, GEORGE F. FENTON, Jr., RANDOLPH G. FLOOD, KATHALEEN R. E. FORCUM, ANN
GARRABRANT, RICHARD T. GREER, CAROLE A. HACKES, WESLEY F. HAYDEN, GEORGE JACOBSON,
KATHLEEN A. KORPON, CURTIS MOORE (Assistant Counsel, Minority), CLIFFORD M. NAEVE, JUDY F.
PARENTE (Assistant Minority Staff Director), KEVIN PHELPS, JOHN B. PURINTON, Jr., JAMES D.
RANGE (Assistant Counsel, Minority), W. LER R~wLS, PETER D. ROSENBERG, LAWRENCE J. ROTH
(Assistant Counsel), JACQUELINE E. ScHAI~sa~, C~iARrs.~E A. STURBITrS, E. STEVENS SWAIN, Jr.,
ROBERT I. VANHEuv~EN, SAUX W. WALKER, LSwH W. WATrS, BAanAJ~ WEBB, and HAVEN
WHITESIDE
PAUL CHIMES, Edbtorzal Director
SUBCOMMIrrEE ON RESOURCE PROTECTION
JOHN C. CULVER, IOWA, Chairman
EDMUND S. MUSKIE, Maine MALCOLM WALLOP, Wyoming
MIKE GRAVEL, Alaska F~OWARD H. BAKER, JR., Tennessee
GARY HART, Colorado JAMES A. MCCLURE, Idaho
EDMUND S. MUSKIE, Maine
MIKE GRAVEL, Alaska
LLOYD M. BENTSEN, Texas
QUENTIN N. BURDICK, North Dakota
JOHN C. CULVER, Iowa
GARY HART, Colorado
DANIEL PATRICK MOYNIHAN, New York
KANEASTER HODGES, JR., Arkansas
(H)
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CONTENTS
OPENING STATEMENTS
Page
Culver, Hon. John C., U.S. Senator from the State of Iowa 1
Hodges, Hon. Kaneaster, U.S. Senator from the State of Arkansas 211
LIST OF WITNESSES
APRIL 13, 1978 (P. 1)
Bean, Michael, chairman, Wildlife Program, Environmental Defense Fund 73
Budd, Dan S., alternate commissioner for the State of Wyoming, Upper
Colorado River Commission, Big Piney, Wyo 48
Garn, Hon. Jake, U.S. Senator from the State of Utah 44
Garrett, Thomas R., legislative coordinator, Defenders of Wildlife 80
Golten, Robert, Counsel, National Wildlife Federation 82
Prepared statement 196
Greenwalt, Lynn A., Director, Fish and Wildlife Service, Department of the
Interior, accompanied by Keith Schreiner, Associate Director, Federal Assist-
ance 16
Hart, C. W., Jr., Assistant to the Director, National Museum of Natural
History, the Smithsonian Institution, accompanied by David Challinor, As-
sistant Secretary of Science, and Ross Simons, Administrative Assistant 38
Prepared statement 91
Jennings, Gerald, Jr., chairman, Endangered Species Committee, American
Federation of Aviculture 70
Plater, Zygmunt, counsel, American Rivers Conservation Council 76
Prepared statement 178
Tucker, Samuel, Jr., manager of environmental affairs, Florida Power & Light
Co., Miami, Fla., for Edison Electric Institute 64
Prepared statement 170
Widener, P. A. B., Jr., United Peregrine Society, accompanied by Lt. Col.
Richard A. Graham (Ret.), and Carter Montgomery 67
Zagata, Michael, Washington representative, National Audubon Society 78
Prepared statement 182
- APRIL 14, 1978 (p. 211)
Balcomb, Kenneth, counsel, Colorado River Water Conservation District, ac- -
companied by Robert L. McCarty, McCarty & Noone, Washington, D.C 22~
Prepared statement . 265
Gehringer, Jack W., Deputy Director, National Marine Fisheries Service,
accompanied by Joel D. McDonald; Office of General Counsel, NOAA; and
Robert Gorrell, Office of Marine Mammals and Endangered Species, National
Marine Fisheries Service 211
Helms, Hon. Jesse, U.S. Senator from the State of North Carolina 229
Kane, John, director, William Amer Co., Philadelphia, Pa 234
Mann, Carroll, president, Safari Club International, accompanied by C. Allen
Foster, Managing Director of the American Hunters Educational and Legal
Protection Fund 230
Prepared statement 271
Simpson, Donald C., Pacific Legal Foundation 248
Stevens, Christine, secretary, Society for Animal Protective Legislation 218
Prepared statement ?54
Thompson, John, Georgia Pacific Corp 221
Prepared statement 258
(III)
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ADDITION MATERIAL
Page
Cache River Basin, Arkansas-task force r~commended plan
S. 2899, reprint of 3
Statements:
Baker, Hon. Howard H., Jr., U.S. Sen~tor from the State of Tennessee 252
Matsunaga, Hon. Spark, U.S. Senator from the State of Hawaii 325
Buchanan, Hon. John H., Jr., a Representative in Congress from the State
of Alabama 327
Maury County, Tenn 338
City of:
Lewisburg, Tenn 340
- Shelbyville, Tenn .- .. 343
American Mining Congress 344
Chamber of Commerce of the United States 363
Garden Club of America 372
Goslin, lyal V.1 Executive Director, U~er Colorado River Basin Commis-
sion 149
Hall, John F., vice president, resource and environment, National Forest
Products Association ... 258
Izaak Walton League of America 374
McCarty & Noone 379
McMahan, Clyde ...
Monroe County, City and County Bank~of 370
Southeastern Legal Foundation, Inc 383
Tennesseé-Tombigbee Waterway DevelOpment Authority 401
Upper Duck River Development Association 390
Waterways Journal 397
World Wildlife Fund . 4~J4
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AMENDING THE ENDANGERED SPECIES ACT OF
1973
THURSDAY, APRIL 13, 1978
U.S. SENATE,
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,
SUBCOMMITTEE ON RESOURCE PROTECTION,
Washington, D.C.
The subcommittee met at 9:35 a.m., pursuant to call, in room
4200, Dirksen Senate Office Building, Hon. John C. Culver (chair-
man of the subcommittee) presiding.
Present: Senators Culver and Wallop.
OPENING STATEMENT OF HON. JOHN C. CULVER, U.S. SENATOR
FROM THE STATE OF IOWA
Senator CULVER. The subcommittee will come to order.
I would like to welcome all of you this morning to this first of
two days of hearings by the Subcommittee on Resource Protection
on the Endangered Species Act of 1973. As you know, the authori-
zation provided under section 15 of the act for its administration by
the Secretaries of Interior and Commerce expires at the end of
fiscal year 1978, and reauthorization legislation must be reported
by the Committee on Environment and Public Works by May 15.
In addition to the reauthorization, there are other substantive
issues connected with the act's administration that we will be
discussing, most of which were brought to our attention last July
during the subcommittee's oversight hearings on the act.
Perhaps the most important, or at least the most widely dis-
cussed of these is the Federal agency compliance requirement of
section 7. This provision mandates each Federal agency to assure
that actions which they undertake or assist do not adversely affect
an endangered or threatened species or its critical habitat. One
Federal project, the Tellico Dam in Tennessee, has been stopped as
a result of this provision, and there are numerous others that
potentially pose similar problems.
Accordingly, the subcommittee has a responsibility to address
this situation. In order to provide a vehicle for these discussions,
yesterday I introduced in the Senate, along with Chairman Jen-
nings Randolph, Senator Howard Baker and other colleagues from
the committee, S. 2899, an amendment to the 1973 act which
creates a mechanism to resolve these kinds of conflicts.
The amendment creates a seven-member Endangered Species
Interagency Board composed of the Secretaries of the Interior,
Agriculture, the Army, Transportation, the Administrator of the
Environmental Protection Agency, the Chairman of the Council on
Environmental Quality, and the Secretary of the Smithsonian.
(1)
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2
Under the amendment as it is tentatively drafted, when a Feder-
al agency believes it has a conflict with the act which cannot be
resolved through consultation w~th the Fish and Wildlife Service
under provisions of section 7, it would petition the Board for relief.
The Fish and Wildlife Service ss~ould have 30 days to respond to
this petition. After reviewing the petition and providing an oppor-
tunity for a formal public hearin~, the board would decide whether
the project should be permitted to proceed as planned, be modified,
or terminated.
In order to exempt an activit~y from the requirements of the
Endangered Species Act, five of~ the seven agency heads that I
mentioned before would have to ~Jetermine, first, that there is no
reasonable or prudent alternative to the project; second, that the
benefit of completing the project clearly outweighs the benefits of
conserving the species; and third, that the project is of national or
regional significance. In addition,~ the Board must have the assur-
ance that even under those circu±nstances, the project agency has
taken all reasonable steps to mitigate damage to the species and its
habitat that will be caused by completion of the project.
I would like to stress that the assumption behind this proposal is
that the interagency consultation process developed by the Fish
and Wildlife Service should remain very strong, and that it will, in
the vast majority of cases, be succ~ssful in resolving these conflict.
In those relatively few instances ~here consultation cannot resolve
the problems, I, however, believe that this proposal will hopefully
provide a reasonable mechanism o1~' responsible balance.
Since the proposal was introduced only yesterday, I realize that
some of our witnesses who are testifying today have not had suffi-
cient time to review its provisions ~,losely, if at all. Therefore, while
I would certainly like to discuss ~vith the witnesses today to the
extent possible the concepts embodied in this proposal, the subcom-
mittee will leave the hearing record open for a sufficient amount of
time so that all individuals who wi~h to comment upon the amend-
ment may do so.
In all likelthood, many of the witnesses we hear from today will
not support this proposal. Some n~ay believe that it adds little, if
any, flexibility to the act. Others, no doubt, will prefer to have no
amendment at all. And the subcommittee will properly consider all
of these views.
But at the same time, I sincerely hope that those of you who will
be testifying today and tomorrow $111 offer constructive comments
as to how this measure can be impi~oved. We need your help, and I
hope you will provide it to us.
While we will no doubt have some differences, I hope that we all
remember that we are working tow rd a common goal, and that is
the preservation of our Nation's t easured, but endangered, fish
and wildlife resources.
[The bill, S. 2899, follows:]
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3
O5TH CONGRESS
2D SESSION 2899
IN THE SENATE OF THE UNITED STATES
APRIL 12 (legislative day, FEBRUARY 6), 1978
Mr. CULVER (for himself, and Mr. BAKER, Mr. RANDOLPIT, Mr. WALLOP, Mr.
GRAVEL, and Mr. HODGES) introduced the following bill; which was read
twice and referred to the Committee on Environment and Public Works
A BILL
To amend the Endangered Species Act of. 1973 to establish
an Endangered Species Interagency Oommitttee to review
certain actions to determine whether exemptions from cer-
tain requirements of that Act should be granted fQr such
actions.
1 Be it enacted by the Senate and House of Bepresenta-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Endangerd Species Act
4 Amendments of 1978".
5 SEC. 2. Section 3 of the Endangered Species Act of
6 1973 (16 U.S.C. 1536) is amended-
7 (1) by inserting after paragraph (4) thereof the
8 following new paragraph:
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4
1 "(5) The term `Fe~deral agency' means any de-
2 partment, agency, or h~istrurnentality of the United
3 States.";
4 (2) by inserting aft~r paragraph (7) thereof the
5 following new paragraph:
6 "(8) The term `irre olvable conflict' means, with
7 respect to any action authorized, funded, or carried out
8 by a Federal agency, a set of circumstances under
9 which completion of such action would (A) jeopar-
10 dize the continued existen~e of an endangerd or threat-
11 ened species, or (B)* re~ult in the destruction of a
12 critical habitat."; and
13 (3) by renumbering t~ie paragraphs thereof, includ-
14 ing any references thereto as paragraphs (1) through
15 (18), respectively.
16 SEc. 3. Section 7 of the Endangered Species Act of
17 1973 (16 U.S.C. 1536) is am nded to read as follows:
18 "INTERAGENCY COOPERATION
19 "SEC. 7. (a) C0NSULTATI0N.-The Secretary shall
20 review other programs adminis~ered by him and utilize such
21 programs in furtherance of the urposes of this Act. All other
22 Federal agencies shall, in con ultation with and with the
23 assistance of the Secretary, utili e their authorities in further-
24 anee of the purposes of this Act by carrying out programs for
25 the conservation of endangered species and threatened spe-
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5
des listed pursuant to section 4' of this Act. Each Federal
2 agency shall insure that any action authorized, funded, or
3 carried out by such agency does not jeopardize the continued
4 existence of any endangered species or threatened species or
5 result in the destruction *or modification of habitat of such
6 s~ecies which is determined by the Secretary as appropriate
7 with the affected States, to be critical, unless such agency is
8 granted an exemption fOr such action by the Committee pur-
9 suant to subsection (e) of this section.
10 "(b) (I) ESTABLISHMENT OF C0MMITTEE.-There is
ii. established a `committee to be known as the Endangered
12 Species Committee (hereinafter in this section referred to as
13 the `Committee').
j4 "(2) The Committee shall review any application sub-
15 mitted to it pursuant to subsection (d) of this section and
16 determine in accordance with subsection (e) of this section
17 whether or not to grant an exemption from the requirements
18 of subsection (a) of this section for the `action set forth in
19 such application.
20 "(3) The Committee shall be composed of seven mem-
21 `bers as follows:
22 "(A) The Secretary of Agriculture.
23 "(B) The Secretary of the Army.
24 "(C) The Chairman of the Council on Environ-
25 mental Quality.
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6
1 "(D) The Administrator of the Environmental
2 Protection Agency.
"(E) The Secretary of the Interior.
* "(F) The Secretary of the Smithsonian Institution.
"(G) The Secretary of Transportation.
6 "(4) (A) :M~embers of t e Committee shall receive no
~ additional pay on account of t?heir service on the Committee.
"(B) While away from~ their homes or regular places
~ of business in the periormanc~ of services for the Committee,
10 members of the Committee s1~all be allowed travel expenses,
11 including per diem in lieu of si~bsistence, in the same manner
12 as persons employed intermittently in the Government serv-
13 ice are allowed expenses under section 5703 of title 5 of the
j4 United States Code.
15 "(5) (A) Except as pro `ided in subparagraph (B) of
16 this paragraph, five members of the Committee shall con-
17 stithte a quorum for the tran~action of any functiofl of the
1~ Committee.
19 "(B) The Committee shall not grant any exemption
20 from the requirements of subsection (a) of this section to
21 the head of any Federal agency for any action authorized,
.22 funded, or carried out by sucl~ agency unless five members
23 of the Committee vote to grant such exemption. The vote of
*24 the Committee members shall not be delegated to other
25 persons.
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7
1 "(C) The Secretary of the Interior shall be the Chair-
2 man of the Committee.
3 " (D) The Committee shall meet at the call of the
4 Ohairman of five of its members.
5 "(0) The Committee may appoint and fix the pay of
6 such personnel as it deems desirable.
7 "(7) The staff of the Committee m~y be appointed
8 without regard to the provisions of title 5, United States
9 Code, governing appointments in the competitive service,
10 and may be paid without regard to the provisions of chapter
11 51 an~l subchapter III of chapter 53 of such title relating
12 to classification and General Service pay rates, except that
13 no individual so appointed may receive pay in excess of the
14 annual rate of basic pay in effect for grade GS-18 of the
15 General Schedule.
16 "(8) The Committee may procure temporary and inter-
17 mittent services to the same extent as is authorized by see-
18 tion 3109 (b) of title 5 of the United States Code, but at
19 rates for individuals not to exceed the `daily equivalent of the
20 annual rate of basic pay in effect for grade GS-18 of the
21 General Schedule.
22 "(9) Upon request of the Committee, the head of any
23 Federal agency is authorized to detail, on a reimbursable
24 basis, any of the personnel of such ~geney to the Committee.
25 to assist it in carrying out its duties under this section.
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8
i "(10) (A) The Committee may for the purpose of carry-
2 ing out its duties under this se~tion hold such hearings, sit and
3 act at such times and places, tkke such testimony, and receive
4 such evidence, as the Commi~tee deems advisable.
5 "(B) When so authorized by the Committee, any mem-
6 ber or agent of the Commissi n may take any action which
7 the Committee is authorized to take by this paragraph.
8 "(C) Subject to the Fri acy Act, the Committee may
9 secure directly from any Fed ral agency information neces-
10 sary to enable it to carry ou its duties under this section.
11 Upon request of the Chairman~ of the Committee, the head of
12 such Federal agency shall fukiiish such information to the
13 Committee.
14 "(B) The Committee may use the United States mails
15 in the same manner and upor~ the same conditions as other
16 Federal agencies.
17 "(E) The Administrator of General Services shall pro-
18 vide to the Committee on a r&mbursable basis such adminis-
19 trative support services as the Committee may request.
20 "(11) In carrying out its duties under this section, the
21 Committee may promulgate a d amend such rules, reguTh-
22 tions, and procedures, and issu and amend such orders as :it
23 deems necessary.
"(12) (A) The Cornmitt e shall have power to issue
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9
-i subpenas requiring the attendance and testimony of witnesses
2 and the production of any evidence that relates to any matter
3 which is the subject of any review or determination by the
4 Committee pursuant to subsection (e) of this section. Such
5 attendance of witnesses and the production of evidence may
6 be required from any place within the United States to any
.7 place of hearing within the United States.
s "(B) If a person issued a subpena under subparagraph
.9 (A) of this paragraph refuses to obey such subpena or is
10 guilty of contumacy, any court of the United States within
11 the judicial district within which the hearing is conducted or
12 within the judicial district within which such person is found
13 or resides or transacts business may (upon application by the
14 Com.mittee) order such person to a.ppear before the Commit-
15 tee to produce evidence or give testimony relating to the
16 matter which is the subject of the review or determination by
17 the Committee pursuant to subsection (e) of this section.
18 Any failure to obey such order of the. court may be punished
19 by such court as a contempt thereof.
20 "(c) The subpena of the Committee shall be served in
21 the manner provided for subpenas issued by a district court of
22 the United States under the Federal Rules of Civil Procedure
23 for the district courts of the United States.
24 "(D) All process of any court to which applica~tion may
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1~
i be made under this section may be served m the judicial dis-
2 trict ~yherein the person required to be served resides or may
3 be found.
4 "(13) No person shall 1 e excused from attending and
5 testifying or from producing ooks, records, correspondence,
6 documents, or other evidence in obedience to a subpena, on
7 the ground that the testimony or evidence required of him
8 may tend to incriminate him ~r subject him to a penalty for
9 fo~eimre; but no individual s~a11 be prosecuted or subjected
10 to any penalty or forfeiture for or on account of any trans-
11 - action, matter, or thing conce ming which he is compelled,
12 after having claimed his privil ge against self-incrimination,
13 to testify or produce evidence, xcept that such individual so
:t~ testifying shall not be exempt from prosecution and punish-
j~ ment for perjury committed in o testifying.
"(c) REGULATIoxs.-Xo later than niñéty days after
17 the date of enactment of this section, the Committee shall
18 promulgate regulations which s~t forth the form and manner
19 in which applications by the eads of Federal agencies for
20 review of actions by such agén ies shall be submitted to the
21 Committee and the information o be contained in such appli-
22 cations. Such regulations shall equire that information sub-
23 mitted in an application by the head of any Federal agency
24 with respect to any action of suc~ i agency include, but not be
25 limited to-
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11
"(1) a description of the consultation process
2 carried out pursuant to subsection (a) of this section be-
3 tween `the head of such Federal agency and the Secre-
4 tary of the Interior, acting through the Director of the
United States Fish and Wildlife Service; and
6 "(2) a statement describing why such action can-
7 not be altered or modified to: conform with the require-
8 ments' of ~ubsection (a) of this section.
9 "(d) SuBi~rIssION OF APPLICATIONS.- (1) The head
10 of any Federal agency may submit an application for review
Ii of any. action of such agencyto the Committee if, in the opin-
12 ion of the head of such agency, such agency has complied
13 with the requirements of subsection~ (a) of this section and
14 that an irresolvable conflict exists with respect to such action.
15 Such application for review ~hal1 be submitted in accordance
16 with the regulations promulgated by the Committee under
17 subsection (c) of this section.
18 ` ` (.2) The DirectOr of the Fish and Wildlife Service shall
19 prepare and submit to the Committee within thirty days of
20' any submission made under paragraph . (1)' of this subsec-
21 tion his comments concerning such submission.
22' "(0) (1) . REVIEW AND DETERMINATION.-NOt later
23 than one hundred and eighty days' after the Committee
24 receives the application Cnd `comments submitted `pursuant
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1~
1 to subsection (d) of this section, the Committee shall review
2 such application and comme ts and-
3 "(A) determine, wi h respect to the action which
4 is the subject of such app ication, whether or not-
5 "(i) the requirei~nents of the cOnsultation proc-
6 ess described in subs~ction (a) of this section have
7 been met; and
8 "(II) an irresolv ble conflict exists; and
9 "(B) if it makes b th determinations in clauses
10 (A) (i) and (ii), detei~mine after notice and oppor-
11 tunity for public hearing ~7hether or not to grant an ex-
12 emption from the reqmren~ients of subsection (a) of this
13 section to the head of s cli Federal agency for such
14 action.
15 "(2) The Committee ma only grant an exemption for
16 arty action under subsection ( ) of this section if it deter-
17 mines that-
18 "(A) there is no re onable and prudent alterna-
19 tive to such action; and
20 "(B) the project is o national or regional sigmfi-
21 cance; and
22 "(C) the benefits of inch action clearly outweigh
23 the benefits of conse~g t~e species or its critical hab-
24 itat, and that such action is in the public interest.
25 "(f) NATIONAL EIvIRONMEwT~ PoLICY ACT.-No
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13
1 final determination of the Committee under subsection (e)
2 of this section shall be considered a major Federal action
3 under the terms of the National Environmental Policy Act
4 of 1969 (42 U.S.C. 4321 et seq.).
5 "(g) MITIGATION.-In those instances where the Corn-
6 mittee determines that an exception is warranted under sub-
7 section (e) of this section the Committee must assure that
8 the action approved for such exemption incorporates all rea-
9 sonable mitigation measures deemed necessary by the Seer
10 retary to minimize adverse impacts upon the affected endan-
11 gered or threatened species or its critical habitat includitig
12 but not limited to live propagation, transplantation, and hab-
13 itat acquisition and improvement. The Federal agency or de-
14 partment receiving such exemption should include the costs
15 of such mitigation measures within the overall costs of con-
16 tinuing the proposed action and the Federal agency or de-
17 partment shall transfer to the United States Fish and Wild-
18 life Service out of appropriations or other funds, such money
19 as may be necessary to implement the conservation pro..
20 grams or mitigation measures required by this section for
21 endangered or threatened species or tJheir critical habitats.
22 "(h) EXCEPTION ON TAKING.-Notwithstanding see-
23 tions 4 (d) and 9 (a) of this Act or any regulations promul-
24 gated pursuant to such sections, any action for which an
~ exemption is granted rinder subsection (e) of thjs sectiofl
29-319 0 - 78 - 2
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1
1 shall not be considered a tak ng of any endangered or threat-
2 ened species with respect to any activity which is necessary
3 to carry out such action.
"(i) AuTlloBIzATIoN..r~~There is authorized to be ap-
~ propriated to carry out this section not to exceed $2,500,-
.6 000 forfiscal year 1979, no to exceed $2,500,000 for fiscal
7 year 1980, and not to exe ed $2,500,000 for fiscal year
8 1981.".
9 SEC. 4, Section 15 of t e Endangered Species Act of
10 1973 (1(3 U.S.C. 1542) is mended to read as follows:
ii . "Except as authorized ii~ sections 6 and 7 of this Act,
i~ there are authorized to be app~opriated-
13 "(1) not to exceed ~25,000,000 for the fiscal year
14 1 ending September 30, 1~77, and the fiscal year ending
15 . September 30, 1978, not~ to exceed $23,000,000 for the
16 . fiscal year ending Septei~nber 30, 1979, not to exceed
17 $25,000,000 for the fisc 1 year ending September 30,
18 1980, and not to exceed 27,000,000 for the fiscal year
19 ending September 30, 1. 81, to enable the Department
20 of the Interior to carry oi~it such functions and responsi-
21 bilities as it may have b~en given under this Act; and
22 "(2) not to exceed ~5,000,000 for the fiscal year
23 ending September 30, 197, and the fiscal year ending
24 September 30, 1978, not to exceed $2,500,000 for the
25 fiscal year ending September 30, 1979, not to exceed
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15
1 $3,000,000 for the fiscal year ending September 30,
2 1980, and not to exceed $3,500,000 for the fiscal year
3 ending September 30, 1981, to enable the Department
4 of Commerce to carry out such functions and responsi-
5 bilities as it may have been given under this Act.".
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Senator CULVER. I would like ~ welcome, our first witness, Mr.
Lynn Greenwalt, who is the Director of the Fish and Wildlife
Service. It is a pleasure to have' y~u here. You may proceed.
STATEMENT OF LYNN A. GRE~NWALT, DIRECTOR, FISH AND
WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, AC.
COMPANIED BY KEITH SCHI~EINER, ASSOCIATE DIRECTOR,
FEDERAL ASSISTANCE
Mr. GREENWALT. Thank you, Mr. Chairman. As always, it is a
pleasure to appear before this committee.
Before I begin my formal statement, Mr. Chairman, I would like
to introduce to the committee MLr. Keith Schreiner, who is Asso-
ciate Director for Federal Assistaiice.
Mr. Chairman, section 15(1) Of ~he 1973 act authorizes appropri-
ations to the Department of the, Ii~terior to carry out functions and
responsibilities under the act other than land acquisition and
grant-in-aid to the States. Our pr~posed amendment would extend
the authorization at an amount nOt to exceed $17 million for fiscal
year 1979 and authorize such sun~s as are necessary for fiscal year
1980.
Our suggested authorization lev~l for section 15(1) for fiscal year
1979 is consistent with the admini~tration's budget request of $16.4
million. It will essentially extend ~urrent funding levels and allow
for a $3.9 million increase to accobimodate the acceleration of the
program to protect endangered add threatened species on Federal
lands, as directed by the President~
I believe that in the 4 years sin~e Congress enacted this historic
conservation legislation, the Fish and Wildlife Service has devel-
oped a balanced program of listing, protection and recovery efforts.
Significant advances have been thade in enlisting international,
State and private cooperation. °~1 course, limited resources have
necessitated the establishment of priorities.
Endangered native species receiye priority over foreign species,
full species receive priority over s~ibspecies; and the more endan-
gered a species is, the greater the Offort to provide for its conserva-
tion. Yet, the Service has remained firmly committee to the ideal,
envisioned by the 93d Congress whbn they passed the legislation, of
protecting all species of plants' and animals whose continued exis-
tence is in jeopardy.
Man's activities threaten a grO~ing number of species with ex-
tinction, and it appears that the 4umber has increased at a rate
paralleling human population gro~vth. As you know, Mr. Chair-
man, concern about rapidly deteri~rating fish, wildlife and plant
habitat, overexploitation of plants and animals and the increasing
number of species threatened with ~xtinction resulted. in a series of
legislative actions culminating in enactment of the Endangered
Species Act, signed into law December 28, 1973. The primary pur-
pose of the endangered species program, as directed by the 1973
Act, is to provide a means wherely endangered and threatened
species may be conserved. ,
The many forms of life on this sthall planet represent millions of
years of evolution and diversificatio . Different species have estab-
lished intricate interdependent rela ionships which can be of criti-
cal importance to their survival.
PAGENO="0021"
17
The act recognized, and recent experience has confirmed, that it
is only through the ability to provide protection to the full spec-
trum of plant and animal life that we are able to afford protection
to any particular species. In other words, if we are to preserve
species such as the peregrine falcon, the bald eagle and the grizzly
bear, we must also preserve the network of life upon which they
depend.
Unfortunately, our growing appreciation for the potential value
of all species has coincided with their accelerating extinction rate.
Widespread disruption of habitats and over exploitation are the
major causes of this problem. However, many endangerments and
extinctions can be prevented by the protection of a relatively small
area or by the careful development of land and water-use projects.
The President has promised the American public that a reason-
able effort to do exactly this will be made at the Federal level. His
environmental message of May 23, 1977, requested acceleration of
the Federal program to insure species' protection and to resolve
any conflicts between protection and other resource uses.
In your letter inviting us to testify today, you asked that we
specifically address activities related to section 7 of the act. As you
know from the July 1977 hearings on the endangered species pro-
gram, the administration has made the implementation of section 7
a priority. President Carter, in his environmental message, stated,
and I quote:
To hasten the protection of threatened and endangered species, I am directing the
Secretaries of Commerce and Interior to coordinate a governmentwide effort, as
required by the Endangered Species Act of 1973, to identify all habitat under
Federal jurisdiction or control that is critical to the survival and recovery of these
species. The purpose of this program is to avoid the possibility that such habitats
will be identified too late to affect Federal project planning. Major projects now
under way that are found to pose a serious threat to endangered species should be
assessed on a case-by-case basis.
As a supplement to that statement, the President sent a special.
message to the Secretaries of the Interior, Agriculture, and Defense
and the Chairman of the Tennessee Valley Authority directing
them to identify lands under their jurisdiction which appear to be
critical habitat. This information is then to be submitted to the
Secretary of the Interior for a determination of critical habitat if
such a determination is justified. The Secretaries of the Interior
and Commerce were specifically directed to develop an expedient
schedule for implementing this process and to provide guidance
and coordination to assure compliance.
The Fish and Wildlife Service has prepared guidelines and a
timetable for implementing the President's directive. This docu-
ment, which was presented to appropriate landmanaging agencies
for review in December, establishes a format for critical habitat
submissions, including the description maps and justifications nec-
essary for the area in question and identification of environmental
impacts for compliance with the National Environmental Policy
Act.
The timetable calls for completion of the surveys by January
1980. The plan places the highest priority on identifying the habi-
tat of species facing the greatest threats and will require designa-
tion of critical habitat for 35 species in fiscal year 1978, and 77
species in fiscal year 1979. To date, critical habitat determinations
PAGENO="0022"
18
have been made for 24 species a~d proposals have been published
in the Federal Register for 41 more. Completion of this survey
identifying critical habitat durin~ fiscal year 1980 will substantial-
ly lessen the possibility of futur~ conflicts between development
projects on Federal lands and the need for habitat preservation.
Final regulations have been published prescribing the consulta-
tion process to assist Federal agei~icies in complying with section 7
of the act. This rulemaking requires Federal agencies to consult
with the Service if their activiti~s or programs may affect listed
species of their habitats. After suc~i consultation, it is the responsi-
bility of the involved agency to d~cide whether or not to proceed
with the proposed activity in light of its section 7 obligations.
The decision to require rather, than recommend consultation was
made to promote conformance wit~i recent Federal court decisions
setting forth the policy that this interchange is requisite to admin-
istration of the law by the Secretaries of the Interior and Com-
merce.
Under the new regulations, whe~i Fish and Wildlife Service offi-
cials receive a request for cons~iltation from another Federal
agency, it is required that they evaluate an activity's impact within
60 days. At that time, the Service can determine that the activity
will have no impact on listed species, that it will actually benefit
the species, or that it is likely to ha~ve a harmful effect; The Service
can also request that further studies be undertaken in order for it
to render its final biological opinio4
The new rulemaking recognizes that general consultation proce-
dures must be sufficiently flexible to accommodate the myriad
activities that are authorized, fund~d, or carried out by the Federal
Government. Accordingly, a new* sdction was written into the pro-
cedures providing for the drafting àf joint counterpart regulations
by Federal agencies, with assista4ce from the Service and the
National Marine Fisheries Service, that are tailored to the needs of
individual agencies.
In fiscal year 1977, when consultation was discretionary with the
Federal development agencies, ovei~ 4,500 were conducted by the
Fish and Wildlife Service. When the full impact of this rulemaking
is felt in fiscal year 1979, we expect~that requests for consultations
will exceed 20,000.
Conflicts can and are being resolv~d through this administrative
process. Section 7 guidelines and regulations provide adequate
mechanisms to assist Federal agenci~s in carrying out their actions
in ways which are consistent with the needs of endangered and
threatened species.
Section 7 is somewhat analogous to the National Environmental
Policy Act. For at least 3 or 4 years after passage of NEPA, a
number of projects which were ini~iated prior to that act were
confronted with compliance problem~ and numerous court. actions
directing compliance.
Recently, however, Federal agenci~s have included NEPA com-
pliance as an integral part of their~ planning processes, and con-
flicts and court actions have becorne~ few in numbers. There is no
reason to believe that the Endang~red Species Act will be any
different. Since passage of the act aver 4 years ago, there have
been only three Federal projects im~acted by court actions under
PAGENO="0023"
19
section 7, and only one of these has resulted in what may be.
considered an impasse. I believe that this indicates that implemen-
tation of section 7 will not always have a profound impact that
many anticipate.
Mr. Chairman, a legislative exemption from section 7 compliance
would, at this point in implementation of the act, set an extremely
undesirable precedent. It would undermine present and future
good-faith consultation efforts. We would anticipate great reluc-
tance by development agencies to enter into meaningful consulta-
tion if there is any possibility of an exemption. Sponsors of projects
which have suitable alternatives which would minimize or elimi-
nate adverse impacts might be reluctant to implement even minor
modifications if there was a possibility of achieving an exemption.
Generally, Mr. Chairman, Federal development agencies are ac-
tively seeking compliance with the act, particularly during the
planning stages and often during construction.. Alternatives are
usually available. The Nation's lands and waters have multiple
values and multiple uses. A balance between development and
preservation can usually be achieved. I therefore urge you to give
the act and the existing administrative processes a longer opportu-
nity to work.
Mr. Chairman, in your letter inviting us to testify today, you
asked us to. address two other specific issues: The need to provide
greater statutory protection for endangered plants and restrictions
placed on the exchange of endangered species among zoos, muse-
ums, and others.
With regard to the first issue, I do not believe any additional
authority to protect plants is necessary. The present restrictions on
importation and interstate commerce in endangered plants, along
with applicability of section 7 to plants and the availability of
funds under the land and water conservation fund to acquire land
to protect plant species, all provide a significant degree of protec-
tion for endangered plants. We recommend that the committee
delay consideration of any additional statutory protection for
plants until more plants are listed and we have had time to test
the sufficiency of this level of protection.
The committee, however, may wish to consider making financial
assistance to States provided for under section 6 of the act availa-
ble for the conservation of endangered and threatened plant spe-
cies. If it is desired, Mr. Chairman, my staff will be happy to
cooperate with the committee staff on this matter.
With regard to the exchange of captive animals, the Service
recognizes that strict application of the prohibitions relating to
endangered species at times creates obstacles to the effective propa-
gation of captive wildlife, a result clearly contrary to the spirit of
the act. In response to this, the Service is considering two alterna-
tives that would relax the restrictions on exchanges of captive
animals.
The first alternative would be to list certain otherwise endan-
gered species as threatened, with regulations that would allow
persons holding or propagating these animals more flexibility and
greater ease in transferring breeding and propagation stock. The
basis for treating captive populations as separate "species" from
the wild populations is that they are genetically isolated and
PAGENO="0024"
20
through transfer of stock, the áaj~tive animals are allowed to inter-
breed. Thus, they can be considered to meet the definition of "spe-
cies" in the act.
Treating captive populations as separate "species" would also
allow for the treatment of captiv~ animals under the similarity-of-
appearance provision of the act~, the second alternative we are
considering. Under the act and the regulations, the permit require-
ments for similarity-of-appearanc~ species are only those necessary
to facilitate enforcement and insure the conservation of wild popu-
lations of endangered or threatenM species.
Both of these alternatives diffe~ from the present regulations on
captive self-sustaining populationC in that the captive populations
need not have reached a self-sustMning level, and it is not restrict-
ed to just foreign species.
A notice outlining these alternatives is due for publication in the
Federal Register either today or tomorrow. A copy of this notice
has been made available to you. I believe implementation of one of
these alternatives will substantia ly facilitate the exchange of ani-
mals between zoos, museums, and others.
There are thousands of endangered and threatened animal and
plant species throughout the world. While we cannot realistically
expect to recover all of them, ov~r 650 of those with the greatest
need have been listed by the United States, including 204 United
States species. We hope to proyide protection to at least an addi-
tional 600 priority species by the end of fiscal year 1980.
An authorization of such sums as may be necessary in fiscal year
1980 will give us the flexibility t~ expand the endangered species
program where necessary and app~opriate within the constraints of
the national budget.
The authorization of appropriations for section 15(1) of the En-
dangered Species Act expires on september 30, 1978, so I respect-
fully urge you to give timely consi~1eration to the proposal present-
ed today. We must continue efforts to regain the strength of life on
this globe, for ourselves and for future generations.
This concludes my prepared statement, Mr. Chairman. As
always, I would be pleased to answer any questions you might
have.
[The Federal Register notice, previously referred to follows:]
PAGENO="0025"
21
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
Captive Wildlife Regulation
AGENCY: Fish and Wildlife Service
ACTION: Notice
SUMMARY: It is the policy of the Fish and Wildlife Service to
periodically review the regulations published under the Endangered
Species Act of 1973. Numerous comments from the public in the past
few years indicate that equal application ~f provisions of the Act
to both captive and wild populations of Endangered and Threatened
species has interfered with propagation of captive populations of
such species. Accordingly, the Service is considering a change in
its regulations that would eliminate nnnecessary permit requirements
for activities involving certain captive species. Controls would
be retained to the extent needed to protect wild populations. The
Service seeks public comment on the approach outlined in this notice,
which could lead to a proposed rulemaking.
DATES: Comments should be submitted to the Director within 60 days.
This time limit expires on _________________, 1978.
ADDRESSES: Comments should be sent to the Director, U.S. Fish and
Wildlife Service, Federal Wildlife Permit Office, Washington, D.C.
20240.
PAGENO="0026"
22
FOR FURTHER INFORMATION CONTACT: Mr. Richard N. Parsons, Chief,
Federal Wildlife Permit Office, U S. Fish and Wildlife Service,
Washington, D.C. 20240, (202)254 100.
SUPPLEMENTARY INFORMATION:
BACKGROUT
The Endangered Species Act of 1973, 16 U.S.C. §~l53l-l543, prohibits
certain activities with respect to wildlife listed as Endangered. The
prohibited activities include impo t into, and export from the
United States; taking any such spe~ies in this country, its territorial
sea or on the high seas, possessioi~i, sale or transport of unlawfully
taken wildlife, and interstate or oreign commerce in the course of
a commercial activity. The pertin nt exceptions allowed by the Act
are for (1) wildlife held in capti ity or in a controlled environ-
inent on December 28, 1973, (the ef~ective date of the Act), except
for wildlife held in the course of ~ commercial activity; and exception
by permit for (2) scientific purpos~s; (3) enhancement of the propa-
gation or survival of the species; ~nd (4) economic hardship.
In addition to treating Endangere Species, the Act established
the category of Threatened species or those that are likely to
become Endangered. It was left to ~he Secretary of the Interior
or Commerce to establish the prohibitions and exceptions needed to
conserve Threatened species. Eowev~r, the Act states that the
Secretary may by regulation prohibi the same activities for any
Threatened species as are prohibitec~ for Endangered ones.
PAGENO="0027"
23
The purposes of the Act are to provide a means for conserving
the ecosystems upon which Endangered and Threatened species depend,
to provide a conservation program for such species, and to take
appropriate steps to achieve the purposes of certain wildlife
treaties and conventions. The Act does not specifically provide
for special treatment of captive species as opposed to species in
the wild. In fact, the exception it provides for pre-Act individuals,
the first exception mentioned above, clearly indicates that the
prohibitions apply to captive post-Act individuals. The Service
considers the purpose of the Act to be best served by conserving
species in the wild along with their ecosystems. Populations of
species in captivity are, in large degree, removed from their
natural ecosystems and have a role in survival of the species only
to the extent that they maintain genetic integrity and offer the
potential of restocking natural ecosystems where the species has
become depleted or no longer occurs.
The Service recognizes that strict application of the prohibi-
tions creates obstacles to the effective propagation of captive
wildlife. The response has been to treat the captive populations
of certain otherwise Endangered Species as Threatened, which allows
persons holding and propagating these animals more flexibility and
greater ease in transferring breeding and propagation stock to each
other. This treatment, provided in §~l7.7 and 17.33 of Title 50 CFR,
is restricted to species having captive self-sustaining populations
(CSSP's) in the United States. Only eleven species of mammals and
birds have been determined to have CSSP's at this time, although
PAGENO="0028"
other species are being considered a potential candidates.
The basis for treating CSSP's as s parate "species" from the wild
populations is that they are genetic lly isolated from such popula-
tions and through transfer of stock i~he captive animals are allowed
to interbreed. Thus, they can be cot~sidered to meet the definition
of "species" in the Act:
The term "species" includes any subspecies of fish or
wildlife or plants and any othe group of fish or wild-
life of the same species or smaller taxa in common
spatial arrangement that inter-breed when mature. (16 U.S.C. 1532(u).
There is a precedent for determining some populations of a given
biological species to be Endangered ¶ld others to be Threatened. In
the case of the American alligator, f~r example, wild animals in
certain parts of the United States ar listed in one or the other
category, and those in the wild in pa ts of Louisiana and in
captivity everywhere are listed as Th eatened tinder the similarity
of-appearance provision of the Act. is arrangement was necessary
because a single listing could not re~ognize regional variation in
alligator abundance and could not pro ide the flexibility to
appropriately regulate or conserve all alligator populations.
The Service has found it difficult ~o administer the Act with
respect to captive wildlife so that both the letter and spirit
of the law are observed. Most of the zoos and wildlife breeders
in this country have stated that stri t application of the Act
to their operations has interfered wi~h the -propagation of
Endangered and Threatened species. e need to obtain a permit
has delayed transfer of surplus anima)Js or breeding stock between
PAGENO="0029"
25
institutions. It also has deterred some persons from acquiring
such animals because they lacked enough prior experience with
similar animals to qualify for a permit. Another complaint is
that the prohibition against interstate coerce greatly reduces
the market among breeders for Endangered and Threatened species
and there is not enough profit to continue their propagation.
These are the major problems that have led the Service to the
present review of its regulations.
ALTERNATIVES
The Service seeks to improve its regulations in order to protect
wild populations of Endangered and Threatened species while interfering
as little as possible with. their captive propagation. The purpose of
this notice is to solicit comments on the alternative approaches, which
will be considered if proposed regulations are drafted.
1. Determination of status. The provisions of the Act limit the
scope of what zoos and wildlife breeders (and the Service) can do to
eliminate obstacles to captive propagation of species classified as
Endangered. The Threatened classification~however, allows for whatever
regulations are deemed necessary and advisable for conservation.
Therefore, the first step is to consider whether certain captive populations
may constitute separate "species" (~ 16 U.S.C. 1532(11)) and whether
those species may be reclassified to the threatened category or taken
off the list altogether.
The reclassification or deletion of captive populations would
have to be in accordance `with Section 4(a)(l) of the Act:
PAGENO="0030"
The Secretary shall by regul tion determine whether
any species is an endangered species or a threatened
species because of any of th~ following factors:
(1) the present or threatenet~ destruction, modifica-
tion, or curtailment of ~ts habitat or range;
(2) over-utilization for comxi~ercial, sporting,
scientific, or education~l purposes;
(3) disease or predation;
(4) the inadequacy of existing regulatory mechanisms;
or
(5) other natural or manmade ~actors affecting its
continued existence. (16 ~J.S.C. 1533(a) (1)).
This determination would have to~ be made for each of the species
in question.
There can be separate rules for aptive Threatened species
differing from the rules in §~l7.3 and 17.32 for Threatened species
in general. If the captive popula~ions were deleted from the list
entirely, they would not be subjec~ to the Act. This could make
it impossible to enforce the Act f~r wild populations of
Endangered and Threatened species, which must be protected from
uncontrolled taking.
If either reclassification or del
only include those species in whic1~
protected. Otherwise, such action
ness of the Act. One possibility
captive populations in the United S
adequately ensure that captive wilc~
taken from Endangered or Threatened
possibility is to limit the action
the basis that wild populations of
.are ~more accessible to taking and
.etiom is undertaken, it should
wild populations are sufficiently
could interfere with the effective-
s to limit the action to certain
tates, since the Service cannot
life in other countries was not
wild populations. A further
to certain exotic species, on
species native to this country
re tiot protected by import
PAGENO="0031"
27
controls. In any case, the Service must ensure that the action
will not jeopardize the continued existence of any Endangered or
Threatened species, in accordance with Section 7 of the Act.
Many, but not all, species listed as Endangered or Threatened
under the Act are listed also in Appendices I and II to the
Convention on International Trade in Endangered Species of Wild
Fauna and Flora. This means that such species are subject to
import, export and re-export controls of both the Act and the
Convention. However, the Convention cannot always be relied upon
to provide controls on international shipment of captive wildlife
to make up for any relaxation in Endangered and Threatened species
regulations. There are two reasons for this. First, changes in
the list of species in appendices to the Convention are made by
international agreement. They can occur whether or not the
United States agrees, since it is only one of 44 countries now
party to the Convention. Second, the Service has had reasons to
question the validity of documents issued in certain other countries
to meet Convention requirements.
2. Special rules. If captive populations of certain otherwise
Endangered or Threatened species are separately listed as Threatened
captive species, it is possible to have special rules governing
activities involving them. The basic intent of these rules would
be to conserve both wild and captive populations. For example, the
Tules might require registration or marking of captive individuals
in a supervised, approved manner so that they can be distinguished
with reasonable assurance from species taken from the wild. The
PAGENO="0032"
8
-rules might also require persons olding these species in
captivity to keep records and to eport transactions to the
Service.
An important aspect of special r~iles would be to reduce or elitni-
nate permit requirements for many f the normal practices in captive
species propagation. While it mig~tit be necessary to prohibit certain
activities, and authorize exceptio~2s by permit within certain limits,
other activities could be free from prohibitions. It might be
necessary to prohibit import, export and taking for certain purposes
that are inconsistent with purpose~ of the Act. "Take" is defined
in the Act to mean "harass, harm, ursue, hunt, shoot, wound, kill,
trap, capture, or collect- or to at empt to engage in any such
conduct." The prohibition against taking might also include
possession and other activities (se~1ling, delivering, carrying,
transporting or shipping) with unla~fully taken wildlife. The
purposes for which taking and other activities are allowed with-
out restriction would be similar to those for which the current
Threatened species permits are issu d under §17.32: scientific
purposes, the enhancement of propag~ntion or survival, zoological
exhibition and educational purposes
Permits might still be required f r activities that could pos-
sibly harm wild populations: import, export and taking for any
purpose other than those named abov~ if it is consistent with the
purposes of the Act.
3. Similarity of Appearance. An ther alternative that would
PAGENO="0033"
29
be available in some instances would be treatment of a captive population
constituting a separate "species' as Endangered or Threatened under the
Act's similarity of appearance provision, 16 U.s.c. 1533(e). This would
involve a determination that the captive population was no longer
Endangered or Threatened biologically, but should still be treated as
such because the substantial difficulty enforcement personnel would have
in attempting to differentiate between it and the wild population, due
to the close resemblance in appearance, would constitute an additional
threat to the wild population. It would also have to be found that
treating the captive population as Endangered or Threatened would
substantially facilitate enforcement of the Act and further its policies.
Under 50 CFR 17.50-17.51, any such captive "similarity-of-appearance
species" would be listed as Endangered or Threatened and, would be subject
to the same prohibitions applicable to a species so lIsted for biological
reasons. However, under the Act and 50 c.r.R. 17.52, the permit requirements
for similarity-of-appearance species are only those necessary to facilitate
enforcement and insure the conservation of wild populations and other
truly Endangered or Threatened species (16 U.S.C. 1533(e)). Thus, the
application requirements and issuance criteria for similarity-of-appearance
permits are less detailed than those forother permits. Permits might
be issued to cover any number of otherwise prohibited activities over
a specified period of time. However, the control of import, export
~and re-export needed to protect wild populations might require a
separate permit under this same ~l7.52 for each transaction of these
types.
29-319 0 - 78 - 3
PAGENO="0034"
The Servi~e does not expect to 1 mit its consideration to the
alternatives described in this nodce. It seeks comments on these
and other approaches that should b~ considered in revising the regu-
lations to make them more effective in achieving the purposes of the.
Act with respect to captive wildli~e.
This document was prepared by Dr. Richard L. Jachowski, Federal
Wildlife Permit Office.
NOTE: The Department of the Inter or has determined that this docu-
ment does not contain a major proposal requiring preparation of an
Economic Impact Statement under Executive Order 11949 and OM3
Circular A-l07.
APR 1 1 ~979
Dated: ___________________
Director,
U~S. Fish and Wildlife Service
PAGENO="0035"
31
Senator CULVER. Thank you very much, Mr. Greenwalt.
In your view, are Federal departments and agencies complying
with the consultation requirements of section 7?
Mr. GREENWALT. Mr. Chairman, generally speaking, yes, they
are. There have been some exceptions, but as a general rule, we
find very good compliance with section 7.
Senator CULVER. In those situations where you have something
less than satisfactory consultation, what recourse do you now pos-
sess by way of remedy, and do you think those are sufficient? If
not, what additional authorities do you think might be desirable?
Mr. GREENWALT. Mr. Chairman, the resource presently open to
us is to indicate in writing to the agency that is reluctant to
consult that consultation is necessary, and that the application of
section 7 is obligatory. In the circumstance in which an agency
thus advised of its obligation, does not consult and elects to carry
out an action which will be in violation of section 7, our experience
thus far has been that the provision for citizen suit invariably
presents itself. There is a matter of litigation developed that af-
firms the agency's obligation to consult.
In short, the citizen suit process triggers an action which, in my
judgment, stimulates the agency to consult. As a practical matter,
we have had very little problem with seeking and getting consulta-
tion.
Senator CULVER. So you don't see any need for additional re-
sources?
Mr. GREENWALT. `No; I do not.
Senator CULVER. In your statement I notice that you mentioned
that after consultation, it is the responsibility, as I understand it,
of the Federal agency to decide whether or not to proceed with the
proposed activity in light of its section 7 obligations.
Mr. GREENWALT. That is correct.
Senator CULVER. In those instances where you have identified a
potential adverse impact upon the critical habitat, how have Feder-
al agencies generally responsed?
Mr. GREENWALT. In most cases where we clearly point out where
they may be likely to adversely modify or destroy the critical
habitat thus jeopardizing the species, the agency will generally
seek ways to modify the project-not in all cases, however. While
the agency retains the authority to make its own decision about
what it will do, it does so at the risk of citizen suit. If the agency,
as a practical matter, makes a decision clearly in opposition to the
formal biological opinion rendered by the Fish and Wildlife Serv-
ice, its position in court is likely to be weakened. There is on record
that the action contemplated by the agency is likely to jeopardize
the continued existence of a species or adversely modify its critical
habitat.
The Fish and Wildlife Service, on the other hand, can provide a
biological opinion which in many cases indicates there is no likeli-
hood of jeopardy or adverse modification.
Senator CULVER. You work for modification. You rarely encouter
situations where they proceed with a program without modifica-
tion?
Mr. GREENWALT. Not very many cases. The one that comes to
mind is the Tellico situation.
PAGENO="0036"
32
Senator CULVER. Now, Mr. Greenwalt, I mentioned in my open-
ing statement that yesterday I introduced, with a number of co-
sponsors from the full committe~, a bill to provide a mechanism for
arbitrating what appears to be a~i increasing number of apparently
irresolvable conflicts that have developed, or are imminent be-
tween the act and Federal proje~ts. While I realize the administra-
tion has not taken an official po~ition on this amendment, I would
appreciate it if you could give me your personal reaction to this
proposal.
Mr. GREENWALT. Yes; I would, again recognizing that the admin-
istration has not had a chance to react to this. Let me speak
generally and philosophically t~ward the aim of your proposed
legislation.
I think the mechanism for re~olving otherwise irresolvable con-
frontations is basically a rather ~practical one. However, one must
consider that the bill contemplates the assembly of the Secretaries,
which presents some logistical prç~blem. I might say, from a person-
al point of view, if the Secretarie~ themselves, officers of that rank,
can be assembled to make thes~ deliberations in a forum that is
clearly a public one the decisions are likely to be very good. These
men will be operating with the full understanding of the conse-
quences of their decisions, whicl~ I think, fundamentally, is what
we are after in terms of a degree of biological and national equity
with endangered species.
The kind of decisions that will confront us are likely to be ones
that relate to whether or not tq eliminate a species, which is a
thing I cannot take frivolously. Tl~is is a very serious consideration,
and it should be done with a full understanding of what this
implies and means.
I think a mechanism that does assure that everyone involved
clearly understands what is at stake and what the implications and
possible consequences are is the oily practical, equitable, rationale
way to confront one of these kinds of decisions.
Again, I say a species, a rare and indeed unique biological entity,
is a valuable thing. It should not te cast away without a good deal
of forethought.
One weakness which may be inherent in the bill, but which I
think is not intended by what yot~ said in your opening statement,
is that consultation must be serious, in good faith, and there must
be clearly an irresolvable conflict. It should not be carried out in a
frivolous manner with the expectation that the exemption can be
applied with ease or without much difficulty.
In short, what you said earlier, Mr. Chairman, I think is very
much to the point. Any consultation process preliminary to a dis-
cussion by the board or commission must be in great detail and in
absolute good faith on the part of both parties to attempt to resolve
the conflict.
Senator CULVER. As you noted, Mr. Greenwalt, in your state-
ment, we have had a significant number of consultations under
this law to date.
You also indicated that we can anticipate two trends. First we
will be going into a period where ~e will have increasing numbers
of consultations and potential conflicts as we become more sophisti-
cated and more accustomed to vi~orous implementation of objec-
PAGENO="0037"
33
tives of this act. At the same time, hopefully, the trend will be
toward diminishment of more difficult confrontations as that proc-
ess becomes more institutionalized in an anticipatory rather than
reactive manner.
But, nevertheless, it is apparent to me, that this Tellico Dam
situation is really the tip of the iceberg. We are going to have a
proliferation of conflicts certainly in the near term if the act is
vigorously implemented, and this is another problem. To what
extent will the present political climate have a chilling effect for
your agency?
You mentioned getting the Secretaries of Commerce and Interior
personally involved, and so on. I think that is most important. But,
you know, one of the things that we have to contemplate when we
look at an amendment proposed like this is the ability of the
Congress of this committee, for example, to come in here and vote
up or down on "the merits" of whether or not we go forward or
don't go forward with a project? Can we even get a quorum, much
less an informed one on this issue? Is this body designed in its
historical constitutional mission to make these kind of ad hoc,
discrete judgments all over the geographic landscape of this coun-
~ry?
I believe that we would be embroiled in something that would be
at a minimum a full-time job, at least in terms of the nature of the
political petitioning that we would be subjected to, and the intense
lobbying pressure~ on specialized, ad hoc, episodic, isolated in-
stances of this chaI~a4er. We don't have the competence to make
those judgments in a re~spp~sible and enlightened way, at least this
member doesn't.
Mr. GREENWALT. I think that is~l~ it is vitally important that
the consultation process be reinforced~ in some fashion. So the
deliberations of the board or commission on such things does not
find itself confronted with frivolous problems.
Senator CULVER. As you note I am concerned that this amend-
ment in no ways undermine the very valuable, and I think increas-
ingly important and, hopefully, successful experience you are
having with good-faith consultation efforts. I think it is important
that the Federal agencies be sensitive to the fact we are serious
about this.
Now, in this amendment, I have required that an exemption
cannot be considered by the interagency board unless it deter-
mines, first, that the requirements of the section 7 consultation
process have been met, and second, that an irresolvable conflict
does indeed exist. In your view, would this language be sufficient to
prevent less than good-faith negotiations on the part of the project
agency? Do you have any suggestions to offer as to other language
we might add to make the consultation process stronger and more
assured?
Mr. GREENWALT. It might be valuable to spell out a set of stand-
ards by which one can determine that the consultation process has,
in fact, been carried on in good faith. I am not prepared at this
moment to suggest what they might be. It seems to me there might
be some little checklist of those things that have had to transpire
in order for the consultation process to be followed.
PAGENO="0038"
34
Senator CULVER. Would you be good enough to give that some
reflection?
Mr. GREENWALT. Certainly.
[Mr. Greenwalt supplied the f1 ilowing comment:]
This aspect will be considered in dev~lopment of the administration's position on
the legislation.
Senator CULVER. Now, some have suggested rather than provid-
ing for a type of balancing mec1~anism, such as that implicit in this
amendment we are considering here, that we should limit the type
and number of species protecte~l under the act but that these be
given full and absolute protection. What is your reaction to this
proposal?
Mr. GREENWALT. Mr. Chairma~, I think this has very little prac-
ticality from the biological sense, because, as I suggested in my
testimony, the interdependency of species is well recognized, al-
though the details of that interdependency is not fully understood
in all cases. I think to conclude that a certain class or level of
species can be considered for ti~eatment and no other defies the
basic ecological idea that species are fully interdependent, and that
it would propel the Endangered Species Act toward failure in the
final analysis because we could ~iot assure the protection of those
species which were identified.
Mr. Chairman, I think it is impractical as a biological matter to
consider this point. The act, as it was originated in 1973, speaks to
the issue of recognizing the real role played by ecosystems in the
protection of the individual species. I think it would be most diffi-
cult, if not totally impossible, to biologically make a separation.
Senator CULVER. It has also been suggested that the decision to
exempt a project be made by tl~e Secretary of Interior. What is
your reaction?
Mr. GREENWALT. That is always possible. I wouldn't envy the
individual that would have to n~ake such a decision. It seems to
me, theoretically, the President óould make certain of those deci-
sions, for example, by insisting o~i additional consultation or addi-
tional efforts to solve the problemJ
Senator CULVER. But you think this Board would be suitable?
Mr. GREENWALT. Yes.
Senator CULVER. In your statethent you mentioned the adminis-
tration has requested a $4 million increase in fiscal year 1970 for
this endangered species program~ which is to accommodate this
accelerated program for critical habitat designation, I gather.
Mr. GREENWALT. Yes.
Senator CULVER. Now, the listing of species, of course, is just as
important in avoiding conflicts between Federal projects and the
act as the identification and desi~nation of critical habitat, is it
not?
Mr. GREENWALT. Yes, sir, definit~ly.
Senator CULVER. Is there a need to step up this or other aspects
of the endangered species progran~ in fiscal year 1979, and would
any more funds help avoid the kind of problems here that are
concerning us?
Mr. GREENWALT. It would obviou~ly help because early identifica-
tion of species or critical habitats i~ the way to help avoid conflicts
PAGENO="0039"
35
that accrue after a species has been discovered in the presence of a
project. Obviously, Mr. Chairman, additional funds would be useful
in this connection.
The Service, and the Department, operating within the con-
straints of the budget, have developed an approach by which we
will be able to do a credible job. It is unlikely we could ever, even
with the help of your committee, have enough money and person-
nel to do the job we* are convinced we have to do.
Senator CULVER. Is it a question of just the manpower resources,
financial resources, or even just the natural understandable case of
identification of and scientific competence, and so on?
Mr. GREENWALT. It is a combination, Mr. Chairman. The efforts
we can undertake are obviously constrained not only by the money
available, but people available to do the job. In addition, there is no
way really to speed up the process of understanding some of these
species once we initiate a study. Those things are oftentimes con-
strained by the nature of the species itself.
Administratively, we could obviously use additional funding and
manpower.
Senator CULVER. Will more money really make an important
difference, or will more money would make only a slight differ-
ence?
Mr. GREENWALT. Quite frankly, the ability to use personnel
makes a greater difference.
Senator CULVER. So given present personnel ceilings you are
about where you should be to do a prudent, responsible, and compe-
tent job?
Mr. GREENWALT. We are within reasonable range with the $4
million for section 7. In all candor, as I have expressed to you
before, Mr. Chairman, our real problem, as all agencies' problems
are, are related to manpower more than money.
Senator CULVER. Now, a strong section 7 consultation process, of
course, is essential to the success of this act. Do you expect to
undertake approximately 20,000 consultations in fiscal year 1979?
Mr. GREENWALT. This is what we anticipate.
Senator CULVER. 20,000?
Mr. GREENWALT. 20,000, yes.
Senator CULVER. Do you have enough people to effectively handle
this large a number of cases?
Mr. GREENWALT. No; quite clearly we do not have enough people.
We have two alternatives, one is to use temporary or less than full
time people, or to make some adjustment in the way we do busi-
ness throughout the Service to meet this need. I find it very diffi-
cult to do the latter because of needs Service-wide, with which you
are familiar. We are confronted with a staggering problem. Our
present approach is to do the very best we can using temporary or
less than full time people, which do not count against the ceiling.
At the present time, we really have no alternative.
Senator CULVER. In undertaking those 20,000 consultations, have
you figured out a way to juggle your limited manpower to make
that a credible enterprise in terms of the quality of those consulta-
tions?
Mr. GREENWALT. I cannot guarantee we will do as good a job as I
think the situation deserves. We are constantly examining alterna-
PAGENO="0040"
tives to approach this need The ~ne approach we have undertaken
at present is to utilize less than f~ull time employees, which is not a
very desirable situation, but it is the only solution.
Senator CULVER. Could you pi~ovide us with more specific infor-
mation on the nature of the 20,000 consultations?
Mr. GREENWALT. I think the ~reater number of consultations in
the future, if reflective of the past, are likely to be minor, short-
lived, and simple processes of idntifying the presence or absence
of a species or critical habitat ~n a given area where a Federal
agency wants to carry out a project. As a result, in most cases it is
a simple process, and the Federal agencies respond by saying they
will modify.
However, particularly as we li~t more species and identify more
critical habitats, far more complex and serious consultation may
result. It is the latter that trou~les me, because it require very
skilled, experienced employees in order to do a credible job. The
number of the more difficult cons~iltations I am not going to try to
project, although I am concerned that it will be significantly larger
than any number in the past.
We have attempted to deploy p~ople in such a way we can relate
to what we think will be the nat~re of the consultation problems.
But again, only experience will g~ve us information as to whether
we are likely to succeed.
Senator CULVER. Senator Wallo
Senator WALLOP. Thank you, M1~. Chairman.
Good morning, Mr. Greenwalt.
Mr. GREENWALT. Good morning, sir.
Senator WALLOP. Is there a pi~actical way to prioritize those
20,000 with regard to maybe perh~ps the species involved as well
as the complexity?
Mr. GREENWALT. We, I think, c4n predict the complexity of the
consultation in terms of its relat onship to the species involved.
One of the problems, Mr. Wallop, is we do not always know what
kind of project or activity is likely to be consulted about. We try to
stay ahead of it and understan4 the things that Federal agencies
are doing. But it is very difficult sdmetimes to anticipate when one
will escalate from a simple probleni to a complicated one.
Again, I am confident most of them are likely to be relatively
minor. One of the realities we az~e confronted with is a self-im-
posed, and I think entirely logical, ~ime constraint. We are obligat-
ed to respond within 60 days, which I think is fair under the
circumstances. That complicates ou~ life, but I think it is fair given
the nature of the impediment we r~iight impose by not responding
promptly.
Senator WALLOP. One of the pr~blems that we hear and have
heard of during the course of thi~ hearing is that how can we
insure that the States are consulte~l with during either the listing
of species and delineating of their ci~itical habitat?
Mr. GREENWALT. Well, this is outlined in the act clearly, and we
have undertaken some actions in tI~e recent past to insure that the
States are consulted, particularly irk the development of a reaction
to a petition or to some other consiaeration that may result in the
listing of the species and/or deterirkination of its critical habitat. I
PAGENO="0041"
37
am convinced none of us will succeed at all without the very
complete involvement of the States.
We are working very closely with the States now, and I can
assure the committee, and you, Mr. Wallop that the States will be,
as they have every right to be, involved in these matters and as
early in the process as we can make it possible.
Senator WALLOP. You heard, though-I think you were even
present when some of the State wildlife commissioners were testify-
ing earlier.
Mr. GREENWALT. Yes, I was present.
Senator WALLOP. They were having kind of a hard time. Is there
any way that could be incorporated into our amendment?
Mr. GREENWALT. I hadn't thought about that specifically. I think
there might be a way to do that to avoid uncertainties and differ-
ences of opinion about whether and when the States should be
involved. There are things that occur to me immediately that make
it possible, for example, under the Administrative Procedures Act
but I am not sure how it relates to the amendment. I would like to
think about this.
Senator WALLOP. I think it would be very helpful if you look at
that with that in mind. Maybe there could be a representative of
the States added to that commission.
Mr. GREENWALT. I think there are a number of things that could
be made more effective in the amendatory language.
Senator WALLOP. Let me shift gears a little bit. Can you see a
solution to the long-standing problem the peregrine falcon breeders
have under the Endangered Species Act?
Mr. GREENWALT. Yes; I think I can. Let me characterize the
problem in this way: One of the real responsibilities we have under
the act is to assure that whatever is done or permitted under the
act does not encourage an unwarranted removal of an endangered
or threatened species from the wild, and this is where the problem
is troublesome. You are aware, I am sure, that the Service has
experimented with a marking process. The answer clearly is a
marking process that enables us to identify properly permitted,
properly held wildlife of any kind as opposed to those which may
have been illegally taken from the wild.
In the case of falcons, we have a marker which is not successful
at present. Without trying to go into great detail, Mr. Wallop, I
think the answer from every perspective is a marking system that
enables us clearly and without any real probablity of altering or
counterfeiting it, to identify properly held birds as opposed to those
taken from the wild. The mandate of the Service is to prevent, to
the degree possible, the exploitation of wild endangered or threat-
ened creatures. If we can achieve that, we can solve a great many
of these problems. We continue to work on this problem.
Senator WALLOP. Thank you, Mr. Chairma~i.
Senator CULVER. Thank you, Senator Wallop.
Thank you very much, Mr. Greenwalt. We would appreciate
receiving as soon as you could provide it some of the points that
have been raised here and the additional information that has been
requested.
I want to thank you very much for your testimony and your
appearance here.
PAGENO="0042"
38
Mr. GREENWALT. Mr. Chairman, if I might make an observation
for the record, the response of the~ administration, of course, will be
provided as a report on the legislation as proposed. I will separate-
ly, at your request, provide any bther information you asked for.
Senator CULVER. Thank you very much.
Our next witness is Mr. C. W. Hart. It is a pleasure to welcome
you here, Mr. Hart, and you are, ~f course, Assistant to the Direc-
tor of the Museum of Natural History. Would you identify those
gentlemen that are accompanying you here today, and you may
proceed however you like.
STATEMENT OF C. W. HART, JR., ASSISTANT TO THE DIRECTOR,
NATIONAL MUSEUM OF NATU1~AL HISTORY, THE SMITHSONI-
AN INSTITUTION, ACCOMPANIED BY DAVID CHALLINOR, AS-
SISTANT SECRETARY OF SCIENCE, AND ROSS SIMONS, AD-
MINISTRATIVE ASSISTANT
Mr. HART. Thank you, Mr. Cl~airman. On my right is David
Challinor, the Assistant Secretar~ of Science, and on his right is
Ross Simons, his administrative a~sistant.
Senator CULVER. We are running a little short of time. Because
we have about three panels yet th~is morning, maybe you would be
kind enough to summarize, and we will include your whole state-
ment in the record. [See p. 91.]
Mr. HART. I will summarize.
The Endangered Species Act is o ly one of a number of laws that
are causing problems within the ~cientific community, but as the
Endangered Species Act is the sub~ect under discussion, I will limit
my remarks to it. I think I wo~ild be correct to say that few
scientists quarrel with what they perceive to be the original intent
of the Endangered Species Act: "Ta conserve to the extent practica-
ble the various species of fish or ~wildlife or plants facing extinc-
tion."
Questions and problems arise, h~wever, regarding the implemen-
tation of the act. The question of permits to take, transport, pos-
sess, and even engage in acceptabI~ husbandry practices involving
endangered species require inordinate amounts of time and effort
to procure.
We applaud the recent initiative of the U.S. Fish and Wildlife
Permit Office to streamline its permit procedures, but do not feel
that this is necessarily the remedy needed by the scientific commu-
nity. The irretrievable costs in tithe and money must still be ex-
pended, and one wonders what the controls on already dead
museum specimens actually accomplish. They will have no effect
on living natural populations. Thèy~will not restore anything to the
wild. Nor will they appreciably reduce the number of organisms
taken from the wild.
There are problems related to the receipt of unsolicited speci-
mens. We cannot help it who sends us specimens through the mail.
This kind of thing causes embarras~ment.
Finally, many scientists questiOn how far down the phylogenetic
scale the concept of endangered ~pecies should be taken. Few
people question the premise that the protection of many endan-
gered or threatened mammals, bfrds, reptiles, frogs, fishes, and
plants is a justifiable aim. There is, perhaps, justification for the
PAGENO="0043"
39
inclusion of some invertebrates. But there appears to be no work-
ing philosophy that considers where Federal protection should stop,
where one reaches a point of diminishing ecological returns.
Senator CULVER. Is that due to limitations of current scientific
knowledge, of data about what the ecological system itself in its
totality?
Mr. HART. Yes, sir. I think there are points that could be raised
about what Mr. Greenwalt said about that.
We recognize the lengths to which the Endangered Species Office
goes in determining whether or not an organism is actually threat-
ened or endangered, but some of us question whether large expend-
itures of time and money and anguish should be expended to
protect certain animal groups at all.
The scientific community appreciates the wisdom of the various
acts, and some of the implementing regulations which have been
developed.
Senator CULVER. Isn't there a general acceptance, though, that
this remarkable creation we have is in one way or another, even if
we don't understand all of it, all part of a critical web of life?
Mr. HART. I think certainly it is.
Senator CULVER. Who plays God the second time around?
Mr. HART. That is a very good question, and one I am not able to
answer, but I think it should be addressed and should be thought
about without going to the efforts to protect everything. I don't
think it is feasible to protect everything. The act, as it is written,
has no end. It is open ended.
Senator CULVER. But we aren't in any position to make an in-
formed recommendation to cut it out or not.
Mr. HART. No.
Senator CULVER. Given the scientific complexity and number of
elements that would have to be factored in such an intellectual
undertaking it seems to me that such a decision would just defy
the imagination.
Mr. HART. Yes.
Senator CULVER. And you aren't even close to being able to hint
at what the parameters of that decision would even be.
Mr. HART. I think when you consider far down the phylogenic
scale---
Senator CULVER. If you assume it starts somewhere, the farther
down you go, it really is the basement.
Mr. HA1~T. Yes; it is the basement, but it is also the area in the
ecosystem in which you have the greatest flexibility.
Senator CULVER. There are redundancies?
Mr. H~T. There are redundancies. There is backup there, organ-
isms in species pools which replace one another on a continual
basis.
Senator CULVER. They were put in there for a good reason.
Mr. HART. As a backup system.
Senator CULVER. Because they were thought to be needed. So
when you start playing with that composition, don't you run a risk,
too?
Mr. HART. Yes; you probably do. But I think it is a backup
system with a great degree of flexibility.
Senator CULVER. Kind of like our triad.
PAGENO="0044"
Mr. HART. Yes; the environmen~al triad.
Senator CULVER. I am reluctant to tinker with the Constitution,
much less the universe. That is, a~i inhibition I have. But go ahead.
It is just troublesome for me, a~ a legislator to try to draw that
line when you in the scientific áornmunity don't have any informed
idea as to where the lines shoul~l be drawn. Then we who don't
know anything about it are suppo$d to assume the risk.
Mr. HART. It is a terribly frustthting question; it is one that we
could debate for quite a long timei
The scientific community appr~ciates the wisdom of the various
act.. and some of the implementing regulations which have been
developed. But while recognizing ~nd agreeing with the importance
of these matters, the problems raised by their inflexible application
will, if not resolved, impede and obstruct the legislated functions of
several Federal institutions, as weil as the ability to inquire, which
is, afterall, the cornerstone of sciei~ce.
I think underlying all of our doncerns in regard to applicable
laws and regulations promulgated~ is the idea that a sharp distinc-
tion should be drawn between co~nmercial activity and scientific
activity. There is a vast difference between a scientist attempting
to learn something about an organ~sm's biology and the dealer who
is continually reducing wild populations, and possibly distorting
the gene pools, of a few selected, sj~ecies over a prolonged period of
time for monetary gain.
I believe in the past year we have seen considerable progress
toward a mutual understanding of~the problems faced by the regu-
latory bodies and the biological community. The regulators have
their perceived mandate; we have ~urs. Each of us is beginning to
recognize the problems faced by tl~e other. Problems still remain,
however, and that is why I am co~icerned. Our dealings with the
Fish and Wildlife personnel indicat~ they now basically understand
our problems, they sympathize ~rith our frustration, but they
appear powerless to change much v~ithout legislative mandate.
The scientific community is cothmitted to obeying the regula-
tions, as well as we understand thbm, but we would like to work
toward the goal of seeing that the rules do not put unfair burden
on the very segment of the community that is needed to achieve an
understanding of what * species a~e endangered and how their
chances for survival might be imprqved.
I would like to suggest that most of the basic legislation under
which the movement of scientific specimens is regulated carries
few explicit restrictions applicable tb the scientific community, and
that the permit requirements, rdgulations, and restrictions to
which the scientific community is ~ubjected not only do not serve
the objectives of the legislation, but constitute a drain on public
and private resources.
In summary, I would like to say that the wildlife laws now
require few, if any, direct costs to the museum or university. But
there are hidden costs in, for example, the time required to prepare
permit applications and await theit~ issuance, the effort expended
in complying with meaningless requirements, or in defending staff
members from prosecution when thdy inadvertently violate a regu-
lation. Each of these laws, in its c~wn way, adds to the burden.
PAGENO="0045"
41
The long-term potential opportunity costs of such regulations to
scientific research are unknown. As Spriestersbach and Farrell
recently pointed out in Science, "Although we have difficulty meas-
uring what regulations have done to us, we have even more diffi-
culty envisioning what they might have kept us from doing." They
were speaking of other Government regulations, not the wildlife
regulations. They fear, as I do, that these kinds of Federal impacts
may carry with them the highest social cost of all: "The loss of new
knowledge, new creativity, and new understanding."
Senator CULVER. You know, Mr. Hart, we are into an area,
whether we like it or not, that we have got to do a better job of
achieving a delicate and responsible blend of social responsibilities
and scientific inquiry; would you not agree?
Mr. HART. I certainly do.
Senator CULVER. With all due respect to the historic mission of
science to seek truth and so forth, we are getting into some areas
where there are some very substantial threats if we don't sit down
and at least consider where some of the social, political, economic,
and health consequences of unrestrained pursuit of this objective
might lead. Is that not true?
Mr. HART. That is true.
Senator CULVER. For example, in an area like DNA, I would hope
any responsible scientist would eagerly seek out this kind of infor-
mation. I think increasingly we are going to have to face these
issues. We are pushing the frontiers of knowledge in such a really
frightening-you could say exciting-way; we have a new dimen-
sion of trying to keep apace of that frontier both from a political
and a moral perspective. Would you not agree?
Mr. HART. Yes.
Senator CULVER. I am just saying it is too easy to say we have
too much paperwork, let's just run amok. We ought to pause and at
least think through in a more collective sense even beyond the
scientific community as to where we go from here. Would you
agree with that?
Mr. HART. Yes.
Senator CULVER. How can the problem specifically that the scien-
tific community is experiencing with the Endangered Species Act
be best resolved? You have alluded here to your frustration. What
we need is some specific, practical, responsible suggestions and an
indication as to whether or not those solutions will best be obtained
administratively or whether they may require amendments to the
act. What do you have to tell us in that regard?
Mr. HART. I believe that amendments to the act are not required.
I think administrative solutions are possible. It may be valuable if
the Congress could in some way express its views as to what should
be covered, what should be examined, this kind of thing.
Senator CULVER. Do you want to give more serious thought to
that and give us something we could put in the record?
Mr. HART. I will try.
Senator CULVER. Did you want to add something?
Mr. CHALLINOR. Yes. I am David Challinor, Assistant Secretary
for Science of the Smithsonian. I want to support the section 7 of
the existing Act that calls for consultation between those agencies
that are concerned. We feel very much that this has been very
PAGENO="0046"
successful in all the 3,000 or 4,~00 cases that have come up that
have required a solution. We fee~ that almost every one, with the
possible exception of Tellico Dani, which is coming all the way to
the Supreme Court, have worked ~ reasonable solution.
So I want to enforce what Mr. ~reenwalt has testified to earlier,
and I feel that administrative sol~utions that Mr. Hart has already
mentioned are the best way, perhaps, to solve some of these dilem-
mas facing the scientific community.
Senator CULVER. You have indicated, Mr. Hart, that an inordi-
nate amount of time and effort ~nd money has been spent on the
protection of what some would ,vi~w as less important species. But
again the thing that troubles me is that I don't sense from you that
the scientific community has any~ general agreement on what spe-
cies should be protected and what species shouldn't. It is like
beauty; it is in the eyes of the béh~lder.
Mr. HART. You are absolutely. right. I am speaking with my own
opinions on this.
Senator CULVER. But even if I guve you the authority to barge in
here right now and say, "Here is~ where it is; here are the things
you keep; this is the stuff that c~onstitutes a waste of time, and
there is the line." That is Hart's line. You can sleep tonight.
Mr. HART. I might have trouble ~leeping, but I think it should be
done.
Senator. CULVER. Why? In the interest of saving money and being
responsible stewards of your reseai~ch?
Mr. HAi~T. In the interest of saving money and not having regu-
lations on every aspect of our rese~rch.
Senator CULVER. You could do that confidently?
Mr. HART. Confidently, yes; with trepidation, yes.
Senator CULVER. And you urge sc~mebody to do it?
Mr. HART. I think it should be thbught about.
Senator CULVER. Thought about~ Well, we think about a lot of
things.
I realize you have not had an àr~portunity to review the specific
provisions of the subcommittee's amendment that was introduced
yesterday. Nevertheless, I wonder i~ you have any general reaction
to this amendment as described ~n my opening statement and
commented on by Mr. Greenwalt.
Mr. CHALLINOR. If I may, Mr. Ci~iairman, I would like to make
one statement. We understand on one of the. amendments the
Smithsonian is listed as a membe of the committee which will
review and make recommendation. The Institution, I think, would
prefer rather than being mentioned specifically in the legislation to
be an observer on such a committee.
Senator CULVER. No responsibility
Mr. CHALLINOR. No, we already iiave this responsibility in our
charter. We don't think it has `to~ be spelled out again in the
legislation.
Senator CULVER. Well, if we gi~e you a new assignment--
Mr. CHALLINOR. Mr. Chairman,, may I make one point, we are
not an executive agency.
Senator CULVER [continuing.]. W~ might think you are doing
such a good job we want to get yo~ involved substantively in the
act as well as think in some of these decisions.
PAGENO="0047"
43
Mr. CHALLINOR. Yes; but we are not in the role of implementing
legislation, not being an executive agency.
Senator CULVER. Well, you are supported by approximately 80
percent of Federal funds, right?
Mr. CHALLINOR. About 75 percent, between 66 and 75; it varies
from year to year in directly appropriated funds.
Senator CULVER. And we think you may well possess vital experi-
ence we need.
Mr. CHALLINOR. And we are more than prepared to offer it.
Senator CULVER. What if we draft you?
Mr. CHALLINOR. We have no choice.
Senator CULVER. You want to serve. Uncle Sam needs you.
Mr. CHALLINOR. We would like to be asked to, and would be more
than happy to serve.
Senator CULVER. Well that's reassuring, and an ominous signal
to the Soviet Union.
Senator WALLOP. Mr. Chairman, you are in rare form this morn-
ing.
I want to make a comment that occurs to me. Frequently when
we are talking on these matters, the range in the spectrum isn't
quite as black and white and running amuck or a blizzard of
paperwork. There has got to be some practical middle ground that
doesn't constitute running amuck and also a recognized practicality
of the world we live in, giving all the attention necessary to the
protection of species.
I would like one explanation from you on a statement that you
made earlier that the farther down the chain one goes, the greater
the flexibility there is. I wonder if you could just briefly expand on
that statement.
Mr. HART. Well, from my experience in working in streams-I
have spent 20 years studying pollution ecology-in any given
period of time, if you run a survey on a body of water 1 year, 2, 3
years-some of them I have carried on for 20 years-you can look
in the individual ecological niches, as we call them, year after year,
and you may seldom find the same species you found the year
before. You will find a similar species occupying those same niches,
carrying out those same functions.
That is generally what I had in mind. You have the tremendous
flexibility in the system, and that is the beauty of it.
Senator WALLOP. That is carried on into the subspecies, is that
kind of what you are talking about? I am not trying to put Tellico
Dam on the spot. It is a thing people have argued. I haven't the
foggiest notion when it becomes flexible and when it is hard to
contrast.
Mr. H~u~T. I am talking about organisms at the species and
subspecies level.
Senator WALLOP. Well, we hope maybe somebody within the
Smithsonian, or some other place, might try to produce a paper
that would give this committee some guidance as to what consti-
tutes biological flexibility.
Mr. HART. There are several I can find that refer to this very
subject of the flexibility and resiliency of the ecosystem.
Senator WALLOP. Thank you, Mr. Chairman.
Senator CULVER. Thank you, Senator Wallop.
PAGENO="0048"
`44
Senator Garn, did you have `ai~y questions of these witnesses?
Senator GARN. No.
Senator CULVER. I want to thank you very much. We may submit
some additional questions to you.
Mr. HART. Thank you, Mr. Chair~man.
Senator CULVER. Senator Garn, we are very pleased to welcome
you here this morning and look forward to your statement. We
know you have a very real interest in this general subject area.
Senator GARN. Thank you very ~nuch, Mr. Chairman. I see that
you are in the same form you werd in the Armed Services Commit-
tee with the Secretary of Defense.
Senator CULVER. I thought this was Armed Services. Somebody
switched rooms on me.
STATEMENT OF HON. JAKE GAI~N, U.S. SENATOR FROM THE
STATE OF~ UTAH
Senator GARN. Mr. Chairman, I~ appreciate this opportunity to
testify this morning on endangered~ species legislation. It is always
dangerous, I guess, to tamper with sacred cows, and I think the
Endangered Species Act has acquir~d something of that character.
Nevertheless, I do not wish to attack the concept of protecting
endangered species. I would like to attack some of the uses to
which the act has been put, and dome of the extremes to which
species' protection has been taken'.
Yesterday, I introducted an ameiidment to the Endangered Spe-
cies Act. My intent was to provide~a vehicle for discussion during
these hearings, and I fully recogr~ize that the amendment will
probably have to be modified. This i~iorning I would like to describe
breifly what my intention was, and then I will be happy to discuss
the amendment, answer questions, o~' proceed in any way that suits
the convenience of the subcommitte~.
To begin with, my amendment w~s designed to permit the modi-
fication of the critical habitat of an c~ndangered species in such way
as to improve that habitat. Right nc~w, the act is being interpreted
as permitting no change whatever~ in the habitat, even if the
change would make the habitat more conducive to the preservation
of the endangered species. You hav~ a couple examples of this in
Utah where the changes in salinit~ in the water would actually
improve the habitat, but the way thç act is being interpreted, they
will not be allowed to proceed even i~ it would improve the habitat.
It seems to me that that interpretation stands the intent of the
act on its head, and lends itself to' p~irely obstructionist actions by
private groups.
Second, my amendment requires the agency which has proposed
a Federal action to take all practical steps to avoid harm to an
endangered species or to its critical habitat, as presently estab-
lished under the Endangered Species ~A.ct.
Third, my amendment provides that, where the habitat can't be
improved as an adjunct to a Federal action, and where all practical
steps will not succeed in avoiding harm to an endangered species
or its habitat, then and only then s~ia1l the Governor of a State
balance the benefits and costs of tI~e action and the species in
question
PAGENO="0049"
45
This approach is obviously based on certain assumptions. I
assume that the value of each individual species or subspecies of
plant and animal life is not an absolute. It may very well be that if
the Tellico Dam, or the LaVerkin salinity control plant in my own
State, threatened the existence of the humpbacked whale or the
beaver, that they ought to be stopped. But those projects do not
threaten such animals. They threaten the snail darter and the
woundfin minnow, two undistinguished members of the fish family
whose only benefit to man lies in their existence.
I do not believe that any animal, no matter how worthless, ought
to be allowed to halt any project, no matter how valuable. There
are certainly going to be problems of balancing interests, measur-
ing costs and benefits, but those are the kinds of problems courts
and legislatures have always wrestled with, and there is no reason
to back away from them now. There has to be a mechanism where-
by the benefits of the stopped project can be weighed against the
possible loss of a single species.
My~ amendment is motivated by another assumption, frankly.
That is that much of the use of the Endangered Species Act by
various environmental groups has been very cynical. It has been
based less on a desire to protect the furbish lousewort than on a
desire to stop the Dickey-Lincoln project.
That can be seen most clearly when groups try to use the Clean
Water Act to stop a project, and when that fails turn to the Wild
and Scenic River Act. When that fails, they try the Endangered
Species Act, and when that fails they resort to historic preserva-
tion. Such activity reflects an attitude of no-growth, not a genuine
concern for the environment. My amendment is designed to retain
essential protections for endangered species, but to remove the act
as a fail-safe weapon against any development.
Because, Mr. Chairman, the fact is that there are enough obscure
species of plants and animals to guarantee that nothing at all will
happen in this country if no endangered species is ever to be
disturbed in its corner of the environment. I do not believe the
Congress intended that situation when it passed the act, and I do
not believe the American people will permit that situation to con-
tinue. It is better to try to introduce some flexibility into the act,
through an amendment such as mine, than to risk seeing the
entire act repealed in a revulsion against environmentalist ex-
cesses.
I firmly believe this, Mr. Chairman. If we don't have some flexi-
bility and some reasonableness, if we continue on this course look-
ing for some species that maybe has one more rib than some other
and exists in one place and nobody really cares whether it lives or
not, that was not the intent of the Endangered Species Act of
Congress, and we are going to see a backlash when vitally needed
environmental legislation is going to be killed or changed in too
drastic a manner.
I sincerely believe the Endangered Species Act is necessary, but
carried to these excesses, we will get a backlash, because people in
my State, who don't care if the woundfin minnow lives or dies-
and I don't think the environmentalists do either think the act is
just being used in a cynical way to impair a needed project.
29-319 0 - 78 - 4
PAGENO="0050"
Now, if there is some really ~ine endangered species, I will go
along. But these gimmicks and 4ses are going to cause something
the environmentalists will not like, unless we get some good old
common horsesense and quit obs~uring the original intent of Con-
gress.
I do not believe this amendthent opens a huge loophole. The
actions that would be required of~anyone wishing to build a dam, a
power project, a highway, or whatever, are very considerable. The
balancing test provided for when all else fails is severe, and would,
of course, be reviewable by the Irederal courts. What this amend-
ment does is offer some hope th~t some room will be left for man
to act in and on the environment of which he is a part.
There are other aspects of :t$e present legislation which are
unsatisfactory: The process by ~hich species are designated "en-
dangered" is too loose; the provisions for public and State input
into the administration of the act have been ignored; traditional
questions of equity have been ignkred. But I am not going to take
the time of the subcommittee thi~ morning to discuss these prob-
lems. I am sure the subcommitt~e is aware of them. I wish you
success in wrestling with them, a4d offer my own assistance in the
development of improvements.
I know you are behind schedul~, Mr. Chairman. There are some
officials from southern Utah who wanted to testify on the Warner
Valley project and the woundfln thinnow. They have not yet com-
pleted their analysis and scientif~c studies of the problem. So I
would hope the record would remain open and they would be able
to submit their analysis.
Senator CULVER. Without objectibn, so ordered.
Senator GARN. I also have an analysis of the Warner Valley
project by the Vaughan Hansen cOnsulting firm of Salt Lake City
that I would like to submit for the ~ecord.
Mr. Ival Goslin, who is on my left, is the executive director of the
Upper Colorado River CommissiorL He also has a statement, but
will not take the time of the cobimittee to read that. I would
submit that for the record. [See p. ~49.]
Then also I have a cduple newspbper articles, which might be of
interest to the subcommittee. I wi1~ submit one for the record and
the other being very brief, I will read it. This was in yesterday's
Wall Street Journal:
Overlooked Species: United Press Interi~ational reports a 14.legged water bug
called the Socorro isopod is the newest addi~ion to the list of endangered species. It
is a half-inch long and has survived millioiis of years from the Pleistocene period,
when what is now the Southwest United states was ocean. Which moves us to
wonder whether the endangered species folk~ have noticed that, according to repeat-
ed reports of the World Health Organizatioi~i, the smallpox virus is on the verge of
extinction. And was there an endangered ~pecies impact statement on the Salk
vaccine?
[The article submitted by Senator~Garn follows:]
[From the Washington Sitar, Aug. 7, 1977]
CIJLT OF THE ENDA~GERED SPECIES
(By Boyce Re~sberger)
After some early starts, the U.S. governm~nt lost its interest in wildlife conserva-
tion and virtually nothing was done for purdly aesthetic or ecological reasons until
about a decade ago when Congress passed, t e Endangered Species act of 1966. The
PAGENO="0051"
47
act, however, applied mainly to species that were already so reduced in numbers
that an ecological impact from their disappearance had already been suffered.
The law's chief purpose, then, was aesthetic in satisfying the desires of the new
wildlife constituency that wants simply to know of an animal species that it is
there. However tenuous the species' hold on survival, the law allows us to take a
measure of satisfaction in knowing that we are not yet guilty of wiping it out.
However laudable the 1966 act and its motivating sentiments may have been-
and they are laudable-it has given rise among people to a curious new form of
wildlife appreciation that may be called the "cult of the endangered species."
Members of this cult make so much of endangered species that popular interest in
them soars far above that in nonendangered species.
Take, for example, the ivory-billed woodpecker, a species that is so endangered it
may already be extinct. Thousands of wildlife enthusiasts would give their eye teeth
to be able to spot one and thousands go to great efforts to do so in such places as the
Big Thicket National Biological Preserve of East Texas where some say the species
may still exist.
As it happens, there is another species of woodpecker that doesn't look all that
different, called the pileated woodpecker. It is not endangered, but far fewer people
have heard of it and even fewer are eager to go out in the woods and appreciate one
of these. The reason for this behavior, of course, is exactly the same that once
motivated hunters to seek out the rare animals for their trophy rooms.
Perhaps the most outlandish expression of this new cult is the interest in saving
the Devil's Hole pupfish, a species of quite unremarkable inch-long fish that lives in
but one small pool in a Nevada cave. There never were any other places in which
this fish lived; it is a local variant of pupfish that evolved into a distinct species
because it was isolated from all other pupfish. There are thousands of such local
variants of many kinds of animals all over the world.
The Devil's Hole pupfish has no ecological significance beyond its own tiny pool
where only about 200 live. And yet there has been a substantial national battle to
protect this species. Its chief threat is a nearby rancher who would like to pump
more water out of his own well to irrigate his land. This, however, would reduce the
water level in the pupfishes' pool, depriving them of much of their food. The battle
has been taken to the U.S. Supreme Court and has been counted as meriting an
impassioned editorial in the New York Times. In 1976 the Supreme Court ruled in
favor of the pupfish. So much attention has come to these tiny beasts that they are
far better known by wildlife enthusiasts and scientists than are many of the more
common fish in American waters that are, by their very commonness, vastly more
significant factors in their much larger ecosystems.
From an interest in conserving wild animals simply to shoot them later on, the
interest in game saving has metamorphosed over the centuries to the point where
there is a nearly total opposition to any thought of killing wild animals for any
reason (witness the rise of the "animal liberation" movement, in which it is argued
that people have no right to kill any animal).
Modern conservation sentiment has also brought us to the point where the most
prized species in the eyes of many are those that are the most endangered, or at
least believed to be the most endangered. It matters little whether the animal has
some intrinsic qualities that make it attractive or useful; rather it is the fact of
endangerment that draws so much interest in it. This preoccupation with endanger-
ment has led many conservationists to make almost unrelenting attacks on their
own species, Homo sapiens. The endangered species is good, the conservationists'
values suggest, while the endangering species is bad.
Senator GARN. I think this is an example of the ridiculous use of
this act by some people. Again, I want to repeat: the act is neces-
sary. I want to see it renewed. I want to see endangered species
protected. I suggest this subcommittee and Congress might put
some sense and reasonableness back into this act so that we can
truly protect endangered species and not get an overreaction from
people where we would have environmental laws weakened too
much and be unable to have a balance in this situation.
In closing, Mr. Chairman, also with me is Mr. Dan Budd from
Wyoming. Therefore, I will let the distinguished Senator from Wyo-
ming introduce Mr. Budd.
Senator CULVER. Thank you very much, Senator Garn. I will
make those statements all part of the record, and I will also leave
PAGENO="0052"
48
the record open for a reasonabl~ time so the analysis you spoke of
can be submitted
[The material submitted by Se~iator Garn may be found at p. 97.]
Senator GARN. Mr. Chairman, if you do not have any questions, I
will leave, but Mr. Goslin will~ remain, if you have any question of
him after Mr. Budd's statement.
Senator CULVER. Thank you very much.
Senator Wallop, would you inti~oduce our next witness.
Senator WALLoP. I would be happy to introduce him. Mr. Budd is
a rancher from Big Piney, Wyo., ~ longtime Wyoming family, and a
family that has been involved ~n one aspect of another of the
commerce of the state, but part~cu1arly in the ranching and live-
stock business.
I served with-I think it was your nephew in the Wyoming
Legislature.
Mr. BUDD. My third cousin.
Senator WALLoP. I have kno*rk the Budd family for a consider-
able time. And I am always impressed when people take their own
time and own money to journey ~ut here to the campus inside the
beltway and try to enlighten us i4 one manner or another on what
it feels like to operate under sonie of the things of this Congress.
STATEMENT OF DAN S. BUDr~, ALTERNATE COMMISSIONER
FOR THE STATE OF WYOMING, UPPER COLORADO RIVER
COMMISSION, BIG PINEY, WY4
Mr. BUDD. Thank you, Senatoi~ Wallop. It is a pleasure to be
introduced by a fellow Wyomingit~. There are not very many of us,
only 350,000.
Senator WALLOP. We are, in the scheme of things, an endangered
species, perhaps.
Mr. BUDD. My statement is not too long, and I. will read it and
try to answer any questions that you might have.
I am Dan S. Budd, rancher on a Green River tributary in Wyo-
ming. I am assistant Wyoming bommissioner for the Colorado
River and a member of the Colorac~o River Salinity Control Adviso-
ry Council. I am here representing Dan H. Budd and Sons, Inc., a
ranching family that has been in business 100 years this year.
You may wonder why, as a ranbher, I am taking the time and
money to testify before this august body. I feel that ranching, as an
industry, is vitally affected by the Endangered Species Act of 1973,
and in that light, I will submit sçme recommendations that will
strengthen the act and provide lateral movement that we must
have in order to provide the food and consumer products for a
sound economy. This is a must if w~ are to be in harmony with our
environment.
I feel it is necessary to digress ~ind consider our past in order
that the future might come into focus.
The Earth is the Lord's and th~ creatures thereon. Each shall
fulfill his appointed time and plaôe. The endangered species of both
plant and animal, including man, a~re in the realm of the possible.
In my opinion, mutation and extinction are a normal process in
the building of the changing ecoidgy. In other words, change is
inevitable and unavoidable. All plái~ning must be in this circumfer-
ence. Planners are always looking ~`or relic areas to compare the
PAGENO="0053"
49
past and present, but are often mesmerized as they return to the
past and try to protect the status quo of the plant and animal
community. But, there is progression.
The world is never the same from day to day. The changes are
minute. But in a relative short time, large changes are inevitable.
Geologists can read these changes in the formation of the Earth.
With this brief prolog, I will attempt to bring into view the need
for some change in the scope of the Endangered Species Act, Public
Law 93-205, as amended by Public Law 94-359.
Section 7 is so diverse and mired in the realm of double talk that
it has been the subject of much litigation which, in the most part,
has been nonproductive or led to more confusion.
The act itself, in section 4(a), lists as factors to be considered by
the Secretary in the determination requiring the listing of species
as endangered and/or threatened: "(1) The present or threatened
destruction, modification, or curtailment of its habitat or range; (2)
overutilization for commercial, sporting, scientific, or educational
purposes. * * *"
One other explanation should be made concerning the coverage
of the act so that its full impact can be understood. The term
"species" is defined to include subspecies. It appears that the pro-
tective mantle of the act will apply when one subspecies is endan-
gered or threatened even though there may be other subspecies of
the same species in abundance in other areas.
By definition, endangered or threatened species' protection is
afforded to the listed species if such is in danger of extinction
throughout all or a significant portion of its range. The Fish and
Wildlife Service takes the position that localized populations of
listed species must be protected, and the position is justified by the
wording of the statute. Species can be listed by areas also, although
they may be abundant and unlisted in other areas.
I will not quote section 7 in full, because I think we are all aware
of that section. It has been quoted and referred to several times
this morning.
This section, in other words, would prohibit any development and
may even require a set-aside, such as wilderness and even require
propagation even though the species has served its appointed time.
This brings me to something that happened on the Green River,
and something that was referred to in other testimony today of
people doing research in the light and in the interest of trying to
preserve. The Green River was being studied as a wild and scenic
river several years ago. U.S. Fish and Wildlife and some other
people flew over the river in a helicopter during the critical nest-
ing time of the geese, and those geese left the nest.
I have been told by people in the banding of the eagles and other
endangered species that very often the mothers leave the nests,
there is contamination of the birds, and she refuses to feed birds.
Even though these people with very good intent are trying to help
and protect this endangered animal, in many cases they lead fur-
ther to its destruction much faster than it would be if it were left
alone.
This section would prohibit any development and may even re-
quire a set-aside. The vagueness of the intent of such terms as
"take" could mean to harass or pursue. This could mean banding
PAGENO="0054"
50
or going out and studying these animals. I think this is a section
that needs to be looked at.
The act may cover all areas, including private land. I think there
are some implications that it c4~uld cover and involve the develop-
ment on private lands, if it were proved or suspected that one of
these endangered species did exi~t on that land. Through litigation,
I am sure it could at least halt i~ for a considerable length of time.
We are living, quite obviously, in an irrational age, and our
politics are all too often dictat~d by emotional caprice and naive
sentimentality. The public is ei~icouraged to voice its opinion re-
gardless of what their level of knowledge and experience is, leaving
a bonanza for the legal defense ~ounse1s, and a nightmare for the
overworked courts. And it all leads to the producing of a much
more inflated economy.
I would like to introduce into the record this exhibit II. It is
addressed to Ival V. Goslin, e~èecutive director of the Colorado
River Commission, and it is froni Paul L. Billhymer, general coun-
sel. It is the legal counsel's con~ments on the various sections. I
think you might find it useful an~1 enlightening and give you other
aspects in order to make your consideration.
Thank you.
[The exhibit referred to follows:
PAGENO="0055"
51
UPPER COLORADO RIVER COMMISSION
355 South Fourth East Street
Salt Lake Cii,, Utah 84111
April 6, 1978
MEMORANDUM
TO: Ival V. Goslin, Executive Director
FROM: Paul L. Billhymer, General Counsel
SUBJECT: Endangered Species Act, Public Law 93-205, as amended by
Public Law 94-359.
In order to focus on the real impact of the Endangered Species Act
only a few of its Sections will be considered herein.' Basically the
present law is a continuation of earlier Congressional attempts at
protecting wildlife. 2
A broad outline of the Act is as follows:
Section 2 sets forth a strong statement of Congressional purposes
and policy (16 U.S.C.A. 1531). Significantly Congress indicates that
one of the purposes of the Act is ". . . to provide a means whereby the
ecosystem upon which endangered species and threatened species depend
may be conserved . . . ." Under the policy declaration, Congress seems
to announce a mandate to ". . . all Federal departments and agencies
to conserve endangered species and threatened species . .
Further the Federal establishment is told to ". . . utilize their
authorities in furtherance of the purposes of this Act."
Section 3 is the definition section. In the various definitions
Congress has indicated the intent to extend the Act to not only fish and
wildlife species but also to plants and to the subspecies of the same
(16 U.S.C.A. 1532).
Section 4 sets forth the procedure by which the determination is
made for listing the endangered and threatened species. Public partici-
pation in the listing procedure is encouraged. The state wherein the
species is known to occur is offered an opportunity to participate in
the listing (16 U.S.C.A. 1533).
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Section 5 allows the Secretary f the Interior to acquire land and
water to support a program of protec~ion and restoration of the endangered
and/or threatened species (16 U.S.C.i~. 1534).
Section 6 provides for a program of cooperation with States whereby
States will have input into the operation of the programs looking toward
carrying out the mandates of this Act (16 U.S.C.A. 1535).
Section 7 provides for federal interagency cooperation and requires
Federal agencies to exercise their au~horities so as to promote the
purposes of the Act. This section wiil receive extended discussion
below (16 U.S.C.A. 1536).
Section 8 provides a framework~ f~r international cooperation
looking toward the protection and rehs~bilitation of endangered and
threatened species (16 U.S.C.A. l537).~
Section 9 sets forth the activiti~s which this Act prohibits.
Fundamentally the Act automatically pr~tects a species listed as en-
dangered against being taken, possesse~I, imported, exported, transported,
sold, or moved in commerce by "any person." Threatened species may be
given the same protection by regulatior~t. The term `take" has been given
a broad inclusive definition to mean "t~o harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, or ~ollect, or to attempt to engage
in any such conduct."3 "Harm" has beer~ defined by administrative rule
to include "significant environmental irbdification or degradation" which
"significantly disrupts normal behavior~1 patterns, which includes, but
are not limited to breeding, feeding, o~ sheltering.tk (16 U.S.C.A.
1538)
Section 10 provides for some excep~ions to Section 9 prohibition,
Permits are authorized where the posses~ion will be for scientific
purposes or will "enhance the propsgati~n or survival of the affected
species." Certain takings by Alaska Natives are regulated under this
Section 10 (16 U.S.C.A. 1539).
Section 11 provides for penalities and enforcement. Civil and
criminal penalties are authorized. Citizen suit enforcement is also
authorized (16 IJ.S.C.A. 1540).
Section 12 provides for a study of ndangered plants by the Smith-
sonian Institution with the results to b sent to Congress within a
year. (16 U.S.C.A. 1541).
Congress, through the Endangered Sp cies Act, sought to accomplish
the protection of major decline of sped a by regulating the two maim
causes of this decline; namely, (1) the port and commercial taking of
the individual 8pecies, and (2) the degr dation and destruction of the
habitat of the species. congress recognzed these two factors as needing
special attention. In the Senate Report 93-307, at page 2, we find the
following:
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53
"The two major causes of extinction are hunting and
destruction of natural habitat."
- The Act itself, in Sec. 4(a), lists as factors to be considered by
the Secretary in making the determination requiring the listing the
species as endangered and/or threatened:
"(1) the present or threatened destruction, modification, or
curtailment of its habitat or range;
`(2) overutilization for commercial, sporting, scientific, or
educational purposes. . . .`~
One other explanation should be made concerning the coverage of the
Act so that its full impact can be understood. The term "species" is
defined to include subspecies (Sec. 3(11)). It appears that the pro-
tective mantle of the Act will apply when one subspecies is endangered
or threatened, even though there may be other subspecies of the same
species in abundances.
By definition (Sec. 4(4)-(15)) "endangered" or "threatened" species
protection is afforded to the listed species if such is in "danger of
extinction throughout all or a significant portion of its range . .
The Fish and Wildlife Service (hereafter Service) takes the position
that "localized populations" of listed species must be protected, and
the position is justified by the sweep of the statute. Species can be
listed by areas also, thus the species may be abundant and unlisted in
one area, and listed in another where the listing criteria are found to
exist. At least the statutory definition would seem to encourage such a
position. This position should be,considered with reference to the
discussion under Section 7 infra. It enlarges the impact of Section 7.
Finally it should be observed that Congress was interested in
doing more than protecting the "status quo" of the "listed species." The
thrust of the Act is toward developing a program by which the "listed
species" become unlisted. See, for example, the definition of "conserve"
in Sec. 3(2), reading as follows:
"(2) The terms "conserve", "conserving", and "conservation"
mean to use and the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to
the point which the measures provided pursuant to this Act are no
longer necessary. Such methods and procedures include, but are not
limited to, all activities associated with scientific resources
management such as research, census, law enforcement, habitat
acquisition and maintenance, propagation, live trapping, and
transplantation, and, in the extraordinary case where population
pressures within a given ecosystem cannot be otherwise relieved,
may include regulated taking."
See also 50 C.F.R. 402.02, the regulations issued in connection with
Interagency Cooperation required by Sec. 7 wherein the following is
found:
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54
"Recovery" means improvement in ~he status of listed species
to the point at which listing is~no longer required.
It is with this background that the fc~llowing analysis is made.
The really dynamic section of this Act is seven, and it is so
important that it will be quoted in full:
"Sec. 7. The Secretary shall review other programs adminis-
tered by him and utilize such pro~ircuns in furtherance of the purposes
of this Act. All other Federal dopartments and agencies shell) in
consultation with and with the as~istance of the Secretary) utilize
their authorities in furtherance ~f the purposes of this Act by
carrying out programs for the con~ervation of endangered species
and threatened species listed pur~uant to section 4 of this Act and
by taking such action necessary to insure that actions authorized,
funded) or carried out by them do !not jeopardize the continued
existence of such endangered species and threatened species or
result in the destruction or rnodiJ~ioation of habitat of such
species which is determined by tha Secretary, after consultation as
appropriate with the affected Stai~es, to be critical.
It is very likely that the full Ia lications of this section were
not realized by Congress when it was be ore that body. The legislative~
history on the section is somewhat limi ea, yet Congress clearly indi-
cated by the changes that it made in th new statute, that it intended
some mandatory action from Federal agen lea.6 Even the implementation
by the Secretary of the Interior has be n delayed. Final regulations
covering Interagency Cooperation Regulations, Endangered Species Act of
1973, were issued January 4, l978.~ Ev~n allowing for the two years or
so that these were in the rulemaking prckess, it would seem that the
administrative response has been somewhs~t delayed.
It is the second sentence of the s~ction which requires the Federal
agencies to review their activities in ~he light of the Endangered
Species Act. The burden of this direct~on is three-fold, namely:
"First, it directs them (Feder 1 agencies) to utilize their
authorities to carry out conservati a programs for listed species.
"Second, it requires every Fed ral agency to insure that its
activities or programs in the Unite States, upon the high seas,
and in foreign countries will not j opardize the continued exis-
tence of a listed species.
"(T)hird, section 7 directs al Federal agencies to insure
that their activities or programs not result in the destruction
or adverse modification of critica1~habitat."
The above is a statement of the scor~e of Section 7 from the view-
point of the two agencies charged with ac~ministering the Section 7
program. It is to be noted that these r~gu1ations place the real burden
upon the program directing agency to mak~ the initial determinations of
the impact of its program upon the "listed species." It does seem that
PAGENO="0059"
55
the regulations take the position that Section 7 requires a positive
response from the program agency. It should be pointed out that the
concern here is with domestic `listed' species.
The regulation in 1402.03 clearly indicates that it is intended
that
"Section 7 applies to all activities or programs where Federal
involvement or control remains which in itself could jeopardize the
continued existence of a listed species or modify or destroy its
critical habitat."
This construction that Section 7 covers "all" activities of all
Federal agencies would seem to include all present on-going activities
as well as future activities. This construction also seems to have the
backing of Congressional legislative history. The language of Section 7
is not qualified by~ any such statement as "insofar as practicable."
Note also that no qualifying language is found in Section 2(b) "purpose"
and 2(c) "policy" section. One author has suggested that the 1969 Act
was flawed because of the qualifying language and the change was deliberate
to insure that Federal agencies would have a positive mandate to comply
with the rigorous requirements of Section 7,9
Perhaps it would be helpful to determine what is mandated of Federal
agencies by Section 7. It would appear that the first requirement is
that the agency institute an internal program wherein the particular
agency's basic "authorities" are used to carry out "conservation pro-
grams for listed species." Note the statutory language suggests that
this program is to be done "in consultation with the Secretary." Ap-
parently the Secretary did not thl,nk this injunction required implementing
regUlations because the regulations mentioned above make no provision
for this type of consultation.
Actually the failure to cover this area may be due to the fact that
it is probably not an enforceable requirement. Courts are not likely to
involve their time in an on-going agency internal operational program.
(Querry: Could NEPA (P.L. 91-190, 42 U.S.C.A. 432, et seq.) be a tool
for the enforcement of this section?) It may be academic becausethe
other provisions of Section 7 really take care of most, if not all,
situations.
The second and third requirement will be considered together
because one part deals with the species and the other the critical
habitat of the same. Here the agency must act to insure that its
authorized operations do not "jeopardize the continued existences of the
listed species" or result in "modification or destruction" of critical
habitat of such species. The Secretary of the Interior is required to
make the determination of what is "critical habitat."10 The Act does
not spell out when a determination of "critical habitat" is to be made.
In a conversation with local representatives of the Service, it was
learned that in some cases the determination will be made at such time
as the original listing takes place, but there is no rule that such will
PAGENO="0060"
56
occur. When the Service is called up~n to evaluate a project or action,
some consideration of `critical habitat" would seem to be required. The
regulations issued pursuant to Sectio 7, above mentioned, really deal
with the problems resulting from the `Second" and "Third" above-mentioned
requirements. 1 1
The first cut at compliance with the section must be taken by the
Federal agency in charge of a program or action. It must consider and
determine the impact of such activity on listed species or their habitat.
It may seek advice from the Service, which is placed in charge of Interior's
responsibility under the Act.12 This advice does not take the place of
consultation. If the Federal agency d~cides that its activity nay
affect the listed species or their habitat, there is a requirement for a
written request for consultation. 11 ~O CFR 402.04(a) (3) The agency
is responsible for furnishing all nece~sary information to the Service
so that an evaluation cam be made. This information nay include special-
ized studies financed by the requestin~ agencies which the Service finds
necessary for the evaluation. The agen~y is required not to make any
irreversible or irretrievable cominitmei~t of resources which would fore-
close the consideration of nodificatior~ or alternatives to the identified
activity or program. The Service will issue a biological opinion which -
will evaluate the impact of the projec~ or activity on listed species-or
their habitat, including any recommend~d modifications. Note if~--th~ ~ ~
modifications are accepted further consultation may be called for.1'
The major concern would be with a `biological opinion" which finds
the project or activity in violation of the mandate of Section 7. The
responsibility for final decision rests with the Federal agency proposing
the action. It must evaluate its ~osit on with reference to the opinion
and determine whether to proceed.1 It~would appear that it would
indeed require a brave agency to proceed counter to a biological opinion.
In view of the liberal citizen suit pro~ision provided for in the Act, a
citizen suit would seen to follow as a matter of course, using the
biological opinion as the basic grounds for a claimed Section 7 violation.16
Up to the present time no case has deal~ with the consequence of an
adverse report issued pursuant to the new regulations.
One case should be considered as gi~ring insight as to what the
Courts would likely do in this situation~. That case is National Wild-
life Federation v. Coleman, C.A. 5, 529 ~.2d 359. The issue involved
was an alleged violation of Section 7 of\ the Endangered Species Act by a
highway project which, if completed, wou'd damage the habitat of an
endangered species (Mississippi Sandhill~Crane). In spite of Interior's
determination that unless modified the highway would violate the critical
habitat of the crane, the project was re~otnmended by the Highway Agency
without the recommended modification.
The Court made some rather signific~nt rulings in the case.
(a) Based on a review of the legislative history, the Court con-
cluded that "Section 7 . . . imposes on federal agencies the mandatory
duty to insure that their actions will not either (i) jeopardize the
PAGENO="0061"
57
existence of an endangered species, or (ii) destroy or modify critical
habitat of an endangered species."
(b) There is further the requirement to consult with the Service
prior to taking action, but the Secretary of the Interior has no veto
power over the project if consultation has taken place. (Querry: Can
the Secretary of the Interior veto a project where consultation has not
taken place?) The sponsoring agency must assume the responsibility for
the project and "determine whether it has taken all necessary action to
insure that its actions will not jeopardize the continued existence of
an endangered species or destroy or modify habitat critical to the
existence of the species."
(c) Courts will review the agency's decision to determine whether
"the decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment." (citation omitted)
(d) The National Wildlife Federation Appellants had the burden of
establishing that the appellees failed to take necessary action to
prevent violation of Section 7.
(e) The Court reviewed the evidence and found that the lower
court's evaluation of the evidence was wrong. The lower court failed to
appreciate the nature of Section 7. The Appellant's evidence indicated
that proper modifications had not been made in the project to preclude a
Section 7 violation. The Court's injunction in this case was unique. It
delayed the highway construction until such time as the Secretary of the
Interior found that necessary modifications were made to protect the crane.
The case would indicate that any federal agency planning to con-
tinue action after an adverse biological opinion had better have its
case in order. It would appear that the agency would at least be re-
quired to prepare a well-articulated response to such "biological
opinion." Very likely such response would be a part of the NEPA EIS.17
One further problem raised by this Act should be discussed, namely,
its impact on Federal activities started prior to the Act. One such
case has been litigated, or better is still in progress, namely, Hill- V.
T.V.A., C.A. 6, 549 F.2d 1064, 9 ERC 1737, cert. granted, 46 L.W. 3316,
Nov. 15, 1977. This case presents an unique situation. The dam in
question (Tellico) was almost finished; Congress was aware of the prob-
lem, but continued to furnish money for the dam; the fish in question
was unknown until 1973--only four months prior to the passages of the
Endangered Species Act; the fish was added to the "list" in November
1975 over TVA's objection; suit was brought enjoining completion of the
dam in February 1976; and the lower Court found that the dam closure in
1977 would probably destroy the fish, but refused to enjoin the closing.
On appeal, the Sixth Circuit reversed the lower court's rulIng and
enjoined the closing of Tellico. -
The court stated the issues as follows:
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58
"(1) Does Tellico Dam corn letion violate the Endangered
Species Act?
(2) Assuming a violatión,~ are there adequate grounds for
exempting Tellico from complianc~?
"(3) If no exemption is ju~tified, is injunction the proper
remedy to effectuate the purpose of the Act?"
The Court found that certainly the closing would violate the Act.
The Secretaryt a construction of the A t as to `critical habitat" wherein
the Secretary by regulation (40 Fed. eg. 17764-17765) had ruled that
any action which:
"might be expected to result in ~ reduction in the number or
distribution of [the] species of sufficient magnitude to place
the species in further jeopardy &r restrict the potential and
reasonable expansion or recovery bf that species."
was proper. Note the lower court had ~ound that the closing of Tellico
would likely destroy the species. Th~ Appellate Court refused to
consider balancing the value of the alt~iost complete project against the
value of saving the fish. The Court s~iggested that the statute was to
be taken to its logical extreme, and eyen if a species was discovered to
be endangered on the day before closing,.that the closing should be
enjoined. The Endangered Species Act d4es not allow for a NEPA-type of
balancing. The Court found that a NEPA balancing error would be subject
to later correction, but should the Cot~rt grant an exemption here, any
error could not be corrected because~ tI~e species would be gone. The
Court found that there were no grounds for exemption and that the injunction
was the proper remedy.
Actually the Court returned the Teb~lico to Congress. If the project
is to be completed, Congress will have ~o face the problem of balancing
the value between the fish and Tellico.~ This is not unlike the Alaskan
pipeline case. Congress, by amendment ~f the Mineral Leasing Act, did
allow the construction of the pipeline ~fter the injunction in Wilderness
Society v. Morton, D.C. Cir., 479 F.2d ~42, cert. denied, 411 U.S. 917
(1973). The Congressional exemption procedure on a case-by-case basis
may be one way of solving the conflict. Such process if over-exercised
would destroy the efficacy of the Endangered Species Act. It does
finally depend upon the value system pr~nciples which we wish developed.
One caveat should be made, Hill is befo~e the Supreme Court, and the
final word is still out with respect to this case.
One other Circuit Court case should be mentioned, namely, Sierra
Club V. Froehlke, C.A. 8, 534 F.2d l289,~ 8 EEC 1944, involving the
Meramec Park Dam project impact of the I~idisna Bat. After finding that
the Endangered Species Act applied toan~ on-going project, the Circuit
Court affirmed a lower court's refusal t~ enjoin the construction of
the dam on the grounds that the evidenceO were insufficient to make out
a case of substantive violation of the A t. This case really does not
provide any real insights as to the cour `a reaction to requirements of
the Endangered Species Act.
PAGENO="0063"
59
An observation is in order with respect to the possibilities of
control of non-federal actions and projects which impact on the listed
species. Note such impact could well amount to a "taking" which has
been defined as:
"(14) The term "take" means to harass, pursue, hunt, shoot,
wound, kill, trap, capture, or collect, or to attempt to engage in
any such conduct."
Section 9 enjoined taking, and as such is subject to civil and
criminal penalties in addition to citizen enforcement suits. The impact
of possibilities for non-federal activities control has not been fully
explored in court cases. It would appear that the Act can be used to
attack non-federal activities which might impact the listed species.
Summary
1. Congress in 1973 established a comprehensive method for the
protection of endangered and threatened species.
2. This protective system seeks to control taking end habitat
destruction of the endangered and threatened species.
3. A special obligation is placed on Federal agencies to "insure"
that their actions "do not jeopardize the continued existence of or
result in the destruction or modification of habitat of such species."
4. The present court construction of the Act has made the duties
of the Federal agencies mandatory, and the Act's application has been
broadly defined to include present programs authorized prior to the Act.
5. Courts have refused to enter into a value balancing procedure
with respect to mandates of the Act as it impacts the Federal agency on-
going programs.
6. The full impact of the Act has yet to be realized with respect
to Federal development programs.
7. Non-federal activities would seem to be subject to the impact of
this Act.
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60
FOOTNOTES
1. The Act has received extended disc asian in legal literature. See
Palmer, `Endangered Species P2~otection: A History of Congressional
Action," 4 Envt'l Aff. 255 (1975).
Lachenmeier, "The Endangered ~pecies Act of 1973; Preservation
or Pandemonium," 5 Envt'l L. ~9 (1974)
Wood, "Section 7 of the Endangered Species Act of 1973: A
Significant Restriction for Al~L Federal Activities, 5 ELI? 50189
(1975).
Coggins and Hunsley, "Coustitu ional Limits on Federal Power to
Protect and Manage Wildlife: s the Endangered Species Act
Endangered?" 61 Iowa L. Rev. 1ô99 (1976).
Note: "Obligations of Federal Agencies Under Section 7 of the
Endangered Species Act of 1973 " 28 Stan. L. Rev. 1247 (1976).
Comment: `Implementing Sectio 7 of the Endangered Species Act
of 1973: First Notices from t a Courts," 6 ELI? 10120 (1976).
2. See Senate Report 93-307, Public La~ 89-669, Public Law 91-135.
3. See Section 3(14).
4. 50 C.F.R. 17.3.
5. Other indication of "habitat" concern is found in the purpose section
of the Act, Sec. 2(b). See also Sec~ 3(2) defining the term "conserve";
Sec. 5 authorizing funding for habit~t acquisition; and Sec. 7 to be
discussed.
6. See Wood, supra, Note 1 at 50199, anc~ the Law Note from Stanford Law
Review cited in Mote 1 at pages 1254-1256 for a discussion of the
legislative history. See also 2 U.S. Code Cong. & Adinin. News 1973,
93rd Cong., 1st Session, at 2988-3008. The most compelling indication
of the meaning of Section 7 is found in Congressman Dingell's statement
during the debate on the Conference Report where he discusses the law
as it existed prior to the 1973 Act ~Jn the context of some former Air
Force bombing activities:
"Another important step whi h we have taken in this
bill--and in this regard the two bills are virtually identical
--is that we have substantially mplified the obligation of
both agencies, and other agencie~ of Government as well, to
take steps within their power to carry out the pui~poaeS of
this act. A recent article in the Washington Post, dated -
December 14, illustrates the pro1~lem which might occur absent
this new language in the bill. It appears that the whooping
cranes of this country, perhaps the beat known of our endangered
species, are being threatened by Air Force bombing activities
PAGENO="0065"
61
along the gulf coast of Texas. Under existing law, the
Secretary of Defense has some discretion as to whether or
not he will take the necessary action to see that this threat
disappears--I hasten to say that I believe that Secretary
Schlesinger, who I know to be a decent and honorable man,
will take the proper steps whether or not the law is amended,
but the point that I wish to make is that once the bill is
enacted, he or any subsequent Secretary of Defense would be
required to take the proper steps." (119 Cong. Rec., p. H1l857,
93rd Congress, 1st Session, December 20, 1973, daily ed.)
7. 43 Fed. Reg. 870, January 4, 1978.
8. 50 C.F.R. 402.01 - 43 Fed. Reg. 874.
9. Note: "Obligations of Federal Agencies Under Section 7 of the Endangered
Species Act of 1973," 28 Stan. L. Rev. 1247-1253. See also Congressman
Dingell's statement, 119 Cong. Rec., p. Hll837, December 20, 1973 (daily
edition).
10. The methods of determination of "critical habitat" are set forth in
§402.05 as follows:
(a) Procedure. Whenever deemed necessary and appropriate,
the Director shall determine critical habitat for a listed species.
After exchange of biological information, as appropriate, with
the affected States and Federal agencies with jurisdiction over
the lands or waters under consideration, the Director shall
publish proposed and final rulemakings, accompanied by maps
and/or geographical descriptions in the FEDERAL REGISTER. Com-
ments of the scientific community and other interested persona
will also be considered in promulgating final rulemakings, The
modification or revocation of a critical habitat determination
shall also require the publication in the FEDERAL REGISTER of
a proposed and final rulemaking with an opportunity for public
comment.
(b) Criteria. The Director will consider the physiological,
behavioral, ecological, and evolutionary requirements for the
survival and recovery of listed species in determining what
areas or parts of habitat (exclusive of those existing man-made
structures or settlements which are not necessary to the sur-
vival and recovery of the species) are critical. These require-
ments include, but are not limited to:
(I) Space for individual and population growth and for
normal behavior;
(2) Food, water, air, light, minerals, or other nutritional
or physiological requirements;
(3) Cover or shelter;
29=319 0 - 78 - 5
PAGENO="0066"
62
(4) Sites for breedi~tg, reproduction, or rearing of
offsprings; and generally,
(5) Habitats that ar~ protected from disturbances or
are representative of the geographical distribution of listed
species.*
(c) Emergency determi ation. Paragraphs (a) and (b) of
this section notwithstandin , the Director may make an emergency
determination of critical h bitat if he finds that an impending
action poses a significant ~isk to the well-being of a listed
species by the destruction c~r adverse modification of its habitat.
Emergency determinations will be published in the FEDERAL REGISTER
and will remain in effect f~r no more than 120 days.
See also Note 12, infra.
11. A list of important definitions a~e as follows:
§402.02 Definitions.
"Activities or programs' means all actions of any kind
authorized, funded, or carri d out by Federal agencies, in
whole or in part
"Critical habitat" means any air, land, or water area
(exclusive of those existing an-made structures or settlements
which are not necessary to th survival and recovery of a
listed species) and constitue t elements thereof, the loss
of which would appreciably de rease the likelihood or the
survival and recovery of a listed species or a distinct seg-
ment of its population. . . . Critical habitat may represent
any portion of the present ha1~itat of a listed species and
may include additional areas ~or reasonable population expan-
sion.
"Destruction or adverse modification" means a direct or
indirect alteration of critic4 habitat which appreciably
diminishes the value of that h~bitat for survival and recovery
of a listed species
"Jeopardize the continued existence of" means to engage in
an activity or program which reasonably would be expected to
reduce the reproduction, numbers, or distribution of a listed
species to such an extent as to~ appreciably reduce the likelihood
of the survival and recovery of that species in the wild. . .
"Recovery" means improvement in the status of listed species
to the point at which listing i~ no longer required.
12. Note the National Marine Fisheries S4rvice has responsibility for some
administration under the Endangered species Act, and the regulations
were issued jointly. See Sec. 3(10) and Sec. 4.
PAGENO="0067"
63
13. If the Agency decides that its program does not affect the listed
species or their habitat, no further action is called for unless
initiated by the Service, 50 C.F.R. 402.03(a)(2).
14. See 50 C.F.R. 402.04 which sets forth the regulations on Consultation.'
15. 50 C.F.R. 402.04 (g) reads:
(g) Responsibilities after consultation. Upon receipt
and consideration of the biological opinion and recommenda-
tions of the Service, it is the responsibility of the Federal
agency to determine whether to proceed with the activity or
program as planned in light of its section 7 obligations.
Where the consultation process has been consolidated with
interagency cooperation required by other statutes~ such as
the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.)
or the National Environmental Policy Act (42 U.S.C. 4321 et
seq.), the final biological opinion and recommendations of
the Service shall be stated in the documents required by those
statutes.
16. Section 11(g), 16 U.S.C.A. 1540(g), outlines Citizen Suit provision,
even allowing for attorney's fees.
17. See Note, 28 Stan. L. Rev. 1247 at l~66, et seq., for a more detailed
analysis of this problem.
PAGENO="0068"
64
Senator CULVER. Thank you very much, Mr. Budd, for coming
out here and sharing your views with us. We will look at the
additional material you have ~.sked us to include in the record.
I have no questions at this tin~e.
Senator WALLOP. I have only t~vo short questions.
Mr. Budd, are you here as a private citizen or as a commission-
er?
Mr. BUDD. I am here representing Dan H. Budd & Sons, Inc.,
which is a ranching enterprise, ~nd I do serve on various commit-
tees in the State. We are faced ~srith the problems on the Colorado
River Development; and will be i~i Wyoming.
On my own ranch, we do have\ a subspecies that has been identi-
fied, and that makes me wonder whether we will have to fence
part of it in order to keep the cat~le away.
Senator WALLOP. Have you h~d experience or compliance cases
with the Endangered Species Act~ as a private rancher?
Mr. BUDD. We haven't been involved other than this being identi-
fied as a critical area, and they ~re on our ranch fencing out some
streams because of endangered species of fish and not allowing
grazing on those banks. The BL~, of course, their list is not com-
plete. In grazing on public land, if we have a permit out there and
they find an endangered grass, ~re you going to tell the cow she
can't graze, or cut our permits, or make adjustments to accommo-
date this endangered species? So, it does affect us and affects us
vitally in basically on our permits on the public lands.
Senator WALLOP. I have no furtlier questions.
Senator CULVER. Thank you ver~y much, Mr. Budd.
Our next witness is Mr. Samuel Tucker. It is a pleasure to
welcome you here, Mr. Tucker. We do have some very severe time
constraints, and to the extent ~ou feel you can summarize the
highlights of your testimony, we ~ou1d appreciate that.
STATEMENT OF SAMUEL TUCKE~, JR., MANAGER OF ENVIRON-
MENTAL AFFAIRS, FLORIDA ~OWER & LIGHT CO., MIAMI,
FLA., FOR EDISON ELECTRIC I~STITUTE
Mr. TUCKER. Mr. Chairman, I a~m W. Samuel Tucker, Jr., man-
ager of environmental affairs for ~Florida Power & Light Co. I am
also the chairman of the Land Use/EIS Subcommittee of the
Edison Electric Institute. My comments today represent the views
of the institute.
EEl is the principal national aseociation of investor-owned elec-
tric companies. Member companies serve about 99 percent of all
customers of the investor-owned ~egment of the electric industry
and 77 percent of the Nation's electric users.
While we strongly support the goals of the Endangered Species
Act, we are also convinced that society has other values as well,
and that no single value can be ab~olute in terms of the real-world
decisions and judgments which society and the Government which
represents it must make. This is precisely the problem with the
Endangered Species Act as it is pr~sently written, interpreted, and
enforced. The basic inflexibility of\ the act has grave implications
on other things society values, such as an adequate, reliable, and
economic supply of electrical energ~.
PAGENO="0069"
65
Mr. Chairman, we would hope that this testimony will serve to
remedy the common misconception that the Endangered Species
Act only impacts public works or developments of Federal agencies.
The wide proliferation of environmental regulatory programs now
in force effectively encompass practically every significant develop-
ment by the private sector as well, by virtue of the fact that the
issuance of the required Federal permits and licenses provide the
trigger to the Endangered Species Act. The broad application pres-
ently applied by the Corps of Engineers 404 permit program is a
case in point.
I do not think it is necessary to belabor the point, but I would
remind the committee that the delivery of electric service requires
a system of many components stretching from the generating plant
down to each individual home, office, and business. This system of
powerplants, transmission lines, substations, switching stations,
distribution lines, and so forth, covers a typical land area like a
spider's web, for the very simply reason that it has to get to where
people are.
We have an example in Florida involving the everglade kite. I
have brought a map here today to illustrate graphically the prob-
lem this presents as far as this act is concerned. The Peninsula of
Florida is overlaid with dark blue lines which indicate the service
area of my company. The color-coded marks, as indicated on the
exhibit, show the critical habitats which have so far been designat-
ed by the Secretary of Interior. You can see that it covers some
pretty broad expanse of our service area.
I think you can immediately see what the impacts would be
because of the nature of the developments that we must make in
order to provide our service, when we encounter these broad ex-
panses where very much development we might entail would be
made very difficult, if not completely prohibitive.
We had an occasion to try to get a line through part of the blue
area there, which is an everglade kite critical habitat. We needed
to go through one corner of that area. We were denied the permit
by Interior, and then we negotiated for a land swap for the corner
we wanted to cross with our transmission line, which was neces-
sary to bring power into the population in the southeast. That was
actually not suitable in its present condition as a habitat for the
apple snail, which is the only thing the evergiade kite feeds on. We
offered a land exchange with equal type habitat, and in addition
offered $1 million for the development of the evergiade kite habi-
tat. We were turned down by Interior.
They stated one of the principal reasons in turning us down was
their responsibility for protecting the species under the Endan-
gered Species Act. I would submit no one benefitted from this type
of inflexibility, perhaps least of all the evergiade kite.
We have also had some difficulty with power outages in south-
east Florida. We have one transmission corridor coming into south-
east Florida from the north and another from southwest Florida.
The Florida Public Service Commission has directed us to construct
an additional 500 kilovolt transmission line on a new corridor
between southwest and southeast Florida in order to improve the
reliability of service in that area and reduce the frequency of
blackouts which have occurred in the past. The Commission has
PAGENO="0070"
66
also recommended additional generation in southeast Florida to
improve reliability over the long~r term.
The problem is, as you can se~, the critical habitat of the everg-
lade kite has virtually isolated ~outheast Florida. You combine it
with the fact we have already had a determination formally that a
transmission line is incompatibl~ with kite habitat, you add to that
we would need to get a 404 pern~it from the corps in order to bring
a line through it, since it does iiIvolve wetlands, then you immedi-
ately trigger the section 7 of the~ act, I don't see any way we could
bring a transmission line into southeast Florida.
How about additional generatipn? Several years of careful stud-
ies have identified only one suitable power plant site in southeast
Florida, our South Dade site. It has now been enshrouded by the
critical habitat for both the Airierican crocodile and the Florida
manatee.
I think everyone would agree t~iere is no way you can develop a
powerplant facility without creating some adverse impact on the
environment. Obviously, again, ~rou have a direct confrontation,
and I don't really see under the present interpretation of the act
how we could develop that site, although it is a very ideal site for a
powerplant, and there is generai agreement on that among the
environmental communities who have had discussions with us on
this.
I hope you can see from some specific examples in the private
sector where we do have critical human needs to be met that are
being threatened by this act be~ause of the lack of flexibility.
I would also suggest, Mr. Chairman, that the present interpreta-
tion of this act is in conflict with ~TEPA. NEPA requires or stresses
the necessity of considering all factual aspects of a certain situa-
tion in making a decision, along ~ith weighing costs and benefits,
and analyzing alternatives. The same kind of philosophy is inher-
ent in the Clean Air Act and eve~ry other piece of environmental
legislation and completely ignored in this particular act. Therefore,
in our opinion, it is actually in conflict with national environmen-
tal policy.
The real world is rarely, if ever, an either-or proposition. are-
ative thinking, cooperation, and g~od planning can minimize con-
flict and even lead to a more favorable solution for all concerned, if
sufficient legal flexibility exists.
I think the development of that site we were talking about there
would actually improve the habita~ for those two species that are
endangered in that area, but the present interpretation of the act
would prevent us because we woi4ld in fact go in and adversely
modify the habitat.
The act is in danger of being totally discredited and discarded as
a result of backlash from current events. How long will 3 million
people put up with blackouts and b~ownouts because of what some-
one perceives as a potential threat~ to 100 birds? Complete repudi-
ation of the act would not do anybody or any plant or any animal
any good.
In summary, the Endangered Species Act ignores practical con-
siderations and forces foregoing of ~nore desirable options in some
cases. It flouts commonsense, good~ judgment, and basic national
environmental policy. It makes a thockery of the efforts of many
PAGENO="0071"
67
people who are truly interested in preserving endangered species
and not simply blocking some. project. If not amended, the Endan-
gered Species Act may ultimately be remembered as the worst
enemy of the very species it purported to save.
Senator CULVER. Thank you very much, Mr. Tucker.
Senator Wallop, do you have any questions? *
Senator WALLOP. I have one clarification I would like to have.
You made two statements which on the face are in conflict. You
said you would actually improve the habitat, but building the plant
would adversely impact the habitat. It would seem it couldn't do
both.
Mr. TUCKER. Senator, I think it could in this sense: there are
10,000 acres. We wOuld impact, let's say, 500 acres adversely, se-
verely without question. The other, let's say, 950 acres would be
kept as a buffer zone for that plant, and as such would be, in effect,
preserved in its present condition, perhaps. Actually, it would be
improved, the whole impacted area, by development that took place
many, many years ago before we owned the property. But the
actual condition as far as a habitat of the whole piece of property
on a necessary basis would be improved, in our opinion. However,
the 500 acres would be adversely impacted, and under the very
narrow interpretation the courts have given and Interior has given
on the Endangered Species Act. The point is, we would be in
conflict with section 7, because we would modify the critical habi-
tat.
Senator WALLOP. Has there been the consultation process with
the Fish and Wildlife Service?
Mr. TUCKER. No, sir, not on this project. We are not to that point.
Senator WALLoP..~Thank you, Mr. Chairman.
Senator CULVER. Thank you very much, Mr. Tucker.
Our next panel will be Col. Richard Graham and Mr. Jerry
Jennings. It'is a pleasure to welcome you here.
Senator WALLOP. Mr. Chairman, I would like the privilege of
introducing to the committee Mr. Pete Widener, who is from my
hometown in Wyoming, Sheridan. He is one of a rare breed, a
falconer. He has the most extraordinary falcon aerie on his ranch
in Wyoming, something that would be worthwhile if the members
of the committee and staff could see. It is something that is a
benefit to the domestic propagation of falcons, and in the long run
to the assurance of a wild breed of falcons in the country.
So, it is a pleasure to welcome you here.
STATEMENT OF P. A. B. WIDENER, JR., UNITED PEREGRINE SO-
CIETY, ACCOMPANIED BY LT. COL. RICHARD A. GRAHAM
(RET.), AND CARTER MONTGOMERY
Mr. WIDENER. Thank you. I am Pete Widener from Sheridan,
Wyo. My colleagues are Lt. Col. Richard Graham and Carter Mont-
gomery. We are here to represent the United Peregrine Society
and have the authority to speak on behalf of Mr. Roger Thacker,
president of the North American Falconers' Association and Dr.
Tom Cade of the peregrine fund.
We appreciate the opportunity to appear before this subcommit-
tee. We are here today to talk about the Endangered Species Act as
it applies to raptors.
PAGENO="0072"
~68
We support the Endangered pecies Act in its intent to conserve
endangered raptors and other ~vildlife. We strongly object to cer-
tain regulations and policies 1~hat the Interior Department has
promulgated pursuant to the ãu~hority of this act and other associ-
ated legislation:
The original intent of the* Endangered Species Act was to imple-
ment methods by which we~ could save and preserve for posterity
various species of fauna and fidra which are threatened with ex-
tinction. We are here to inform the members of this subcommittee
that regulations and policies oE the Department of Interior are
acting in direct opposition to what we believe was the intent of
Congress; namely, actions or policies that would increase the num-
bers of an endangered species.
The peregrine falcon, an endangered species, has been raised in
captivity only by falconers. Insthad of encouraging the falconers'
efforts, the Interior Department regulations and policies have de-
stroyed the incentive for the falcdners to raise these birds.
Current regulations and policies prohibit or restrict the follow-
ing: (1) Use of captive-reared en~langered species for falconry; (2)
transportation of such birds; (3) exchange of captive-produced rap-
tors for breeding or falconry.
The use of captive-reared endangered species for falconry pur-
poses will create an incentive foi~ falconers to raise greater num-
bers of these birds. It should b~ stressed that falconers are the
group who have pioneered the s~ccessful breeding. of endangered
raptors and are at present the o4ly group engaged in continually
successful captive breeding projec~s, the effects of which can only
benefit the species.
The unencumbered transportàti4n of these birds is crucial to the
captive propagation efforts of all concerned.
The exchange of captive-produce~l raptors must occur to allow for
expansion and exchange of gene p~bols. The exchange of these birds
for falconry is desirable because it provides incentives to breed
more birds. It should be pointed out that the majority of falcons
flown in sport are eventually lo~t to the wild where they may
augment wild populations.
After nearly 6 years of unproduc ive attempts to obtain workable
regulations with regard to the use, transportation and exchange of
captive-reared endangered raptors, we strongly feel that an amend-
ment is needed to clarify the inte t of Congress as it pertains to
this act.
Accordingly, we submit for cons~deration the following amend-
ment to the Endangered Species, Act of 1973-this is a suggested
amendment to section 9 of the End~ngered Species Act of 1973: The
provisions of this act shall not appl~ to any raptor held in captivity
or in a controlled environment on the effective date of this act, or
to the captive-bred progency of ahy raptor, provided that such
raptor has not been intentionally returned to a wild state.
Mr. Chairman, this has been respectfully submitted for your
consideration.
Thank you.
Senator CULVER. Thank you very uch, Mr. Widener.
Senator Wallop, did you have som~ questions?
Senator WAu~op. Thank you, Mr. Chairman.
PAGENO="0073"
69
Mr. Widener, can you see an administrative solution to the long-
standing problems that falcon breeders have had in recent times?
Mr. WIDENER. Senator Wallop, there has been 6 years of attempt
at administrative solutions in terms of regulations or policies, and
they haven't been forthcoming, and they are stiffling the efforts of
people who want to raise these birds. I am not about to go out and
breed something that I can't utilize. I am a falconer. I would like to
fly the bird.
I think the only way to really assure us of being able to have the
birds not only for falconry purposes but for continuation of a
species is through an amendment to the act, a clearcut law where
there is no question.
Senator WALLOP. Mr. Greenwalt testified that they were about to
issue some regulations. Do you have any understanding of what
those are going to be?
Mr. WIDENER. Yes. I haven't had a chance to look them over, but
I know this same thing occurred 2 years ago in terms of regula-
tions coming up the day of the hearing. In my words, they have
dragged their feet for the past 5 years, and incentives are diminish-
ing and something needs to be done.
I am aware of the intentions, but I feel a guarantee is needed.
Senator WALLOP. I am wondering if you could do this: Assuming
Mr. Greenwalt and the Service do produce their regulations as
proposed tomorrow, would you all take the time to look at those
and comment on them to this committee as well as the regular
process of comments? It would be helpful to us to have them
quickly.
Mr. GRAHAM. Mr. Chairman, Mr. Wallop, as I understand, the
Interior Department has offered an intent to modify the regula-
tions, which would take an answering period and so forth. Then
thereafter they might regulate it in a manner we would find ac-
ceptable.
Six years ago we started this process. We have gone from year to
year to year on this type of thing with no guarantee. We have an
endangered species. These falconers are able to breed and increase
its numbers. You would think, logically, that the Interior Depart-
ment would provide incentives and encourage the breeding of num-
bers of these birds. To the contrary, they published regulations
that specifically make it a criminal act for you to use the birds that
you are breeding. So it is in contradiction.
These things tend to be because of the enforcement problems
that the bureau feels they have. We think if there are enforcement
problems, fine, there are a few people that are doing these things.
But it is certainly not a real problem. And after our previous 6
years of attempts, we no longer feel-and we have discussed this
thoroughly-we do not feel that we have any assurance that the
Interior Department will act in a manner that will give us the
freedom to use, to transport and to exchange these birds that are
vital, if we are to breed them.
Now the Interior Department says you can breed birds that are
not endangered, but if you want to breed these birds that are
endangered and use them, you can't. This doesn't make common
sense. It might to certain people in the enforcement agency, but we
simply don't think it does.
PAGENO="0074"
Senator WALLOP. Well, I wo id still hope that despite it all, you
can find time to look at whate~ier proposals they do come up with
and comment as if they were going to become the regulations.
I think it would be helpful, Mr. Chairman, to kind of see what
they propose and if it is a satisfactory proposal.
I realize the history you are thlking about. The only other thing I
would ask, is the amendment jroposal, if it would be adopted in
this or some other form, if you thought it would be useful to put in
some kind of a penalty clause f~r abuse, a fairly substantial penal-
ty clause for abuse of wild species?
Mr. GRAHAM. Senator Wallop~ we believe there are already sub-
stantial penalties now, 10 to 2Q years in jail for violation of the
Endangered Species Act for taking these endangered species out of
the wild without permit.
But to the other end of it, thc~se of us who for the last five to 10
years have produced our own j~rivate peregrine falcons, many of
which were endangered species, ~he act goes back as it is interpret-
ed by Interior and their regulations that we have no right to the
offspring we are breeding. This is a problem that we met 2 months
ago here in Washington. Mr. Schreiner and others agreed that an
amendment would clarify their responsibility in this area as to-
wards the captive-produced progeny.
But I do agree there should be~ and I believe there are, stringent
penalty clauses that are in effect for violations that would impact
the wild population.
Senator WALLOP. Do you agree with that conclusion that a fail-
safe marking system is necessary?
Mr. GRAHAM. There is no fail-~afe marking system. They have a
banding system, but the enforcement people feel that, well, what if
someone of us goes out and gets a young bird 2 or 3 days after it
hatches and brings it into our prdject and says, "We bred this bird;
prove we didn't." I submit that the falconers with their limited
birds and the obstacles they have~ had to overcome today produced
in captive last year more peregrii~ie falcons than were produced in
the United States in the wild ex4ept for Alaska, and anyone who
wanted a bird would be an idiot to fly up to Alaska or Canada
where he could get that one rare bird in the wild and take all of
that risk when he could come to Joe Blow and get one that was
bred in somebody's barn for his use. This bird doesn't impact the
wild population. We have a bird lihat is fully capable of returning
to the wild and augmenting the ~ild population. We feel all these
activities are of ultimate benefit to1~ the wild population.
Senator WALLOP. Thank you.
Senator CULVER. Thank you v~ry much. We appreciate your
testimony.
Mr. Jennings, you may proceed.
STATEMENT OF GERALD JENNINGS, JR., CHAIRMAN, ENDAN-
GERED, SPECIES COMMITTEE, AMERICAN FEDERATION OF
AVICULTURE
Mr. JENNINGS. Thank you, Mr. Chairman.
My name is Gerald Jennings. I am representing the American
Federation of Aviculture. I would also like for the record to show I
am a member of the California 1i~epartment of Fish and Game
PAGENO="0075"
71
Wildlife Advisory Committee and the California Food and Avicul-
ture Limited Species Committee.
The American Federation of Aviculture is the leading spokesman
for U.S. aviculterists representing over 50,000 concerned bird
breeders in the United States who are affected by the U.S. Fish
and Wildlife Service's implementation of the Endangered Species
Act. The American Federation of Aviculture is a nonprofit organi-
zation dedicated to the conservation of wildlife through encourage-
ment of captive propagation, scientific research, and education of
the general public.
It is our firm belief that as the destruction or encroachment of
the habitats of the majority of the world's avifauna continues, the
future of numerous species is in serious peopardy. Many species,
especially of the Gallifornes and Psittaformes, are not capable of
adapting to a disturbedenvironment and must surely perish.
It is not within the capacity of the AFA nor the U.S. Govern-
ment to determine the direction that land usage will take in the
underdeveloped nations, whose territory comprise more than two-
thirds of the world's remaining, undisturbed habitat. Rain forests
and savannas of Asia, Africa, and Latin America are being. cleared
at an alarming rate to make way for agriculture and urban devel-
opment, with little regard for the wildlife heritage they represent.
Wildlife conservation and concern for the environment take a dis-
tant backseat in these Third World countries, as governments are
pressured to improve the quality and quantity of life for their
citizens.
The AFA, and aviculturists in America, are acutely aware of the
problems facing the world's avifauna and are taking positive steps
toward resolving those problems. Our efforts are directed towards
the captive propagation of as many species as possible, with a
purpose of establishing captive, self-sustaining populations. From
these captive populations, surplus animals may be returned to the
wild, as has already successfully been accomplished with the
Masked Bobwhite and Nene Goose in the United States, with the
Swinhoe and Edward's Pheasants in Taiwan, and the Cheer Pheas-
ant in Pakistan. Further, these captive populations will eliminate
any pressures on wild populations for the supply of zoological or
scientific specimens.
The majority of species of the world's avifauna are not endan-
gered in the wild. For those that are, we support full protection
and the purposes of the U.S. Endangered Species Act of 1973. The
US. Endangered Species Act has successfully controlled the impor-
tation of endangered species into the United States, limiting such
activities to qualified individuals and institutions who have legiti-
mate needs for such wildlife. The act permits use but not abuse.
However, there are significant captive populations of endangered
species of avifauna within the U.S. populations that are separate
from their counterpart wild populations. In order to maintain these
captive, self-sustaining populations, it is necessary to breed them
and not to inbreed them. This frequently requires the transporta-
tion of these animals in interstate commerce in efforts to pair
unrelated individuals.
Currently, the bulk of captive individuals of many of the endan-
gered species tends to be concentrated in a few States while other
PAGENO="0076"
72
States have virtually none. La ge concentrations of individuals in
one or a few locations leave th~t population open to total devasta-
tion from infectious disease, si~ch as the recent outbreak of New-
castle Disease in southern California during the spring of 1977. It
would be wise to decentralize tI~ese captive populations and encour-
age the development of many captive populations of these animals
in a number of States.
Aviculturists today are burdened with paperwork imposed by the
U.S. Fish and Wildlife Service's implementation of the Endangered
Species Act. Further, incredible delays from 90 to 120 days or more
are routine from the time of application for a permit to receipt of
that permit. Such delays creat~ intolerable maintenance costs for
surplus animals and taxed to tI~e limit the available space avicul-
turists have for the maintenancE~ of nonbreeding stock.
The AFA seeks relief from cu~rent regulations and recommends
the following actions: (1) Captiye-bred endangered species in the
United States be exempted frórçi current permit requirements for
interstate sale and shipment; ahd (2) depopulation of endangered
species for Newcastle Disease o~ other infectious poultry diseases
by the U.S. Department of Agridulture be rigidly supervised by the
U.S. Fish and Wildlife Service, such that endangered species are
not destroyed until proven via laboratory testing that such birds
are indeed infected.
I would like to elaborate on t1~iat point a little bit. Recently, we
experienced a nationwide outb±eak of exotic Newcastle disease
which occurred in the winter an~1 early spring of 1977. During this
period of time, any bird suspect4d to have been exposed was sum-
marily destroyed without proof of infection.
James Gunderson, an attorney~who is a member of our organiza-
tion, had a flock of some 250 pheasants, of which a number of birds
were on the exposed species list. A number of these birds were
destroyed and then after the fact were found to be free of infection.
I have a letter from Mr. Gundérson that I would like to read at
this time.
For many years I have been a breeder df rare and exotic birds. In spite of the fact
that none of my birds were sick or had andy signs of Newcastle's disease, on March 8,
1977, the Newcastle's task force killed al~ of my birds without making any tests to
determine whether or notthey were in fact infected with the disease. While it is
true that I consented to the kffling of the~e birds, I was informed that the outcome
would be the same whether I consented or~ not.
Being a lawyer by profession, I was w4ll aware that my civil rights were being
totally ignored by the Federal Governmei~it. Trying also to be a practical business-
man, I realized that defending my rights ~rould require a great deal of my time and
money, none of which would be tax dedi~ctible since my birds are a hobby, not a
business.
I am appalled that our government will~spend millions of our tax dollars promul-
gating laws which they label "conservation" but when put to the acid test of
conserving the lives of a species which ~s endangered, our government will not
spend one cent for test or quarantine facilities to see whether or not those endan-
gered species really have a disease.
The endangered species killed on my premises included the following: Two pair
Brown-eared Pheasants; two pair Mikado pheasants; two pair Edward's Pheasants;
two pair Swinhoe Pheasants; two pair Humes Pheasants; and a trio of Elliott's
Pheasants.
In addition, I had some extremely rare irds which were not on the endangered
species list, such as Bartlett Bleeding Hea Doves and Tragopan Pheasants.
A total of 250 birds were killed on my premises, and not one of them had any
trace of any disease of any kind
PAGENO="0077"
73
I believe that immediate steps should be taken to stop this outrage on our society.
I might add, to get the Department of Agriculture to slow up its
kill-and-burn policy, we had to take it to Federal court and spend
an extreme amount of funds and manpower to slow down the
process. The litigation is still in trial. They have come up with a
policy that they will test first before they destroy. But the Fish and
Wildlife Service, after many appeals, exerted no effort to resolve
this problem.
In view of that, we are very much in favor of your amendment to
the Endangered Species Act that would encourage arbitration.
I would also like to encourage an amendment be issued or
brought forth to the Endangered Species Act that would establish a
permit-free system for transportation by interstate commerce to
maintain these captive, self-sustaining populations. That rule has
been passed as of last June. Today I still have to go through the
lengthy permit process in order to ship these animals interstate.
The second point would be to see that the Department of Agricul-
ture is not allowed freely to destroy endangered species before
determining whether they are infected.
Senator CULVER. Thank you, Mr. Jennings. Would you also look
at the rules that are going to be promulgated tomorrow and in the
Federal Register and give your comments on those and how ade-
quately they address some of the matters that you have expressed
concern about in the way of recommended changes.
Mr. JENNINGS. Yes.
Senator CULVER. I appreciate very much your bringing this prob-
lem to our attention and we will review that with the Department
of Agriculture and also with the Fish and Wildlife Service.
Thank you very much for your appearance here today.
Our next panel will be Mr. Golten, Mr. Garrett, Mr. Plater, Mr.
Bean and Mr. Zagata.
Good morning, gentlemen. Would you identify yourselves.
STATEMENTS OF MICHAEL BEAN, CHAIRMAN, WILDLIFE PRO-
GRAM, ENVIRONMENTAL DEFENSE FUND; ROBERT GOLTEN,
COUNSEL, NATIONAL WILDLIFE FEDERATION; THOMAS R.
GARRETT, LEGISLATIVE COORDINATOR, DEFENDERS OF
WILDLIFE; ZYGMUNT PLATER, COUNSEL, AMERICAN RIVERS
CONSERVATION COUNCIL; AND MICHAEL ZAGATA, WASHING-
TON REPRESENTATIVE, NATIONAL AUDUBON SOCIETY
Mr. BEAN. Mr. Chairman, my name is Michael Bean. I am chair-
man of the environmental defense fund's wildlife program and
author of the book "The Evolution of National Wildlife Law." It is
a pleasure for me to appear before you on behalf of the environ-
mental defense fund, Natural Resources Defense Council, and
World Wildlife Fund United States.
It is also a pleasure, being born and raised in Fort Madison, to
appear before you, the Senator from the State I call home.
We are here to discuss reauthorization of the Endangered Spe-
cies Act of 1973. Let us be frank in that discussion. There have,
since 1973, been certain developments that have caused some
among you to express concern about the possible consequences of
our efforts to protect endangered species. I want to respond to that
concern in a constructive fashion. I think the best way to do that is
PAGENO="0078"
74
to take a renewed hard look ~t some of the reasons that moved
Congress to enact this stringently protective law in 1973.
In 1973, Congress was told-and indeed, it was persuaded-that
every species of life, no matter now obscure or apparently worth-
less, offered at least the potential for enormous human benefit. The
extinction of any such species, of necessity an irreversible fact,
thus constitutes a total and permanent loss of whatever medical or
scientific or other benefit that species might ultimately have con-
ferred on humankind. In 1973, the Senate report that accompanied
the bill which was to become th~ Endangered Species Act said the
following:
From the most narrow possible point o~' view, it is in the best interests of mankind
to minimize the losses of genetic variatic$ns. The reasons is simple: They are poteh-
tial resources. They are keys to puzzles~ which we cannot solve, and may provide
answers to questions which we have not ~et learned to ask.
Who knows, or can say, what potential cures for cancer or other scourges, present
or future, may lie locked up in the structures of plants which may yet be undiscov-
ered, much less analyzed? More to the point, who is prepared to risk losing those
potential cures by eliminating those plants for all time? Sheer self-interest impels
us to be cautious.
That is certainly very eloquen~ prose. But is it any more than
just eloquent prose? Has the pro~nise made in 1973 that the then
apparently valueless creatures wc~u1d someday significantly benefit
us been fulfilled? Five years is a terribly short time in which to
expect an affirmative answer to that question, and yet the answer
is most definitely yes.
Take the example of the horseshoe crab, not a crab actually, but
rather a crablike marine invertebrate whose closest evolutionary
relatives are thought to be spidei~s. The horseshoe crab is a truly
ancient creature. It has survived, ~n pretty much the same form as
it exists today, for some 200 million years. For approximately
199,999,997 of those years, the horseshoe crab offered essentially no
benefit to man. In fact, in commercial sheilfishing areas it was
considered a nuisance because it 1~ed upon shellfish. Then, 3 years
ago, it was discovered that the blood of the horseshoe crab can be
used as an extraordinarily sensitiye detector of bacterial endotox-
ins in intravenous fluids. So sensitive is the crab's blood that it has
been predicted that this discovery ~nay change the purity standards
for biological tests by a whole ordei~ of magnitude.
Another example might be the armadillo. It, too, is a rather
ancient and curious creature which, in 1973 at least, neither of-
fered any particular benefit to h~imans, nor did it then appear
likely ever to do so. We know better now, for it appears that the
armadillo may furnish the vehicle ~or the development of a leprosy
vaccine. This discovery, likewise made in 1975, revived research
efforts that had been moribund for hiany years.
Admittedly, neither the horseshde crab nor the armadillo is an
endangered species, not yet. But the lesson they teach applies
equa11~ to endangered species and demonstrates clearly that no
species should be considered frivolo~is and dismissed as offering no
value to mankind.
A second thing which Congress was told in 1973 and of which it
was apparently persuaded is that no species, not even man, exists
independently of all other species. Rather, the fates of species are
interconnected in a variety of still pOorly understood ways. Remove
PAGENO="0079"
75
one species from that intricate web and others will be significantly
affected.
Well, that, too, sounds like a clever statement of ecological
theory. It rolls off the tongue nicely, but who really believes it? Is
there any evidence in the last 5 years to confirm the accuracy of
this dire prediction? Frankly, that is an even more astounding
question to expect an affirmative answer to in the short space of 5
years, and yet, the answer is again "yes." There is such evidence.
It concerns one of the most familiar of historical extinctions, that
of the ungainly dodo bird, slaughtered to extinctjon on the island of
Mauritius by Dutch sailors in the 17th century. For 300 years the
world has been without the dodobird, and what has it cost us?
Until last year, one would have had to answer nothing. But last
year a rather startling discovery was made.
An ingenious scientist pieced together the puzzle of the decline of
the Calivãriá tree, a tree once so abundant on the island of Mauri-
tius that it was commercially logged there. Today, of the Calivaria
forests that once covered Mauritius, only a dozen or so trees
remain, each of them more than 300 years old. Why? Because the
Calivaria tree was dependent, totally dependent, upon the dodo
bird, which ate the fruit of the tree and, by grinding its hard seeds
in its gizzard, prepared them for germination. Since the last dodo-
bird died, not a single Calivaria seed has germinated. And thus,
300 years after the fact, we see that the loss of the dodo has cOst us
more than we ever thought. Perhaps, because of this last-minute
discovery, it will be possible to save the Calivaria tree, but if not,
who can say what will follow, and when?
These examples show us that in 1973, Congress was not off on a
lark, subordinating the interests of human welfare to the interests
of a few scaly fish or slimy snails: No, it is clear that the interests
of human welfare were always first, and still are. All that you did
in 1973 was to stand firm against a myopic view of the world and
man's role in it.
You affirmed a view of the world and of man first set forth in
the story of the biblical flood, in which Noah was directed to take
with him into the ark two of "every creeping thing that creepth
upon the face of the Earth." The Endangered Species Act repre-
sents a determined, perhaps even desperate, effort to keep that
biblical ark afloat. Along the way, it is true that a lot of species
have fallen off the ark, some have even been unwittingly crowded
off by man himself never before, however, has any species been
intentionally thrown overboard.
Thank you.
Senator CULVER. Thank you very much, Mr. Bean.
STATEMENT OF ZYGMUNT PLATER
Mr. PLATER. I am Zygmunt Plater, professor of law at Wayne
State University, here today representing the Environmental
Policy Center, the Little Tennessee River Alliance, and myself.
As some may know, I have been associated with the Tellico Dam
case since 1973. I thought that I could serve the committee's pur-
pose best in these hearings by summarizing, the Tellico Dam case
as it was reviewed in the fine hearings held by this committee last
PAGENO="0080"
76
July, and catching up on the Tellico Dam story under section 7 to
the present.
I guess I would ask the com±iittee to consider for the moment
what we in Tennessee had to think about back in 1974 when we
began thinking about ffling an~ Endangered Species Act lawsuit.
The snail darter would be extirpated by Tellico Dam. We felt if
there ever were a honest publid review that weighed the damage
against the protection, that the public interest would emerge the
victor.
However, it certainly didn't ~ppear that by filing the lawsuit,
and even worse being successful, that the newspapers would report
"Silly Little Fish Stops $100: thiilion Dam. Foolish Endangered
Species Act Called Into QuestibnL" The cartoonists and news writ-
ers indeed had a field day.
The danger there was clearly not just in Tennessee, but that
filing a lawsuit that wasn't based on the whooping crane, or what-
ever, that we would bring the wh~le act open to emotional, nonfac-
tual attack, that you know certair~ly did happen.
We sincerely congratulate this committee for taking a topic
which in this city, and elsewhei~e, has been argued in the most
emotional terms and incited a rigorous factual analysis of the
Tellico case and the entire Endangered Species Act program. Out
of that analysis has come a prec~dent that is very important for
the act and that proves a lack of substance of many of the same
arguments we hear today.
The procedure you established was oversight hearing on the act,
insisting on instances, how man~ obstacles could not have been
resolved through administrative cbnsultation, and the answer you
received was none out of thousands of potential conflicts and hun-
dreds of actual conflicts between species and construction. There
never was a case that could not have been resolved through good
faith consultation.
Beyond that, the committee has ~ GAO study done on the Tellico
case, and reviewed the Tellico cas~ in particular. What was shown
in the case was the TVA had persistently refused to even discuss
with the Department of Interior ahy option for the project except
building the dam as they originally~ planned it in the sixties. It also
showed through the GAO study th~t the TVA rushed to complete
the dam since 1973, but it is still probably more profitable not to
destroy the valley by flooding it than to flood the valley and
eliminate 25,000 acres of farmland the historical and tourists re-
sources, and so on.
Your hearings also indicated th~.t the snail darter has no eco-
nomic value, no protein value, but ~t served biologically and in the
public interest terms as a very sen~itive indicator of the quality of
that habitat, which after 68 dams,~ 2,500 miles of impoundments,
was the last undammed place in Tennessee with those qualities for
human purposes as well. The snail darter, in other words, like
other endangered species, have a utilitarian purpose as a canary in
the coal mines that shows problen~s to the human environment.
Some Senators on this committee ~ay they now know more about
Tellico than they needed to know, ahd if this is going to happen-
as you said, Mr. Chairman, if this is the tip of the iceberg, this
committee doesn't want to become a trial court on the Endangered
PAGENO="0081"
77
Species Act. I am delighted to say on the record, as we see it, that
will not be the case. No. 1, the precedent you have established for
Tellico Dam is an honest, objective review of fact and figures, and
it has established a precedent that no agency is ever going to want
to bring if it can in good faith resolve the issue.
Second, as the hearing indicates, we have a thousand pages of
hearings showing there never has been such a consultation that
could not be resolved.
Mr. Greenwalt said there are 20,000 potential consultations. I
think your question to Mr. Greenwalt was a good one, what are
those consultations, because as you look at that potential number,
most of those are only potential inquiries, they are not potential
consultations. Under the regulations issued by Interior, it is clear
that the vast majority of potential conflicts will be resolved
through agency screening, without going through the formal proce-
dure.
Finally, I note the amendments that have been offered, and your
amendment which is a vehicle for discussion. I would note on this
amendment, No. 1, that it may take the motivation for many
agencies to comply in good faith on the present section 7 consulta-
tion.
Second, the decision would be made for the first time to con-
sciously exterminate a species. That decision would be made by
nonelected bureaucrats, instead of in those few cases where a
needed decision has to be made by elected officials.
Finally, I note that the text of the draft that you have submitted
does not provide for an agency specifically to review options. In the
Tellico Dam case, for instance, that was the hard way, not just a
little fish versus the dam, but rather the dam versus the fish and
public interest options.
Senator CULVER. I think it expressly covers that point.
Mr. PLATER. I didn't see the word in there.
Senator CULVER. It talks about prudent.
Mr. PLATER. It said "feasible and prudent alternative."
Senator CULVER. "No reasonable or prudent alternative."
Mr. PLATER. My concern there, Senator, is that that is a self-
defining objective. For instance, if you have a project to irrigate
Death Valley, damming the Colorado River is probably the only
way to do so. The feasible and prudent alternative test takes the
objective which the agency set out to accomplish, and I am urging
that the legislation be made specific so that not only the specific
objective of the agency in setting out is considered, but all alterna-
tive courses of action to the entire agency action proposed.
Perhaps we could work on making that clear.
Finally, in conclusion, I would arge that the act, indeed, on the
basis of your record, is working and working well. I would urge
that no amendments be proposed unless there exists facts which
indicate that amendments are necessary, and so far, the amend-
ments that we have before us are a good faith try to cure a
problem which does not exist.
Thank you very much.
Senator CULVER. Thank you, Mr. Plater. I would like to get all
the statements and then perhaps have some questions.
29-319 0 - 78 - 6
PAGENO="0082"
Mr. ZAGATA. Mr. Chairman, as ~one who is educated in Iowa and
still has strong personal ties--
Senator CULVER. I find that eve~y time I become a subcommittee
chairman, Iowa grows. Every lobbyist is from Iowa. It is really
quite remarkable. Then you can t~ll me your voting residence and
I am supposed to quake or applaud. If you don't have an Iowa
lobbyist, go out and get one. We are learning fast around here.
STATEMENT OF M CHAEL ZAGATA
Mr. ZAGATA. I am Michael Zag~ta, director of Federal relations
for the National Audubon Society. I will try to summarize my
statement.
Because this morning's hearings will focus on appropriations
authorization and not oversight, I ~vill direct my remarks to fund-
ing and to the policy which is inexorably set by funding levels. For
further documentation of the Natic~nal Audubon Society's views on
the Endangered Species Act per ~e, please refer to my attached
statement which was presented t~ this committee in July 1977.
In 1973, Congress enjoyed the accolades of citizens across the
land for the foresight shown in its nearly unanimous passage of the
Endangered Species Act. But, passa~e of a law is only the first step
in the long battle to halt and rever~e an alarmingly escalating rate
of extinction. If the program set in\ motion by the act is hindered
by insufficient personnel and fundii~ig authorizations and appropri-
ations, it is doomed to failure. Without adequate personnel and
funding, the act becomes useless, or~ worse still, sets up a malfunc-
tioning bureaucracy fraught with p±~oblems. When this occurs, the
intent of the act becomes thwarte~l and neither the species nor
mankind benefit.
Therefore, we look to this committee for courageous leadership,
both now and in the weeks ahead, by reaffirming its support for
the act through reauthorization and~ recommendations for funding
levels which will allow the progran~i to work as it was intended.
The administration has recomthe~ided an authorization of ap-
proximately $16.5 million for the 1979 operation of the offlce of
endangered species. This figure is wi~efully inadequate and in fact
should be twice that much, perhaps r~earer $35 million.
Many of the problems that have ~risen to stir outcries against
the act could have been alleviated had there been sufficient funds
and manpower to administer the program. Research, designation of
critical habitat, species listing, law enforcement, and consultation
have had to be accomplished in a piec~emeal fashion which can lead
to delay. The President has recogn~zed the need for the rapid
identificatiOn of endangered species and their critical habitats
where they occur on public lands, anà we applaud him for expedit-
ing the process as long as the work ~s done in a professional and
thorough manner.
The area in need of greatest boosting is the section 7 consulta-
tion requirement which became man~idatory as of January 1978.
This program needs an additional $5.1 million and 96 personnel
ceilings.
Thorough and conscientious consultations between the Fish and
Wildlife Service and agencies engaged in project planning are the
key to the ultimate success of the Endangered Species Act. To date,
PAGENO="0083"
79
the Office of Endangered Species has conducted thousands of suc-
cessful consultations in its attempt to insure that development and
species survival are compatible. More full-time, highly qualified
staff are imperative to the continued success of the often delicate
consultative process. Part-time, temporary help are often not the
best qualified and do not provide the continuity to ensure the long-
term success of the act. We believe that as this consciousness of
endangered species permeates Federal project planning agencies,
those agencies will seek, if only to avoid undue delay, thorough
consultation with full documentation.
Another area in need of greater funding is the portion of the
program designed for critical habitat identification. President
Carter, in his environmental message of last spring, placed high
priority on an accelerated program for critical habitat identifica-
tion. Let me emphasize that this is an important step toward
identifying potential conflict at an early stage in the planning of a
project, and therefore, increases the likelihood of a good-faith reso-
lution of that conflict. To insure that the inventory is completed
properly and expeditiously, nine additional personnel ceilings are
needed.
It behooves both supporters and critics of the program to support
both the personnel ceilings and funding levels necessary to employ
and equip the most highly qualified research staff available. With-
out such a scientific capability, both critics and supporters of the
act will lose because tradeoff decisions will more likely be based on
insufficient data.
The law enforcement program for the Endangered Species Act is
also understaffed and underfunded. Without a strong law enforce-
ment arm, we undercut our role as a leading nation in the battle to
stop international traffic in threatened and endangered species.
This aspect of the endangered species program needs an additional
$1 million and 20 personnel.ceilings.
Mr. Chairman, because of the foresight of this subcommittee and
the entire Congress, our Nation has taken steps to halt the devas-
tating decline of whooping cranes, condors, and eagles, just to
name a few of the endangered species. We firmly believe that with
increased support through generous funding and personnel ceilings,
and with the support of this subcommittee for parallel programs
such as the nongame legislation and the Fish and Wildlife Coordi-
nation Act, that our Nation will maintain its rich floral and faunal
diversity and endangered species list will eventually become
shorter rather than longer.
The National Audubon Society looks forward to working with the
subcommittee as it champions the defense of the values exempli-
fied in the landmark Endangered. Species Act, and we again thank
you for this opportunity to present our views.
Senator CULVER. Thank you very much, Mr. Zagata.
STATEMENT OF TOM GARRETT
Mr. GARRETT. Mr. Chairman, I am Tom Garrett, legislative coor-
dinator for Defenders of Wildlife. In my case, I helped lobby the act
through in 1973. I have helped through the years to try to see it
was decently administered and enforced.
PAGENO="0084"
80
It has been 12 years since Con~ess passed the Endangered Spe-
cies Act of 1966. Since that time, the legislation has been twice
rewritten and strengthened. Eveb so, this same period has been
beyond doubt the most disastrous decade for wildlife in the known
history of the planet. Vast tracts of forest throughout the tropics,
both lowland and mountaine, with diverse populations of wildlife
only a few years ago, have been utterly destroyed and the pace of
destruction is intensifying.
I had occasion to fly over Montana last summer. I was absolutely
shocked at the appearance of moi~intain backbone of the inland. I
had heard that was the case, and ~ couldn't believe it until I saw it.
Direct pressure on wildlife has almost everywhere mounted.
Poaching in Africa has reached the level of organized extermina-
tion. The situation is only a little~better in Asia and Latin Amer-
ica. Species which seemed reasonably secure only a few years ago,
such as Grevy's zebra, are facing biminent extinction, or may be
already gone. God only knows, fot example, if the sable antelope
has survived the Angolan Civil Wa~.
Yet even today the destruction a~id endangerment of wild species
is being powerfully abetted by American industry, especially the
fur industry. It is a striking fact that during a time when wildlife
numbers are plummeting worldwi~1e, the importation of wildlife
products into this country, and th~ use of domestic wildlife prod-
ucts, is increasing dramatically. Ibiports of items manufactured
from wildlife increased from 1.7 rrkillion in 1972 to 91 million in
1976. Imports of skins and hides rdse from 910,000 in 1973 to 32.5
million. Game trophy imports rose from 2,800 in 1973 to 34,000. In
these same years, the status of crocodilians throughout the world,
of sea turtles throughout the world ~ecome desperate.
Just as the amounts imported haye soared, the prices command-
ed by many such products have mounted astronomically. The
House Committee on Merchant Marine heard testimony recently
that the price of ivory has risen tenfold or more since 1970 to $30
or more a kilo. Prices paid for Grevy zebra hides have increased
from $150 a few years ago to $2,000 ~oday in New York. This zebra
is, accordingly, facing extinction, ahbng with Hartman's Mountain
and Cape Mountain zebras.
We submit that enforcement effort must rise commensurately to
the traffic it is supposed to regulatb. We also submit that if en-
forcement is to succeed, and if actiOn~ are to prevent extirpation of
species, rather than to simply react t o late, as is probably the case
with the zebras mentioned, we must ban the importation of entire
classes of product.
Senator CULVER. Entire classes?
Mr. GARRETr. Entire classes. For e ample, all ivory, all crocodile
products.
Senator CULVER. You say we should ban that on a unilateral
basis in the absence of an internation~nl agreement?
Mr. GARRETT. The international cojiference has listed six turtle;
we have listed three. One of the turtles that is listed is being
routinely imported into this country. ~t is plainly illegal.
Senator CULVER. What are you saying, that the extent of effec-
tive international enforcement in sobie of these categories is so
unsatisfactory that we have to take unilateral action, or what?
PAGENO="0085"
81
Mr. GARRETT. Obviously, the stronger action we take-we are in
the market for a more number of these products.
Senator CULVER. Do you feel that the current international effort
with respect to listing endangered species is sufficient? Again, that
gets to be a question of subjective judgment. I mean generally.
Mr. GARRETT. The listing under the international convention is
probably satisfactory. It is a question of worldwide enforcement. I
might say we are behind the international convention in listing. A
lot of nations-well, some nations are enforcing it, but a great
many are not. And that is especially true of Third World nations,
who don't have the enforcement personnel and have cash flow
problems.
I estimate, conservatively, that at least 100 animal species will
become extinct in the next 10 years, and that the U. S. Govern-
ment, either through direct action or by its failure to take action
open to it, will bear responsibility for up to half of these extinc-
tions. I will get the draft paper to the committee I hope before you
close your record.
I think I will go to section 7. Section 7 has two distinct parts. The
first part imposes a positive duty on U. S. agencies to use existing
programs to carry out purposes of the act, and to carry out conser-
vation programs in consultation with the Secretary. This require-
ment has been sedulously ignored. No legal history has been devel-
oped for the reason while it is sometimes possible in court to enjoin
agencies from clear violations of a law, it is evidently almost impos-
sible to force them to undertake positive programs. If these re-
quirements were to be carried out with alacrity by U. S. agencies,
including AID and other international entities, this would probably
save for the time being at least a considerable number of species.
Senator CULVER. You are really saying AID is not doing enough
to enforce this?
Mr. GARRETT. AID is doing an enormous amount, for example, in
Costa Rica.
Senator CULVER. You can give me examples for the record. Is
that what you are saying?
Mr. GARRETT. Yes.
Senator CULVER. Whatever examples you can provide, I would
appreciate them.
Why don't we wrap this up, Mr. Garrett, because we do have a
time problem.
Mr. GARRETT. I just want to make one comment on the obscure
species.
The obscure species which have figured in certain recent contro-
versies are, in particular, part and parcel of very specific environ-
ments. Their disappearance, almost invariably, signals the func-
tional end of the habitat in which they lived in whatever region, in
whatever river system comprised their range. Their disappearance
signals the end perhaps of free flowing, unpolluted water on a
river, the end of inland marshes in a region. It also signals the end
of any bond that it had with the land. As a species, they are,
admittedly, insignificant, but in the totality of their environment,
it is something else.
Now, I want to make a couple remarks about the amendment I
saw. We oppose the amendment. We don't think it is necessary. We
PAGENO="0086"
82
think most of the ~owing pains ~ould be gotten over administra-
tively with certain massaging by t~ie committee.
In any case, as I understand i~, it sets up appointed heads of
seven agencies, four of which ár~ themselves neck deep in pork
barrel projects, all of which are ~ulnerable to pressure both from
each other and from authorizatio~i and appropriation committees,
to sit in judgment on the existên$ of species. It seems to us you
ought to at least require that eléctCd officials sign the death certifi-
cate before it is finally executed.,
Senator CULVER. Unfortunately~ you might get too long a line
ready to do that.
Mr. GARRETT. It seems to me ~hose officials, if the committee
doesn't want to handle it, ought to be the President or the Gover-
nor or Governors of the States invdlved.
Senator CULVER. You are sayin~ the Governor involved in the
State ought to do it?
Mr. GARRETT. Well, the President certainly.
Senator CULVER. The President c~ught to do it? Do you think that
is better than an interagency bo4rd? Is that a preferable form?
Mr. GARRETT. It seems to me if~ the board makes a decision, it
ought to be unanimous. It seems to~ me the President ought to have
to sign off on it. It is a pretty irrevpcable thing, extermination of a
species.
If you are going to inject econonic considerations into the act,
you ought to do it in a creditable~ manner by requiring that the
committee reassess the economic 1~enefits, using realistic discount
rates, and taking fully into accOunt the probable appreciation of
assets to be sacrificed. A realistic economic assessment would of
itself relieve such committee of any need to look further in most
cases.
If the economics of the projects npw in dispute had been realisti-
cally considered in the first place, there would have been no hear-
ing here today.
So, we urge the committee to drop the amendment from consid-
eration and to concentrate instead o~ funding the act properly, and
making sure that it is administered ~nd enforced.
Senator CULVER. Thank you, Mr. Garrett.
STATEMENT OF RO~3ERT GOLTEN
Mr. GOLTEN. Mr. Chairman, we have prepared a thoughtful 14-
page statement which I would 1ik~ to submit to the committee.
Essentially, we support the increase of funding levels for the Office
of Endangered Species, and have asked in our statement that the
committee consider elevating those funding levels for a 3-year au-
thorization level of $75 million, $10 million for the analogous office
in the Department of Commerce. L
Second, we think the Endangered ~pecies Act, as it was amended
in December 1973, is working well, a~nd we would urge the commit-
tee to leave it intact.
I would like to just briefly bring b~fore the committee a couple of
experiences we have had, and I, per~onally, was involved in these
experiences in dealing with the Endangered Species Act, particu-
larly section 7 as it is written. I thir~k these instances are illustra-
tive of the fact that the statute is perative and works well and~
PAGENO="0087"
83
should be left alone, at least for the time being. We think the need
for midcourse correction is not present.
We were asked in 1975 to look into a confrontation between the
Federal Highway Administration and some naturalists and biolo-
gists, including the Fish and Wildlife Service, in Mississippi. At
that time there were 40 birds remaining in a very endangered
subspecies of the Mississippi Sandhill Crane, and the Federal High-
way and State Highway Department in Mississippi were planning
to run the extension of Interstate 10 rights through the remaining
habitat for the birds.
We went down to. Mississippi and tried to talk to the State
highway department and the Federal Highway Administration,
and we were unsuccessful in persuading them to reroute the high-
way. At this point in time there had been no court cases under the
Endangered Species Act, and nobody was quite sure what Congress
intended.
We were unsuccessful in trying to persuade the highway people
that Congress meant what appeared on the face of the statute. So,
we did have to go to court.
There was an earlier reference this morning by one of the wit-
ness to the wealth of litigation that has been generated by section
7. Indeed, in the 4½ years of the exitence of the statute, to my
knowledge, there have only been three court cases. Ours was the
first one, and it was the only successful coui~t case I know of, other
than the Tellico Dam case, which is pending in the Supreme Court,
that has been litigated under section 7.
In that case, we went to court not to stop a highway, but simply
to achieve some modification, particularly the site of an inter-
change. If they were going to leave the interchange where it was,
which was next to the critical habitat, the spawned development
would have eliminated that land. They purchased land contiguous
to the interchange to protect it for the crane.
We were successful in court. The highway has been completed
with some, modifications that the court required. And indeed, those
modifications would have been achieved administratively if the
Highway Administration had really felt that Congress was serious
about the Endangered Species Act; there would have been good-
faith consultation if the Highway Administration knew then what
they know now.
The second illustration I would bring before you is a case down
in South Carolina in the Francis Marion National Forest and the
4,500-acre I'on Swamp, a habitat for the Bachman's warbler, which
is a very, very rare and unique bird. There were some biologists
and naturalists around the Charleston area who were concerned
about the plight of this animal, and were particularly concerned
that the Forest Service was planning on clearing this swamp. They
asked us to come to South Carolina and intervene.
We did go to South Carolina and talked to the biologist. Then we
talked to the Forest Service. We arranged to avoid a courthouse
confrontation by setting up a three-member arbitration panel, with
wildlife experts from the U.S. Forest Service, Fish and Wildlife
Service, and the Wildlife Society.
* They held hearings. They made an onsite visit to the site where
the Forest Service was planning to clear, and ultimately issues a
PAGENO="0088"
final report for recommendatioi~ where timber harvesting should
take place and where it should hot. All parties are satisfied. The
Endangered Species Act operated~ in a fashion to effectuate a result
which was satisfactory to both sides.
We think that that case is e~pecially illustrative of what has
been happening, that agencies hhve become sensitive to congres-
sional intent. They haven't beeh stopping projects. Projects that
have a good deal of rationale ha~e been modified to accommodate
the existence of rare and endange~'ed species of plants and animals.
In short, the act is working. We would urge the committee to
keep the act intact.
Senator CULVER. Let me say hbw much I appreciate the state-
ments that we have just experien~ed from this panel. I think they
are very eloquent and extremely informative.
I might say that my home McG~regor, Iowa, which has a popula-
tion of about 900 people, and ovei~looks the Mississippi River, was
the site of the first wildlife school ~n America. It was started about
1918, and it ran pretty constant uhtil 1941. The house I live in was
built to accommodate the prOfe~sors and students that came
mainly from Iowa colleges and uni~ersities but also from elsewhere
around the United States every August for a 2-week program. It
was a prototype for some of the scI~ools which grew later in Colora-
do and elsewhere. My family and I actually live now in the build-
ing this program was conducted ~very year and where visiting
lecturers and students took their ~neals. They taught everything
from archaelogy to astronomy, Indian history, and botany. They
had a very, very remarkable cur~iculum and some outstanding
pioneers in the disciplines and fiel~ls that concern your organiza-
tions.
So, I have a special interest in the history of this movement, and
I am personally reminded by the ra~e opportunity I have to live in
such a location.
I believe I recognized in my openifig statement that the consulta-
tion process, I feel very strongly, ~vill take care of most of the
conflicts that develop between projects and the Endangered Species
Act, and I do believe that whatever is done, we have to make sure
we have a very strong and good-faitI~ consultation.
It does seem to me however, tha1~ there is a very real need for
some kind of a safety valve for thos~ instances, and I acknowledge
they are likely to be few, but there are going to be more than have
been suggested here, where the proc~ss doesn't work. I don't think
anyone can guarantee there never ~ill be irresolvable conflicts. If
they are so sure there will never be any irresolvable conflicts, I
don't think anyone should be again~t this board, since the Board
can only review irresolvable conflicts.~
Mr. Plater, you mentioned, if I recall correctly, in your testimony
your concern with weakening the co4sultative process itself by the
mere existence of an amendment. I think in fairness you haven't
had an opportunity to review it carefully yet. And I do invite all of
you to do that. We genuinely want ~our thoughts and criticisms,
whether they are flat-out rejections,~ but hopefully more positive
suggestions for improving it.
But as explicitly stated in this amendment no case is accepted by
the Board at all unless the members ~re satisfied that the consulta-
PAGENO="0089"
85
tion process has been completed in good faith. That will be an
essential prerequisite for them to even entertain the petition. Tel-
lico is the flashpoint on this issue, and has, as you properly pointed
out, brought home the very dramatic facts and contributed a great
information and misinformation on this issue. Nevertheless, I think
we should be aware that Tellico is not an abberation. According to
the Fish and Wildlife Service, there are some dozen projects which
appear to pose a very fundamental conflict with the act. Tellico
may be first, but it ain't going to be last.
Now, in addition, we have heard that GAO suspects on the basis
of preliminary inquiries that the Service is dragging its feet in
some cases on listing species which could cause conflicts. They are
sensitive to the politics of this situation and, it may be having a
chilling effect their ability to properly implement the Act. There
may be a number of instances that fall in that general category, in
addition to the ones we already see taking shape on the horizon.
So it seems to me what you realistically have to contemplate,
those of you who are in support of this act, is what is going to
happen, who is going to choose, whO is going to decide, what is
going to happen here. Are we going to have political action that
results in general grandfathering for all projects completed at some
point before this act was originally enacted in 1973? Are we going
to have specific exemptions of particular projects by Congress
where the interest groups hammer it out, and special interest bring
all pressure to bear from every spectrum on Congress who will
make these judgments on an ad hoc basis? Are you going to have a
decision by individuals other than Congress; individuals who will
be subjected to even more intensive political pressures? I think it is
something to consider.
For instance, there have been suggestions we ought to let the
President or the Secretary of Interior make the decision as to
whether a project should be exempted. We have other amendments
pending that have been authored by other Members of the U.S.
Senate. Let the Governor of the State involved decide; that is one
that is pending. Each of the 50 Governors decides what goes on in
their particular jurisdictions.
That interdependent web that Mr. Bean speaks of is somehow
appreciative of the multiplicity of state jurisdictions. We have
enough trouble in Africa where we haven't drawn the lines with
much sense historically. Are we going to do it with the environ-
ment with greater success? I think you, Mr. Bean, have indicated
what a fruitless and futile exercise that would be given the nature
of the world we live in.
How are we to deal with that responsibility, or if in fact can we
ever deal with it, because these mysteries have posed questions for
humanity ever since the first person took a bite of the apple, or
however else they got ready to think about it.
That is where we are. We are between a rock and a hard place.
What I would like to elicit from all of you would be your most
serious and responsible consideration of this particular proposal.
What ideas do you have for improving it? It is a tentative proposal.
It is a vehicle to try to get some serious discussion stimulated.
PAGENO="0090"
Frankly, we are very realisti~a~ly going to be voting up or down
on this bill before too long. We ~uld like very much if you would
be good enough to provide us with your thoughts on it.
Mr. GOLTEN. Senator Culver, I ~uickly read the draft. It did not
appear there was a requirement\ of a certification from the Fish
and Wildlife Service or the Secretary of Interior that consultation.
had been in good faith.
Senator CULVER. We require them to respond to the project
agency's petition within a time~ certain and to give their views on
whether the requirements of th~ consultation process described
have been met. That is in the draft.
Mr. GOLTEN. I think if the Secre~ary were required to certify as a
predicate for further--
Senator CULVER. The Secretary ~f Interior?
Mr. GOLTEN. The Secretary of in~erior.
Senator CULVER. Why don't you take a look at this and give us
some specific thoughts.
Mr. GOLTEN. The other question is it appears this amendment
would go well beyond the Tellico situation, as I read it. It applies to
not just projects which are substantially completed at the time
there is discovered a conflict between a project and an endangered
species, but it would apply to all \projects, even those not begun.
Senator CULVER. That's correct.
Mr. GOLTEN. We would urge if ~he committee is going to think
along these lines, this amendment be confined to Tellico type situa-
tions.
Senator CULVER. I have to be do~vntown at 1 o'clock. If we could
get your thoughts for the record, we would appreciate that.
Mr. Plater, did you have somethiflg else?
Mr. PLATER. One thing I would like to submit for the record. We
have noted there is no evidence oz~ the record that the act is not
working. I have three documents 1~hat I would like to put on the
record. The first is a letter from Sebretary Andrus requesting TVA
to please consult after 5 years. The second and third are letters
from TVA.
Senator CULVER. Without objecti9n, they will be made a part of
the record.
[The letters referred to follow:]
U.S. ]iEPARTMENT OF THE INTERIOR,
OFFICE OF THE SECRETARY,
Washington, D.C., March 16, 1978.
Mr. LYNN SEEBER,
General Manager, Tennessee Valley Authorit% Knoxville, Tenn.
DEAR MR. SEEBER: This is to request that the Tennessee Valley Authority reini-
tiate consultation under Section 7 of the Endangered Species Act of 1973 with
respect to the Tellico Reservoir Project.' The purpose of such consultation would be
to obtain current information on the status of the species and TVA's activities and
an opinion of the Fish and Wildlife Service i~s to the impacts upon the snail darter
and its critical habitat of undertaking the Téllico Project modifications referred to
in GAO Report EMD-77-58.' The principal a'ternative envisioned by the Comptrol-
ler General-which would require the remo~val of a portion of the dam and the
conversion of Tellico from a reservoir project to a free-flowing river-based agricul-
tural, economic, recreational, and cultural d~velopment project-is one which has
the potential of preserving the snail darter ahd its critical habitat while yielding a
1 This procedure is specified at 50 CFR § 402.0 (hXl) [43 Fed. Reg 876 (January 4,1978)].
2 Comptroller General of the United States, the Tennessee Vally Authority's Tellico Dam
Project-Costs Alternatives and
PAGENO="0091"
87
higher economic return than a reservoir project. This alternative has not been the
subject of prior consultations under Section 7 of the Endangered Species Act.
We further recommend that you promptly undertake the remaining cost and
remaining benefit analysis of the Tellico Project and its alternatives which the
Comptroller General recommended that you submit to the Congress. This Depart-
ment is prepared to provide you its initial suggestions on the development of the
alternatives, as well as to comment upon the methodologies, data bases, and result-
ing analyses used in the study. Only in this way can informed decisions be made on
the full range of available alternatives for preserving the snail darter and recouping
the investment in the affected portion of the Little Tennessee Valley.
We urgently recommend the completion of the recommended study and of Section
7 consultation. For reasons stated in the GAO Report, the Congress, the Executive,
and the Supreme Court do not have a true account of the present merits of
alternatives to the Tellico Reservoir Project. Furthermore, during the extended
period of time it will take to prove the success or failure of snail darter transplant
efforts, the present dam structure may be contributing to the demise of the popula-
tion of snail darters in the Little Tennessee River. The sooner this study and
further Section 7 consultation can be concluded, the sooner informed decisions can
be made as to whether project economics justify the closing of the dam gates and a
conscious extirpation of a species, either now, or at some point in the future when
transplant success can be evaluated, or at all. In view of GAO's projections of
comparatively greater economic benefits to be derived from alternatives (which
would also promote darter preservation), the public interest demands that this
evaluation be undertaken at this time.
I am providing the Director of the Office and Management and Budget and the
Chairman of the Council on Environmental Quality a copy. of this letter, in part
because of the Comptroller General's recommendation that they participate in the
recommended cost-benefit study. I would suggest that appropriate staff of our four
offices, together with representatives of the General Accounting Office, meet at
0MB on March 23, 1978, to commence formulation of the cost-benefit study.
Sincerely,
CECIL D. ANDRUS, Secretary.
TENNESSEE VALLEY AUTHORITY,
Knoxville, Tenn., March 31, 1978.
Hon. CECIL D. ANDRUS,
Secretary of the Interior, Washington, D.C.
DEAR MR. SECRETARY: This is in further response to your March 16 letter to Mr.
Lynn Seeber, our General Manager.
We welcome the opportunity to discuss the snail darter matter. The discussions,
however, should be held on a basis other than the narrow confines of your letter.
They certainly should be directed to the transplantation of snail darters to other
suitable rivers in an effort to assure the species' survival, and also permit the
project's completion and use on the basis on which Congress has made appropri-
ations for the project. The Senate and House Appropriations Committees' reports
for 1975, 1976, and 1977 direct that the Tellico project be completed as quickly as
possible in the public interest; Congress has appropriated funds to complete the
Tellico project based on those reports and with full knowledge of the conflict
between the project and the snail darter; and the specific provisions of the 1977
Appropriations Act (Title IV of Public Law No. 95-96, 91 Stat. 797 (1977)), make $2
million in appropriations available to TVA for transplanting endangered species "to
expedite project construction." Congress is presently considering the Administra-
tion's budget which requests $1.846 million to complete Tellico. Under these circum-
stances, it is clear to us that TVA is not at liberty to ignore these congressional
directives and abandon the Tellico project as planned and built. Consequently, we
are unwilling to discuss the alternative mentioned in your letter.
We recognize, of course, that the Comptroller General's report to Congress on
Tellico recommended that the project be restudied to determine whether it should
be used or scrapped in favor of an alternative use of the Little Tennessee River
Valley. We informed Congress that we did not think that the factual material
reported by GAO supported its recommendation and that the recommendation
should not be followed. We pointed out that this project was studied in 1977 by a
team from 0MB, CEQ, and TVA, as a part of President Carter's review of water
projects, and found to have a remaining cost benefit ratio of 7:1. Congress has not
acted on the GAO recommendation, and until it does, we cannot act on such a
recommendation that is contrary to express congressional directives. As you may
know, this report has been heavily criticized, even by one of the Congressmen who
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asked for it (124 Cong. Rec. H1462 (daily ed. Feb. 23, 1978) (remarks by Rep.
Duncan)).
Among other considerations, in light oj' Congress's action and the advanced stage
of the Tellico project, it is our view that the best way to accommodate both the snail
darter and the Tellico project is through transplants to other suitable habitats.
Congressional action appropriating fund~ for construction of Tellico, and to "relo-
cate" the darter, clearly compels this vie~v. Accordingly, we believe that a meeting
to discuss further transplants would be j~roductive and in furtherance of the spirit
of both sections 3 and 7 of the Endangered Species Act and Public Law No. 95-96.
We are puzzled by the U.S. Fish and Wildlife Service's repeated denials of our
permit applications to transplant snail d~rters to other suitable rivers. These pro-
posed transplants are designed to establish new populations to better assure the
species' survival. Our proposals to transp~ant snail darters to a Holston River site
previously identified by TVA and the Service as a priority transplant site, are
biologically sound and are in accord with~ the intent of Congress, specifically Title
IV of Public Law No. 95-96, 91 Stat. 797 (1977), which provides for transplants "as
may be necessary to expedite project constFuction."
The transplants contemplated by Public Law 95-96, however, are being prevented
by the Service's repeated denials of our transplant permit applications. Moreover,
while the Service rebuffs all TVA attempts to establish new populations of snail
darters, your Solicitor recently stated in ar~ appendix to TVA's brief in the Supreme
Court in the Tellico/snail darter case:
"Since closing the dam and ifiling the i~eservoir would immediately make trans-
plantation efforts impossible, it follows th~t Congress specifically contemplated in
the appropriations act itself that dam clo~ure must await evidence of a successful
transplant [at bA]."
The Department of the Interior apparently takes the position that closure of the
dam must await a successful transplant, w~iile at the same time denying all trans-
plant applications. Not only are these po~itions inconsistent, but the continuing
refusal to grant the requested transplant permits is, in our opinion, a frustration of
the purposes of Public Law No. 95-96.
In light of express congressional intent tl~at transplants continue and the biologi-
cal good sense of expanding the snail dart~er's range, we request that the Service
reconsider the denial of our most recent permit application. Our people are availa-
ble to provide the Service with any additio~ial information which might be helpful
in reviewing our permit application. If another application is needed, please let us
know. We have asked Dr. Thomas H. Riple~ Director of TVA's Division of Forestry,
Fisheries, and Wildlife Development, to arrange a meeting to discuss further trans-
plants.
This brings us to two points of serious ~oncern to TVA. Your Solicitor, in an
appendix to TVA's brief before the Supreme Court, suggested that TVA has not
consulted with your Department about the tellico/snail darter problem as required
under section 7 of the act. We have cooperated and consulted fully with the Service
about the conservation of the snail darter from the very outset of this controversy
and have tried our best to resolve the pro1~ilem. Our efforts to conserve the snail
darter began shortly after the fish's discover~ and over a year before it was listed as
endangered. Our efforts were coordinated with your staffs; biweekly progress re-
ports and special reports were furnished, td keep them current on all significant
efforts and developments that occurred; sta~ff consultation meetings were held at
various stages to plan certain steps or resolve disagreements; and numerous other
conversations, discussions, and meetings welie held along the way. Dr. Williams of
the Service testified that TVA had "always cooperated fully" and given the Service
"any information" requested. In Mr. Green~ralt's October 12, 1976, letter to TVA,
giving us the Service's biological opinion on t1~ie effects of Tellico on the snail darter,
he stated that "your agency's cooperation in ~he consultation process on the Tellico
Dam project has been appreciated." Indeed, ~ven though TVA disagreed as to the
biological desirability of the Service's plan ~o restock the Little Tennessee River
with snail darters because the fish is unable tb naturally sustain a population there,
TVA assisted in those restocking operations. I~i short, we have consulted and cooper-
ated with your Department in every reasonable way to conserve the snail darter
short of scrapping the virtually completed !]e~lico project-a project which we have
been directed repeatedly by Congress to compl~te in the public interest.
The basis given for your Solicitor's statemefit that TVA has not consulted is that
TVA has been unwilling to discuss what he t~rms an "alternative" to Tellico which
would allow preservation of the darter. The "alternative" suggested in the appendix
to the TVA brief and in your letter to Mr. eeber is a scenic river development
which calls for the complete abandonment f the Tellico project and its major
PAGENO="0093"
89
purposes of flood control, hydroelectric power, navigation, and employment opportu-
nities, and for the waste of over $50 million in publicly invested funds. The hydro-
electric benefits cannot be denigrated by saying that they are small as compared to
the whole of TVA, the Nation's largest power supplier. For example, Tellico would
provide more electricity than was generated at several of TVA's dams (Chatuge,
Nottely, South Holston, Watauga, Boone, Melton Hill, Tims Ford) in the year
ending September 30, 1977. The Government, as well as other knowledgeable indi-
viduals and entities, is now recognizing that the country must utilize these renew-
able nonpolluting sources to help alleviate the increasingly acute energy problems.
We simply do not think that the act contemplates the abandonment of a congres-
sionally authorized project such as Tellico which was over three-quarters complete
when the species was discovered and listed as endangered. Neither do we think that
section 7 requires "consultation" about an "alternative" which requires scrapping
the nearly completed project. As the district court expressly held:
"Completion of the dam and impoundment of the river are integral parts of a
project begun almost a decade ago. TVA has been moving toward this goal since
ground was first broken. When the snail darter was listed on the endangered species
list in November 1975, TVA was fairly close to completion of the project which has
been consistently funded by Congress since 1966.
"The nature of the project is such that there are no alternatives to impoundment
of the reservoir, short of scrapping the entire project. Modifications or alternations
to the project cannot be made at this time which will insure compliance with the
Endangered Species Act. Requiring TVA to consult with other agencies about alter-
natives not reasonably available to it would be to require TVA to perform a useless
gesture" [Hill v. Tennessee Valley Authority, 419 F. Supp. 753, 758 (E.D. Tenn.
1976)].
Finally, we request that you consider the cavalier manner in which the Service
handled TVA's petition to delist the Little Tennessee River as critical habitat for
the snail darter. By letter dated February 28, 1977, we sent you a copy of TVA's
petition to delist, the original of which was mailed the same day to the Director of
the Service. Because of the importance of the matter to TVA and the region, we
asked for an opportunity to meet with you and discuss the matter in some detail.
Your April 18 reply, signed by Jim Joseph, suggested that a meeting be deferred
until the petition had been thoroughly reviewed.
On December 5, 1977, over nine months after the filing of the petition to delist
and after several TVA inquiries about the petition, we were informed by letter from
the Associate Director of the Service that the petition had been denied. No consulta-
tion with TVA had occurred. No notice that the petition was being reviewed had
been published in the Federal Register, and the December 5 letter gave no reasons
for the denial. In fact, the letter stated that the petition had been indirectly denied
as a part of the Service's July 6, 1977, denial of TVA's application for a permit to
transplant snail darters. Yet, TVA was not informed of this until December 5, 1977,
over five months after the decision was apparently made. Even then, there was a
great deal of confusion in the Service about the status of the petition, as several
Service staff members familiar with the petition informed TVA staff in late Novem-
ber that a decision had not as yet been made.
We feel that a matter of this importance should receive the thorough review
suggested in your letter to us rather than being denied indirectly as a part of the
denial of another separate matter. The petition was supported by detailed biological
evidence which, as far as we know, is essentially undisputed; and we believe that if
it receives a thorough, objective review it will be granted.
Again we want to emphasize our desire to work with the Service to conserve the
snail darter. Through the combined effort of our organizations and through trans-
plants of snail darters to other suitable rivers as contemplated by Public Law No.
95-96, we believe that a successful accommodation of both the project as now built
and the snail darter can be achieved.
This letter reflects the views of myself and Director Jenkins; and Director Free-
man will respond separately.
Sincerely yours,
AUBREY J. WAGNER, Chairman.
TENNESSEE VALLEY AUTHORITY,
Knoxville, Tenn. April 6, 1978.
Hon. CECIL D. ANDRUS,
Secretary of the Interior, Washington, D.C.
DEAR MR. SECRETARY: This is my response to your letter of March 16 to TVA
requesting consultation on the Tellico Project.
PAGENO="0094"
90
I am much less concerned about the ~nail darter than I am the people in the
Tellico area who are without jobs, peojile whose welfare is endangered by this
seemingly endless dispute. I take your letter as an offer to apply some common
sense to the current impasse by fashioning a reasonable compromise that will
enable the government to complete the pi~oject promptly.
In my view, such a compromise project ~nust provide jobs for people in the area as
well as other benefits for present and future generations that will maximize the
government's investment.
I have made no judgment on the Telliôo Project, but I have been briefed by the
TVA staff. Based on that briefing, I believe such a compromise is possible under
existing law. There are alternatives to the current Tellico proposal other than
scrapping the project. The TVA staff is no~v studying such alternatives.
For example, one option would be to ihilize the near completed dam as a "dry
dam." Such an alternative project would j~rovide more flood control protection in a
severe flood than the existing project; would provide food from the rich bottom land
valued in excess of $5 million per year, rather than a small quantity of hydropower
(less than ½ of 1 percent of TVA's needs) with a comparable or smaller value;
would maintain a free-flowing stretch Of r~ver for recreation rather than forming a
lake; would preserve the ancestral home of the Cherokees as a source of tourism
rather than flooding these artifacts; and~ would provide industrial sites and jobs
comparable to the existing project.
I do not know whether such a redesigned project would be superior to the current
design or not because the TVA staff studie~ have not been completed, and there has
been little or no public discussion of the cc~mparative benefits of the two approaches
by the public. I do know that such a project is a possibility.
Another possible option for compromise would be to go ahead with the industrial
development immediately and monitor the snail darters in the Hiawassee Reservoir
for a period of three years, and if the fish ~urvive, TVA would then be free to form
the lake if that best served the public inter~st.
The choice is not the snail darter or tI~ie dam. The industrialization and other
benefits to the economy can take place wit~i or without another lake as soon as the
controversy can be settled and the choice industrial sites TVA now owns can be
made available with certainty.
A decision by the Supreme Court will not end this controversy because each side
has stated it will carry on the fight in ~nother forum if it loses. The current
litigation and dispute can thus lead only tO further delay and waste of the taxpay-
er's money. And contrary to the TVA po~ition, forming a permanent lake is not
vital to the Tellico project and may not ev~n be the option with the greatest public
benefits.
I therefore favor consultations to review the possible alternatives under existing
law with an early deadline to hammer ou~ a compromise that places the highest
priority on benefits for people. I also favoil asking the court to defer judgment on
this case for a six-month period to permit the parties to work out, such a compro-
mise in the public interest.
Sincerely,
S. DAVID FREEMAN, Director.
Senator CULVER. Thank you all for your participation.
The subcommittee will stand in recess until further call of the
Chair.
[Whereupon, at 12:55 p.m., the subcommittee was recessed, to
reconvene subject to call of the Chair.]
[Statements submitted for the recbrd by today's witnesses follow]
PAGENO="0095"
91
PREPARED STATEMENT FOR PRESENTATION TO THE
SUBCOMMITTEE ON RESOURCE PROTECTION OF THE SENATE ENVIRONMENT
AND PUBLIC WORKS COMMITTEE --: 13 APRIL, 1978
C.W. HART,~JR.~
MY NAME IS C.W. HART, JR., AND I AM AT PRESENT ASSISTANT
TO THE DIRECTOR OF THE I1ATIONAL MUSEUM OF NATURAL HISTORY.
I AM AN INVERTEBRATE ZOOLOGIST BY TRAINING, AND HAVE PUBLISHED
OVER 50 PAPERS AND ONE BOOK ON THE SYSTEMATICS AND ECOLOGY OF
CRUSTACEA. IN ADDITION, I HAVE PUBLISHED A BOOK ON THE POLLUTION
ECOLOGY OF FRESHWATER INVERTEBRATES, AND AM CURRENTUI WORKING ON
ANOTHER ON THE POLLUTION ECOLOGY OF ESTUARINE INVERTEBRATES.
FOR TWO YEARS I HAVE BEEN CHAIRMAN OF A STANDING COMMITTEE
AT THE SMITHSONIAN CHARGED WITH UNDERSTANDING THE WILDLIFE LAWS
AND RELATING THEM TO OUR WORK. FOR A SIMILAR TIME I HAVE BEEN
A MEMBER OF THE ASSOCIATION OF SYSTEMATICS COLLECTIONS' COMMITTEE
ON SYSTEMATICS AND THE LAW, A COMMITTEE WITH A SIMILAR CHARGE BUT
WORKING FOR THE SYSTEMATICS COMMUNITY THROUGHOUT THE COUNTRY.
I SHOULD ALSO PREFACE THESE REMARKS WITH THE STATEMENT THAT
WHAT I SAY DOES NOT NECESSARILY REPRESENT OFFICIAL SMITHSONIAN
INSTITUTION POLICY. RATHER, MY REMARKS ARE BASED ON PERSONAL
OBSERVATIONS AND FEARS CONCERNING THE EFFECTS, AND POTENTIAL
EFFECTS, OF WILDLIFE LEGISLATION ON THE SCIENTIFIC COMMUNITY.
WHILE MY OPINIONS ARE CERTAINLY NOT UNANIMOUSLY CONCURRED WITH,
THEY REPRESENT THE OPINIONS OF WHAT I BELIEVE TO BE A LARGE
PORTION OF THE SCIENTIFIC COMMUNITY. ALBEIT, A PORTION THAT
IS NOT HEARD FROM SO OFTEN AS SOME OTHERS.
PAGENO="0096"
THE ENDANGERED SPECIES ACT IS ONLY ONE OF A NUMBER OF
LAWS THAT ARE CAUSING PROBLEMS WITHIN THE SCIENTIFIC COMMUNITY)
BUT, AS THE ENDANGERED SPECIES A T IS THE SUBJECT UNDER DIS-
CUSSION, I WILL LIMIT MY REMARKS TO IT. I THINK I WOULD BE
CORRECT TO SAY THAT FEW SCIENTIS S QUARREL WITH WHAT IH.EX EEftCEIVE
TO BE THE ORIGINAL INTENT OF THE ENDANGERED SPECIES ACT --
"TO CONSERVE TO THE EXTENT PRACT CABLE THE VARIOUS SPECIES OF
FISH.OR WILDLIFE OR PLANTS FACIN~ EXTINCTION." QUESTIONS AND
PROBLEMS ARISE, HOWEVER, REGARDII'~G THE IMPLEMENTATION OF THE ACTS
FOR EXAMPLE:
1) PERMITS TO TAKE, TRANSPO T, POSSESS, A~ND EVEN ENGAGE
IN ACCEPTABLE HUSBANDRY PRACTICES INVOLVING ENDANGERED SPECIES
REQUIRE INORDINATE AMOUNTS OF TIM AND EFFORT TO PROCURE THIS
CAN RESULT IN THE LOSS OF VALUABL~ PRESERVED SPECIMENS TO THOSE
COUNTRIES WHICH DO NOT MANDATE LEt~GTHY PERMIT PROCEDURES AND
IT CAN WORK TO THE DISADVANTAGE O~ LIVING CAPTIVE BREDSPEC.IMENS
OF ENDANGERED ANIMALS. THE ISSUA CE OF A PERMIT TO TRANSPORT
OR STUDY AN ENDANGERED SPECIES IS QUITE OFTEN A MATTER OF
URGENCY -- DUE TO AN ORGANISM'S SH RT REPRODUCTIVE CYCLE, THE
HEALTH AND WELFARE OF AN ANIMAL, 0 THE AVAILABILITY OF STUDY
FUNDS. THE REQUIREMENT FOR PERMIT REQUESTS TO BE PUBLISHED IN
THE FEDERAL REGISTER, THE SUBSEQUE T COMMENT PERIOD, AND OTHER
ADMINISTRATIVE PROCEDURES OFTEN TAKES FOUR TO SIX MONTHS. IT
OFTEN WORKS COUNTER TO THE BENEFIT OF THE SPECIES AND MAKES THE
ENTIRE PROCEDURE INORDINATELY EXPE SIVE. ALSO, SPECIMENS OF
ENDANGERED SPECIES MAY COME TO HAN LEGALLY WHILE A SCIENTIST
IS ABROAD ON A SHORT TRIP. THERE IS NO MECHANISM FOR THE
SPECIMENS TO BE SENT TO THE UNITED TATES BEFORE SECURING AN
PAGENO="0097"
93
IMPORT PERMIT, THUS REQUIRING THAT THE SPECIMEN BE SHIPPED
THROUGH A BROKER AT GREAT EXPENSE.
WE APPLAUD THE RECENT INITIATIVE OF THE U.S. FISH AND
WILDLIFE PERNIT OFFICE TO STREAMLINE ITS PERMIT PROCEDURES,
BUT DO NOT FEEL THAT THIS IS NECESSARILY THE REMEDY NEEDED
BY THE SCIENTIFIC COMMUNITY. THE IRRETRIEVABLE COSTS IN
TIME AND MONEY MUST STILL BE EXPENDED) AND ONE WONDERS WHAT
THE CONTROLS ON ALREADY DEAD MUSEUM SPECIMENS ACTUALLY
ACCOMPLISH. THEY WILL HAVE NO EFFECT ON LIVING NATURAL
POPULATIONS. THEY WILL NOT RESTORE ANYTHING TO THE WILD.
NOR WILL THEY APPRECIABLY REDUCE THE. NUMBER OF,ORGANISMS
TAKEN FROM THE WILD.
2) THERECEIPT OF UNSOLICITED SPECIMENS OF ENDANGERED
SPECIES BY A SCIENTIST PLACES HIM OR HER IN JEOPARDY, BECAUSE,
EVEN THOUGH UNSOLICITED, THE FACT THAT THE SCIENTIST'S NAME
APPEARS ON THE ADDRESS LABEL MAKES HIM OR HER ALLEGEDLY GUILTY
OF HAYING RECEIVED THE SPECIMEN, AND ACCORDINGLY IN VIOLATION
OF THE LAW.
3) THE ENDANGERED SPECIES ACT IS PRESENTLY INTERPRETED
~S REQUIRING THAT ANY SPECIMEN OF A SPECIES TAKEN AFTER 28
DECEMBER, 1973 (THE DATE OF THE ACT) AND SUBSEQUENTLY DETERMINED
TO BE ENDANGERED OR THREATENED, FALLS UNDER THE PURVIEW OF THE~
ACT. IN OTHER WORDS, SPECIMENS OF.A SPECIES TAKEN SUBSEQUENT
TO THE DATE OF THE ACT, BUT BEFORE THE SPECIES WAS DECLARED
ENDANGERED OR THREATENED, REQUIRE ENDANGERED SPECIES PERMITS
~BEFORE THEY. CAN BE LEGALLY TRANSPORTED-- AND WILL THUS INCREASE
THE BURDEN OF PAPERWORK AND COLLECTION MANAGEMENT EVER INTO THE
FUTURE.
29-319 0 - 78 - 7
PAGENO="0098"
94
4) AND FINALLY) MANY SCIENTISTS QUESTION HOW FAR DOWN*
THE PHYLOGENETIC SCALE THE C~NCEPT OF ENDANGERED SPECIES SHOULD
BE TAKEN. FEWPEOPLE QUESTIO~N THE PREMISE THAT THE PROTECTION
OF MANY ENDANGERED OR THREATE~ED MAMMALS.S BIRDS, REPTILES.,
FROGS, FISHES, AND PLANTS ~IS JUSTIFIABLE AIM. THERE IS,
PERHAPS) JUSTIFICATION FOR TH~ INCLUSION OF SOME INVERTEBRATES.
BUT THERE APPEARS TO BE NO WO~KING PHILOSOPHY THAT CONSIDERS
WHERE FEDERAL PROTECTION SHOULD STOP. WHERE ONE REACHES A
POINT OF DIMINISHING ECOLOGIC L RETURNS.
WE RECOGNIZE THE LENGTHS TO WHICH THE ENDANGERED SPECIES
OFFICE GOES IN DETERMINING WH THER OR NOT AN ORGANISM IS ACTUALLY
THREATENED OR ENDANGERED, BUT SOME OF US QUESTION WHETHER LARGE
EXPENDITURES OF TIME AND MONEY AND ANGUISH SHOULD BE EXPENDED
TO PROTECT CERTAIN ANIMAL GROU S AT ALL.
THE SCIENTIFIC COMMUNITY PPREC.IATES THE WISDOM OF THE
VARIOUS ACTS AND SOME OF THE IMPLEMENTING REGULATIONS WHICH
HAVE BEEN DEVELOPED, WHILE RE~OGNIZING AND AGREEING WITH THE
IMPORTANCE OF THESE MATTERS, THE PROBLEMS RAISED BY THEIR
INFLEXIBLE APPLICATION WILL, I~ NOT RESOLVED, IMPEDE AND OBSTRUCT
THE LEGISLATED FUNCTIONS OF SE\~ERAL FEDERAL INSTITUTIONS AS
WELL AS THE ABILITY TO INQUIRE -- WHICH IS THE CORNERSTONE OF
THE SCIENTIFIC COMMUNITY AS A WHOLE.
UNDERLYING OUR CONCERNS IN REGARD TO APPLICABLE LAWS AND
REGULATIONS PROMULGATED BY THE WS IS THE IDEA THAT A SHARP
DISTINCTION SHOULD BE DRAWN BETWEEN "COMMERCIAL ACTIVITY" AND
"SCIENTIFIC ACTIVITY." THERE I~ A VAST DIFFERENCE BETWEEN A
SCIENTIST ATTEMPTING TO LEARN S~METHING ABOUT AN ORGANISM'S
PAGENO="0099"
95
BIOLOGY ANDTHE DEALER WHO IS CONTINUALLY REDUCING WILD
POPULATIONS, AND POSSIBLY DISTORTING THE GENE POOLS, OF A
FEW SELECTED SPECIES OVER A PROLONGED PERIOD OF TIME FOR
MONETARY GAIN.
I BELIEVE THAT THE PAST YEAR HAS SEEN CONSIDERABLE
PROGRESS TOWARD A MUTUAL UNDERSTANDING OF THE PROBLEMS FACED
BY THE REGULATORY BODIES AND THE BIOLOGICAL COMMUNITY. THE
REGULATORS HAVE THEIR PRECEIVED MANDATE) WE HAVE OURS EACH
OF US IS BEGINNING TO RECOGNIZE THE PROBLEMS FACED BY THE OTHER.
PROBLEMS. STILL REMAIN HOWEVER, AND THAT IS WHY I AM CONCERNED.
OUR DEALINGS WITH FWS PERSONNEL INDICATE THAT THEY NOW BASICALLY
UNDERSTAND OUR PROBLEMS, THEY SYMPATHIZE WITH OUR FRUSTRATION,
BUT THEY APPEAR POWERLESS TO CHANGE MUCH WITHOUT LEGISLATIVE
MANDATE.
THE SCIENTIFIC COMMUNITY IS COMMITTED TO OBEYING THE
REGULATIONS, BUT WOULD LIKE TO WORK TOWARD THE GOAL OF SEEING
THAT THE RULES DO NOT PUT UNFAIR BURDEN ON THE VERY SEGMENLOF
THE COMMUNITY THAT IS NEEDED TO ACHIEVE AN UNDERSTANDING OF
WHAT SPECIES ARE ENDANGERED AND HOW THEIR CHANCES FOR SURVIVAL
MIGHT BE IMPROVED. I WOULD LIKE TO SUGGEST THAT MOST OF THE
BASIC LEGISLATION UNDER WHICH THE MOVEMENT OF SCIENTIFIC SPECIMENS
IS REGULATED CARRIES FEW EXPLICIT RESTRICTIONS APPLICABLE TO
THE SCIENTIFIC COMMUNITY, ANDTHAT THE PERMITREQUIREMENTS,
REGULATIONS, AND RESTRICTIONS TO WHICH THE SCIENTIFIC COMMUNITY
IS SUBJECTED NOT ONLY DO NOT SERVE THE OBJECTIVES OF THE
LEGISLATION, BUT CONSTITUTE A DRAIN ON PUBLIC AND PRIVATE
RESOURCES.
PAGENO="0100"
96
IN SUMMARY WILDLIFE LAW NOW REQUIRE FEW) IF ANY) DIRECT
COSTS TO THE MUSEUM OR UNIVER ITY. BUT THERE ARE HIDDEN COSTS
IN FOR EXAMPLE, THE TIME REQUIRED TO PREPARE PERMIT APPLICATIONS
(AND AWAIT THEIR ISSUANCE)J TH EFFORT EXPENDED IN COMPLYING WITH
MEANINGLESS REQUIREMENTS OR I\ DEFENDING STAFF MEMBERS FROM
PROSECUTION WHEN THEY INADVERTENTLYVIOLATE A REGULATION. EACH'
WILDLIFE LAW, IN ITS OWN WAYJ ~DDS TO THE BURDEN.
THE LONG-TERM "POTENTIAL OPPORTUNITY" COSTS OF SUCH
REGULATIONS TO SCIENTIFIC RESEARCH ARE UNKOWN.. AS SPRIESTERSBACH
AND FARRELL RECENTLY POINTED OU~~ IN Sci~iic&- "ALTHOUGH WE.HAVE.
DIFFICULTY MEASURING WHAT REGU4TIONS HAVE DONE TO US, WE HAVE
EVEN MORE DIFFICULTY ENVISIONIN~ WHAT THEY MIGHT HAVE KEPT US
FROM DOING." THEY FEAR AS I DO, THAT THESE KINDS OF FEDERAL
IMPACTS MAY CARRY WITH THEM THE HIGHEST SOCIAL COST OF ALL --
"THE LOSS OF NEW KNOWLEDGE, NEW REATIVITY, AND NEW UNDERSTANDING."
`SPRIESTERSBACH, D.C. AND WILLIAM . FARRELL, "IMPACT OF FEDERAL
REGULATIONS AT A UNIVERSITY," SCI~NCE, 198 (~312): 27-30
PAGENO="0101"
97
E J. (JAKE) GARN
T~K~?ZD2-Z24-5444 ~ UR~A~4A~EA~9
May 3, 1978
Honorable John Culver, Chairman
Resource Protection Subcommittee
Environment and Public Works Committee
4202 Dirksen Senate Office Building
Washington, D. C. 20510
Dear Mr. Chairman:
When I testified before your subcommittee on the re-authorization
of the Endangered Species Act, I requested the record remain open
to accommodate an analysis of the Woundf in Recovery Team Report
which I was expecting from the City of St. George, Utah. That
report is now here, and I enclose a copy for inclusion in the
hearing record.
Again, thank you for your kindness in this matter.
Sincerely,
JG:gjm
cc: Rudger McArthur
PAGENO="0102"
AP 31978
O~tfl4
To State Director Burea of Land Yanagement
Salt Lake City, Utah
From: Regional Director, Re~ion 6
Fish and Wildlife Ser'~rice, Denver, Colorado
Subject: Formal Consultation o~ the Allen-Warner Valley Thergy Projects
Please consider this our official biological opinion on the effects of
these projects on the endangere4 species listed in your August 26, 1977,
request for formal consultation~
The projects would not affect t1~e Yuma clapper rail or the unarmored
three-spine stickleback, which ~o not occur in any of the project areas.
We also have concluded that the ~rojects would not jeopardize the continued
existence of the American peregI~ine falcon, which is not known to
nest in the area. Effects on other species will be discussed for each
project as follows:
Warner galley Water Project
Following the October 18, 1977, field review, the U.S. Fish and Wildlife
Service has spent considerable t~me reviewing the available biological
and project data. It is our opinion that the Warner Valley Project as
now proposed1 will be likely to ,~eopardize the continued existence of the
endangered woundfin by adversely modifying its present habitat in the
Virgin River. This habitat is considered essential for survival of the
species and has been proposed fo designation as "Critical Habitat," as
lPrcject features and descriptions were evaluated from the BLM
Preliminary Draft Environmental Impact Statement, June 1977, and the
Vaughn Hansen Associates Report, entitled, Impact of Warner Valley Water
Project on Endangered Fish of th~ Virgin Fiver, October 1977.
98
United States D partment of the Interior
FISH AND ~%ILDLIFE SERVICE
MAIlING ADDA~S
p,,, Off~B*' 254R6
IRREFLY REFER 70 D,,,~?. c,i,~,d, 80225
FAlSE/Coop. FED--BLM--
Allen-Warner Valley
Energy Projects
STREET LOCATION
50597
L,05ERE~ C,Z,"d~
~
Save Energy c~nd You Serve America!
PAGENO="0103"
99
provided for by the Endangered Species Act of 1973, in the Federal
Register, Vol. 42, No. 211, Wednesday, November 2, 1977.
When we evaluajed the inpact of this project on the voundfin, we did
not attempt to determine the absolute minimal biological and physical
conditions which the species could withstand without passing into extinction.
Rather, we reviewed all the data to determine what conditions are needed
in order to maintain a healthy population of woundfin in the Virgin
River. We based our analysis on the premise that the historic conditions
which have occurred in the Virgin River have provided the environmental
and biological conditions for a viable self-sustaining population of
the woundf in.
Although very low flow conditions have occurred in the Virgin River
in past years, which undoubtedly affected the woundfin population,
these d~d not persist for extended periods of months or years and thus
did not significantly affect the long-term viability of the woundfin
populations. For a short-lived minnow like the woundfin (life expectancy
of 3 or 14 years), a long-term reduction of flow which adversely affects
reproduction and survival of young has the potential of drastically
reducing population numbers.
The primary environmerrtal parameter the Warner Valley Project would
affect is stream flow. Secondary impacts associated with stream flow
alteration are changes in water quality, including temperature, and
reduction of available aquatic space for both fish and other associated
aquatic life. Another factor evaluated was the potential impact of
the proposed Warner Reservoir as a possible source for introduction
of exotic fish species- into the Virgin River. Our detailed analyses
of these factors are as follows:
A. Flow--The project will cause a significant reduction in flow
of the Virgin River between LaVerkin Springs and the California Pacific
Power Plant outflow which will reduce presently occupied woundfin habitat
by approximately 1/4 mile of stream. (See additional detail under
water quality).
The project will cause a significant flow reduction of the Virgin River
between the Power Plant outflow and the Washington Fields Diversion.
This reduction has been estimated at the Hurricane Gaging Station as
up to one-half of the average flow in cubic feet per second (cfs) during
winter and spring. These flow reductions during the critical spring
reproduction period and the overwinter survival period will reduce
the quality of this habitat for the woundfin. The reduced post-project
winter and spring flows will result in a smaller, less viable woundfin
population in this river section.
PAGENO="0104"
100
Conclusions for this flow-related po~ulation reduction are based upon
the findings of Dr. James Deacon of the University of Nevada, Las Vegas,
in the Vaughn Hansen Associates Repclit (1977) that the 1977 flow condition
resulted in very restricted survival of young woundfins above the Virgin
River Harrows. Although we recogniz~ that post-project minimun flows
are not projected to be as low as those which occurred in 1977, the
stream flow/woundfin reproduction rel~tionship suggests that low flow
does affect the woundfin population. Even though low-flow conditions
occur naturally, and 1976 and 1977 ve±~e both low water years, the post-
project conditions would increase the frequency of these low flow conditions.
Therefore, with increased occurrence of low flow in this river section,
woundfin reproduction would be more f~equently affected, and the overall
population would be reduced. We do n~t know the population level at
which the woundfin would face possibl~ extinction. We do know, however,
that once any species is reduced to a certain low point, the extinction
process is greatly hastened. Therefoz4e, we must view any major reduction
in population numbers and in essentia]~ habitat as adverse and likely
to contribute to the eventual extinct~ion of the species.
The pro~iect will increase the frecuenc~ and duration of no-flow conditions
immediately downstream of the Washingt~n Fields Diversion for approximately
2 miles. This area is now occupied by~woundfin for the 2- to 3-month
period when water is available.
The project will decrease winter and s~ring flows in the Virgin River
from Washington Fields Diversion to the Virgin River Narrows area.
Average post-project flows in this area are projected to be decreased
during winter and spring by one-third ~o one-half. These flow reductions
are believed to be significant enough to affect the available habitat
of the woundfjn and would result in a ~eneral decrease in the woundfin
population numbers above the Virgin Riv~r Harrows.
We recognize the project would have a b~neficia1 impact during the
low flow months of July through Septext~r fron irrigation return flow
downstream of the Washington Fields Div~rsion. This would, in all
probability, improve conditions for wouMfin duriug the summer months
and would probably result in a larger w~undfin population surviving
the su~er in this river section. Howe er, this beneficial impact
would be negated by the reduced habitat available during the winter
and spring periods.
Impacts of the project on streenflow be ow the Virgin River Narrows
cannot be adequately addressed because of the limited understanding
of the hydrologic relationship between u~stream Virgin River flow and
the Littlefield Springs recharge. Howev r, it is important for the
PAGENO="0105"
101
woundfin below the Narrows that the integrity and consistency of the
spring discharge be maintained. Any action which would result in less
recharge from the Littlefield Springs would adversely affect the woundfin
habitat below the Virgin River Narrows.
B. Water Quality--The proposed project alteration in base flow
conditions during the year may cause a change in duration and/or frequency
of critical water temperature conditions. Because water temperature
of the Virgin River is highly dependent upon ambient air temperature
and local atmospheric conditions, it fluctuates quite extensively.
Past records have indicated fluctuations of up to l1~_l6° C. in a 21~
hour period. With less flow under post-project conditions, there is
a possibility of an increased rate of temperature change. It has been
reported by Lockhart (unpublished masters thesis, University of Nevada,
Las Vegas) that the upper temperature limit for woundfin is near 350 C.
Deacon (Vaughn Hansen Associates Report, 1977) has reported that temperatures
over 300 C. are undesirable for woundfin. Lockhart also stated he
did not collect woundfin in waters less than 70 C. Based upon these
reports and discussions with Dr. Deacon concerning critical water temperatures
for woundfin, we believe the occurrence of temperature extremes, both
high and low, may increase under the project and adversely affect the
woundfin. The Vaughn Hansen Associates Report (1977) concluded there
was no relationship between flow and water temperature, and thus there
would be no project impact on water temperature. We cannot agree with
this conclusion at this tine because of the questionable nature of
the temperature data analyzed by the Vaughn Hansen Associates Report.
These data were recorded by the U.S. Geological Survey in con,junction
with the takingof sediment samples and were published in the U.S.
Geological Survey Water Quality Records for Utah. Upon closer examination
of the actual field data sheets, we found these U.S. Geological Survey
data were unsuitable for detailed analysis and yearly comparisons because
of variation in the time of day measurements were taken, which ranged
from 6:00 A.M. to 10:00 P.M., and also because different people, possibly
using different procedures, had taken these temperatures.
With flows in the Virgin River reduced by the project, the toxic effects
of the LaVerkin Springs water will extend for a longer distance downstream.
The toxicity of these springs has been reported by various researchers
including Williams (1977) and Lockhart (unpublished M.S. thesis).
The distribution of fishes of the Virgin River, as given in Cross (1975),
shows no fish exist in close proximity to the LaVerkin Springs. If
less flow is permitted past the Hurricane Diversion under post-project
conditions, there will generally be less water in the Virgin River
at LaVerkin Springs for dilution and moderation of the toxic chemical
qualities of the spring water. Therefore, the presently occupied river
section upstream of the California Pacific Power Plant outflow, approximately
l/~4 mile, will be lost as available woundfir. habitat.
PAGENO="0106"
102
Bio/West Inc. authored by J.E.
Deacon and P.R. Holden (1977)
Vaughn Hansen Associat~s Report (1977)
1. Under general summary findings
2. R.N. Winget and R.SL Baumsnn
section
3. J.E. Deacon section
C. Exotic Species Comoetition-There are numerous documented
records of exotic fish species causinè the reduction or extinction
of native fish fauna. This has been ~eported by Minckley and Deacon
(1968). It was concluded by biologists at a meeting in Las Vegas (Vaughn
Hansen Associates Report, 1977) that ~xotic species will be introduced
into the Virgin River drainage by the proposed Warner Valley Reservoir.
The impact of this exotic fish introduction will depend upon whether
the exotics can become established in ~the Virgin River. Because
post-project conditions, as the projec~t is now proposed, will reduce
base flovs and cause the Virgin River to become more intermittent,
we believe exotic species, such as green sunfish and red shiner, will
become better established. This conc]4isic~ is based upon past reports
which state that green sunfish and reds shiner prefer river habitat
of an intermittent nature including s1~iggish flows and no-flow conditions
(Minckley, 1973 and Cross, 1967). The~efore, the Warner Valley Reservoir,
in conjunction with reduced, intermitt~nt base flows, would provide
environmental conditions favoring establishment of additional exotic
fish into the Virgin River system.
Recommendat~pj
is
Since the Warner Valley portion of the project as now proposed
-
to jeopardize the continued existence f the voundfin, we have provided
recommendations which we believe would eliminate the adverse impacts.
In order to fully understand our recorm~endations, we believe it is
necessary to review past recommendation and what organizations or
individuals made them.
Table 1 - Past Flow Recommendati ns for the Virgin River
Date Organization or Individual Flow Recommendat~q~.
2/77
10177
60-90 cfs for
winter and summer flows
1~0 cfs minimum
3O_I~O cfs minimum
80-100 cfs April-
mid-July
60 cfs after mid-July
80-100 mis for winter
PAGENO="0107"
103
As: seen from the above table, past flow recommendations for tbe Virgin
River have ranged from 30 to 100 cfs. Also, the point or points at
vhich these flows are needed was not indicated except for those by
Deacon. in the Vaughn Hansen Associates Report.
In our analysis, we used the past flow records plus the available biological.
data contained in various reports. We have made our flow recommendations
based upon the best data available. If and when more data become available,
both hydrological and biological, we reserve the option of adjusting
these recoinmendatirns.
Basic years analyzed were 1967 through 1977. Key years were: 1968-
near average water year for the 10 years of record; 1973--above average
water year with available biological data; 1977--below average, water
year with available biological data. Other flow records and additional
biological data were also inspected and coordinated with the data cited
above.
Our streenflow recommendations for the endangered woundfin are divided
into three periods, based upon the biolo~r of the species:
1. The fall-winter period of November through February when the
adults are overwintering;
2. The spring-early summer period cf March through June when
spawning occurs; and
3. The summer-early fall period of July through October when
growth and development~ of young occur.
Because of the variation in flow along the Virgin River, we have chosen
a specific point, the Hurricane Gage, to which we have related our
flow recommendation. This point was chosen because: the past flow
records are available, it is located in good woundfin habitat, and
it is only about 12 miles downstream from the Hurricane Diversion.
The following are our flow recommendations for the Hurricane Gaging
Station:
November through February--llO cfs or natural flow, whichever
is less.
March through June--ll0 cfs or natural flow, whichever is less.
July through October--7O cTh or natural flov, whichever is less.
PAGENO="0108"
~O4
If these flow recommendations cam be a intained at the Hurricane Gaging
Station, which is downstream of the di~ersion site, we believe the
project's adverse impacts on the wouna.~in can be eliitinated~
Our recommended flows agree quite closely with those of Deacon in the
1977 Vaughn Hansen Associates Report. ~hey should be considered as
refinements of Deacon's data, since wo ~ised additional flow records
and additional years of data. Deacon's\recommendations were derived
from interpretation of two years of flop data, 1973 and 1977, as presented
in hydrographs. He correlated this graphic flow data with the woundfin
reproduction from above and below the Virgin River Harrows to make
his estimates. To arrive at our reco~ndations, we used basically
the same biological data as Deacon, but we expanded the flow data base
by using tabular and actual U.S. Geological Survey daily flow records.
We have recommended 70 cfs for ,July through October, while Deacon recommended
60 cfs after mid-July for the summer mon~ths. The actual low flow for
this period during the 1973 water year when woundfin fared well, was
614 cfs, but the 1973 mean monthly low fl~w for the period was approximately
70 cfs. Therefore we feel that Deacon's\interpretation of the graphic
data was slightly low. Our recoendatión of 110 cfs, where Deacon
has recommended 80-100 cfs, should not b~ viewed as conflicting recommendations.
Deacon interpreted graphic naterialand ~resented an estimate of 80-
100 cfs. We used the additional data s~ailable and refined this figure
to 110 cfs. From the period of flow record, 1967-77, the most common
low flow for the March-June period was l]~0-l20 cfs. In 1968, the average
water year, the mean monthly flow for the\ March-June period ranged
from 115-1406 cfs. Although in 9 out of t~ie past 11 years flows of
91-100 cfs occurred for short periods, th~se lower flows usually occurred
in June, a late spring month impacted significantly by irrigation diversions.
Data from the winter flow period also con~ributed to the formulation
of the final 110 cfs spring recommendatioi~. The winter period of November
to February bad low minimun flows 8 out o~ 10 years of 101-110 cfs.
Although other hydrological statistics in~icated higher average winter
flows we do not believe this period is as critical as the spring period,
and therefore recommended 110 cfs for winter flows. Because of the
spring reproduction period of the voundfio~ we do not believe that a
flow greater than 110 cfs for the winter s?aould be dropped just prior
to spring spawning. On the contrary, vint~r to spring flows normally
would increase or at least remain constant~ Because of this we have
recommended a constant flow of 110 cis for both winter and spring.
The recommended flows of Bio/West Inc., February 2, 1977, were partially
computed by Deacon. These flows were esti~ates and later were revised
by Deacon in the Vaughn Hansen Associates I~epcrt.
PAGENO="0109"
105
We cannot accept the 140 cfs and 30-140 cfs recommended flows of Winget
and Bauman in the Vaughn Hansen Associates Report. We understand these
flows were estimated by indirect methodo not having any real connection
with the biolo~r of the voundfin. Because the expertise of the authors
is in invertebrates, much of their flow rationale is related to invertebrate
production. Invertebrates differ from fish by having relatively short
life cycles, with certain life stages, i.e. eggs, able to aestivate
through short severe periods such as droughts. Iii many cases they
also prefer different habitat. The river channel cross-sectional data
presented to show that 140 cfs is sufficient flow is deceptive since
the break-off point of 140 cfs is very arbitrary. The few cross sections
of stream may or may not be representative of the actual situation.
Also, the authors looked at only one year, 1977, a very low water year.
We suspect that the invertebrate communities they analyzed were in
a stress situation, not representative of the normal water year situation.
Harry Allen Power Plant
No endangered or threatened species occur within the immediate area
of the plant site; therefore, there will be no adverse impact on these
species because of construction activities.
The operation of the Harry Allen Plant will result in the emission
from the stacks of an estimated 0.8 lb/day of mercury which would be
approximately 292 lb/year. Other trace elements such as arsenic and
selenium will also be emitted from the power plant stacks. There is
presently insufficient data in the literature to determine the impacts
of long-term trace element accumulation on the environment. However,
because of the presence of the endangered moapa dace, the woundfin,
bald eagle, and peregrine falcon in the general emission fallout area,
the Fish and Wildlife Service does have concerns about the impacts
of fallout from the stack emissions.
Therefore, we recommend that trace element accumulation in the soil,
vegetation, water, aquatic invertebrates, and aquatic vertebrates in
the fallout area be monitored. In addition, we are proposing that
the project assist in sponsoring concurrent bioassay work on acute
and chronic toxicity levels of the various trace elements on the different
life stages of the native fishes of the fallout area. Data from fish
could then be evaluated for potential impact on fish-eating birds such
as eagles.
If trace element problems develop in the environment, the operation
of the. Harry Allen Power Plant would have to be modified to eliminate
these effects.
PAGENO="0110"
106
Coal Slurry Pineline
If the procedures which have been rec~nmended in the Preliminary Draft
Environmental Impact Statement are followed, it is our opinion there
will be no adverse impact on the woun~fin or other endangered species.
Power Transmission Line
If the procedures which have been recoismended in the Preliminary Draft
Environmental Impact Statement are foJ~lowed, it is our opinion there
will be no adverse impact on the woun~.fin. The path of the power line
given in the statement is below noapa dace habitat and therefore construction
of the power line would not be likely to have any effect on the moapa
dace.
Also, if electrical transmission lines~ less than 230 HIt are constructed
according to Rural Electrification Administration standards for the
prevention of raptor electrocution and the 1975 publication "Suggested
Practices for Raptor Protection on Power Lines,' by the Raptor Research
Foundation, it is our opinion that the~e will be no significant impact
on bald eagles. The larger voltage tr~nsmission lines are not expected
to cause any problems to the bald eagl~s.
Because of the complexity of these siti~ations, a large volume of material
was reviewed and analyzed, not all of which is included in this memorandum.
However, feel free to contact us for an~y additional information or
clarification of this opinion.
As we noted in our September 15, 1977, ~cknovledgenent to your request
for consultation, we cannot formally co~isult on proposed or candidate
species in the project.areas. Technica~. information on proposed plants
will be supplied informally in a separate memorandum in the near future.
We appreciate your cooperation and interest in conserving endangered
species.
cc: Area Manager, Salt Lake City
API), Environment
PD, Region 1
RI), Region 2
PAGENO="0111"
107
LITERATURE CITED
Cross, P.R. 1967. Handbook of Fishes of Kansas. Misc. Publication
No. i~5, Museum of Natural History, University of Kansas, 357 pages.
Cross, J.N. 1975. Ecological Distribution of the Fishes of the Virgin
River (Utah, Arizona, Nevada). Unpublished M.S. thesis, University
of Nevada, Las Vegas, 187 pages.
Deacon, J.E. and P.B. Holden. 1977. Technical Report Analyzing the Impact
of the Allen-Warner Valley Energy System on the Native Fishes of the
Virgin River. U.S. Fish and Wildlife Service contract report,
Albuquerque, Rev Mexico. 21 pages.
Lockhart, J.N. (N.D.) Ecology of the Woundfin Minnow, Plagopterus
~gentissimus~, Cope. Unpublished draft of M.S. thesis, University
of Nevada, Las Vegas, 197 pages.
Minckley, W.L. 1973. Fishes of Arizona. Arizona Game and Fish Department
publication, Phoenix, Arizona. 193 pages.
Minckley, V. L. and J.E. Deacon. 1968. Southwest Fishes and the Enigma
of "Endangered Species." Science 159: l1~21~-32.
U.S. Bureau of Land Management. Preliminary Draft Environmental Impact
Statement of the Allen-Warner Valley Energy System. June 1977.
3 volumes looseleaf.
Vaughn Hansen Associates. 1977. Impact of the Warner Valley Water Project
on Endangered Fish Species of the Virgin River. Report prepared for
the City of St. George, Utah. 1~OO pages.
Williams, J.E. 1977. Adaptive Responses of Woundfin, ?lagopterus~
g~~issumus, and Red Shiner, Rotropis lutrensis, to a Salt Spring
and Their Probable Effects on Competetion. Unpublished M.S. thesis,
University of Nevada, Las Vegas, 91 pages.
PAGENO="0112"
1~8
~Uc;Se FIISH RflD W~LDUFE SE~VKE
Refer Narler 303/234-3990 fCQllOfl 6
FOR IMMEDIATE RELEASE
BIOLOGICAL OPINION ON MULTI-STATE ALLEN-WARNER VALLEY ENERGY SYSTEM
~ PROJECT DELIVERED TO ,FEDERAL AGENCY
3 SALT LAKE CITY-The U.S. Fish an Wildlife Service baa submitted
to the Bureau of Land Management (BLM) the official biological opinion
of the effect on endangered species of the propo~sed multi-State Allen-
Warner Valley Energy System project.
The project, parts of which are 1 cated in Utah, Nevada and Arizona
and which also would supply power to California, consists of five main
elements:
--the Warner Valley Power Plant n~ar St. George, Utah;
--the Marry Allen Power Plant naa~ Las Vegas, Nevada;
--a Virgin River diversion and `re~ervoir, also near St. George;
o --two coal slurry pipelines from near Bryce Canyon National Park
to both power plants;
--power transmission lines from' ne~r St. George through Nevada to
Victorville, California.
The Service's biological opinion, r `red by Congress under
,~,, Section 7 of the Endangered Species Act v~henever a Federally-authorized
action is proposed, found that the Virgir~ River water diversion and
reservoir would be liselW to jeopardize c~ontinued existence of the
endangered wnundfin, a meall silvery minnow known to exist only in the
~ Virgin River system of Utah, Nevada and ~izona.
But the Fish and Wildlife Service, op~nion also reemrrnended stream-
~ flow stipulations for the Virgin system t~at, if adopted, would
I ` eliminate adverse irrnacts of the project moon the woundfin habitat.
Tha Service found that the other elei~iants of the project would not
~ adversely impact the endangered species ci the three state area.
However, the Service reurrrrended ironitorii~g various trace elements in
"~ the envirorcrent f ran power plant stack emessionm to determine whether
cumulative fallout will irrmact upon wildlife of the area.
The Service's biological opinion was delivered to BLM's State
~ Director at Salt Lake City.
Coal for the project would be mined s~uth of Bryce Canyon National
Park, and proressed at a coal slurry prepa~ation facility at nearby
Bald Knoll, Utah.
PAGENO="0113"
109
CONSULTANTS / ENGINEE~
IIIIUOHfl
HflF%SEfl
flSS~CIflTES
WATERBURY PLAZA-SUITE A
5620 SOUTH 1475 EAST
SALT LAKE COY, UTAH 84121
(801) 272-5263
April 21, 1978
Mr. Rudger McArthur
Director of Utilities
City of St. George
237 North Bluff
St. George, Utah 8k770
Dear Rudger,
Enclosed are the comments I sent to Paul Howard. I hope they
are helpful towards over ruling a miscarriage of justice
being sustained by certain arrogant personel in U.S.F.&8.S.
Sincerely
7~L~
llon C. Owen
Hydrologist
ACO / d as
29-319 0 - 78 - 8
PAGENO="0114"
Mr. Paul Howard, Director
BLM. Utah State. Office
University Club Building
136 East South Temple
Salt Lake City, Utah 84111
CONSULTANTS I ENGB4ERS
IIIIUGHfl
HIIRSEII
flSS~CIRTES
WATERBURY PLAzA-susiE A
5620 SOUTH 1475 EAST
SALT LAKE CFW, UTAH 84121
(801) 272-5263
April 21, 1978
Dear Hr. Howard:
Sincerely,
llon C. Owen
Hydrologist
ACO/das
10
CU1jJ
Enclosed are comments on the respon e to the formal opinion
on the Allen-Warner Valley Energy Project by U.S. Fish and
Wildlife Service to the U.S. Bureau of Land Management,
April 3, 1978.
I hope the following comments will be of help to you as you
consider the important instream flo#~ requirements for the
Allen-Warner Energy Project.
PAGENO="0115"
111
MEMORANDUM
TO: Paul Howard, Director of Utah State Office, Bureau
of Land Management
FROM: Allon C. Owen, Hydrologist, Vaughn Hansen Associates
DATED: April 21, 1978
SUB3ECT: Response to the formal opinion on the Allen-Warner
Valley Energy Project by U.S. Fish and Wildlife
Service to the U.S. Bureau of Land Management,
April3, 1978.
Results presented in the formal consultations prepared by U.S.
Fish and Wiidlife Service* to the Bureau of Land Management
dated February 9, 1977 and April 3, 1978 on the Allen-Warner
Project are based on subjective opinions while the latter
consultation dated April 3rd, ignores well documented, relevant
facts provided by professionally recognized experts. The April
3rd opinion relies heavily upon the work of Dr. 3ames Deacon
and his students: Cross, Lockhart, and Williams. The only
references to the work of professionals other than Dr. Deacon,
his students, and U.S.F.&W.S. personnel are misrepresentations.
The following discussions will briefly outline some of the im-
portant facts missing or misrepresented.
Determination of Flows
The premise for flow determinations as stated in the U.S.F.&W.S.
letter of April 3rd is as follows: "... that the historic
*~5 Fish and Wildlife Service will be referred; to as U.S.F.&W.S.
hereafter.
PAGENO="0116"
~12
conditions which have occurred in the Virgin River have provided
the environmental and biological conditions for a viable self-
sustaining population of the woundfin". This over-simplistic
premise negates the use of any and all standard scientific
methods of projecting environment 1 impacts caused by man. Cer-
tainly the project will depart fr~m historic conditions. The
question which should have been~ a~1dressed by the April 3rd con-
sultation and was addressed by ot~er professionals is what
flows during winter and spring are in excess of healthy, viable
fish population requirements? 0n~ must keep in mind that exist-
ing woundfin populations have survived common summer conditions
of intermittent flows, ambient air temperatures of more than
100°F and poorly diluted LaVerkin pring water.
Two adverse impacts considered by t~.S.F.&W.S. are in water
quality namely "... temperature and reduction of available
aquatic space...'
Temperature - An obvious misrePrese~tation of facts occurs on
page Z~ of the April 3, 1978 consult~ation. Vaughn Hansen Associ-
ates:are presented as using invalid data to show that flow and
temperature correlations do not exi t in the Virgin River.
The relevant sequence of events sho~ing why the analysis was
undertaken by Vaughn. Hansen Associates is not mentioned by
U.S.F.&W.S. The events will briefly be outlined. Dr. James
Deacon first used the `questionable data' to prove his thesis
PAGENO="0117"
113
that reductions in flow would increase critical temperatures
during the spawning period. The reasonfor the analysis of the
data by Vaughn Hansen Associates was to determine if a rigorous
statistical analysis of the data would support the conclusion
made by Dr. Deacon. Our analysis showed clearly that the data
did not justify the conclusion drawn by Dr. Deacon.
The April 3rd opinion also fails to point out the following
important fact-. concerning the temperature analysis: since
water temperature does appear to be highly dependent on time
of day and since temperature is more subject to diurnal vari-
ations than flow, the Vaughn Hansen Associates thesis that water
temperature in the iiver is governed by many factors, the major
factor being ambient air temperature and a minor factor being
flow,:.is upheld by correctly using the data. Professionals
trained in data analysis, hydrology and temperature dynamics
will also nOte from the Vaughn Hansen Associates' analysis that
temperatures in late spring (the first reported spawning period)
are quite constant despite wide variations in flows, data col-
lection procedures, etc. Therefore, the valid conclusion re-
sulting from thorough analysis of data is that within the flow
range to be impacted by the proposed Warnet~Valle.y Project, no
significant temperature changes will occur in the Virgin River.
Additional reasons for such a judgement are cited by Dr. Winget
in his response to the U.S.F.&W.S. letter. Why this issue con-
tinues to be raised by biologists untrained in such analysis
is uncertain.
PAGENO="0118"
114
Aquatic S~ce - With the passage f the Endangered Species Act
of 1973, has come increased power and authority to the U.S.F.&
W.S. over important municipal and industrial developments. Vaughn
Hansen Associates' feels that protection of our environment is im-
portant an6 should be pursued. Ur~popular stands will undoubtedly
have to be made concerning advers~ impacts of proposed develop-
ments. However, with increased power and authority comes a pro-
portional responsibility to be unb~iased, competent, rigorous
and professionally disciplined. Tkie time has come for U.S.F.&W.S.
personnel to submit their biologic~l opinions and in-stream flow
requirements to rigorous and accep ed scientific methods of
impact analysis, leaving as little as possible to subjective
opinions. The Service's initial o inion dated February 9, 1977,
should be an embarrassment to all c~oncerned. The opinion, writ-
ten by biologists with no inter-disciplinary consultation con-
tains subjective opinions on hydrology, sediment transport,
food habits, habitat preference and competition from exotic
species. The subsequent study initiated by Allen-Warner pro-
ject leaders and performed by an inter-disciplinary team found
significant errors in each of the aI~ove categories. And yet,
the U.S.F.&W.S. in their April 3, l~78 consultation repeatedly
ignored the results of this inter-disciplinary study which were
presented in the Vaughn Hansen Asso iates' report dated October
1977.
The Vaughn Hansen Associates' study sed two validated computer
models of in-stream flows to determi e flow requirements based
PAGENO="0119"
115
on biological factors to maintain a healthy viable population.
The first model was used to summarize historical data and. show
flow conditions at several critical locations along the river.
Setting aside most of the hydrologic analysis from the model
the biologists from tJ.S.F.&W.S. chose~ instead to use their own
data ar outlined below:
Basic years analyzed were 1967 throug.h 1977.
Key years were: 1968-- near average water year
* for the 10 years of record; 1973-- above average
water year with available biological data; 1977--
below average water year with available biologi-
cal data.
The 1967 to 1977 period used is the second wettest 11 year
period on record with 1965 to 1975 being the wettest. The 1k
year drought period proceeding 1967 was ignored. The "average"
year 1968 is actually 22% higher than the median. The "above
average" year 1973 is the second highest flow year on record
and the "below average" year 1977 is the driest year on record.
One should also be aware that critical spring flow data upon
which so much of U.S.F.&W.S. opinion is based compares flow
during 1973 of .1,000 to 2,000 cfs with 19.77 spring flows of
50 to70 cfs. The historic premise used by the Service is
hardly representative of actual historic.conditions.
Another misinterpretation of hydrologic data is made on page 5
of the latest consultation and the same misinterpretation is
inferred throughout the document "Therefore, the Warner Valley
Reservoir, in con3unction with reduced,.intermittent base flows,
PAGENO="0120"
would provide environmental conditions favoring establishment of
additional exotic fish into the Virgin River System." The hy-
drologic facts, often repeated, i~i the Vaughn Hansen Associates
report, is that the project will divert during times of high
flows (winter and spring) and wi 1 release stored water during
summer low flow periods (see Tabie 8-7, VHA, 1977). Therefore,
the project will augment the "int~ermittent base flows" and will
not reduce them! Another hydrolc~gic fact isthat though the
project would have diverted almos~t no water during 1977, the
project would have released store~i water throughout the year
thus greatly dampening the seven y of the drought.
The second model is well defended by Dr. Winget in his response
but will be discussed further he~r . The Service shrugs off the
widely used and accepted analysis method with an undocumented,
rhetorical comment about the metho~ds biological indirectness
and Dr. Winget's inexperience and ack of training in thefielci
of fish habitat determination. U.~.F.&W.S should be challengeçl
to produce evidence upholding the tatement. Rhetoric has
little meaning in scientific endea ors.
The model as used by Winget, is re lly a simple confirmed
equation which relates certain hyd~aulic parameters with flow
by use of Manning's roughness coèff\icient. Manning's equation
is universally accepted by biologis~/hydrologists as being
valid. The accuracy of the model d pends on the reliability of
tianning's coefficient. Fortunately the U.S.C.S. has established
a rating curve for a transect in th critical habitat area near
PAGENO="0121"
117
the Berry Springs station which involves measuring various
flow.levels at the location. Although the transect constantly
changed, because of the shifting sandy bottom, Manning's co-
efficient of 0.031 held fairly steady as might be expected.
Vaughn Hansen Associates feels that because the data collected
by Dr. Winget were obtained by using standard hydrologic methods
and can be correlated with several field measurements at a near
by U.S.G.S. gaging station the model is sufficiently reliable
to serve as a basis for the estimates made by Winget.
Information provided by the hydraulic model was then compared
to the following biological information provided by Deacon to
form Winget's conclusions. Deacon states that the woundfin
requires a pool, riffle, run environment and prefers shallow
water with surface velocities of less than 1.65 fps.
Dr. Simons, recognized international expert in sediment trans-
port and stream hydraulics, concluded that the existing pool-
riffle-run environment would be preserved contrary to the un-
supported opinions expressed by the authors of the February 9th
opinion.
The following table combines Deacon's biological criteria with
hydraulic information from the model to present important
habitat parameters.
PAGENO="0122"
Several Flow-Re ated Habitat
Parameters at the Beri~y Springs Statiort*
Disc
cfs
harge of River
110 cfs 1
60 cfs
Surface Velocity fps
2.1
3.0
3.8
Surface Width, feet
k.0
56.0
58.0
Average water depth, feet
.80
0.97
1.07
Total Transectional area, sq.ft. ~
Transectional area below h.i
1.65 fps velocities, sq.ft.
5k.3
13.6
*
62.1
7.95
.
*Hydraulic parameters were computed using results presented by
Winget in the Vaughn Hansen Assoc~iates' report and basic
hydraulic principles outlined in ~he Ecology of Running Waters,
Hynes, H. Bn.., 1970. *Univ. of Toronto Press, pages 6-8.
The table clearly shows that prefe red flow related habitat
(if Deacon's criteria is valid) is significantly decreased at
higher flows because of excess depth and velocity. The Service
should be reminded that Winget'sh~bItat determination -is highly
dependent on Deacon's reliability ~hich is not nearly as uni-
versally accepted as Manning's equation.
Conclusion
The Service's negation of ~Vinget's use of widely accepted,
state-of-the-art methodologies of px~ojecting impacts and in-
stead relying entirely on poorly an~lyzed and limited historical
hydrologic data with a simplistic `historical flow" premise
if upheld will prove a detriment to future environmental
scientific endeavors. The move wi~ll replace soundjudgernent
PAGENO="0123"
119
based on valid scientifically derived information with a heavily
subjective approach more susceptible'to possible biases of U.S.
F.&W.S. personnel.
Vaughn Hansen Associates urges responsible federal and state
agencies to carefully consider all of the data and inter-dis-
ciplinary analysis contained in the Vaughn Hansen Associates
report rather than just Deacon's portion before arriving at
instream requirements. The Vaughn Hansen Associates'. report
clearly sets forth that discharges of 30 to kO cfs would sup-
port viable healthy fish populations but that the project would
not impact flows below 60 cfs, even during summer low flow
conditions, thus assuring an adequate safety factor for the
continued existence of rare Virgin River fishes.
PAGENO="0124"
120
Washington County
Water Conservancy District
237 North Bluff
- - - St. George, Utah84770
`p
a.
April 24, 1978
Paul Howard, State Director
Utah Office Bureau of Late nagmi-ent
136 East South Tasale
Salt Lake City, Utah 84111
Soar Paul:
We have reviewed with interest and in depth Ib' recent (biological opinion) dated
April 3, 1978 issued by United States DeparLrent of the Interior Fish and Wildlife
Service. We are disappointed and concerned by the opinion because it does not con-
form to conversations we had with ro prcse.statives of Fish and Wildlife Service and
cannot be supported, in fact, b: historical flow data available from USGS reports.
We were advised that the ropcrt would ha a biological opinion and not hydrological
opinion yet the report recocrends flow volorna past the Hurricane Gauging Station..
The use of water from the Virgin Riner is allocated to the State of Utah for use
within the State and tan rights to this waler hoe been permitted to various irri-
potion ccteeaanies and ties f-lashieerton Ccuni later Conservancy District. For any
agency of government to rocuiro a specific fir.: at any point on the river constitutes
a violation of State rights to utilize tIe-a -alec of the river. We do not believe
that Government has a legal or coral richt to i.-rpcee any flow requirement at any
point of the river at any the: that would n effect cause water that is usable in the
boundaries of the State of Uien to ha forced 001 of the State.
For several years there has bean in the planning stage a project which would take
water into Cedar City in Iron County, Utah from the Virgin River Drainage, provided
that alternate storage could ba arranged, to make water available for users currently
receiving water from the Webb storage. Any action to force a given amount of water
to pass the Gauging Station at Hurricane wculd destroy this proposal and would inter-
rere with the rights of tha people of the Statc of Utah to their decreed water right.
The report draws scow rout erroneous conclusions, eeoc of which are so far from recorded
history on the river that they render the binlogical opinion useless. A good exasple
of this is the recconezielation that throueh the tenth of June 110 eta or natural flow
of the river is the flow recceeoaedaticn. lacing the ten years of recorded history of
the gauging station this oaniiticn actually occurs lean than 36% of the tire. The
receecoended flow occurs loan than 751 c lien tire during the month of October, 69% of
the time during the roche of ce-need-c, 531 of tie-n tone daring the month of April in-
dicating that the flee: dclii is either crc-aped or averag-:d rather than constituting a
realistic approach to tIe-n actual flee-; condelice.
The opinion indicates flow in cetera of 3 IC ci s tx::ts cc through June and flows of
70 cfs July through October. f-I-a have tale-an the liberty of extracting information
from USGS reports and invite you to review tI- information and observe the extended
PAGENO="0125"
121
periods of time during which these flows are never reached. We have repeatedly asked
Fish and Wildlife Service to acknowledge a low flow condition on the river and they
have refused to do this. We have enclosed for your review USGS records for the water
years 1968 through 1977 and suggest that you look closely at the extended periods of
time when the 110 cfs or 70 cfs have been obviously missing for nonths.
In as much as 1977 was a year in which a great deal of emphasis was placed on study-
ing the river we invite you to review the flow data enclosed for 1976 and 1977. You
will find that the flow criteria was rerely met during the sunrner munths of these years,
that during the spawning period of 1977 (March, April, May, June) the 110 cfs flow
occured only 12 days of a 122 day period yet at the end of the 1977 season the con-
clusion by all who studied the river during the sumner of 1977 was that there was an
abundant population of adult fish and sufficient young of the year to maintain the
minnow population in excess of 500,000. To presume a 110 cfs required flow during
these rronths has no basis in fact.
It is evident, from the USGS reports enclosed, that the fish maintains its population
and thrives on sumter flows well under the recorrmended 70 cfs. We invite you to look
at the July tenth of 1972 water report where the river did not reach that flow any
time during the entire tenth and was under 60 cfs for 43 consecutive days which should
have been sufficient to conpletly destroy the Wound Fin population had the minnow
required the recorteended type of flow to maintain its habitat. The 1976 and 1977 years
also very clearly show that flows of the magnitude suggested in the biological opinion
are neither necessary or appropriate.
All of the information that we have been able to research tells us that during the
nonths and spawning tenths the water temperature is lower and the population can be
maintained at flows less than those required during the sunnier tenths. With this in
mind it would be appropriate then to recognize that the winter and spawning time
flow could be under 60 cfs and still maintain the population of fish at a high level.
The Warner Valley Project will neither create nor prolong the duration of low flow
on the Virgin River. The proposal does not require the removal of water fran the
river to the Warner Valley Reservoir during low flow periods and will in no way
jeopardize the habitat of the Wound Fin Minnow as it has existed for the past 100
years. The opinion indicates that long term reduction of flow would adversely affect
the reproduction end survival of the Wound Fin, again the project will not cause or
extend the low flows as recorded on the Virgin River. It is interesting to note that
only the minority opinion of the Vaughn Hansen Associates report was recognized. This
opinion represents the thinking of only one person. We believe that others are as
well informed and as well advised on the subject and should be heard and considered.
It is our determination that the biological opinion is in error and should not be
considered by Bureau of Land Management in the preparation of the Environmental Impact
Statement.
Respectfully,
WASHINGTON COUNTY WAINR (DNSERVANCY DISTRICT
BYQ~Z~)~'
Rudger ~ McArthur
Secretary-Treasurer
RNM/jf
end
PAGENO="0126"
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PAGENO="0127"
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H Ham (0 Co N CO CO U) U) C') (`4 CO U) a
HHH COHC'1 CO
00 ~ 0 CO OH C)C) N CO C) ~ a COO
C') C') (`9 (~( (`4 (`4('4H H H H CO C') U) H H
~
PAGENO="0134"
130
totocONNH
to
H
to ntoC4
~totoHo
motototo
cototoOH
H0000
tofr-cntoco~
NtoC'JH
C~ r~) C'~ C~4 C4 C~
c~mcotno
otocoto~
c~ H H H
c~~oto
C~4C'~H
H H H H H
e~NC
tototototo
H
Htoc~t-~
t-toto
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tor-Nr-to
c~r~1
NtoOtoto
~
~::~
4-i H
Noococo
Otototo
~
~ Ct
toNtotoN
tD~fltoto
~:~!
N N N N
tor-toNto
to fltoto
~
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to(~r~toc~
totototfltD
~
N N to to C)
toNtotoN
Lfltoto
::::~
to to
.~
co
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to
H Ct to to N N
N ~` to N H to
H H H H H
-
to NO at to
to at to to to
H
to N N to to
to to to to to
to N NO
to to to to to
to to to to to
N N N N N
to to to to
to to to to to
tototoHatto
NCOtoCONto
g~
t-~toHN
to-4,,1H0
c~ ~-4H
tocfltotoH
tototototo
~-(H
tONNtoN
NNNtotO
totoNtoto
NNNtOto
NtototoH
totototoN
at H ~ at to ~
tototoNatN
g~to ~ to to
to H N to N
toNtoCto
to to to to to
0-4 N N to
tototo-4to
to to to to N
N N at ~
rLtotototo
c~ ~ to N c~
H ~ to at N
~-4to to
N N N H N
to N ~ to ~
totoNtOto
H H H H H
toNtoCt~
4N~11
tor-tog~O
HHto N
to N H to to
H to
co to H to H
atHto to
to N
to .tototo
Nto ~
H to
~ H N to to
N to to to N
H N
to to to to to
toHto at
N N to to to
to .~Nto
NHH ~
N to
N .HtoO
totoN H
N to
to to H ~ 0
to too to to
OtotoHcO
H
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to to
PAGENO="0135"
131
C r~ cc c~ Ccc N cc ~
N
H
N cc H cc cc
N cn cc cc tfl u~ N ~ CD
tfl m
cc cc H N
N N N CO C
H H Lfl N
~
ccHH000 HHcqNN
~ccocccc ~occcc
a~
H
OCOO~flN
COLflccNcc
ccNcc~n ~
cc occcc COWInOCO
H
r-~rr-occcc
NOON~rN
H H ~ H C~)
HQo~O
N *NLflO
cc H ~ cc
c'~°~ ~
tnNccOHH ~mcwcc
Ncc~nccNN ccccccccLn
g~
ccLfl~ccc~i
~DLfltflLflW
NnHmcc ccccccccH
CONNCOLfl U~IK~W
ccccccO~Ptn
cc OccccN
0 CO H
H
OccO~O
OHCOCO~
CO HO H
(~) H N
~Occcccco N~cccoN
Ncc~nIn~ LflLnccutn
cc
H
ccccc~e~c~
tntnLnu~cc
tntnccccN ccccccHm
ccccccu~cc O~HNLfl
H N N H
~
ccONcc
~~ccccH
H
HLflccNO
~
~ N CO
N
(flLflOOOC~4 OIflO~~N
NNt'-ccuD~ ~C')~NH
~ H H H H H H H H H H
H
OCON~N
HCONHO
H H H H
cc~cc~cc. ~COHHO
0\OCDHCD cccccccccc
H H
cc~ccc'~tncc
NNNCNN
COLt)(')O
CHNN~
~) H H N
~
NccccC~3cca~ o~-1tncc
NUflLfl~ ~
:
H
NIflIflNN
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N~ccLnHm
~
cc~ccHo
r~ .LO~Lfl
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~
H N
.
HOCOCOLflLn ccO(~w
N CO N N N N N CO N N N
~
~tncccccc
N N N N N
~
LnNCOO(D~ occcccc~
cc N H cccc NO C cc cc
H H H
CflNNLflCOH
N N cc cc cc 0
H
OCONO
0 N N cc
cc t~ H H
N Lfl
O0HH~N ~N~COcc
NNNNccC occo o
H H H N
~C~ONN
CO~NNCO
H
NONON CO~~c~)cc
ccr-Hcccc ccNOmH
H N N H H H
NN~NNN
NccCOLflccu~)
*
~CONO
rwcctn-i
N H N ~
ccccH~r~cc cctflH~w
~H~HHH HHHCC
cccccccccc
cccccccccc
N~CO~N NNmON
cccc c'4H~DN
~COHccCO~
HHHHHH
cccccnNo
c~H~
ccIccN(~Dc4c!, ccccr~itncn
~j~cccccccc cc~~cc
HJ
C'4mccON
cccc~cccc
Qcccc')c~D cctflHNN
ODNNNN Ncc~O~
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~
HONCflO
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~0NcccccDH
PAGENO="0136"
132
-4inoC)c~ O~0Lfl a~0HODC) C)tfl(~4CN0 r~inm ~-~DHc,cw inoOcoO
in N in in in N in in in in in in
C~l in
in in in in ~ in in cfl c~o 0) ~ c~i in r~ 0 in in in in in 0) N N N C) C) in in 0
NC)~c'1oco 0Hini~0 NNNinin ~)inin ~NC)in~ ~fl~in (`I C)NC4
-~HH H-~HH C ~
in ~
LflC)N~0iC ~0iDinin inHi-400 a~c~C)c~ C)0~C)0 e4rnm~C)in n~C)0
H HH
in ~
~ H in N in in in N in H in 00 in 0 in in in in C) 0 C) in 0)0 in in in in C) C) 0 0)0) in in 0
Nr4C)C)C)rn in0C)Nin intDC)inin ininininin ~inin intOiOinifl0) N *in~H
;~:: ::~ R~ ~
o ~ inHiDininH Dinin~iO C)WNC~4i0 in~C\inC) HC~HinH ininNC~inC) 0ininHQ
~ ~ ~HC'4tD tDin~inin in~inin~ NC)ioiOiDin w0C)~N
in in H H H in ~ H H H ~ in
in to
HC)C)ininC) c~~0C)~ C)C'3t0C~4C) OinOC)in 000~0 C)Nin~inC'4 Ni0000
N~0c~ C)C)inHH HC)NC'JH NN~0W HOHC)CC C)C)C)C)C)C) ~NHN0
H H H in in in in ~ H H in H in H N in H ~ H N C)
in
0 tO N N C) H HO C) C) in H C) to H in C) in C) C) in in in in H H in in 00 C) tO ~ in tOO
Ntntntoa)C) in~C)C)C) C)NC)C)in C)inC)inN ininHNto Ct0inNinin NinC)LflN
N ~ in H H H in ~ H H in H H H N H in ~
C)
~
C)00~HO ~0C)0N intONinH t~ininC)0 tOC'COinN OC'linC)intO inN0tO0
OC'4HH tO~H ~ ~ NC)C\C)C) ~ NHtO ~
tONC)CtO HNrn~tfl ~o~0 Hinin~in ini-~g~!~
PAGENO="0137"
NWH m
~tn
H (fl
00 cc cc 0 ccc cc cc a) m N H cc (fl H o in o
coccNintn in~~ LnccccccH (`I *ccmH
HH H cc~H cc
H m
cc o cc m ~ cc ~` cc H cc 00 ~ mm iN ~ cc m 0
mocccccc inincccoin inin~~ IN
HH mNm cc
IN
N r-occ 0 in 00 (N in cc in in m ~ cc HO c'i 0
cc cc H H m m m in m HO 0 IN H IN m H W cc
HHHCNm HHHHH.HHHHH ccHm N
m N
mm m in cc cc in cc coca m IN (N cc cc 00a) (NO
N N N N N N N N N N N N N N N cc N N (N
IN
IN m ~ H H H H H cc IN m 0
N ~ in
H
H H IN m in in m IN IN (N IN m H N H H N H NO
NNNNN NNNNN NNNWW cc .ccinin
0cc H
~cc
(N
H H cc cc cc c'i m ~ cc H iN ~ cc in m H m in 0
ccccmr-cc ~WNNa) NNccNN N *ccino
H ccccin cc
IN in
(N ~ OH cc H m H H IN occ m cc cc in NC) ~ 0
mccmIN~ ~m H HHNHO oNmccin
H H m H H CN (N H ~-4 -I H H H H H cc H m in
r)
(N ~
133
ccm~~m Nocccccc ccccNoo co~o~flc OccccccO
~incccc~ a)inN~~ N~3~inin Lfl~inin in~in
H
N cc H IN H cc
N ~ in in in ~
H
cc cc cc in in cc
N mm mm m
H
in cam mm N
N cc N cc cc in
H
~ CNN m N N
NccWNNcc
I ~
H
N ~N N N N
0 in in ~ H m
N in cc cc cc cc
in
cc ~ ~ cam
cc ~ ~ cc ~
(ON N N cc N
cc
.-*1
H mm N cc
~ in in ~
0 mom cc
in in IN cc m
H H m
cc ~ cc cc cc
N~Qcc~J
cc cam m cc
N N N N N
(N cc 00 N
cc cc N N N
00000
N N N N N
H cc ~ H N
HO cc N cc
H
0cc ~ H H
N cc cc wcc
m N ~
H
m N ~ cc H
~ in cc cc cc
in cc ~ cc ~
00 H H H
H H H H H
N N N N N
H
cc N NO ~
in in in cc cc
H cc N cc in
000 m H
00000
H H H H
in 0~ m in
cc N cc N cc
cccco
IN(Nc~1INm
PAGENO="0138"
134
VIFt;I~N RIVER RISIN
9-4081.5 VIRGIN RIVER near HURRICANE, tJ~AH
LOCATION.-Lat 3709'45', long 113~23'40, in NE¼SW¼ sec. 2, T.42S., R.14W., on left bank
at dcsinstresin side of bridge on S~ate Highway 17, 1.8 miles from Quail Creek and
6.2 miles west of Hurricane.
DRAINADE AREA.-1, 530 sq. mi., approximn~te1y.
RECORDS AVAILABLE.-ME'rch 1967 to September 1968.
GADE.--Water-stage recorder. Altitude o~ gage is 2,760 feet (from topographic map).
EYTREMES.-Maximum discharge during year, 5,410 cfs Aug. 7 (gage height, 9.11 ft), from
rating curve extended above 769 c~s on basis of slope-area determination at gage
height 17.34 ft; minirarn 53 cfs s4t. 26.
1967-68: Maximnirn discharge, that of Aug. 7, 1968; miniiern, that of Sept. 26,
1968; mnaximnrri stage known since at least 1909, 17.34 ft. Dec. 6, 1966 (revised),
from flrxxtnarks (discharge, 20,100 cfs).
R0GIZKS.-Remoords good. MAny diversions 4rbove station for irrigation. Record of water
tenperatures and suspended sedireai loads for the water year 1968 are published
in Part of this report.
DISCHARGE, IN (FR, WATER YEAR (~CI08ER 1967 30 SEPTE2IBER 1968
DAY OCT Nov DEC JAN FEB ~d6R APR NAY JUN JUL AUG SEP
1 131 94 205 164 199 240 370 457 161 78 450 74
2 131 96 179 166 179 43 500 480 158 87 430 74
3 127 96 161 166 188 43 476 467 150 83 230 74
4 127 96 161 164 191 40 307 510 145 82 141 69
5 127 96 148 159 188 40 307 560 138 83 100 74
6 120 101 136 154 191 53 341 544 135 88 94 70
7 111 105 141 146 191 434 307 417 135 178 650 66
8 105 105 136 146 191 390 299 395 150 103 438 64
9 103 105 131 148 194 ~ll 307 382 190 105 460 61
10 101 105 U6 152 202 ~l3 341 372 170 85 127 61
11 101 105 144 158 288 ~99 430 366 145 82 185 72
12 101 105 141 164 260 ~88 554 387 130 83 156 83
13 98 107 127 164 284 296 658 471 120 78 327 90
14 92 111 138 166 529 3~L4 601 374 lU 80 433 87
15 92 118 148 169 361 2 4 616 334 109 82 151 87
16 92 136 177 172 277 2 8 658 307 103 80 116 87
17 96 141 177 172 246 2 4 595 277 98 78 92 80
18 94 141 164 169 240 2~0 480 296 100 78 82 74
19 92 150 188 164 288 2~43 444 303 90 73 88 70
20 92 160 199 166 260 211 404 318 87 73 80 68
21 92 188 177 169 260 194 378 330 83 78 76 70
22 92 281 151 172 260 185 357 330 90 85 92 69
23 92 174 159 177 260 182 318 284 88 111 90 74
24 88 169 169 185 260 18 263 260 85 152 85 73
25 85 166 174 185 260 19 240 246 83 297 87 68
26 83 164 185 185 267 20 274 230 85 224 90 65
27 85 155 194 211 263 20 318 221 82 124 92 70
28 94 198 199 263 260 214 256 199 80 98 92 68
29 83 224 194 208 243 240 337 199 80 113 88 73
30 92 179 185 191 -- 28á 408 177 72 140 85 85
31 94 -- 172 202 -- 32~ -- 166 -- 240 76
TcYTAL 3,113 4,172 5,076 5,377 7,280 8,47~ 12,184 10,659 3,453 3,421 5,783 2 200
MEAN 100 139 164 173 251 273k 406 344 115 110 187 73
r~x 131 281 205 263 529 611 658 560 190 297 650 90
NIH 83 94 116 146 179 182 240 166 72 73 76 61
AC-FT 6,170 8,280 10,070 10,670 14,440 16,810 24,170 21,140 6,850 6,790 U, 470 4,360
CAL YR 1967 ¶[OTAL - MEAN - MAX - tin - ACFT -
NTR YR 1968 TOTAL 71,193 MEAN 195 MAX 658 NIH 61 AC-FT 141,200
PAGENO="0139"
H
O co
`ii
-40
OH
Ni H
00
00
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HO 00J0
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HNi000
190000
H
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H
00-3-JO
019000
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Ni ~ 00
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Ni Ni Ni Ni Ni
0 ~ 0 -4-i
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Ni 000 H
00000
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0
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19 Ni 0 ~ 00000-30
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PAGENO="0140"
HHHH H-~HH H
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0 NJ 00 00 I I I NJ U, CD 0 U, 4~ 0 -0 Ii) NJ NJ CD H H CD -J 4 CO CD CO -4 -J NJ 0003 ~ 03 NJ
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II U, NJ
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CD 0-
0- U,H-J HH HOJH H0-UiHNJ H HI.) 0-
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PAGENO="0141"
LI Ni NJ H
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PAGENO="0144"
140
VIIEjI~N RIVER BASIN
09408150 Virgin 4ver near Hurricane, Utah
location--Lat 37 09'45", long 113 2342", NE¼NE¼SW¼ sec. 2, T.42 S. ,R.14., Washington
County, on left bank at downstream sid~ of bridge on State Highway 17,1.8 miles
(2.9 kin) downstream from Quail Creek 4d 6.2 miles (10.0 kin) west of Hurricane.
DRAINAGE ASEA- 1,530 sq ml (3,960 kin2), a~proximately.
PERIOD OF REODPD- March 1967 to current year.
AVERAGE DISCHANOE-7 years, 220 ft3/s (6.2~0 m3s), 159,400 acre-ft/yr (197 hrn3yr).
GAGE- Water stage recorder. Altitude of ç~age is 2,760 ft (841 m) fran topographic map.
EXTREMES-current year: Maximum discharge, ~, 090 ft3/s (30.9 m3/s) Apr. 2 (gage height,
3.67 ft or 1.119 in); rninirezn 38 ft3/s 1.096 m3/s, July 26.
Period of record: Maximum discharge, l~,800 ft3/s (362 m3/s) Jan 25, 1969; miniirn.im
29 ft3/s (0.82 m3/s) July 8, 1972; maximum stage known since at least 1909, 17.34 ft
(5.285 in) Coo. 6, 1966, fran flondnmrks~ discharge 20,100 ft3/s (569 m3/s).
RE3~tkP3CS- Records fair. Many diversions ab~ve station for irrigation. Record. of water
terrperatures and suspended-sediment loac)s for the water year 1974 will be published
in Part 2 of this report.
DISGIAPSE, IN CUBIC FEET PER SEGA , METER YEAR OCIOBER 1973 to SEP'IEXBER 1974
DAY OCT NOV DEC JAN FEB ~4AR APR RAY JUN JUL AUG SEP
1 73 103 204 140 172 162 116 U2 63 60 121 62
2 67 105 210 150 170 ~23 189 U9 63 58 83 67
3 67 105 177 150 167 322 142 128 69 50 87 73
4 73 107 164 160 167 198 149 132 63 48 183 77
5 79 107 157 165 167 198 152 128 62 50 135 87
6 77 109 164 170 162 ~39 128 128 57 52 232 279
7 77 114 154 180 164 ~32 116 116 60 53 107 144
8 79 114 157 210 162 2~1.0 U2 121 60 60 85 109
9 85 116 157 200 164 l~3 103 121 58 58 71 96
10 89 119 154 180 167 1e7 107 121 58 57 53 116
11 87 116 152 165 172 l~7 107 109 60 58 50 137
12 87 114 152 165 172 164 105 103 57 55 60 167
13 85 121 152 180 175 l~7 105 98 58 52 83 180
14 87 121 152 170 170 l~7 89 94 58 53 60 216
15 94 121 147 175 167 l~5 83 85 57 62 65 310
16 94 123 144 178 170 l~0 81 77 55 65 63 135
17 94 121 147 189 170 162 87 69 57 65 65 130
18 96 172 147 220 170 l5~ 100 71 58 62 65 130
19 96 265 152 210 167 l4~ 112 71 57 58 58 152
20 100 180 137 223 170 l4~ 109 77 58 167 50 135
21 105 170 135 334 162 l4~ 87 87 58 96 48 fl9
22 109 198 144 242 164 13~ 96 85 53 239 45 105
23 105 210 152 175 167 13~ 103 79 53 216 46 105
24 105 192 157 183 167 l4~ 116 79 58 121 50 123
25 109 186 164 178 162 l4~ 114 77 62 53 53 114
26 103 192 162 180 162 l4~ U4 73 58 42 55 105
27 103 198 152 175 162 142 112 69 57 44 65 109
28 103 189 154 175 164 116 105 67 55 46 62 114
29 103 198 157 175 - 112 103 69 60 60 58 119
30 103 201 152 175 -- 109 107 63 57 62 58 114
31 103 --- 147 175 --- 121 --- 65 --- 119 60
¶[OTAL 2,837 4,487 4,856 5,747 4,675 5,218 3,349 2,893 1,759 2,341 2,376 3,929
~iEi~N 91.5 150 157 185 167 168 112 93.3 58.6 75.5 76.6 131
MAX 109 265 210 334 175 322 189 132 69 239 232 310
~ina 67 103 135 140 162 109 81 63 53 42 45 62
AC-FT 5,630 8,900 9,630 11,400 9,270 10,350 6,640 5,740 3,490 4,640 4,710 7,790
CAL YR 1973 TOTAL 129,918 MEAN 356 MAX 2,120 MIII 64 AC-FT 257,700
ITR YR 1974 TOTAL 44,467 MEAN 122 MAX 334 MIN 42 AC-FT 88,200
PEAK DISCHARGE (Base, 1,500 CFS). No peak above base.
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PAGENO="0146"
142
VIRGIN R~VER B\SIN
09408150 VIRGIN RIVER NEAR HURRICANE, UTAH
LOCATION.-- Lat 37'09'45", long l13'23'42", ~n NE1/4NE1/4SW1/4 sec. 2, T.42 S.,
R.14 N., Washington County, Hydrologic Unit 15010008, on left bank at
downstream side of bredge on State High~ay 17, 1.8 ci (2.9 km) downstream
from Quail Creek and 6.2 cii (10.0 km) we t of Hurricane.
DRAINAGE AREA.--l,530 cit2 (3,960 ks2), approxrnately.
PERIOD OF RECORD.--March 1967 to current year
GAGE.-- Water-stage recorder. Altitude of ga e is 2,760 ft (841 m) from
topographic map.
REIIARKS.--Records fair. Many diversions for rrigation above station.
AVERAGE DISCHARGE.--9 years, 200 ft 3/s (5.66 ci3/s), 144,900 acre-ft/yr (179
hm 3/yr)
EXTREMES FOR PERIOD OF RECORD.--Naximum discharge, l2~80O ft 3/s (362 m3/s)
Jan. 25, 1969, gage height. 14.29 ft (4.~56 ci); minimum, 23 ft3/s (0.65
m3/s) Aug. 22, 1976.
EXTREMES OUTSIDE PERIOD OF RECORD.--flaxicium stage known since at least 1909
17.34 ft (5.285 n) Dec. .6, 1966, from floodmarks, discharge 20,100 ft3/s
(569 ci3/s).
EXTREMES FOR CURRENT YEAR.- Peak discharges above base of 1,500 ft3/s (42.5a3/s);
maximum discharge, 2064 ft3/s (58.5 ci3/s)~July 29, gage height, 4.96 ft
(1.512 ci); minimum 23 ft 3/s (0.65 n3/s) Aug 22, gage height, 1.36 ft (0,415 ci),
DISCHARGE * IN CUBIC FEET PER SECOND, WATEI~ YEAR OCTOBER 1975 TO SEPTEMBER 1976
MEAN VALUES
DAY OCT NOV DEC JAN FEB MAR APR MAY JUN JUL AUG SEP
1 64 73 101 91 93 168 108 235 69 61 182 36
2 70 74 121 88 94 114 104 250 68 61 146 36
3 69 74 158 82 96 111 lOB 258 67 60 124 35
4 74 76 124 88 97 100 105 259 67 60 109 35
5 67 77 115 97 112 100 105 255 71 60 89 36
6 69 77 116 120 103 104 105 250 66 61 105 41
7 69 77 126 130 109 105 108 230 64 61 115 . 53
8 68 79 128 120 130 110 110 215 63 62 129 53
9 66 80 135 125 230 113 112 230 65 62 135 47
10 64 82 116 130 440 110 120 250 62 Q2 106 48
Ii 63 90 92 135 260 109 140 258 64 60 73 180
12 62 93 89 81 100 108 140 259 70 58 70 160
33 68 96 92 83 98 106 135 263 65 60 70 79
14 67 95 113 82 105 108 145 275 61 75 58 56
15 68 93 91 81 110 110 149 250 60 67 32 50
16 70 89 94 82 103 104 143 225 63 66 32 50
17 72 87 100 82 100 119 140 200 60 67 34 49
18 74 87 101 82 99 117 130 185 58 68 34 49
19 76 85 103 81 99 112 190 150 59 69 33 . 46
20 76 83 100 80 100 110 210 138 58 65 35 48
21 77 79 106 79 100 109 230 128 58 68 42 54
22 80 76 111 81 100 108 245 113 60 62 70 83
23 88 79 104 86 101 109 250 104 60 54 93 67
24 82 81 101 88 102 109 263 97 60 1(15 52 61
25 78 82 101 86 102 108 275 90 61. 83 43 119
26 76 83 103 82 104 108 285 85 61 77 35 49
27 75 83 102 86 108 107 225 84 60 104 36 136
28 73 85 103 91 114 lOS 190 75 60 107 36 70
29 71 87 98 93 (19 107 205 72 60 420 37 48
30 72 89 98 93 --- 107 225 73 60 145 37 49
31 73 --- 103 93 --- 1.08 ~--- 73 --- 328 37
TOTAL 2221 2491 3345 2898 3625 3429 SbOO 5629 1880 2821 2229 1923
MEAN 71.6 83.0 108 93.5 125 111 67 182 62.7 91.0 71.9 64.1
MAX 88 96 ISS 135 440 168 85 275 71 420 182 180
MIN 62 73 89 79 93 100 04 72 58 54 32 35
AC-FT 4410 4940 6630 5750 7200 6800 9 20 11170 3730 56(10 4420 3810
CAL YR 1975 TOTAL 60608 MEAN 139 MAX 1060 211N 43 AC-Fl' 100400
wTR YR 1976 TOTAL 37494 MEAN 402 MAX 440 MEN 32 AC-FT 74370
NOTE.-- No gage-height record, Jan 29 to Nay 25.
PAGENO="0147"
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PAGENO="0148"
44
CONVENTS ON U.S. FISH AND WILDLIF OPINION ON WARNER VALLEY.
PROJECT.
We are in receipt of a copy of the Formal Consultation on the
Allen-Warner Valley Energy Project~s. Having been involved in
studies pertaining to this project~ we feel obligated to make
the following comments:
The woundfin was placed on the end ngered list, not because of
an imminent threat of extinction, t~ut rather to protect it from
projects such as the one proposed ~t Warner Valley. The origi-
nator of this request for endanger~d status, Dr. 3ames E. Deacon,
has subsequently repeatedly suggested to the USF&WS organi-
zation that this represents an over-classification and that the
woundfin status should be downgrade~i from endangered to thre'atened.
On February 9, 1977 a report was su mitted from the Albuquerque
office of USF&WS indicating that th proposed project would
jeopardize the endangered species a d its essential habitat. The
basis for this opinion was a report proc~uced by Drs. Deacon and
Paul B. Holden and represented view which were almost totally
unsupported by reliable data as reqjired by federal regulation.
Inquiries were made by project leaders on the finalness of the
February 9, 1977 opinion with a resu ting response confirrninq
the official status of the opinion a d an expression of unwillingness
PAGENO="0149"
145
to support an additional fact-gathering effort. This attitude
left the concerned project leaders and local citizens no re-
course but to initiate a study to gather the required facts at
their own expense.
On MEtrch 1, 1977 members of the Vaughn Hansen Associates staff
were contacted to determine if they could assemble a technically
competent study team capable of conducting an unbiased and o1-
jective study. This study team was assembled ccr~isting of
the recognized experts in numerous disciplines from the inter-
mountain area. The understanding of all concerned was that the
team wculd conduct an objective study and report facts fully as
they were gathered with close liaison with concerned state and
federal agencies.
Dr. Deacon was included as a member of this study team because of
his experience on the Virgin River, and because he had access to the
federal permit required to conduct a monitoring program. (A ver-
bal request, to Dr. 3ames 3ohnson of the Albuquerque office of
USF&WS suggesting the need for a permit by other members of
the stUdy team was denied). The study was initiated in March
and completed with the submission in December of a thorough,
well-documented and substantiated data report end analysis.
During the study, an attempt was made to coordinate the effort
to satisfy the data needs of all requisite state and federal
agencies. Numerous meetings were held with USF&WS personnel in
PAGENO="0150"
146
Salt Lake City, Albuquerque and a~ various locations with the
Woundfin Recovery team. Even though input was freely solicited,
no recommerdations of any substance were received. USF&V5 did,
however, acknowledge that the Febr~Jary 9, 1977 opinion war
illegally constituted and agreed t~ await receipt of our study
report prior to rendering a new op nion. The opinion responsi-
bility was also shifted from Albuquerque to the Salt Lake office.
The USF&WS opinion, as submitted o April 3, 1978, almost totally
ignores the substantiated data ass mbled by professionally recog-
nized experts and again relies upor~ documented suggestions of
Dr. Deacon and his asacciates. Errors in the original opinion
could somewhat be justified by lack of data. However, since
adequate data are now available for the opinion, the errors and
omirsions contained therein must be viewed as intentional and
as an attempt by Dr. Deacons, Dr. 3 hnson, and other members of
the USF&WS staff to stop the propos~d project. This is not sur-
prising in view of the pre-conceive~ anti-project philosophy held
and stated by many of these individt~als.
The April 3, 1978 opinion was very imply an unwarranted testi-
monial ascribing widespread expertise to Dr. Deacon. It contains
both open and subtle attempts to bul d Dr. Deacon by discrediting
those professional experts retained y the project to conduct
an unbiased study. The April 3rd op~nion contains statements
made by Dr. Deacon earlier and subsequently shown clearly in the
study to be in error. Facts documented in the report are almost
PAGENO="0151"
147
totally ignored.
The final draft of the Woundfin Recovery Plan as assembled by
Recovery team, with Dr. ZJohnson as a director and Dr. Deacon as
an advisor and consultant, while quotingDr. Deacon from the
Vaughn Hansen Associates report similarly ignores many facts con-
tained therein. Their leadership must be viewed as representing
an attempt to gain and maintain control over the Virgin River
water resource and to perpetuate the study at increased costs
to the taxpayers. This opinion is further substantiated by
noting that the ignored data in the April 3rd opinion has been
included, almost categorically, as tasks to be accomplished by
the recovery team at a cost many times higher. Dr. Deacon's
Involvement in this recovery effort must be viewed as a flagrant
conflict of interest, since failure to remove the woundfin from
an endangered status represents a potential for him to obtain
a financial gain.
Additionally the Albuquerque office culminated a long list of
inappropriate activities by attempting to influ~nce the Salt
Lake office opinion and by insulting the project leaders in the
St. George area in a letter from W. .0. Nelson on December 12,
1977. So flagrant was the December 12th letter from the Albu-
querque office of USF&WS that legal action has been sought.
This letter indicated that the study, funded by the project,
had identified no data which contradicted the findings in the
report attached to the February 9, 1977 opinion. This was done
PAGENO="0152"
in spite of Dr. Deacon's acknowledgement of errors in his original
report in areas including sedimen~ control, habitat requirements,
hydrology and exotic species intr~duction. The USF&WS opinion of
April 3rd also fails to recognize these errors. -
Those of us who have been closely associated with this project,
and are aware of the data available, recognize the incompleteness
and the inaccuracies of the April 3, 1977 opinion and are appalled
that the USF&WS would permit a suppression of data. We would
recommend that future studies invo~lving threatened or endangered
species be structured so as to inc~Lude experts as required by
law to produce an objective report and that an effort be made
to work cooperatively with local o ficials and other agencies in
an attempt to avoid the kind of anLgonistic situation that has
developed in connection with the w~undfin minnow. This approach
would seem to be more appropriate 1~or a public service organiza-
tion such as the USF&WS.
aughan Hansen Associates
Consultants/Engineers
~1aterbury Plaza-Suite A
~62O South 1475 East
~alt Lake City, Utah 84121
PAGENO="0153"
149
Statement of Ival V. Goslin, Executive Director
Upper Colorado River Commission
before the
Subcommittee on Resource Protection
- ofthe
Committee on Environment and Public Works
United States Senate
* April 14, 1978
My name is Ival Goslin, I am the Executive Director of
the Upper Colorado River Commission, Salt Lake City, Utah.
The Upper Colorado River Commission is an interstate
administrative agency created by the Upper Colorado River
Basin Compact of 1948. The Commission represents its member
States, Colorado, New Mexico, Utah, and Wyoming, in matters
pertaining to the conservation,, utilization, and development
of the water resources of the Upper Colorado River Basin.
Mr. Chairman, our Commission appreciates the oppor-
tunity to present this statement in support of amendments to
the Endangered Species Act of 1973. Experience with the Act
since 1973 certainly justifies the Congress having another
look at it, and, especially at the mariner in which it has
been used. American society--human society--cannot survive
under a system that effectively precludes the providing of
food, clothing, and shelter for its own welfare and exist-
ence by preventing the modification of the habitats of lower
forms of plant and animal life that have relatively little
value to human social, economic, or environmental enhance-
ment. It appears ridiculous to the point of perversity, and
completely unreasonable to believe that the human race- -
especially Americans--would permit a' system to exist under
which a snail darter in Tennessee becomes more important
than the enhancement of man's welfare; or the lousewort in
Maine can prevent the production of millions of kilowatts
of energy in a nation whose very existence in international
relationships depends upon an'. expanding energy source; or a
completely.useles's-to-man woundf in can prevent the develop-
ment of.a.water supply and electric energy for a city and
surrounding areas.in.Utah, Arizona, and Nevada.
Furthermore, it.appears that this latter useless
rascal, the woundfin, - has placed the Congress in an almost
grotesquely, ludicrous dilemma. In 1973 the Congress passed
P.L. 93-205, The Endangered Species Act, under which, if a
critical habitat is designated for the woundfin, is
claimed that-the continued existence of such endangered
PAGENO="0154"
~5o
species may be jeopardized or may "result in the destruction
or modification of habitat of such species which is deter-
mined by the Secretary, after consultation as appropriate
with the affected States, to, be critical."
In 1974, the Congress pàs~ed P.L. 93-320, the Colorado
River Basin Salinity ControL Apt, which authorized the con-
struction and operation of- the\ LaVerkin Springs Salinity
Control Unit on the Virgin River in southern Utah, wherein
is found the woundf in, as part\of an over-all salinity
control program in the water-d~ficient Colorado River Basin
and for the social, economic, ~nd environmental benefit of
millions of United States citizens. We now note that the
entire reach of the Virgin Riv~r from LaVerkin Springs to
Lake Mead has been proposed fo~ designation as critical
habitat for the woundfin, in s~ite of the fact that parts of
this reach are dry for six to ~ight months.of the year.
Also, the case of the woundf in raises serious doubts about
the real motives of those who are acting under the guise of
*protecting it as an endangered \s~ecies. This hardy little
bundle of piscatorial energy ha~ survived for thousands of
years through many modification~ of its habitat by violent
natural forces, and through ove~ 100 years of habitat modi-
fication by man's utilization~o~E the Virgin River water
supply for irrigation and domestic purposes.
Under section 7 of the End~ngered Species Act, as
interpreted by the courts in otI~er cases, any modification
of the habitat of the woundfiñ ~~~ould deny the construction
of a human environmental enhanc~ment facility in the form of
LaVerkin Springs Salinity Contrdl Unit, or the storage and
utilization of water in order td providedomestic water for
the citizens of St.. George, Uta1~ and electric energy for
those same citizens plus thousar~ds of others in surrounding
areas in three or four States. How much reasonableness is
there in. this situation?. How much "balance" between citizen
welfare, guaranteed under the Un\ited States constitution,
and extreme environmentalism is ~emonstrated? In fact, one
can -legitimately enquire, "how m~.ich sense is there to per-
mitting two Congressionally enached laws toexist in direct
conflict with each .otherand sub~ect.to interpretation by
bureaucratic administrators who are not elected by the
affected peoples?"
It is about time that the Cc~ngress critically examine
the relative values to the human~citizens of this country
of water and energy supplies ver~us the critical habitat of
the woundf in, as an example.
PAGENO="0155"
151
Dr. John J. McKetta, Professor at the University of
Texas, has stated:
"Many people feel that mankind is responsible.
for the disappearance of animal species. It is
possible that.in some instances man may hasten the
disappearance of certain species. However, the
evidence indicates that he has very little to do
with.it. About 50 species are expected to dis-
appear during this century. It is also true that
50 species became extinct last century and 50 species
the century before--and so on. Dr. T. H. Jukes of~
the University-of California points out that about
100 million species of animal life have-become -extinct
since life began on this planet about three billion
years ago. Animals come and animals disappear. This
is the essence of evolution, as Charles Darwin pointed
out many years ago. Mankind-is a relatively recent
visitor here, . . . he has had nothing to do with the
disappearance of millions of species that preceded
-him.
"In fact, one of man's failures is that he has
not been successful in eliminating a single insect
-species--in spite of his all-out war on certain un-
desirable ones in recent years."
It is evident-that the exchange of some species of
plants and animals for other species is part of the natural
evolutionary processes that are inherent in the operation of
the universe and -the -progress of - human society. After all,
man is part. of~ nature., too, and. the fact that he - has been
the only animal-to successfully develop the ability and
expertise--to co~atrol-his -own habitat should not be removed
from his sphere of influence or activities. After all, man
hasn't done-too bad a job of surviving during his relatively
short history .on~earth when- compared with the dinosaurs or
trilobites. Had. those -endangered species along with
100,000,000-others been- able to survive what chance would
man have had? -The so-called endangered species on earth
today will be -removed from earth regardless of man's a
activities. The question- is- not"if?" but "when?"
We are notto-be-classified as advocates-of the pro-
miscuous destruction -of truly endangered species-of life
forms because--to retain them -for so long-as-possible under a
"balanced" concept of development and preservation is worthy
for educational,-social, and-aesthetic reasons; but for-man
to be denied -the things necessary- for his welfare under a
man-created legal concept that will not permit the modifica-
tion of the-habitats of lower forms of life or the replace-
ment of those -habitats with others of equal value is an act
PAGENO="0156"
~52
of self-flagellation and absurdity almost beyond compre-
hension. The following episode illustrates this point:
Recently in a so-called consultation meeting between
representatives of fish and wi~dlife organizations and
proponents of a project that wbuld provide power and water
for several hundred thousand, p~ople and the benefits of
cleaner water for millions of others, the question was
asked, "If the project modified one mileof the stream in
which the little silvery fish lives for which you are pro-
posing that a "critical habita4" be established and the
project creates 20 miles -of better habitat in another reach
of the stream would that satisfy protection and enhancement
of the environment of that fis1~?" The answer by-the chief
representative of the fish and wildlife service-was an
unequivocal, "No, under - the En~angered Species - Act you
cannot even slightly modify the habitatof thatone mile of
stream if the modification in ~ny way changed conditions for
that fish. The fact that you thuld provide- .20 miles of
satisfactory habitat that does ~iot now exist at another
location has nothing to do with~protecting the endangered
species." (the quoted words are not exact, but their mean-
ing is) Unfortunately for man ioth administrators and the
courts have interpreted section~ 7 of the Endangered Species
Act in this manner, and they are probably correct.
Although the law certainly can be construed to have* the
meaning described above, it is i~ery difficult to believe
that the Congress intended that~the law should be used to
prevent the maintaining and enhancement of the welfare of
the citizens of the United Stat~s. The existing regulations
concerned with consultation amor~g interested entities on
determination of criticalhabit~t for endangered species do
not establish specificbiologicalcriteria tobe used to
determine criticaihabitat--Or, if an action will cause
substantive harm to the species ~~iithin the designated area.
It is evident that the way has been-paved for arbitrary
decisions which.prohibit any and~ all activities within an
area designatedas critical habi~at. The question is
raised: How do you prove an area\ is critical to the survival
of a species? Furthermore, thér~ are no provisions in the
Act for the withdrawal of an are~ once it has been desig-
nated as "critical habitat." The designation-of critical
habitat, in the first instance, ~hou1d encompass other
factors as well as those that cax~ be classified as bio-
logical~ Surely there are hiiman~social and economic factors
that cannot be ignored. Theseshould alsobe evaluated
before an area isdesignated as `critical habitat."
PAGENO="0157"
153
Clearly, Congress now has a duty to perform for its
constituency in seriously considering the effects of imple-
menting section 7 of the Act in its present condition on
Americans, particularly in local and regional situations.
It is hoped that the amendments to the Endangered Species
Act that this Congress finally approves will permit- a much
better balance between the conservation and development of
water resources for the enhancement of man's environment
and welfare and the preservation in their pristine states
of the habitatsof lower forms of animal life than has been
demonstrated in.recent years.
Attached, .as Exhibit I, is a resolution of the Upper
Colorado River - Commission, an official entity-of the States
of Colorado, New-Mexico, Utah, and Wyoming, re: Proposed
LaVerkin Springs Salinity Control Unit and Amendment of
the Endangered.Species Act, - Although this resolution is
directed primarily.at the Virgin River conflict, it also
illustrates-the major problems associated with implementa-
tionof.section 7 of the Act in a "balanced" and reasonable
manner.
Mr~ Chairman, for the consideration of your committee
members and staff, attached, as Exhibit II, is a memorandum
analysis of the Endangered Species Act of 1973, prepared by
Mr. Paul L. Billhymer, General Counsel, Upper Colorado River
Commission~ -
If our staff can be of aid to the staff of your com-
mittee in the drafting of amendments or in other ways
related to problems associated with the Act, please feel
free to call upon us.
Thank you for the opportunity to present these views on
behalf of.theUpper Colorado River Commission and its four
member States.
PAGENO="0158"
RESOLUTION
OF~
UPPER COLORADO Ri~VER COMMISSION
re:~
Proposed LaVerkin Spring~ Salinity Control Unit
anc~
Amendment of Endangered Species Act
WHEREAS, the U.S. Fish and Wildlife Service has published
in the Federal Register on Novenb~r 2, 1977 (42 F.R. 57329) a
proposal to establish a critical habitat under the Endangered
Species Act of 1973 (87 Stat. 884~ for the woundf in (PiagapterU8
ar9eflti88itflU8~ a minnow-type fish~ in the Virgin River from the
backwaters of Lake Mead upstream to Hurricane, Utah; and
WHEREAS, in a news release c~n November 3, 1977 the Fish
and Wildlife Service stated, `Oñc~ critical habitat is determined
no Federal agency could authorize funds or carry out any action
that would jeopardize the continued existence of the species or
alter its critical habitat," and 1~y such opinion the Fish and
Wildlife Service appears to have decided, prior to habitat
classification, that any utilizati~n of the waters of the Virgin
River is detrimental to the wou~df~in~; and
WHEREAS, adoption of the pro~osed regulations would have
an adverse impact on the basinwide~ salinity control program for
the Colorado River system as formu~Lated, adopted, and approved
by the seven Colorado River basin states and the Environmental
Protection Agency by precluding th~ construction of two pro-
posed salinity control projects, the LaVerkin Springs and Lower
Virgin River Salinity Control Unità which, when completed,
would remove approximately 185,000 tons of salt annually from
the river system, equivalent to a i~eduction in salt concentra-
tion of 19 mg/l at Imperial Dam, a significant step towards
achieving the goal of maintaining salinity levels at or below
those of 1972 in the lower maimsten~ of the Colorado River,
while the basin States continue to develop their compact-
apportioned waters; and
WHEREAS, the establishment of the proposed critical habitat
for the woundf in would contravene t e intent of the Congress as
expressed in the Colorado River Basn Salinity Control Act (88
Stat. 266); and
WHEREAS, adoption of the prop sed regulations may preclude
further utilization of thewaterso~ the Virgin River by prevent-
ing its storage in reservoirs and~ s~ibsequent releases therefrom
when needed fOr domestic, agricultu~al, municipal and industrial
purposes, including the Warner Vall~y Water and Power Project that
PAGENO="0159"
155
would generate electrical energy for hundreds of thousands of
human beings in the Pacific southwest and supply domestic water
and power to the rapidly growing city of St. George, Utah; and
WHEREAS, an examination of the available literature reveals
that there is a difference of opinion among authorities concerning
the need for establishment of a critical habitat for the woundf in;
and
WHEREAS, the Colorado River Basin Salinity Control Forum
representing the seven Colorado River Basin States by letter of
December 8, 1977 to the Secretary of the interior has expressed
its opposition to the proposed regulations and has stated that
`--there must be alternatives which will not bring a halt to the
construction of the salinity control units; and
WHEREAS, the health, well-being, and domestic and economic
welfare or millions of American. human beings should be of more
concern to the members of the U.S. Congress and their constituents
than a species of fish that has persisted in its existence
throughout over one-hundred years of water development in the
Virgin River Valley:
NOW, THEREFORE, BE IT RESOLVED by the Upper Colorado River
Commission at a special meeting co&vened at Salt Lake City, Utah
on January 10, 1978 that the Secretary of the Interior is here-
by requested to refrain from declaring a critical habitat in the
Virgin River asdescribed in the Federal Register (42 F.R~ 57329);
BE IT FURTHER RESOLVED that prior to February 1, 1978, each
of the governors of the four member States of the Upper Colorado
River Commission be requested to transmit comments expressing the
tenor of this resolution. to the Secretary of the Interior and to
the Associate Director--Federal Assistance, Fish and Wildlife
Service;
BE IT FURTHER RESOLVED that the members of the Congress
from the Upper Division States of the Colorado River Basin are
hereby urged to seek amendments by the U. S. Congress to the
Endangered Species Act (87 Stat. 884) that will clarify that
law in such a manner that reasonable precedence can be given
to the environment, health, and general. welfare of American
citizens over other forms of plant or animal species;
BE IT FURTHER RESOLVED that copies of this resolution be
transmitted to the Governors and Members of the U.S. Congress
of the Upper Colorado River Basin States, the Secretary of the
Interior, t.he Director of the U.S. Fish and Wildlife Service,
Commissioner of. Reclamation, and other interested entities.
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156
CERT FICATE
I, IVAL V. GOSLIN, Exec tive Director of the Upper
Colorado River Commission, do~hereby certify that the above
Resolution was adopted by the~tJpper Colorado River Coinmis-
sion at the Special Meeting held in Salt Lake City, Utah on
January 10, 1978.
WITNESS ny hand this 13th day of January, 1978.
~ 1d~L~)
IVAL V. GOSLIN
Executive Director
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157
~L~2Z
UPPER COLORADO RIVER COMMISSION
355 South Fourth East Street
Salt Lake City, Utah 84/li
April 6, 1978
MEMORANDUM
TO: Ival V. Goslin,- Executive Director
FROM: - Paul L. Billhymer, General Counsel
SUBJECT: Endangered Species Act, Public Law 93-205, as amended by
Public Law 94-359.
In order to focus on the real impact of the Endangered Species Act
only a few of its Sections will be considered herein.1 Basically the
present law is a continuation of earlier Congressional attempts at
protecting wildlife. 2
A broad outline of the Act is as follows:
Section 2 sets forth a strong statement of Congressional purposes
and policy (16 U.S.C.A. 1531). Significantly Congreès indicates that
one of the purposes of the Act is ". . . to provide a means whereby the
ecosystem upon which endangered species and threatened species depend
may be conserved.. . . ~" Under the policy declaration, Congress seems
to announce a mandate to ". . . all Federal departments and agencies
* . * to conserve endangered species and threatened species . .
Further the Federal establishment is told to ". . . utilize their
authorities in furtherance of the purposes of this Act."
Section 3 is the definition section. In the various definitions
Congress has indicated the intent to extend the Act to not only fish and
wildlife species but also to plants and to the subspecies of the same
(16 U.S.C.A. 1532).
Section 4 sets forth the procedure by which the determination is
made for listing the endangered and threatened species. Public partici-
pation in the listing procedure is encouraged. The state wherein the
species is known to occur is offered an opportunity to participate in
the listing (16 U.S.C.A. 1533).
29-319 0 - 78 - 11
PAGENO="0162"
158
Section 5 allows the Secretar of the Interior to acquire land and
water to support a program of prot ction and restoration of the endangered
and/or threatened species ~ 1534).
Section 6 provides for a prog~am of cooperation with States whereby
States will have input into the op~ration of the programs looking toward
carrying out the nandates of this .~ct (16 !J.S.C.A. 1535).
Section 7 provides for federa]~ interagency cooperation and requires
Federal agencies to exercise their authorities so as to promote the
purposes of the Act. This section ill receive extended discussion
below (16 TJ.S.C.A. 1536).
Section 8 provides a framework for international cooperation
looking toward the protection and r habilitation of endangered and
threatened species (16 U.S.C.A. 1537).
Section 9 sets forth the activi~ties which this Act prohibits.
Fundamentally the Act automatically protects a species listed as en-
dangered against being taken, posse~sed, imported, exported, transported,
sold, or moved in commerce by "any p~erson." Threatened species may be
given the same protection by regulaton. The term take" has been given
a broad inclusive definition tomean "to harass, harm, pursue, hunt,
shoot, wound, kill, trap, capture, o collect, or to attempt to engage
in any such conduct."3 "Harm" has b en defined by administrative rule
to include "significant environmenta modification or degradation" which
"significantly disrupts normal behav oral patterns, which includes, but
are not limited to breeding, feeding~ or sheltering. `~ (16 U.S.C,A.
1538)
Sectionj~ provides for some ex eptions to Section 9 prohibition.
Permits are authorized where the poe ession will be for scientific
purposes or will "enhance the propagation or survival of the affected
species." Certain takings by Alaska atives are regulated under this
Section 10 (16 U.S.C.A. 1539).
Section 11 provides for penaliti a and enforcement. Civil and
criminal penalties are authorized. C tizen suit enforcement is also
authorized (16 TJ.S.C.A. 1540).
Section 12 provides for a study c~f endangered plants by the Smith-
sonian Institution with the results tc~ be sent to Congress within a
year. (16 U.S.C.A. 1541).
Congress, through the Endangered Species Act, sought to accomplish
the protection of major decline of species by regulating the two main
causes of this decline; namely, (1) th~ sport and commercial taking of
the individual species, and (2) the de~radatiOn and destruction of the
habitat of the species. CongressrecO~fliZed these two factors as needing
special attention. In the Senate Repo~t 93-307, at page 2, we find the
following:
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"The two major causes of extinction are hunting and
destruction of natural habitat."
The Act itself, in Sec. 4(a), li8ts as factors to be considered by
the Secretary in making the determination requiring the listing the
species as endangered and/or threatened:
"(1) the present or threatened destruction, modification, or
curtailment of its habitat or range;
"(2) overutilization for commercial, sporting, scientific, or
educational purposes. . .
One other explanation should be made concerning the coverage of the
Act so that its full impact can be understood. The term "species" is
defined to include subspecies (Sec. 3(11)). It appears that the pro-
tective mantle of the Act will apply when one subspecies is endangered
or threatened, even though there may be other subspecies of the same
species in abundances.
* By definition (Sec. 4(4)-(l5)) "endangered" or "threatened" species
protection is afforded to the listed species if such is in "danger of
extinction throughout all or a significant portion of its range . . .
The Fish and Wildlife Service (hereafter Service) takes the position
that "localized populations" of listed species must be protected, and
the position is justified by the sweep of the statute. Species can be
listed by areas also, thus the species may be abundant and unlisted in
one area, and listed in another where the listing criteria are found to
exist. At least the statutory definition would seem to encourage such a
position. This position should be considered with reference to the
discussion under Section 7 infra. It enlarges the impact of Section 7.
Finally it should be observed that Congress was interested in
doing more than protecting the "status quo" of the "listed species." The
thrust of the Act is toward developing a program by which the "listed
species" become unlisted. See, for example, the definition of "conserve"
in Sec. 3(2), reading as follows:
"(2) The terms "conserve", "conserving", and "conservation"
mean to use and the use of all methods and procedures which are
necessary to bring any endangered species or threatened species to
the point which the measures provided pursuant to this Act are no
longer necessary. Such methods and procedures include, but are not
limited to, all activities associated with scientific resources
management such as research, census, law enforcement, habitat
acquisition and maintenance, propagation, live trapping, and
transplantation, and, in the extraordinary case where population
pressures within a given ecosystem cannot be otherwise relieved,
may include regulated taking."
See also 50 C.F.R. 402.02, the regulations issued in connection with
Interagency Cooperation required by Sec. 7 wherein the following is
found:
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160
"Recovery" means improvement i~i the status of listed species
to the point at which listing is no longer required.
It is with this background that the following analysis is made.
The really dynamic section of this Act is seven, and it is eo
important that it will be quoted in full:
"Sec. 7. The Secretary sh~zll review other programs athninis-
tered by him and utilize such p~rogra'ns in furtherance of the purposes
of this Act. All other Federal\depari~nents and agencies shall, in
consultation with and with the ~zssistance of the Secretary, utilize
their authorities in furtherance of the purposes of this Act by
carrying out programs for the cc~nservation of endangered species
and threatened species listed pi4rsuant to section 4 of this Act and
by taking such action necessary to insure that actions authorized,
funded, or carried out by then do not jeopardize the continued
ezistence of such endangered sp~cies and threatened species or
result in the desiwuction or modification of habitat of such
species which is determined by t~e Secretary, after consultation as
appropriate with the affected St~ztes, to be critical."
It is vary likely that the full knipiications of this section were
not realized by Congress when it was before that body. The legislative
history on the section is somewhat li9iite~1, yet Congress clearly indi-
cated by the changes that it made in t~he new statute, that it intended
some mandatory action from Federal ag~ncies.6 Even the implementation
by the Secretary of the Interior has 1~een delayed. Final regulations
covering Interagency Cooperation Regua~ations, Endangered Species Act of
1973, were issued January 4, 1978.~ E~ven allowing for the two years or
so that these were in the rulemaking p~ocess, it would seem that the
administrative response has been somewhat delayed.
It is the second sentence of the kection which requires the Federal
agencies to review their activities in~ the light of the Endangered
Species Act. The burden of this direction is three-fold, namely:
"First, it directs them (Fed~ral agencies) to utilize their
authorities to carry out conservat~ion programs for listed species.
"Second, it requires every F~deral agency to insure that its
activities or programs in the Uni~ed States, upon the high seas,
and in foreign countries will not ~eopardize the continued exis-
tence of a listed species.
"(T)hird, section 7 directs a~Ll Federal agencies to insure
that their activities or programs ~1o not result in the destruction
or adverse modification of critica~ habitat."8
The above is a statement of the sc~pe of Section 7 from the view-
point of the two agencies charged with ~kdministering the Section 7
program. It is to be noted that these ~egulations place the real burden
upon the program directing agency to niaI~e the initial determinations of
the impact of its program upon the "lis ed species." It does seem that
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the regulations take the position that Section 7 requires a positive
response from the program agency. It should be pointed out that the
concern here is with domestic `listed" species.
The regulation in §402.03 clearly indicates that it is intended
that
"Section 7 applies to all activities or programs where Federal
involvement or control remains which in itself could jeopardize the
continued existence of a listed species or modify or destroy its
critical habitat."
This construction that Section 7 covers "all" activities of all
Federal agencies would seem to include all present on-going activities
as well as future activities. This construction also seems to have the
backing of Congressional legislative history. The language of Section 7
is not qualified by any such statement as "insofar as practicable."
Note also that no qualifying language is found in Section 2(b) "purpose"
and 2(c) "policy" section. One author has suggested that the 1969 Act
was flawed because of the qualifying language and the change was deliberate
to insure that Federal agencies would have a positive mandate to comply
with the rigorous requirements of Section 7*9
Perhaps it would be helpful to determine what is mandated of Federal
agencies by Section 7. It would appear that the first requirement is
that the agency institute an internal program wherein the particular
agency's basic "authorities" are used to carry out "conservation pro-
grams for listed species." Note the statutory language suggests that
this program is to be done "in consultation with the Secretary." Ap-
parently the Secretary did not thi,nk this injunction required implementing
regulations because the regulations mentioned above make no provision
for this type of consultation.
Actually the failure to cover this area may be due to the fact that
it is probably not an enforceable requirement. Courts are not likely to
involve their time in an on-going agency internal operational program.
(Quarry: Could NEPA (P.L. 91-190, 42 U.S.C.A. 432, et seq.) be a tool
for the enforcement of this section?) It may be academic because the
other provisions of Section 7 really take care of most, if not all,
situations.
The second and third requirement will be considered together
because one part deals with the species and the other the critical
habitat of the same. Here the agency must act to insure that its
authorized operations do not "jeopardize the continued existences of the
listed species" or result in "modification or destruction" of critical
habitat of such species. The Secretary of the Interior is required to
make the determination of what is "critical habitat."1° The Act does
not spell out when a determination of "critical habitat" isto be made.
In a conversation with local representatives of the Service, it was
learned that in some cases the determination will be made at such time
as the original listing takes place, but there is no rule that such will
PAGENO="0166"
162
occur. When the Service is called upon to evaluate a project or action,
some consideration of "critical hab~tat" would seem to be required. The
regulations issued pursuant to Section 7, above mentioned, really deal
with the problems resulting from th~ `Second" and "Third" above-mentioned
requirements. ~
The first cut at compliance with the section must be taken by the
Federal agency in charge of a program or action. It must consider and
determine the impact of such activi~y on listed species or their habitat.
It may~seek advice from the Service,~ which is placed in charge of Interior's
responsibility under the Act.'2 This advice does not take the place of
consultation. If the Federal agency decides that its activity nay
affect the listed species or their habitat, there is a requirement for a
written request for consultation.'3 50 CFR 402.04(a)(3) The agency
is responsible for furnishing all necessary information to the Service
so that an evaluation can be made. ~this information may include special-
ized studies financed by the request~Lng agencies which the Service finds
necessary for the evaluation. The ag~ncy is required not to make any
irreversible or irretrievable cominit~nent of resources which would fore-
close the consideration of modificat~on or alternatives to the identified
activity or program. The Service will issue a biological opinion which
will evaluate the impact of the proj~ct or activity on listed species or
their habitat, including any recornmei~ded modifications. Note if the
modifications are accepted further cànsultation may be called for."
The major concern would be with a "biological opinion" which finds
the project or activity in violation of the mandate of Section 7. The
responsibility for final decision rests with the Federal agency proposing
the action. It must evaluate its ~o~ition with reference to the opinion
and determine whether to proceed.' It would appear that it would
indeed require a brave agency to proceed counter to a biological opinion.
In view of the liberal citizen suit provision provided for in the Act, a
citizen suit would seen to follow as ~ matter of course, using the
biological opinion as the basic grounds for a claimed Section 7 violation.'6
Up to the present tine no case has de~lt with the consequence of an
adverse report issued pursuant to the new regulations.
One case should be considered as giving insight as to what the
Courts would likely do in this situat on. That case is National Wild-
life Federation v. Coleman, C.A. 5, 5~9 F.2d 359. The issue involved
was an alleged violation of Section 7 of the Endangered Species Act by a
highway project which, if completed, would damage the habitat of an
endangered species (Mississippi Sandh~ll Crane). In spite of Interior's
determination that unless modified th~ highway would violate the critical
habitat of the crane, the project was recommended by the Highway Agency
without the recommended modification.
The Court made some rather sigmi icant rulings in the case.
(a) Based on a review of the le islative history, the Court con-
cluded that "Section 7 . . . imposes on federal agencies the mandatory
duty to insure that their actions wil]i not either (i) jeopardize the
PAGENO="0167"
163
existence of an endangered species, or (ii) destroy or modify critical
habitat of an endangered species."
(b) There is further the requirement to consult with the Service
prior to taking action, but the Secretary of the Interior has no veto
power over the project if consultation has taken place. (Querry: Can
the Secretary of the Interior veto a project where consultation has not
taken place?) The sponsoring agency must assume the responsibility for
the project and "determine whether it has taken all necessary action to
insure that its actions will not jeopardize the continued existence of
an endangered species or destroy or modify habitat critical to the
existence of the species."
(c) Courts will review the agency's decision to determine whether
"the decision was based on a consideration of the relevant factors and
whether there has been a clear error of judgment." (citation omitted)
(d) The National ~iildlife Federation Appellants had the burden of
establishing that the appellees failed to take necessary action to
prevent violation of Section 7.
(e) The Court reviewed the evidence and found that the lower
court's evaluation of the evidence, was wrong. The lower court failed to
appreciate the nature of Section 7. The Appellant's evidence indicated
that proper modifications had not been made in the project to preclude a
Section 7 violation. The Court's injunction in this case was unique. It
delayed the highway construction until such time as the Secretary of the
Interior found that necessary modifications were made to protect the crane.
The case would indicate that any federal agency planning to con-
tinue action after an adverse biological opinion had better have its
case in order. It would appear that the agency would at least be re-
quired to prepare a well-articulated response to such "biological
opinion." Very likely such response would be a part of the NEPA EIS.17
One further problem raised by this Act should be discussed, namely,
its impact on Federal activities started prior to the Act. One such
case has been litigated, or better is still in progress, namely, Hill V.
T.V.A., C.A. 6, 549 F.2d 1064, 9 ERC 1737, cert. granted, 46 L.W. 3316,
Nov. 15, 1977. This case presents an unique situation. The dam in
question (Tellico) was almost finished; Congress was aware of the prob-
lem, but continued to furnish money for the dam; the fish in question
was unknown until 1973--only four months prior to the passages of the
Endangered Species Act; the fish was added to the "list" in November
1975 over TVA's objection; suit was brought enjoining completion of the
dam in February 1976; and the lower Court found that the dam closure in
1977 would probably destroy the fish, but refused to enjoin the closing.
On appeal, the Sixth Circuit reversed the lower court's ruLi~ng and
enjoined the closing of Tellico.
The court stated the issues as follows:
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164
"(I) Does Tellico Dam ompletion violate the Endangered
Species Act?
"(2) Assuming a violation, are there adequate grounds for
exempting Tellico from compli~nce?
"(3) If no exemption is\justified, is injunction the proper
remedy to effectuate the purpose of the Act?"
The Court found that certainl3~ the closing would violate the Act.
The Secretary's construction of th~ Act as to "critical habitat" wherein
the Secretary by regulation (40 Fed. Reg. 17764-17765) had ruled that
any action which:
"might be expected to result i~i a reduction in the number or
distribution of [the] species ~f sufficient magnitude to place
the species in further jeopard>~ or restrict the potential and
reasonable expansion or recove~y of that species."
was proper. Note the lower court h~d found that the closing of Tellico
would likely destroy the species. The Appellate Court refused to
consider balancing the value of the~almost complete project against the
value of saving the fish. The Court suggested that the statute was to
be taken to its logical extreme, an~ even if a species was discovered to
be endangered on the day before cló~ing,. that the closing should be
enjoined. The Endangered Species Act~ does not allow for a NEPA-type of
balancing. The Court found that a ?~EPA balancing error would be subject
to later correction, but should the ourt grant an exemption here, any
error could not be corrected because the species would be gone. The
Court found that there were no groun s for exemption and that the injunction
was the proper remedy.
Actually the Court returned the Tellico to Congress. If the project
is to be completed, Congress will ha e to face the problem of balancing
the value between the fish and Tel1i~o. This is not unlike the Alaskan
pipeline case. Congress, by amendment of the Mineral Leasing Act, did
allow the construction of the pipe1ir~e after the injunction in Wilderne8s
Society v. Morton, D.C. Cir., 479 F.2d 842, cert. denied, 411 U.S. 917
(1973). The Congressional exemption procedure on a case-by-case basis
may be one way of solving the conflic\t. Such process if over-exercised
would destroy the efficacy of the End~ngered Species Act. It does
finally depend upon the value system ~rinciples which we wish developed.
One caveat should be made, Sill is be~ore the Supreme Court, and the
final word is still out with respect ~o this case.
One other Circuit Court case should be mentioned, namely, Sierra
Club v. Froehlke, C.A. 8, 534 F.2d 12~9, 8 ERC 1944, involving the
Neramec Park Dam project impact of th~ Indiana Bat. After finding that
the Endangered Species Act applied to an on-going project, the Circuit
Court affirmed a lower court's refusa]~ to enjoin the construction of
the dam on the grounds that the evidences were insufficient to make out
a case of substantive violation of the~ Act. This case really does not
provide any real insights as to the co~irt's reaction to requirements of
the Endangered Species Act.
PAGENO="0169"
165
An observation is in order with respect to the possibilities of
control of non-federal actions and projects which impact on the listed
species. Note such impact could well amount to a `taking" which has
been defined as:
"(14) The term "take" means. to harass, pursue, hunt, shoot,
wound, kill, trap,. capture, or collect, or to attempt to engage in
any such conduct."
Section 9 enjoined taking, and as such is subject to civil and
criminal penalties in addition to citizen enforcement suits. The impact
of possibilities for non-federal activities control has not been fully
explored in court cases. It would appear that the Act can be used to
attack non-federal activities which might impact the listed species.
Sunsnary
1. Congress in 1973 established a comprehensive method for the
protection of endangered and threatened species,
2. This protective system seeks to control taking and habitat
destruction of the endangered and threatened species.
3. A special obligation is placed on Federal agencies to "insure"
that their actions "do not jeopardize the continued existence of or
result in the destruction or modification of habitat of such species."
4. The present court construction of the Act has made the duties
of the Federal agencies mandatory, and the Act's application has been~
broadly defined to include present programs authorized prior to the Act.
5. Courts have refused to enter into a value balancing procedure
with respect to mandates of the Act as it impacts the Federal agency on-
going programs.
6. The full impact of the Act has yet to be realized with respect
to Federal development programs.
7. Non-federal activities would seem to be subject to the impact of
this Act.
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166
FOOTNOT~S
1. The Act has received extended d~scussion in legal literature. See
Palmer, `Endangered Specie~ Protection: A History of Congressional
Action," 4 Envt'l Aff. 255 (1975).
Lachenmeler, "The Endangere~1 Species Act of 1973; Preservation
* or Pandemonium," 5 Envt'l L 29 (1974)
Wood, "Section 7 of the End~ngered Species Act of 1973: A
Significant Restriction for All Federal Activities, 5 ELI? 50189
(1975).
Coggina and Hunsley, "Const~tutional Limits on Federal Power to
Protect and Manage Wildlife: Is the Endangered Species Act
Endangered?" 61 Iowa L. Rev. 1099 (1976).
Note: "Obligations of Federal Agencies Under Section 7 of the
Endangered Species Act of l9~3," 28 Stan. L. Rev. 1247 (1976).
Comment: "Implementing Sectkon 7 of the Endangered Species Act
of 1973: First Notices from~ the Courts," 6 ELR 10120 (1976).
2. See Senate Report 93-307, Public Law 89-669, Public Law 91-135.
3. See Section 3(14).
4. 50 C.F.R. 17.3.
5. Other Indication of "habitat" concern is found in the purpose section
of the Act, Sec. 2(b). See also S c. 3(2) defining the term "conserve";
Sec. 5 authorizing funding for hab tat acquisition; and Sec. 7 to be
discussed,
6. See Wood, supra, Note 1 at 50199, hand the Law Note from Stanford Law
Review cited in Note 1 at pages 1254-1256 for a discussion of the
legislative history. See also 2 U~S. Code Cong. & Admin. NeW8 1973,
93rd Cong., 1st Session, at 2988-3008. The most compelling Indication
of the meaning of Section 7 is four~d in Congressman Dingell's statement
during the debate on the Conferenc~ Report where he discusses the law
as it existed prior to the 1973 Ac~ in the context of some former Air
Force bombing activities:
"Another important step w~iIch we have taken In this
bill--and in this regard the t~o bills are virtually Identical
--is that we have substantia11~T amplified the obligation of
both agencies, and other agandes of Government as well, to
take steps within their power ~o carry out the purposes of
this act. A recent article in the Washington Post, dated -
December 14, illustrates the problem which might occur absent
this new language in the bill. It appears that the whooping
cranes of this country, perhnp~ the best known of our endangered
species, are being threatened by Air Force bombing activities
PAGENO="0171"
167
along the gulf coast of Texas. Under existing law, the
Secretary of Defense has some discretion as to whether or
not he will take the necessary action to see that this threat
disappears--I hasten to say that I believe that Secretary
Schlesinger, who I know to be a decent and honorable man,
will take the proper steps whether or not the law is amended,
but the point that I wish to make is that once the bill is
enacted, he or any subsequent Secretary of Defense would be
required to take the proper steps." (119 Cong. Rec., p. H11857,
93rd Congress, 1st Session, December 20, 1973, daily ed.)
7. 43 Fed. Rag. 870, January 4, 1978.
8. 50 C.F.R. 402.01 - 43 Fed. Rag. 874.
9. Note: "Obligations of Federal,Agencies Under Section 7 of the Endangered
Species Act of 1973," 28 Stan. L. Rev. 1247-1253. See also Càngressman
Dingell's statement, 119 Cong. Rec., p. H11837, December 20, 1973 (daily
edition).
10. The methods of determination of "critical habitat" are set forth in
§402.05 as follows:
(a) Procedure. Whenever deemed necessary and appropriate,
the Director shall determine critical habitat for a listed species.
After exchange of biological information, as appropriate, with
the affected States and Federal agencies with jurisdiction over
the lands or waters under consideration, the Director shall
publish proposed and final rulemakings, accompanied by maps
and/or geographical descriptions in the FEDERAL REGISTER. Com-
ments of the scientific community and other interested persons
will also be considered in promulgating final rulemakings. The
modification or revocation of a critical habitat determination
shall also require the publication in the FEDERAL REGISTER of
a proposed and final rulemaking with an opportunity for public
comment.
(b) Criteria. The Director will consider the physiological,
behavioral, ecological, and evolutionary requirements for the
survival and recovery of listed species in determining what
areas or parts of habitat (exclusive of those existing man-made
structures or settlements which are not necessary to the sur-
vival and recovery of the species) are critical. These require-
ments include, but are not limited to:
(1) Space for individual and population growth and for
normal behavior;
(2) Food, water, air, light, minerals, or other nutritional
or physiological requirements;
(3) Cover or shelter;
PAGENO="0172"
168
(4) Sites for breedir~g, reproduction, or rearing of
offsprings; and generally,
(5) Habitats that are protected from disturbances or
are representative of the ~eographical distribution of listed
species.
(c) Emergency determi4~atiofl. Paragraphs (a) and (b) of
this section notwithstanding, the Director may make an emergency
determination of critical habitat if he finds that an impending
action poses a significant fisk to the well-being of a listed
species by the destruction ~r adverse modification of its habitat.
Emergency determinations wi~.l be published in the FEDERAL REGISTER
and will remain in effect for no more than 120 days.
See also Note 12, infra.
11. A list of important definitions re as follows:
§402.02 Definitions.
"Activities or programs' means all actions of any kind
authorized, funded, or carri d out by Federal agencies, in
whole or in part
"Critical habitat" mean any air, land, or water area
(exclusive of those existing man-made structures or settlements
which are not necessary to t1~e survival and recovery of a
listed species) and consti'tu~nt elements thereof, the loss
of which would appreciably d~crease the likelihood or the
survival and recovery of a JJisted species or a distinct seg-
ment of its population. . . .~ Critical habitat may represent
any portion of the present habitat of a listed species and
may include additional areas or reasonable population expan-
sion.
"Destruction or adverse modification" means a direct or
indirect alteration of critic~l habitat which appreciably
diminishes the value of that habitat for survival and recovery
of a listed species
"Jeopardize the continue~ existence of" means to engage in
an activity or program which i~easonably would be expected to
reduce the reproduction, numb~rs, or distribution of a listed
species to such an extent as ~o appreciably reduce the likelihood
of the survival and recovery o~f that species in the wild. . .
"Recovery" means improvement in the status of listed species
to the point at which listing ~s no longer required.
12. Note the National Marine Fisheries ~ervice has responsibility for some
administration under the Endangered Species Act, and the regulations
were issued jointly. See Sec. 3(10 and Sec. 4.
PAGENO="0173"
169
13. If the Agency decides that its program does not affect the listed
species or their habitat, no further action is called for unless
initiated by the Service, 50 C.F.R. 402.03(a) (2).
14. See 50 C.F.R. 402.04 which sets forth the regulations on `Consultation."
15. 50 C.F.R. 402.04 (g) reads:
(g) Responsibilities after consultation. Upon receipt
and consideration of the biological opinion and recommenda-
tions of the Service, it is the responsibility of the Federal
* agency to determine whether to proceed with the activity or
program as planned in light of its section 7 obligations.
Where the consultation process has been consolidated with
interagency cooperation required by other statutes such as
the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.)
or the National Environmental Policy Act (42 U.S.C. 4321 et
seq.), the final biological opinion and recommendations of
the Service shall be stated in the documents required by those
statutes.
16. *Section 11(g), 16 U.S.C.A. 1540(g), outlines Citizen Suit provision,
even allowing for attorney's fees.
17. See Note, 28 Stan. £. Rev. 1247 at l~66, et seq., for a more detailed
analysis of this problem.
PAGENO="0174"
70
TEST MONY OF
W. ~ ThC~R, ~.
Manager of En\~ironmental Affairs
Florida Power & Light Company
Bef re the
Subcommittee on esource Protection
of the
United 5ta~es Senate
Committee on Environrn nt and Public Works
April l3i 1978
I am W. Samuel Tucker, Jr., Manager of Environmental
Affairs for Florida Power & Light Company, whose headquarters are
in Miami. I have been with the ~ompany for over three years.
Prior to my present work, I held various positions in State and
local governmen~t,.~ including that of Secretary of the flepartment
of Administration for the State f Florida. I am also the Chair-
man of the Land Use/EIS Subcommi tee of the Edison Electric
Institute (EEl), and my comments today represent the views of
the Institute. EEl is the princi~al national association of
investor-owned electric companies Member companies serve about
99 percent of all customers of th investor-owned segment of the
electric industry and 77 percent ~f the nation s electric users.
The concept of protect' g and conserving various plant
and animal species which face exti~nctiom as a direct or indirect
PAGENO="0175"
171
result of man's activities appeals both to one's emotions
and sense of moral responsibility. There is little doubt that
society in general understands the intrinsic value of all forms
of life and is willing to take reasonable steps to ensure that
rare and endangered species are offered protection and the
opportunity to propagate.
But we are also convinced that society has other~ values
as well, and that no single value can be absolute in terms of
the real-world decisions and ~udgements which society and the
government which represents it must make. This is precisely
the problem with the Endangered Species Act as it is presently
written, interpreted, and enforced. The basic inflexibility of
the Act has grave implicaticsis on other things society values,
such as an adequate, reliable, and economic supply of electrical
energy. Our purpose in testifying before you today is to present
some of one company's experiences which typify the problems
electric utilities across the nation are facing with the Act.
We will also try to give you an idea of some of the problems we
see resulting in the future, if the law remains unchanged. We
would also hope that this testimony will serve to remedy the
common misconception that the Endangered Species Act only impacts
public works or developments of Federal agencies. The wide pro-
liferation of environmental regulatory programs now in force
effectively encompass practically every significant development
by the private sector as well, by virtue of the fact that the
issuance of the required Federal permits aid licenses provide
PAGENO="0176"
172
the trigger to the Endangered Spe ies Act. The broad
application presently applied by tLhe Corps of Engineers 404'
Permit program is a case in point.
I do not think it is necessary to belabor the point,
but I would remind the committee t~iat the delivery of electric
service requires a system of many omponents stretching from
the generating plant down to each individual home, office,
and business. This system of powe~ plants, transmission lines,
substations, switching stations, d~stribution lines, and so
forth, covers a typical land area ]~ike a spiders web - for
the very simple reason that it has ~o get to where people
are. In such a system, flexibility in planning is very important.
Any program which leads to the bl ket elimination of large
areas from possible use (no matter how limited), or creates for
certain animals and plants values w1~iich are in essence non-negoti-
able and therefore infinite, is going to have unacceptable reper-
cussions. The Endanger-e&Species A~t eubodies this kind of program.
The need for flexibility i the development of electric
utility systems in my own State of F orida is foreboding for other
areas of the nation. Florida, because of its semi-tropical climate
has a wide variety of ecosystems with many unique forms of flora
and fauna. The State has a wide div~rsity of species, with many
identified as endangered or threaten~d. Critical habitats have
already been defined for several of ~hese species. A map of these
habitats will demonstrate that much of the State is affected.
PAGENO="0177"
173
Florida Power & Light Company'sexperience with one of these
critical habitats, namely that established for the Everglade
Kite, makes an interesting point with regard to the need for
flexibility.
The EvergladeKite is the Florida population of a hawk-
like bird which feeds on apple snails which exist in fresh water
marshes. The present population is estimated to be about one
hundred birds and has been placed on the Endangered Species list.
Its Critical Habitat has been designated by the Secretary of
Interior and includes a broad expanse of area in Southeast Florida.
My company sought permission to cross about.a mile ofone corner
of this habitat located in the Loxahatchee WildlifeRefig~ith~a.
transmission line, or alternatively, to arrange a land swap
with Interior. The land in question contains no Kites orapple
snails andis not suitable habitat for either. We offered to
purchase another tract of land of equal value that would be suit-
able habitat and in addition provide one million dollars fOr its
development. That amounts to ten thousand dollars per bird.
Interior rejected our proposal, offering their responsibilities in
protecting this Endangered Species as a principal reason for doing
so, and we are presently constructing the line around the area
in question at considerably greater cost to our customers. Thus,
no one benefited, not even the birds.
29-319 0 - 78 - 12
PAGENO="0178"
~74
What is happening in Flo ida has happened in
Tennessee and Maine and the Pacific Northwest and will happen
in tine in many other places across the nation. The process
of designating threatened or endang red species and critical
habitats has only begun and as it pi~oceeds, first for animals
and then for plants, the conflicts ~ill spread as well throughout
the country.
When we reference the need f~r flexibility, we are con-
vinced that we are speaking in agree~nent with national environmental
policy. The National Environmental policy Act of 1969 states
that it is national policy.:
`to create and maintain conditions under which
man and nature can exist un productive harmony,
and fulfill the social, ec~nonic, and other
requirements of present an~ future generations..
NEPA stresses the necessity of consid~ring all factual aspects
of a certain situation in making a decision, along with weighing
costs and benefits, and analyzing alternatives. The same kind
of philosophy is inherent in the Clean Air Act, the Water
pollution Control Act, the Coastal 20 e Management Act, and other
environmental legislation. My example of the transmission lines
and the Loxahatchee Wildlife Refuge would show the Endangered
Species Act to be inconsistent with this national policy.
Philosophically, it night be argued that since the full
value of endangered species both now a d potentially in the
future is unknown, society must be absolute in protecting every
identified endangered or threatened species. The reality, however,
PAGENO="0179"
175
is that we will never know.enough to make absolutely risk-free judge-
ments in difficult situations requiring tradeoffs. Risks work both
ways, and the opportunities lost in a project abandoned solely
because of a perceived threat to some species or its habitat,
especially when there are no practical alternatives, also create
risks which must be assumed by society.
We would further argue that different endangered species
have different values and are subjected to different levels of
stress, all of which indicate the need for flexibility and
judgement. If a comprehensive ecological perspective including
total potential impact:of various alternatives is abandoned for
the sake of a single species or habitat, then we face the possible
imposi-tion of~-an environmentally suboptimal -alternative. ~ ~ -
Again, we believe the transmission line example bears
this out. In the real world, it is rarely, if ever, an "either-or'
proposition. Creative thinking, cooperation, and good planning
can mimimize conflIct and even lead to a more favorable solution
for all concerned, if sufficient legal flexibility exists.
we would like to take a minute to discuss some future
problems resulting from the Act throughthe use of another illustration.
The geographic isolation of South Florida, being at the end of the
line so to speak, severely limits our ability to establish electrical
inter-ties -with other systems. This is the traditional method
employed by utilities to provide an alternate
PAGENO="0180"
176
source of power in the event of th~ sudden loss of power from
within a system. We have one tram mission corridor coming in
to Southeast Florida from the Nort , and another from Southwest
Florida. The Florida Public Service Commission has directed us
to construct an additional 500KV trrnsmission line on a new
corridor between Southwest and Sout~zeast Florida in order to
improve the reliability of service ~n that area and reduce the
frequency of blackouts which have oc~curred in the past. The
Commission has also recommended addi1tional generation in South-
east Florida to improve reliability over the longer term.
Now, if you take the determination already made by
Interior in the Loxahatchee situation that transmission lines
are incompatible with the Everglade Kite Critical Habitat, look
at the map showing that the Kite Crii~ical Habitat effectively
isolates Southeast Florida, and combine with that the fact that
we would need a 404 permit from the ~orps of Engineers - the
trigger to Section 7 of the Endangered Species Act - the result
becomes inescapable. We could not co~istruct the line which is
needed to protect three million peopl from blackouts.
How about additional generation? Several years of
careful studies have identified only c~ne suitable power plant site
in Southeast Florida, our South Dade ~ite. It has now been enshrouded
by the Critical Habitat for both the A~nerican Crocodile and the
Florida Manatee. Even though the deve opment of this 10,000 acre
site would probably result in a net ov~rall benefit to these species,
we would still have a direct conflict s~ith Section 7 of the Act
PAGENO="0181"
177
which prohibits any activity which would `jeopardize the
continued existence of.. ~ . endangered. . ~ . threatened
species or result in the destruction or modification of habitat...
determined...tO be critical.' The words of the statute thus
create an absolute priority for this provision above any and
all other environmental, &iergy, or human considerations.
We believe that the Endangered Species Act as it now
stands is counterproductive in the long run to the very goals and
purposes it was designed to achieve. While fully supporting
reasonable protection measures for plants and animals facing
extinction, society can not long function with a total injunction
against all risk to such species at any cost. The Act is in
~ disoarded~ as a result-=--
of "backlash' from current events. How long will three million
people put up with blackouts and brownouts because of what someone
perceives as a potential threat to a hundred birds? Complete
repudiation of the AOt would not do anybody or any plant or any
animal any good.
In summary, the Endangered Species Act ignores practical
considerations and forces foregoing of more desirable options
in some cases. It flouts common sense, good judgement, and
basic national environmental policy. It makes a mockery of the
efforts of many people who are truly interested in preserving
endangered species and not simply blocking some project. If not
amended, the Endangered Species Act may ultimately be remembered
as the worst enemy of the very species it purported to save.
PAGENO="0182"
~78
STATEMENT OF ZYGMIJNT B. PLATER BEFORE THE SENATE
SUBCO~11~EE 0 RESOURCES P~OTECTION - APRIL 13 1978
Mr. Chairman, members of the committee, I am Zygniunt Plater, professor of
law at Wayne State University, here today representing the Environmental
Policy Center, the Little Tennessee Ri er Alliance,.and myself. As
some members may know, I have been ass~ciated with the Tellico dam case
since 1973.
Let me use this opportunity to su arise for the committee's present
purposes the accomplishments of hearings as they focussed
on Tellico, and subsequent occurrences in the case. The committee and its
staff are to be strongly congratulated for their very professional review
and investigation of a biological and a ministrative program that easily
could have become a mere political foot all.
Tellico was undoubtedly the catalyst for those hearings, and (as we
feared when initially our group in Tenns~ssee had to decide whether to sit
back and allow this species to be extirpated or take on the uphill takk
of making an. agency obey the law) itha~s been the catalyst for a chorus
of attacks on Section 7 itself.
The three-inch-long endangered spec es, as the newspapers reported it
last year, had halted a "$100 million hykroelectric dam" at the "11th
hour" in a "classic confrontation betwee~ energy needs and the environment."
The facts that came out in the hearings t~ave shown a far different story
however.
Shortly, after the 6th Circuit Court ~f Appeals enjoined the Tellico Darn
for violating the act, the General Accoun ing Office analyzed the TVA
project. That study, reviewed by this cor~nnittee, showed that deferring
to the snail darter by not filling the re~ervoir can, even now, be more
profitable to all concerned than closing he dam gates.
The dam, it turned out, was never int~ended to generate electricity.
Rather, it was merely one component of a TkTA regional economic de~dlopnent
project that has dammed the river system i 68 successive lakes, 22 within
60 miles of Tellico. This last dam was p1 nned primarily to create sub-
sidized lakefront industrial sites and a final ~latwater recreation lake.
PAGENO="0183"
179
The dais itself, which TVA rushed to near completion after the discovery
of the snail darter, is only a minor part of the project: $5 million worth of
concrete and labor, and $17 million worth of earthworks, out of the projectYs
total cost of $120 million. Most of the project's budget was spent to buy
the valley's fertile farmlands and to improve roads and bridges in the area --
assets that are valuable without the reservoir.
* The GAO report found that TVA's benefit claims for the Tellico project
were completely unreliable. The value of added flatwater recreation facilities,
for instance, was projected at $1.4 million annually, almost half of total
project benefits. This was unrealistic, given the existence of 22 nearby
reservoirs, and considering that the dam would eliminate the finest remaining
trout-fishing water in the Southeast.
The interests of the snail darter, it turns out, coincide with those
of other species around Tellico, including human beings. Local citizens
had tried to question the project over the years through lawsuits, petitions
and in several cases, shotgun threats to avoid being driven from their land.
The little fish require cool, clean, flowing, big river water, with shallow
cobbled shoals for spawning. It used to live throughout the eastern portion
of the Tennessee river system, but, after the construction of 68 reservoirs
in the valley, its remaining population now survives in the region's last
such stretch of clear, flowing river.
After TVA's dam-building boom, the surrounding river valley also is
unique. It contains 25,000 acres of prime agricultural land as rich as
the Mississippi Delta. A dozen major Cherokee historic sites line the river
bank, including Tuskegee, the village where the great Chief Sequoya was
born; the Echota religious capital, and Tenassee, which gave its name to
the river and the state. Colonial Ft. Loudon is on the riverbank, and near
there in 1975 archaeologists discovered two of the oldest sites of continuous
human settlement in America, a record of 10,000 years of valley occupation.
All these assets--the river, farmlands and historic sites--would have
been buried under about 20 feet of mud and water if the dam were closed.
Development of the river valley without a res~rvbir, thus saving the
snail darter, appears to be a profitable alternative even today, with the
PAGENO="0184"
~8O
darn virtually complete. TVA is moving into land-development ventures,
now that it has run out of places tobi~ild dams, and the GAO study
observed that the unflooded Tellico pro ect is admirably suited for such
development.
In addition to river recreation an farming- -which could yield twice
as much yearly revenue as the entire re~ervoir project- - the GAO noted
the valley's tourist potential. Its hi~toric sites along the river form
a path connecting the adjoining Smoky Nc~untains National Park (with 10
million visitors a year) with the major ~orth-south highway, Interstate 75.
Carefully developing the valley ins ead of flooding it would relieve
pressures on the park itself, and add a 1aluable tourist route for the local
economy. An extra two square miles of p~tential industrial lands also
exists in the unflooded valley, adjoinin~ major railroad lines and arterial
highways.
So the snail darter may have saved a fertile river valley threatened
by a marginal federal project. It also h~s showed us that the bloom is
off the New Deal's sweetest-smelling rose~ No longer a model of state enter-
prise, the Tennessee Valley Authority has become a somewhat-obstinate utility
company-- the largest in the nation- -wie1d~ng extraordinary political power
in its seven-state region.
The Tellico case also showed that the "extremism" and "inflexibility"
of the endangered species issue came not f on the statute but from the
agency hare (and in only a few other cases which consistently refused
since 1973 even to discuss the possibility of modifying the project to comply
with the law by protecting the species and its habitat. And I must inform
the committee that TVA rejected all the recommendations and conclusions
of GAO (as noted in the hearings Appendix t 984), and just last week
again rejected out of hand the constructive request of the Secretary of
Interior to commence consultation even at this late date, for an administrative
resolution of this issue that need not burden Congi~ess further.
I can understand that many Senators may well feel that they now know
far more than they need to know about Tellic --andthat if the law is
going to make this committee a trial cqurt o endangered species the
PAGENO="0185"
181
procedure should be changed.
* The answer, of course, is that no flood of cases has or will come
to Congress if the Tellico case is properly and objectively handled.
Tellico is the exceptional case--the only project of hundreds of conflicts
where an agency has consistently refused to consider administrative com-
pliance. It is the exception that proves the rule of the Act's workability.
And it is the precedent that shows other agencies that endangered species
issues are to be resolved in good faith consultation, because otherwise
Congress will subject the agency and its project to GAO analysis, hearings,
and extensive legislative inquiries. That is not the kind of scrutiny
that agencies desire. The precedent that has been set in the proceedings
on Tellico is part of the solution to the fears raised by opponents
of the Act.
And we remind the committee that the record shows that the attacks
on Section 7 are not based in fact. Nowhere in the extensive hearings
is there evidence that the Act has created impasses. On the factual record,
there has never been a case arising under the Act where public development
objectives could not be reconciled with species protection if the
construction agency consulted in good faith. Some day it may be found
that an important project will destroy a species, and no resolution is
possible, so that the Act will have to be amended to allow that species
to be rendered extinct. The factual record indicates that that case has
not occurred and is not likely to--and in ~ight of.the values of the
Tellico's ongoing review, it is clear that Tellico would be the wrong
place to start such a sad precedent.
PAGENO="0186"
TESTIMONY OF THE NATIONAL AUDUBON SOCIETY
BEFORE THE SENATE COMMITTEE ON ENV RONMENT AND PUBLIC WORKS,
SUB-COMMITTEE ON R~OURCE PROT~TI~N R~ARDING THE EPDANGERED
SPECIES ACT OF 1973, WITh SPECIAL REFERENCE TO SECTION 7, JULY 22, 1977
Mr. c3iairman, members of this Subco ttee, thank you for this opportunity
,to testify during these important oversi ht hearings on the Endangered Species
Act of 1973 (P.L. 93-205).
I am Dr. Michael Zagata, Washington Rep of the NATIONAL AUDUBON SOCIETY, a
non-profit conservation organization~ with about 370,000 members organized
into 394 chapters throughout the United S ates. As you may know, the NATIONAL
AUDUBON SOCIETY is one of the oldest, lar est and most experienced member-
ship organizations devoted to conservatio in general and specifically to
the protection and enhancement of wildlif populations and the ecosystems
upon which those populations depend for tF~eir survival. -
The NATIONAL AUDUBON SOCIETY has prevously testified in support of
the philosophy and concepts embodied in th Endangered Species Acts of
1966, 1969 and 1973. I am here again today to defend and support the
Act and the following purposes for which i was written:
PAGENO="0187"
183
1) to provide a means whereby ecosystems upon which endangered species
and threatened species may be conserved; and
2) to provide a program for the conservation of such endangered species
and threatened species.
It is difficult to fault the farsighted conservation ethic displayed
by Congress in drafting and passing the Act (passed the House by a 390 - 12
vote). Your action in passing this legislation echoed the sentiment of
the American people who are highly cognizant of the potential losses associated
with the knowing demise of a species. Indeed, Leopold expressed the rationale
for this type of legislation in 1949 when he wrote:
"Like winds and sunsets, wild things were taken for granted until
progress began to do away with them. Now we face the question
of whether a still higher `standard of living' is worth its cost
in things natural, wild and free. For us in the minority (no
longer true) the opportunity to see geese is more important than
television, and the chance to see a pasque flower is a right as
inalienable as free speech."
It is a new thing for one species to mourn the death of another
species or to take measures to prevent that death. Leopold stated this
succinctly when he wrote:
"The Cro-Magnon who slew the last mammoth thought only of steaks
But we who have lost our (passenger) pigeons mourn the loss. Had
the funeral been ours, the pigeons would. hardly have mourned us."
From a practical standpoint, the Endangered Species Act of 1973 was
written in recognition of the following facts:
PAGENO="0188"
~84
1) various species of fish, wildlife and plants in the United States
have been rendered extinct as a consequ nce of economic growth and develop-
ment untempered by adequate concerr~ and conservation;
2) other species of fish, wildlife and plants have been so depleted
in numbers that they are in danger of or threatened with extinction; and
3) these species of fish, wildlife nd plants are of esthetic,
ecological, educational, historical, rec eational and scientific VALUE to
the nation and its people,
In recognizing the VALUES of endange ed species, Congress, for the
first time, established a system by which those species could be weighed
against other valued resources during evaluations made in compliance with
the National Environmental Policy Act of 1 69 (NEPA) and the Fish and
Wildlife Coordination Act of 1934 (FWCA). Indeed, some of the current
dilemmas involving the Endangered Species Act of 1973 might have been avoided
if the Water Resources Council, established under the Water Pollution
Control Act of 1972 (P.L. 92-500) had set a d adhered to vigorous, fair
`Practices and Standards', and the FWCA and NEPA had initially been
complied with (TVA is exempt from FWCA).
PAGENO="0189"
185
It is vital to our well being that Congress has recognized that these
often inconspicuous and, with our present knowledge, seemingly valueless
plants and animals and their associated habitats do have value. In our
society, which historically have had a highly exploitive relationship with
nature, protection is not generally affprded species and/or communities
lacking an economic value or the known potential of having an economic
value.
This is unfortunate but true. I say unfortunate because this historic
lack of concern for these `valueless' resources demonstrates both the lack
of an ecological ethic and of foresight.
We are only now recognizing, as the coal miners did years ago when
they took a canary with them into the nines, that many of the `innocuous'
plants and animals do have or may someday have a value to mankind. We
cannot fault these plants and animals for our current limitations in
knowledge about their potential values. Who would have fought to save
the mold Penicillium from extinction in the 1700's? If someone had risen
in defense of this mold, they would have been labeled a quack -- or worse.
Who among us knew of the value lichen communities would provide by indicating
PAGENO="0190"
86
~various types of air pollutants (dust, sulfur dioxide)? We are only
today discovering that the honey of ho ey bees may be used to monitor
the level of heavy metals in the enviro ment.
Besides the potential health benef ts associated with plants and
animals, there may be unknown economic benefits as well. The jojoba
bean of our western deserfs is an example. It was considered a noxious
weed and treated as such until research results demonstrated that its
oil had properties similar to those of t e threatened sperm whale. Now
the jojoba bean is receiving a good deal of positive attention.
In general, the animals threatened ith extinction are not those that
compose the early stages of ecological s ccession, often undergo populations
irruptions and are regarded as weeds, or p sts. Instead, they tend to
occupy more stable communities, have lowe biotic potentials, require
rather narrow, specific habitat condition and, in the case of animals,
occupy the upper rungs of the food-chain ladder. It is for these very
reasons that are so valuable to man as indicators of the impacts of
various forms of natural and man-induàed e vironmental perturbations.
PAGENO="0191"
187
The bald eagle, for example, helped demonstrate to us how persistent
pesticides passed through the food-chain and became magnified in concentration
as they moved from link to link. Our monitoring program indicated that
aquatic levels were well within the `safe' range. The eagle proved
otherwise, Who knows what lessons we may learn from two of our latest
contenders for extinction -- the snail darter and Furbish's lousewort?
Both are known to have rather specific habitat requirements and thus
serve as indicators of slight ecological change.
From a selfish standpoint, it is to mankind's benefit to save
representative ecosystems because the communities within them may contain
a plant or animal of unknown value. We may recognize other values of a
community and need `working' examples of it in order to reconstruct more.
Only now do we recognize the role of wetlands in purifying our water,
recharging the ground-water table, buffering floods, etc. Do we know
enough about these wetlands to begin to reconstruct them for man's
benefit?
Over and above the health and economic justifications for protecting
endangered plants and animals is the over-riding need for a conservation
PAGENO="0192"
88
ethic. For such an ethic to be effecti e we must look at and value
ecosystems and their associated species from more than a short-term economic
or man-benefiting perspective. We mus value those components of the
land community because they are essential to its healthy and continued
functioning. Duringhis campaign, Presi ent Carter referred to our fish,
wildlife and plant resources by saying th t they act as "an indicator of
our environment" and that "when they hàve~ trouble surviving we should
seriously examine the quality of our envi onment." Congress has provided
the r~ation with a tool to facilitate that type of examination and we
commend you for it. /
SECTION 7
In supporting the Act, we wish to
7 which states, in part, that all Federal
utilize their authorities in furtheran~ce of the purposes of this
Act by carrying out programs for the c~nservation of endangered
species and threatened species listed pursuant to Section 4 of this
Act and by taking such action necessar~r to insure that actions
authorized, funded or carried out by them do not jeopardize the
continued existence of such endangered~species and threatened
species or result in the destruction or modification of habitat
of such species which is determined by the Secretary, after
consultation as appropriate with the a fected States, to be critical.
special reference to Section
PAGENO="0193"
189
This Section is an integral part of the Act and in harmony with
Section 2(c) Findings which states:
It is further declared to be th~ policy of Congress that all Federal
departments and agencies shall se~k to conserve endangered species
and threatened species and shall ut~ilize their authorities in furtherance
of the purposes of this Act.
The temporizing phrases of earlier Endangered Species Acts (1966,1969)
which bound agencies to conserve protected species only "insofar as is
practicable given the primary purposes of such agencies" have been eliminated.
Congress was emphatic!
Claims have been made and schemes designed to show that Section 7.
is inflexible and therefore must be amended. The record does not support
these contentions. According to a statement made by Secretary Andrus at
the 1977 Annual Meeting of the NATIONAL AUDUBON SOCIETY, Section 7 of
the Act is working and conflicts between the Endangered Species Act and
Federal projects have been over-emphasized with most problems having been
resolved through negotiations among the affected agencies. Infact, in
the three years since the passage of the Act there have been about 4,500
informal consultations and 124 documented consultations between the De-
partment of Interior (Fish and Wildlife Service) and other Federal agencies.
29-319 0 - 78 - 13
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Of this number, only three have been u resolved via consultation and
hav'e thus been ruled upon in the court * Of these three, two have reverted
back to the agencies and one, Tellico is being aired before Congress.
It is obvious that Section 7 is workin~ and that Congress' intent in
passing the Act is being fulfilled.
The NATIONAL AUDUBON SOCIETY strongly endorses the existing mechanism
for avpiding conflict with the Act and or resolviflg conflicts if and
when they arise. We feel that the agencies involved should, in demonstrating
good faith in attempting to comply with he Act be able to resolve their
4ifferences in consultation leading po r search, design review, and
modifications in process, design, location and timing which reconcile
the competing interests.
If not, an agency may, at its discre ion, proceed with an action
- that appears to violate the law. At this point, the judicial process
may be invoked, Congress gave explicit authority in the Act to any
person to file suit to enforce provisions ~f the Act. The cpurts, in
hearing a case, may issue whatever order i~ necessary to force compliance -
with the law, including project modificati n or a moritorium.
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191
If, after the courts have reviewed the case, no satisfactory solution
can be reached then Congress should be' the final decision maker. We feel
that if Congress exercised its authority and judgment and called for a
vigorous review of any project they are called upon to adjudicate, as it
has done wIth Tellico, that the number of such cases would be minimaL
Such a review should evaluate a project's' economic and social impacts,
its environmental impacts over and above any effects on endangered species,
and its overall benefits. ` "
Tellicois a good case in point. It is the first project to be in
violation of' the Endangered Species Act that has reached Congress. To
determine why this occurred, let us examine Tellico's history with re-
gard to NEPA. NEPA requires all Federal agencies, before taking major
actions, to consider alternative actions, including actions which can
only be accomplished by other Federal agencies. In good faith, an agency
should take a look at the possible consequences of actions they are
are about to take and examine how they might impact on the Nation's interest.
E~ch major project is to beinviewed in terms of benefits and costs,
project alternatives and environmental impacts on the species including
PAGENO="0196"
192
mitigation. It was the absence of th~se procedures for Tellico under
t
NEPA, owing to the protracted cause of the TVA controversy, that has
resulted in Tellico being essentially an Endangered Species Act case and
not a NEPA case. In other words, the act that TVA has demonstrated
~iisdain for NEPA and is exempt from th ~WCA has put Congress in a position
of having to consider amending an Act it so overwhelmingly supported. This
demonstrates agency inflexibility rathe than, statutory inflexibility.
Because the TVA continued to pursue a p ogram which would eliminate the
snail darter despite requests from Inte ior, from the Governor and from
conservation organizatiorm, the Audubon Council of Tennessee joined as
co-plaintiffs with the Endangered Specie Committee and the Southeastern
Association of Biologists in litigation gainst TVA. The result was a
ruling by the sixth circuit court in Cm cinnati halting the Tellico project
until an administrative or congressional uling occurs.
In attempting to circumvent the issu of the dam's impact on the snail
darter and the River valley, TVA is pursu g a transplant program in the
Hiawasse River. It is important to note hat the Act offers protection -
to the "endangered species in their natural habitat" and therefore prohibits
the destruction of critical habitat as wel as of the species themselves
PAGENO="0197"
193
(16USC 1536). This point is crucial when considering the use of trans-
plantation as a mitigating measure. Merely accomplishing a successful
transplant to another area does not satisfy the requirements of the Act.
If successful over a protracted time and a wide range, however, a trans-
plant program could enable the Secretary to determine that the species in
question is no longer threatened or endangered.
The most difficult decision to be made in unresolved cases is whether
or not the project's values exceed the values of a species, including its
esthetic value. When referring to the demise of the passenger pigeon,
Leopold eloquently expressed his concern for its loss:
"There will always be pigeons in books and in museums, but these
are effigies and images, dead to all hardships and to all delights.
Book-pigeons cannot dive out of a cloud to make the deer run for
cover, or clap their wings in thunderous applause of mast-laden
woods. Book-pigeons cannot breakfast on new-mown wheat in Minnesota
and dine on blueberries in Canada. They know no urge of seasons;
they feel no kiss of sun, no lash of wind and weather. They live
* forever but not living at all.
In summary, Mr. Chairman, the NATIONAL AUDUBON SOCIETY supports the
Endangered Species Act as written and would strongly oppose any amendment
to weaken it. We believe that man has the responsibility to take every
reasonable means to ensure that his actions do not result in the extinction
of any plant or animal. * We
PAGENO="0198"
194
would like to see increased funding to implement all Sections of the Act
(especially Section 6) and to, as President Carter requested in his 1977
Environmental Message, identify all critical habitat. Early identification
of critical habitat would facilitate ag ncy planning and the consultation
process.
Overall the agencies have done well in light of the funds available
to them. We would hope that the approprjation of $9 million to the TVA
and other agencies to transplant endange ed species is a demonstration of
commitment to support and not subvert th Act. It is hard, however, to
conceive of this amount of money bei~g ap ropriated for a few projects when
the National Marine Fisheries Service has been operating its entire en-
dangered species program on a budget of a out $300,000 per year.
In our testimony we have eluded to various kinds of values associated
or potentially associated with endangered pecies and their habitats. The
key value that is approached by this act i that of an ethic for the land
and its associated resources. If I might, I would like to once more quote
the late Dr. Aldo Leopold:
PAGENO="0199"
195
"The `key-log' which must be removed to release the evolutionary
process for an ethic is simply this: quit thinking about decent
land-use as solely an economic problem. Examine each question in
terms of what is ethically and esthetically right, as well as what
is economically expedient. A thing is right when it tends to pre-
serve the integrity, stability, and beauty of the biotic community.
It is wrong when it tends otherwise."
Thank you Mr. Chairman for this opportunity to testify.
For Further Information Contact:
Dr. Michael D. Zagata
Washington Representative
NATIONAL AUDUBON SOCIETY
1511 K Street, N,W., Suite 926
Washington, D.C. 20005
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196
ENDANGERED SPECIES ACT OF 1973
AUTHORIZATION OF APE~ROPRIATIONS
STATEMENT ON BEHALF OF THE NA~TIONAL WILDLIFE FEDERATION
BEFORE THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,
SUBCOMMITTEE ON RESOURCE PROT~CTION, REGARDING THE AMENDMENT
TO THE ENDANGERED SPECIES ACT~ OF 1973 TO EXTEND AND INCREASE
THE AUTHORIZATION OF APPROPRIATIONS.
April 13, 1978
Ours is a nonprofit, nongovernmenta organization which has
independent affiliates in all 50 states, Guan, Puerto Rico, and
the Virgin Islands. These affiliat4s, in turn, are made up of
local groups and individuals who, wF~en combined with associate
members and other supporters of the Federation, number an esti-
mated 3.5 million persons. We welcdme and appreciate the
opportunity to speak to you about the need to extend the authoriza-
tion of appropriations for the Endangered Species Act of 1973.
The NWF is dedicated to conservation education and emphasizes the
concept that wildlife is a renewable resource only as long as
suitable habitat is available. We b lieve that the Endangered
Species Act of 1973 embodies this i9ortant concept as one of the
nost far-sighted and comprehensive p~.eces of legislation ever
ehacted for the protection of wildli~e. The Federation has urged
a strong National Commitment to the passage of endangered species
legislation. Today we are pleased to be urging neaningful and
significant financial support necessary for its continued success-
ful implementation.
The Federation has long been active i programs to protect and
preserve species such as the prairie ~hickens, bald eagles and
whooping cranes but without the strons~ unified approach that this
Act represents, we were losing ground~ The Act offers the necessary
regulatory and statutory authority anc~ the potential for funding
needed to affect a reduction in the c~rrent high rate of extinctions.
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In this Act, Congress recognized our responsibility to conserve
these natural resources--both in recognition of their place in
our nation's heritage and in our international commitment.
George Perkins Marsh in his very insightful book, Man and Nature,
written in 1864, observed that only the government is likely to
have the needed continuity and power to repair damage to the en-
vironment. With government aid, man might `become a co-worker
with nature in the reconstruction of the damaged fabric which
the negligence or the wantonnea~ of former lodgers have rendered
untenable."
The Endangered Species Act of 1973, as had its legislative predecessors,
focuses on the importance of habitat protection as a direct method
to help prevent future extinctions. It recognized that commercial
exploitation, pollution and a number of other factors cam contribute
to the demise of a species, but the loss of the habitat necessary
for the existence of endangered wildlife and plants is by far their
greatest single threat. Environmental destruction and the loss of
living space due to man's activities has increased profoundly in
the last few decades. The acquisition of lands for endangered or
threatened species is an important element of both State and
Federal efforts outlined in this Act. The Act further stresses the
importance of the habitat and species protection concept, in
Section. 7, by encouraging conservation and habitat protection for
listed species on Federal lands and in activities that are
federally funded or authorized.
The Endangered Species Act recognized the importance of garnering
all the available resources both to protect and to increase the
populations of animals and plants that are now endangered and to
make sure that no actions are taken that will contribute to the
further endangerment of these vulnerable species. The various
sections of the Act are all complimentary and therefore necessary
to provide an effective program for ensuring that wildlife will be
protected for future generations. None can standalone. Section 7
is indeed necessary as an integral element of this expansive
PAGENO="0202"
198
effort but becones even more impor ant because its successful
implementation serves as an enlight~ened, responsible example for
others to follow.
The NWF recognizes that with human opulation increases, disturbances
to species will continue and habita~ will be lost. Without Section 7
of the Endangered Species Act, we will lose any hope of achieving
a uniform federal conservation post~re which will result in the
conservation and preservation of e4an~ered species. Section 7 was
not conditioned to be interpreted oi~ly when economically advantageous
to any agency or when consistent with their special interest. The
Act was intended to be applied in a~1 cases. It is an attempt to
balance the concern for endangered ~pecies with the concern for
economics and other special interest~s. The Secretary of Interior,
who acts through the Fish and Wildli~fe Service, appropriately
occupies a pivotal role in the imple~nentation of the Act by issuance
of biological standards for protect4~g species. But overall the
success or failure of this critical ~ndeavor depends on the
achievement of voluntary compliance ~y other federal agencies and
the participation of state agencies.
The Act does recognize that there ar endangered species that are
presently highly valued in the marke~ place, but also includes all
others by finding that these endangered and threatened species
"of fish, wildlife, and plants areo~ esthetic, ecological, educa-
tional, historical, recreational, and scientific value to the Nation
and its people." Prior to this Act'~ inception, few arguments for
*these vulnerable species stood up un~er the greatpressure to
manipulate and distrupt natural envi~onments for economic and
population growth. Granted there wer~ examples of species that
in special cases received public supp rt against unrestrained
development, but overall no one felt responsibility for repre-
semtimg the interest of all species. The appropriate truism is
that there is rarely any responsibili y shown in decision-making
when those who make those deicsions d not have to suffer the
consequences. All species are suscepiLible to nan-made disturbances
and now have a recognized value by vii~tue of this Act. An
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199
example of the danger of setting of values of endangered species
in the marketplace was illustrated when the state of Texas was
asked how much a whooping crane was worth--the answer "not very
much." They considered the value of oyster shells dredged for
road building more important, even though that dredging resulted
in loss of critical habitat and silting of the.whooping cranes'
food supplies. The value of a healthy, balanced ecosystem should
be obvious, but is usually overlooked until it is too late. We
are slowly realizing the value of a diversity of species.
A community's variety of butterflies is a most reliable indication
of the suitability for both human and non-human existence; mayfly
populations show the purity of flowing waters; types of slow
growing lichens attests to the quality of unpolluted air. Many
species give us early warning of deterioration-'-~-of our own
potential endangerment. Seemingly unimportant life forms can
contribute invaluable benefits tO the living world that we all
share: studies to both understand and expand physiological
capabilities depend on many obscure animals; bees pollinate crops
valued at over $6 billion per year as well as countless types of
fruits and seeds necessary for wildlife; many potential human
cancer cures are disOovered in plants and animals; many anti-
bodies are derived from plants; 9/10 of the world's oxygen comes
from seemingly useless vegetation and weeds; many natural pest
controls are insects and small fish (species of killifish protect
many countries from mosquito and parasitic infective carriers of
dread diseases); and wild species of plants and animals are
necessary to improve domestic and cultivated strains for food
sources. The examples are only limited by our imagination and
the resources available for research. Conservation of these
species gives us the raw materials, the genetic heritage concealed
within these species. It keeps our options open for the time
when our ability to recognize the specific value of a plant or
animal is as advanced as our present ability to destroy habitat
that result in the species extinction. The evolution of a single
species is a process that may take millions of years and can never
be duplicated. No logical line can be drawn as to which species
would live or forever by wiped from the face of the earth. This
PAGENO="0204"
200
act subscribes to the basic belie that man's place on earth is
as a tenant; of stewardship and ~njoyment of the harvest of each
year but not of destruction of its source. Aldo Leopold. said it
best: "A thing is right when it tLends topreservethe integrity,
stability and beauty of the biotic~ community. It is wrong when
it tends otherwise.'
Many Federal agencies have recogn zed the need to "consider"
wildlife in carrying out their ~v~rall objectives. The problem
is that "consideration" hasn't pr~ved effective; a stronger mandate
is needed to protect endangered species. For example, Department
of Transportation Federal Highway Administration Publication,
"Environmental Considerations in Transportation Planning" concluded
transportation planner and hi~hway engineer. . .must begin to
identify effects early at the sys~em planning phase. The planner
and engineer must present the information to the public and the
decisionmakers so that decision~ cin transportation facilities and
services can be made in the best verall public interest. The
planner must develop alternatives that present real choices in
terms of environmental impacts,a d most importantly, he must
involve the public in the identifitcation of environmental effects
and in the making of :trade~offs~arr~ong alternatives. Environmental
factors must be identified and St died during system planning and
followed through the program and project stage." All of this
nice language notwithstanding, we were obligated to cone to the
aid of the 40 remaining endangere Mississippi Sandhill Cranes
whose existence was being jeopardzed by a highway interchange
planned for Interstate 10 near Gulfport, Mississippi. We (and
our Mississippi affiliate) filed a. complaint against the Department
of Transportation not to stop the ~iighway but only to make certain
that it was built in a way compáti~le with the survival of the
PAGENO="0205"
201
cranes. After the court ruled the Endangered Species Act had been
violated, good faith discussions of alternatives acceptable to
both the Fish and Wildlife Service and Department of Transportation
have begun and negotiations look promising. This could have
been achieved without reliance on the courts if good faith
negotiations under Section 7 of the Endangered Species Act had
been conducted at an earlier stage.
On the bright side -- proving in fact the point we've just stated --
NWF was recently involved in one of the many examples of the good
faith negotiations leading to the resolution of a possible endan-
gered species conflict. It involved the endangered Bachman's
warbler whose best known habitat is in the 4,500.;acre I'On Swamp
in the Francis Marion National Forest in South Carolina. The
habitat was threatened by proposed clearcutting by the U.S. Forest
Service. An NWF lawyer investigated the problem and proposed a
reasonable alternative, a three person arbitration panel with
wildlife experts from U.S. Forest Service, Fish and Wildlife Service,
and The Wildlife Society. A moratorium was agreed upon until a
recommendation was received from the panel. The guidelines agreed
upon by the parties involved in the mediation have been used to
reach a biological opinion under Section 7 consultation and promises
again to avoid future problems.
One problem with perceptions of the Endangered Species Act is that
it is looked at in isolation. But the Act does not stand alone.
It is part of an overall legislative package designed to minimize
natural resource depletion while still providing for future progress.
This package includes many other laws, the National Environmental
Policy Act of 1969 (NEPA) and the Fish and Wildlife Coordination
Act. NEPA calls for a continuing policy of the federal government
PAGENO="0206"
2i
"to use all practicable means and mea ures including financial
and technical assistance, ina manner calculated to foster and promote
the general welfare to create and maintain conditions under
which man and nature can exist in productive harmony, and fulfill
the social, economical and other recpliirements of present and
future generations." Prior to taki4 any federal action with
significant effects to the environrne~-it certain procedures should
be followed and these involve the cc~nsideration of alternatives
to the proposed action and consültatiion with~other federal agencies
which have jurisdiction because of law or special knowledge of any
environmental impact involved.
Fair consideration of alternatives s the heart of NEPA. Secondary
or indirect effects are to be cons~dered, such as development,
which can be even more substantial than primary effects. Neither
was done adequately in the case of Interstate 10 The Endangered
Species Act of 1973 gives the Department of Interior both the
resources necessary and the respon~ibility for response on behalf
of endangered species in the NEPA rocess.
The Fish and Wildlife Coordinatio Act requires federal agencies,
any time they are funding or issuing permits for modifying a water
body of the 13.5., to consult with the Fish and Wildlife Service
and the state agency with supervi ory authority over fish and wild-
life, prior to taking action. Se ious consideration must be
given to the recommendations of these agencies for mitigation of
impacts to fish and wildlife. It~ was the intent of Congress that
some new habitat for wildlife wo~ld be acquired or improved every
time an existing habitat was dis~urbed or destroyed by the construc-
tion of a federal darn reservolr/ canal or channel No law in
action shows more dramatically t~ie weakness of a law calling only
PAGENO="0207"
203
for "consideration" of fish and wildlife species. Millions of
acres of wetlands have been drained and filled, fish passages have
been blocked, streamf lows depleted, bottoinland hardwoods destroyed,
riverine habitat flooded out without mitigation for fish and wild-
life losses. Entire states have yet to receive mitigation from
any water project. If the long list of projects that have been
approved and built had been done with a reasonable provision
for habitat to offset what was destroyed perhaps we would now
be talking about situations where a project jeopardizes the con-
tinued existence of an endangered species or results in the
destruction or modification of the last bit of habitat which is.
critical for its existence.
In light of the above mentioned opportunities for federal decision-
makers to fully consider and balance environmental factors with
a reasoned choice of alternatives, let's review Tellico, the only
endangered species problem unresolved by the administrative and
judicial processes. Our Tennessee affiliate, the Tennessee Conser-
vatiôn League has shown a very reasoned response on TVA's Tellico
project. They have questioned the justification for the project
and specifically objected that the energy and flOod control
benefits were exaggerated. Because they feel the overall NEPA
process has been abused they have adopted a resolution urging
that Congress request a thoroigh study of benefits and alternatives
to the impoundment. We have attached this resolution to our testi-
nony. TVA is exempt from the Fish and Wildlife Coordination Act.
If they were not exempt and had complied with mitigation requirements,
the snail darter,believed once to have been common in free flowing
rivers throughout Eastern Tennessee, may well not have had its
PAGENO="0208"
204
habitat reduced to such a degree through dam building and pollution.
There are more than 20 large reservoirs within 100 miles of the
present project.
TVA claimed it was also exempt fr~m NEPA. The courts ruled other-
wise. TVA produced an E.I.S. thai reflected either inexperience
or a total disregard for the intei~t of NEPA. The courts ruled it
inadequate and required it to be i~ewritten. The new E.I.S. for
the Tellico project was recently ~eviewed by the G.A.O. The
report concludes that"the congres~ should prohibit the authority
from further~ work on the project and should not act on the proposed
legislation to exempt the project from the Endangered Species Act
until more current information is ~eceived."
It further recommended that TVA complete a comprehensive river-based
development plan as well as update its benefit-cost data on the
existing project plan.
The TVA also contended that ~he Endangered Species Act did not
apply to them. After receiving not~ce from the Department of Interior
in 1974 that if the snail darter we~e listed, impounding the river
would `~jeopardize the continued exi~tence of the fish." TVA went
on to spend $50 million on the dam, much of it after the darter
was finally listed in 1975. In shoilt, in this one case which has
posed what appears to be an endamgez~ed species act confrontation,
the project proponent hasVieWed it~elf as an exception to the
requirements of every piece of legislation which provides for con-
sideration of wildlife needs early i the planning process.
It is our contention that sound, wel -researched projects with
PAGENO="0209"
205
opportunities for adversary input and honest, complete alternative
presentations would negate the need for widespread cfvil suits
or requested congressional review under Section 7 of the Endangered
Species Act. To date there has not been a project that meets these
review criteria and is conflicting with the critical habitat
or existence of an endangered species. If in the future such a
situation develops, then a substantive review through the judicial
and possibly legislative process is necessary. The project, however,
should be able to stand up to a thorough. evaluation, and then,
and only then, should Congress have to balance the benefits to be
derived forthe public welfare. But the ultimate choice of life
or death of a species is up to Congress -- the people we elect.
No one else is in a position sufficiently responsible to the
american people to make such a decision.
Fortunately, for the preservation of endangered species, the
great majority of agencies have willingly complied with the re-
quirements of Section 7 and consulted in good faith. Through
good faith consultation the intent of the Act is satisfied and
potential differences resolved through negotiation. Final regu-
lations were recently published which explain the consultation
process to assist federal agencies in complying with Section 7
of the Act. This rulemaking requires Federal agencies to con-
sult with the Service if their activities or programs may affect
listed species or their habitats. After such consultation, it
is the responsibility of the involved agency to decide whether
or not to proceed with the proposed activity in light of its
Section 7 obligationS. Under the new regulations, when Fish
and Wildlife Service officials receive a request for consulta-
29-319 0 - 78 - 14
PAGENO="0210"
206
tion from another Federal agency, it is required that they
evaluate an activity's impact witI~in 60 days. At that time,
the Service can determine that th~ activity will have no inpact
on listed species, that it will a~tua1ly benefit the species, or
that it is likely to have a harmful effect. The Service can
request that further studies be undertaken in order for it -to
render its final biological opinio~. Of an estimated 4,500 con-
sultations in FY 1977, before the rocedure was mandatory, be-
tween federal agencies and the Fis and Wildlife Service, only
124 became "formal'1 procedural con ultations and of these only
TVA's Tellico Project, Department o Transportation's 1-10 and
the Corps of Engineers' Meramec Dam Project in Missouri, have
not been resolved following this administrative process.
In the Meramec project, the court ruled there was insufficient
evidence to prove that the project ould cause a marked impact
on the endangered Indiana bat but t e dam has since been con-
sidered for deauthorization because of questionable project
benefits.
A final problem under the Endangere Species Act is simple--money
and manpower to effectuate its purpc~ses. The U.S. Fish and Wild-
life Service, for the Departmentof nterior, very appropriately
assumed the major expansion of respo~isibi1ities that the En-
dangered Species Act of 1973 mandate~. The intensive broaden-
ing of effort that this required was unfortunately not supported
by a proportionate increase in fundi~g or manpower commitments.
There is no question but that this a~1ded to the difficulties
in administering a program of this magnitude from the beginning--
PAGENO="0211"
207
from the critical and often times controversial interpretation
of the nany sections of the Act, to the monumental endeavor in-
volving the assessment of the status of thousands of species,
subspecies and population segments of organisms worldwide.. The
NWF has been long and actively involved in much of this effort.
We have sometines been critical of the implementation of the
Act. Recognizing the need for a comprehensive approach to pro-
viding advice on endangered species to federal agencies for
both fairness to the agencies and the species we are trying to
protect. In August of 1976 we petitioned the Fish and Wildlife
Service to publish a rulemaking for Section 7 of the Endangered
Species Act.
We are pleased to see the increase of funds proposed in the
President's 1979 budget request ($3.8 million under endangered'
species planning and coordination) proposed for critical habitat
designation and Section 7 consultation. The present adininistra-
tion demonstrated a commitment to natural resources and a
healthy environment in the statement made by President Carter,
"Environmental Protection is no longer just a legislative job,
but one that requires and will now receive firm and unsparing
support from the'Executive Branch.' Timely environmental im-
pact statements are also requested for the improvement of NEPA.
The recognition of the loss of fish and wildlife in land and
water projects led President Carter to hasten the protection
of endangered species by directing the Secretaries of Interior
and Commerce to coordinate a government-wide effort to identify
all critical habitats. The possibility that these habitats
are not getting early enough consideration in project planning
PAGENO="0212"
208
was his reason. We cannot overly stress the inportance of
having full-tine permanent endangered species personnel capable
of providing timely, expert assisi~ance at early stages, and if
necessary, on site, in the planning process of federal agencies.
The necessary continuity, guidanc~ and coordination that this
type of staffing provides is, unfortunately, not provided for
in the President's budget. These ~re difficult and sensitive
jobs that if handled correctly wil~L continue to provide the suc-
cessful mechanism for li~ting con~rontatioms in the increased
number of consultations expected n w that the Section 7 consul-
tation is mandatory. They must di~courage abuse of Section 7
by individuals and groups concerne with species preservation
while encouraging ôompliance by fe eral agencies. The lack of
funds for new and ongoing law enfor~ement authorities, both
domestic and overseas; the expediti~us response to petitions
to list, delist, or reclassify national and international
species ; and implementing and revie img recovery plans is a
serious omission.
As important as Section 7 is to suc essful conservation of
endangered species, we cannot overlook the need to provide the
necessary funds and manpower for the~ continued implementation
of all sections of the Act. We supp~rt an authorization level
of $75 million for FY 1979-81 for the Department of Interior
and $10 million for the Department o~ Commerce.
The necessary expertise and procedur~s for the implementation
of endangered species activities has een carefully acquired
by the Fish and Wildlife Service. Th y have met most of
PAGENO="0213"
209
their responsibilities to date with a very well-considered
thorough appreciation of their commitment to the purpose of
the Endangered Species Act, It is our hope that these hear-
ings result in a better understanding of the difficulties in
the administration of some of the far-reaching and contro-
versial elenents of this legislation. But, more importantly,
we must reaffirn our commitment to the purpose of the
Endangered Species Act of 1973: saving endangered species
from extinction through the forthright, expeditious and well-
intentioned implementation of all sections of this legislation.
RESOLUTION RELATIVE TO THE TELLICO DAM PROJECT:
WHEREAS, the Tennessee Conservation League is vitally interested in
the wise use of Tennessee's natural resources and,
WHEREAS, the T.V.A.'s Tellico Dam project will destroy the last remaining
free-flowing section of the Little Tennessee River, a unique river
resource, and will inundate approximately 16,000 acres of prime farm
and forest land, several ancient Cherokee Indian Villages, Indian mounds
and two national historical sites and,
WHEREAS, the impoundment of the reservoir will destroy the habitat of,
the snail darter, an endangered species and,
WHEREAS, most of the benefit derived from the project is flat water
recreation and industrial development and,
WHEREAS, it appears that alternate uses of the lands involved could'
have an equal or higher economic benefit.
NOW, THEREFORE BE IT RESOLVED that the Tennessee Conservation League
through its Board of Directors, meeting May 22, 1977, hereby urges the
U.S. Congress and the Tennessee Congressional Delegation to order a
thorough study of the project and alternative to impoundment and to
~carefully study these alternatives before making any decision to exempt
the Tellico project from the Endangered Species Act.
PAGENO="0214"
PAGENO="0215"
AMENDING THE ENDANGERED SPECIES ACT OF
1973
FRIDAY, APRIL 14, 1978
U.S. SENATE,
COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS,
SUBCOMMITTEE ON RESOURCE PROTECTION,
Washington, D.C.
The subcommittee met at 9:30 a.m., pursuant to call, in room
4200, Dirksen Senate Office Building, Hon. Kaneaster Hodges pre-
siding.
Present: Senator Hodges.
OPENING STATEMENT OF HON. KANEASTER HODGES, U.S.
SENATOR FROM THE STATE OF ARKANSAS
Senator HODGES. Good morning. I welcome each of you to this
second day of hearings by the Subcommittee on Resource Protec-
tion on the Endangered Species Act of 1973.
The legislation we are considering during these hearings is S.
2899, the "Endangered Species Act Amendments of 1978." This bill
extends through fiscal year 1981 the funds for administration of
the act by the Secretary of the Interior and the Secretary of
Commerce. A total authorization of $75 million is provided for the
Interior Department, while $9 million is provided for the Com-
merce Department.
In addition, S. 2899 ameiids section 7 of the Endangered Species
Act to provide a mechanism for balancing irresolvable conflicts
that may arise between various types of Federal activities and
endangered species. A case in point is the $116 million Tellico Dam
in Tennessee, construction of which has been halted since its com-
pletion would destroy the critical habitat of the endangered snail
darter. Since the legislation was introduced on Wednesday, wit-
nesses who will testify today may not have had sufficient opportu-
nity to review its specific provisions.~ The subcommittee would,
therefore, like to invite you to submit for the record written com-
ments on the measure. However, if any of you feel prepared to
discuss the bill this morning, I encourage you to do so.
Let us now turn to our first witness, Mr. Jack W. Gehringer,
Deputy Director of the National Marine Fisheries Service, Wash-
ington, D.C.
STATEMENT OF JACK W. GEHRINGER, DEPUTY DIRECTOR, NA-
TIONAL MARINE FISHERIES SERVICE, ACCOMPANIED BY
JOEL D. McDONALD, OFFICE OF GENERAL COUNSEL, NOAA;
AND ROBERT GORRELL, OFFICE OF MARINE MAMMALS AND
ENDANGERED SPECIES, NATIONAL MARINE FISHERIES SERV-
ICE.
Mr. GEHRINGER. Thank you, Mr. Chairman. My name is Jack W.
Gehringer. I am the Deputy Director of the National Marine Fish-
eries Service. I have with me this morning on my left Mr. Joel
(211)
PAGENO="0216"
212
McDonald, Office of General counsel; and on my right, Mr. Bob
Gorrell, of our endangered species program.
Before I begin, you just raised the opportunity to comment on
the amendment you spoke of. We have not had the opportunity to
review that, and I will not be c~mmenting on that at this time. But
we will be very pleased to furnish comments.
Senator HODGES. Thank you.
Mr. GEHRINGER. It is a pleasure to appear before this subcommit-
tee to discuss the administration's proposal to extend the authori-
zation for appropriations to carry out the Endangered Species Act
of 1973.
Effective implementation of the act is vitally important to those
species of fish, wildlife, and plants that are either endangered or
threatened with extinction.
General authorization of appi~opriations under the Endangered
Species Act for the Departments of Commerce and the Interior to
carry out functions and responsibilities, other than financial assist-
ance to the States under section 6, is provided for by section 15 of
the act. The authorization for general appropriations is scheduled
to expire on September 30, 1978. An extension of authorization for
general appropriations is crucial for the Federal Government's en-
dangered and threatened species conservation program to continue.
The Department of CommerceL recommends extension of appro-
priations authorization to this agency in the amount of
$2,263,000-$1,963,000 under section 15 and $300,000 under section
6-for fiscal year 1979 and such sums as may be necessary for
fiscal year 1980. The fiscal year 1~79 amount represents our budget
request submitted to Congress.
The National Marine Fisheries Service is responsible for develop-
ing and maintaining conservatior~ programs for fish, aquatic wild-
life, and plant species of the mar~ne environment. Various species
of whales, seals, sea turtles, and ~turgeon are presently in danger
of extinction and protected as listed species. Restoration of these
species as well as any additional marine species which may be
listed in the future, through conservation management practices, is
an important objective and impacts future marine resource man-
agement decisions.
Species restoration to viable population levels can be achieved
through effective conservation ma~iagement based on sound popula-
tion research and implemented on~ State, national, and internation-
al levels.
The fiscal year 1979 budget submitted to Congress for this De-
partment shows an increase of $680,000 over the fiscal year 1979
adjusted .base of $1,583,000 for eiad~ang~red~ species conservation.
The endangered species base ro~ra__T~fiscal year 1979 is
summarized as follows:
Endangered species program ~d ihistratid~$38,OOO.-The pro-
gram is centrally managed and doordinated in National Marine
Fisheries Service headquarters here in Washington, D. C. Basic
administrative functions of the p~ogram include policy develop-
ment, program review and coordination, development of regula-
tions, and review of other Federal agency actions. Costs include
salaries, travel, public hearings, an~ printing.
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213
Endangered species enforcement, $160,000.-Enforcement activi-
ties include investigation and control of illegal taking, including
killing, capturing, and harassing protected species, as well as con-
trol- over importing and exporting activities. Illegal shipments of
parts and products of endangered and threatened species resulting
in seizures, forfeitures, and fines have been the primary enforce-
ment focus in recent years. Increasing the public awareness of
Federal controls has also been emphasized.
Endangered Species Research.-The fiscal year 1979 base pro-
gram contains $1,353,000 for research on endangered and threat-
ened sea turtles, endangered whales, endangered seals, and the
shortnose sturgeon recovery team.
The base program includes $250,000 for sea turtle research. Most
sea turtle research is directed at developing a sea turtle conserva-
tion shrimp trawl to reduce incidental catch by shrimpers. Other
research is conducted on population dynamics and habitat charac-
teristics. Limited research is also conducted on turtle product trade
and predator control. - -
The program includes a total of $1,042,000 for cetacean research.
Funding is provided for research on bowhead whales to determine
current population size, trends, and status. The program monitors
the native harvest to acquire biological data on landed whales,
conducts coordinated vessel and aerial surveys for distribution and
- - migration patterns, and establishes counting stations along the ice
leads through which the bowheads migrate. Analysis of historical
commercial whaling vessel logbooks will be completed to determine
virgin population size.
* Research is being conducted on other species of endangered ceta-
ceans. Included in this are whale stock assessments, intensified
studies on gray and humpback whales, whaling observer studies,
and studies recommended by the International Whaling Commis-
sion for the International Decade of Cetacean Research. Whale
assessment data on harvests, biology-which includes age, growth,
and reproduction history-and tagging enable determination of the
current status of exploited stocks throughout the world. The gray
and humpback whale project provided estimates of present size and
distribution of stocks, migration routes, their recovery from past
exploitation, and possible future vulnerability to increasing human
use of marine ecosystems. The IWC whale observer program moni-
tors compliance of Japanese landbased whalers to IWC regulations.
Research on endangered- cetaceans is also conducted with funds
provided under the Marine Mammal Protection Act.
In addition, the base program includes $50,000 for studies on
iendangered seals. These studies center on determining the current
- population size and trends of the Hawaiian monk seal and Guada-
lupe fur seal. The work includes censusing -behavioral studies* and
investigation into factors acting to limit recovery of the population.
It also involves limited work on the life history and population
dynamics of the northern elephant seal.
The last component of our base program for research is $11,000
for the NMFS shortnose sturgeon recovery team. NMFS estab-
lished and Chairs the team which consists of non-Government stur-
geon researchers. The team members exchange data, review techni-
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214
cal reports, identify research and management needs to restore
shortnose sturgeon, and contract sturgeon research.
The fiscal year 1979 adjusted base program also includes $32,000
for overhead support for all of the base program activities.
For fiscal year 1979 we are requesting an increase of $380,000
under section 15 for turtle res~arch and development. The fiscal
year 1979 increase will be used to implement fully the gear re-
search program on sea turtles and conduct expanded sea turtle
biological research consisting of stock assessments, mechanical tag-
ging studies for migration and population estimates, and coordina-
tion with local conservationists cn next relocation programs.
As you know, cooperation with the States is covered by the act's
section 6 authorization. The fi~cal year 1979 budget includes an
increase of $300,000 to establish~ or augment State endangered spe-
cies conservation programs in lieu of continued increases of Feder-
al programs. Of this total, $255,000 is for grants and $45,000 is for
one position and related admi4istrative costs to administer the
cooperative State-Federal agreethents and grants.
In summary, our program fundtions are most often directly relat-
ed to the animals listed on the U.S. Endangered and Threatened
Wildlife List, those listed on th~ Endangered Species Convention
Appendices, and those under cor~sideration for possible addition to
the U.S. and Convention lists. Extension of appropriation authori-
zations to the Department of Co~nmerce is necessary if we are to
carry out the intent of Congress.
Mr. Chairman, I will be pleased to answer any questions you
may have.
Senator HODGES. I have sever~l questions that staff feels are
appropriate. Let me ask you, first, one of my own. Are you encour-
aged or discouraged or optimistic or pessimistic, based on the
amount of money available and the research you are doing in these
areas?
Mr. GEHEINGER. I am optimistic\ that we can make full use of the
dollars available. I am realistic e~iough to know that if more dol-
lars are available, they could effectively be utilized. However, we
recognize that when a budget is prepared, there are a variety of
priorities which must be considerdd, and this is the present asking
of the administration.
Senator HODGES. Is this the sort of program that is one of the
first that is cut? Is this sort of program considered a luxury, do you
think?
Mr. GEHRINGER. It has never bebn cut. We just recently started
receiving funds for it. Prior to receiving congressional funds, we
had reprogramed dollars to enter hito certain activities. Each year
we have received at least the amoi.~nt of money we had previously,
and we have not experienced cuts. ~And I would not anticipate that
we would reduce in this area, no, sir.
Senator HODGES. I ask this quest~ion, certainly, out of ignorance.
What is done out of the informat~on, the research, after it is, I
assume, assembled and evaluated? Is it then translated into some
sort of administrative action, or is it passed on to this committee,
or to whom is this then given arid what is the final intent or
purpose of it?
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Mr. GEHRINGER. The intent of this program is to learn enough
about the actual numbers and status, as far as species are con-
cerned, to determine whether they are in danger of extinction, the
degree of endangerment; those that are presently listed as endan-
gered, what possible can be done in the way of regulations, re-
search, or mitigation which would permit them to recover in num-
bers sufficiently to remove them from the endangered list.
Of course, our long-range goal is to acquire enough information
to learn how to either modify the environment or modify the
impact of man on these species to permit them to recover to that
point.
Our. research, of course, enters into evaluations and recommen-
dations for management, administration of the program. It is usu-
ally published and becomes part of the public record and part of
the scientific literature.
With a number of these species, our literature is very meager,
and all, the information we learn, of course, supplements and com-
plements this.
Senator HODGES. Is part of what you seek to do to determine the
critical limit of a species, below which if it falls, it would not only
be endangered but almost incapable of sustaining itself?
Mr. GEHRINGER. Yes. And this is a very difficult task to deter-
mine what the fewest numbers of a species and the narrowness of a
geographic or local distribution that are the minimum limits for
which that species can survive as a species.
The criticality here is very severe because you are dealing with
numbers of animals that are relatively small at the time the peti-
tion is usually received on an animal. And the sound basic informa-
tion on which to base judgments is usually not all that great. But
we are called upon to make the judgments based on the best
current scientiflc information.
Senator HODGES. Just as a matter of curiosity, do you get cooper-
ation from other areas, other departments in the private sector for
these sorts of things?
Mr. GEHRINGER. Oh, yes. There are a number of universities who
have departments and individuals who are engaged in research in
these areas. The National Marine Fisheries Service could not hope
to be able to duplicate the research capability that is available
throughout the country.
Senator HODGES. How do you avoid doing that?
Mr. GEHRINGER. Excuse me; when I say duplicate, to substitute
our numbers for theirs on the numbers of people. We can't amass
the amount of dollars or the amount of personnel to do it. So,
hopefully, through exchange of information, communication among
the scientists themselves, we hope to reduce the unnecessary dupli-
cation of effort. And this, I believe, is what you are referring to.
Senator HODGES. How do you do that? For instance, do you have
a computer printout of what is being studied and where and how?
Or do you simply have people that know? Because this is not so
much money to do the task at hand, obviously.
Mr. GEHRINGER. That is correct. There is free interchange of
information among the several scientists throughout the country
that are engaged in or interested in these things. And I am sure
that information exchange could be improved, but usually it very
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quickly comes to our attention~ when we are doing something that
somebody else is doing, and *e can address that as appropriate,
whether we should continue or~ whether it should be a responsibili-
ty of another group.
Senator HODGES. I will ask s~me of these specific questions now.
With what States has the Natidnal Marine Fisheries Service signed
cooperative agreements pursuant to section 6 of the Endangered
Species Act?
Mr. GEHRINGER. We have not~ signed any. We have yet to receive
funding under the cooperative agreement arrangement. We have
with the State of New Jersey an indication of interest. We have an
application, and we have generally agreed that their format and
the kind of things that are required are there. But the States have
been reluctant to come forward~ with their specific proposals until
funds are available. We have ~ndications of interest from other
States when the dollars become available for this program.
Senator HODGES. Have you requested funding for this from
0MB?
Mr. GEHRINGER. We have requested funding in the past for this
particular program. We requested $1 million in 1976, which did not
make it through the bill. And, of course, our request for 1979 is
$300,000, which you have in the document.
Senator HODGES. Senate bill ~889 provides an authorization for
the Commerce Department of $2.5 million for fiscal year 1979, $3
million for fiscal year 1980 and~ $3.5 million for fiscal year 1981.
How do these amounts compare ~ith your projected needs for these
years?
Mr. GEHRINGER. Recognizing ~ve are speaking in very general
terms, $2.5 million for 1979, which includes the $300,000 for the
cooperative agreement program, is a good estimate of what we
have.
For 1980 we have estimated, recognizing that my testimony says
"such figures as are appropriate ~it a given time," the figures I am
about to give you are just planning figures for discussion within
our program activity.
For 1980 we are talking about i~oughly $3.8 million, and for 1981
roughly $4 million. Of course, as priorities change and as we see
critical things coming up, these m~y or may not be correct as those
years approach.
Senator HODGES. Just as a matter of curiosity, since I assume the
endangered species is not going to wait to extinct until the Federal
budget is decided upon, how do you get flexibility in your program?
And do you think you have enough now to meet specific problems?
Mr. GEHRINGER. We do have a certain amount of flexibility in
our overall program funding. For ~xample, in 1978 we reprogramed
from another series of activities a couple of hundred thousand
dollars to get started in the turtle~ program. These kinds of things
can happen. When this happens, of course, the request is carried
forward to Congress for a reprograming adjustment.
We think we have the flexibility with the figures the administra-
tion has asked for to accomplish it, recognizing, of course, that a
crisis could hit at any time and t1~ien we are forced to look for a
supplemental or budget add-on or sOmething of that sort.
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Senator HODGES. But you have not experienced sufficient prob-
lem with this in the past to ask for not unrestricted funds but
funds that would be discretionary?
Mr. GEHRINGER. No, we don't have that leeway in requesting
funding.
Senator HODGES. Approximately how many section 7 interagency
consultations has the service undertaken since the Endangered
Species Act went into effect in 1973? Can you give us examples of
the types of consultations you have conducted and how many do
you expect to undertake in fiscal year 1979?
Mr. GEHRINGER. I would like to just make a couple of brief
comments and then to furnish material which would be more
supportive.
Until recently we have not attempted to maintain that type of
record. We very frequently will consult with a State or other
Government agency with respect to nourishment of a beach which
sea turtles may use for nesting purposes. This has happened quite
frequently in the southeast where we probably have the best
record. My recollection is roughly 50 in that part of the country.
And we don't have good records of the other, but we are assem-
bling.
We don't know how many we can anticipate within the current
fiscal year or next.
We are working, of course, with the Department of Interior,
Bureau of Land Management, consulting with respect to the off-
shore energy development. We consulted with them within the
framework of the section 7 consultation requirement.
Senator HODGES. Apparently yesterday the Fish and Wildlife
Service felt they did not have adequate personnel to carry out
* effectively the section 7 consultation process. Is your service in a
similar situation?
Mr. GEHRINGER. My staff immediately would say we definitely
don't have enough personnel. If I may say so, at the present time
our Washington staff is on my immediate right, the full staff. We
have a total of four positions-two vacant and one hasn't been
filled. But Mr. Gorrell is my sole staff man on that.
However, we do rely not only on endangered species staff, but
the scientists who are in various laboratories around the regional
personnel.
Of course, we don't have sufficient numbers to do as much as we
would like. But considering the priorities of all of the program
areas, we are settling for what we have got.
We do have, I am reminded, a series of dredge and fill permits
that we commented on to the Army Corps of Engineers.
I mentioned the Outer Continental Shelf developments and and
our plant sitings, these sorts of things which we do. And some
instances there is a very minor kind of discussion over the phone
with few written words. On others it is quite a detailed analysis
which must be made.
Senator HODGES. Thank you. That is all the questions I have. Do
you have anything you or any of your staff would like to add?
Mr. GEHRINGER. No. We appreciate the opportunity to come
before you. As I said before, if I were to say we were satisfied with
our level of effort, I would not be entirely honest. I am sure that
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we can put out more effort, do some of the things quicker than we
are doing now. However, withM the guidelines of our present prior-
ities, we have made our budget request.
Senator HODGES. Thank you ~ery much. -
We will now hear from Christine Stevens, secretary, Society for
Animal Protective Legislation.
STATEMENT OF CHRISTINE STEVENS, SECRETARY, SOCIETY
FOR ANIMAL PROTECTIVE LEGISLATION
Ms. STEVENS. I am actuall~ representing a number of other
groups today, groups that belong to the Monitor Coalition.
Senator HODGES. If you would like to state them for the record,
we would be happy to have you ~lo so.
Ms. STEVENS. The Rare Animal Relief Effort, American Cetacean
Society, International Fund for Animal Welfare, American Littoral
Society, Humane Society of the\ United States, Let Live, the Fund
for Animals, Committee To P$serve the Tule Elk, International
Primate Protection League, and~ the Society for Animal Protective
Legislation.
Mr. Chairman, may I ask that this statement go into the record
in full, and then I will perhaps i~ot read it all.
Senator HODGES. So ordered. [~ee p. 254.]
Ms. STEVENS. The Endangered Species Act of 1973 is, as you
know, major legislation. The Ur~ited States leads the world in the
serious attention it has given this vitally important matter. The
soundness of the law is due in nb small measure to the hard work
that went into it with extensive hearings in 1966, 1969, and finally
in 1973 following the 3-week plenipotentiary conference held in
Washington where 93 nations were represented.
It has been very, very carefully studied, and I have followed it
personally myself through most of this effort, especially the 1969
and 1973 part. And for that reasthi I feel very strongly that the law
should remain as it is and that it shouldn't be weakened in any
way, even though I realize it is under attack.
This is such an important pi~ce of legislation that I hope the
committee will fmd a way to see that agencies deal administrative-
ly with any modifications that need to be made, rather than
making an actual change in the law.
Now, I think I should correct this $205,000 to $250,000, as I just
heard Commerce giving that amount for the studies for the sea
turtles.
I would like to make special comment on the sea turtles. This is
a very shocking article titled "Th~ Shame of Escobilla," that deals
with the killing of these species that are listed on appendix 1 of the
Convention of International Trade in Endangered Species of Fauna
and Flora. Yet so far the United $tates has not listed these turtles
or, in fact, it only has two turtles~listed. All the sea turtles are on
appendix 1, yet we haven't even gbtten ours on the threatened list.
So long delays have taken place ih that 4 years have passed since
they were petitioned for listing ~nder the 1973 act and 3 years
since they were formally propos~d by the Departments of Com-
merce and Interior for listing undei~ the act.
They had even been proposed for listing under the 1969 act, and
yet there has been delay after de1a~.
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219
You heard about the research that is planned, but that is not
going to do the turtles any good if they aren't listed. In other
words, the research is desirable, but we need action. So I would
urge this subcommittee to take a very strong line and ask the
Commerce Department, which has been dragging its heels for such
a long time, to move forward.
There is, at the moment, a reopening for public comment
through Monday, April 17, but there should be no further delay
after that time. The time left for several species of these turtles is
so short that immediate action is essential.
A leading turtle expert, Richard Felger, states that Kemp's
Ridley will be extinct this year, the Pacific Ridley will be extinct in
8 years or less, the green in 3 years or less unless the present
trends are reversed. The duty of our Government is clear. Not a
dollar should be allowed to leave this country to pay for any
product made from these vanishing creatures.
Now, we support the amounts that are in the amendment. You
are well aware of them, so I won't reiterate that. It is an increase
for enforcement. We would like to see even greater increase.
One serious lack is an adequate number of inspectors to examine
and refuse or accept wildlife shipments. At the present time, for
example, there are only six inspectors for, New York. To do an
effective job, the number should be doubled or tripled.
You may recall the uncovering of a ring of international fur
smugglers in 1973 when a carton marked leather goods broke open
and an alert airline employee noticed spotted cat fur sticking out of
the crate. Clearly Interior did not have enough inspectors then to
examine shipments for accuracy, or the smuggling would have
been detected in a routine inspection. Equally clearly, six inspec-
tors for a port the size of New York is inadequate, and throughout
the entire country there is only a total of 35.
At the present time there are at least 15 part-time or temporary
appointments, which cause a substantial turnover among these
inspectors, reducing their ability to gain experience on the job. We
urge that the Congress give Interior wherewithal to do the job that
needs to be done.
We hope that Interior will make the decision to ban the importa-
tion of elephant ivory. It will be cheaper and easier to enforce a
total ban than a partial ban. Regardless of the final decision on the
type of ban, more personnel with good training will be essential.
We earnestly hope that this distinguished subcommittee will, as
we have stated before, decide to leave the Endangered Species Act
intact without any weakening amendments. The consultation
system carried out by the Department of the Interior has been
remarkably effective in solving conflicts that have arisen. In the
future, this process should become even more effective because all
Federal agencies know of the act's existence and of the need for
consultation before planning is completed.
Our country can surely continue to develop without rendering
more species extinct. We set the moral standard for the world in
this field, and it is vitally important that we not be seen to be
taking any backward steps. When the next conference of the par-
ties of the Convention on International Trade in Endangered Spe-
cies of Fauna and Flora takes place in Costa Rica, we must main-
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tam our leadership role so thai species throughout the whole world
can be effectively protected frc~m the forces which otherwise would
lead to their extinction. Records of mammal extinction for the past
2,000 years show that over half occurred within the last 60 years.
Putting it another way, dui~ing the past 150 years, the rate of
extermination of mammals has increased 55 fold according to Dr.
Lee Talbot, of the Council on Environmental Quality. He states
that if these exterminations continue to increase at that rate, in
about 30 years all the remainii~ig 4,062 species of mammals will be
gone.
In closing, Mr. Chairman, w~ believe that the Congress can do
much to insure that endangered species are preserved through the
work of the Departments of t]~ie Interior and Commerce. Endan-
gered species need all the protebtion that it is possible to extend to
them. The next few years will spell success or failure throughout
the entire world with respEct~to~rnaintaining the inestimable diver-
sity of life forms which we ai~e fortunate still to have with us.
All is not smooth sailing in so broad an endeavor, of course. But
it would be disastrous if critics of the law's administration should
succeed in weakening this landmark legislation. Or should the
undoubted fact that delays ha~ve sometimes taken place in the
processing of permits which were appropriate to grant cause an
attack on the essential requiren~ent for examining permit requests
with care. There were some den~ands yesterday for changes in the
law for that reason.
The Federal Wildlife Permit Office is responsible for administer-
ing the Convention on Internati~nal Trade in Endangered Species
of Wild Fauna and Flora. This treaty needs to be cherished and
nurtured until it grows large an~ strong enough to stand up inter-
nationally and bring a final hal1~ to profiteering and smuggling in
the greedy race to exterminate rare animals and plants for the
sake of money. There is much work ahead. Improvements can be
made administratively. At this ti~me, this subcommittee should en-
courage the development, with adequate authorization for appro-
priations, of the Endangered Species Act.
Thank you, Mr. Chairman.
Senator HODGES. Are you famqiar specifically with Senate 2899
that will be an effort to amend section 7?
Ms. STEVENS. Unfortunately, I ~ot the Congressional Record this
morning and read the statement~ about it by Senator Culver and
Senator Baker and Senator Wallop, but I still haven't actually read
the exact text.
I am very eager to do so, but I haven't been able to get my hands
onit.
Senator HODGES. I was going to~ simply ask, if you had, whether
you had any specific comment on~ it. And I understand you don't
want any weakening of it. But I w~nted to ask whether, in light of
the fact that it undoubtedly is gding to be amended, the amend-
ment that had been offered by ~enator Culver and in which I
joined is one that could be acceptalle. But if you have not read it,
then--
Ms. STEVENS. I am aware there are seven agencies that could be
appealed to if another agency head was unable to resolve it.
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Senator HODGES. I don't want to put you on the spot. I don't
know how quick a study you are. I would ask if you wish to submit
some written comments, I am sure we would be very pleased to
have, them.
Ms. STEVENS. I would certainly want to do that. And especially
since I am speaking for a number of groups, it wouldn't really be
proper for me to respond fully at this time. It would be far better
for us to send you a written comment.
There is one other matter that I would like to mention, because
it came up in the hearings yesterday. That is about the spread of
Exotic Newcastle disease. We think the way to avoid that is to
actually ban the importation for sale of exotic pets.' That is where
Exotic Newcastle disease has come from in the past. That is what
cost $100 million to eradicate at one point. That is why there are
now many, many quarintine stations. And that is the answer to
that particular problem.
We would urge this committee, which. has jurisdiction in that~~-
area, to take a hard look at that. Perhaps I could submit this
recent report called the Bird Business, about the commercial trade
and the quarintine stations and smuggling, for the use of the
subcommittee.
Senator HODGES. Very well. Thank you.
Ms. STEVENS. And you might want these two that are English
publications that cover the same type of situation in the United
Kingdom.
Senator HODGES. Thank you very much.
Now we will hear from Mr. John F. Hall, vice president, National
Forest Products Association.
STATEMENT OF JOHN THOMPSON, GEORGIA PACIFIC CORP.
Mr THOMPSON My name is not John F Hall He was unavoid
ably delayed. My name is John Thompson. .1 am representing the
National Forest Products Association here today. `Personally, I am'
employed by the Georgia Pacific Corp.
NFPA does have written testimony which they will submit, [see
p. 258] but I would like to confine my comments to just a few general
remarks about S.2899 that was discussed yesterday.
Actually, we are tickled to death with the committee's initiative
to try and resolve some of the pending problems brought by the
Endangered Species Act, and we embrace the safety valve concept
that the amendment speaks to.
However, the safety valve occurs pretty late in the process that
you go through, in listing of endangered species and identifying
their critical habitat. We suggest you might want to give considera-
tion to try and put some kind of balancing mechanism early on in
the process, perhaps at the time the species. are listed.
At the same time, there should be a delineation of critical habi-
tat. Utilizatioti of the NEPA process at that particular point in
time might help serve this purpose to some extent.
It also, we believe, would be in line with the thinking of NEPA
where we try to identify early on some of the problems that might
be inherent in a project or a listing of species and take care of at
that time, thereby not having to utilize the committees of seven
29-319 0 - 78 - 15
PAGENO="0226"
222
Secretaries of very important departments to try and resolve the
problem.
Although this amendment does seek to relieve some of the inevi-
table conflicts that arise out~ of Federal projects, we would hope
that you would also give serious consideration to providing some
kind of safety valve for private lands.
I am sure your work, Mr. Hodges, with the Preservation Society
in Arkansas is showing you ~ program that works on sometimes
voluntary cooperation where ~ou don't have to utilize the eminent
domain to carry out a good p~rogram can work. But as the act is
written now, we feel there are some Tellicos on private land that
are waiting in the wings and a~e going to come down on us quickly.
The way that happens on private land is the way the Act defines
what it means to take endangered species. It means to harm or
harass. When you first look at that, you think there would be
purposeful harassment that is ~o be against the law, and certainly
we concur with that. But the\ Office of Endangered Species has
further defined harm and harass to mean disturbing the normal
behavior patterns, normal feeding and reproductive patterns of a
threatened or endangered spedes. And given the broad definition
of an endangered species, recdgnizing it includes subspecies and
even lower taxa and even poputhtions, perhaps isolated populations
of what otherwise might be a common animal in other parts of the
country, I think you can see that my company, for instance, with
4.5 million acres of forest lands\ in the United States, are going to
be faced with an awful lot of problems just by the listing of the
species. And it may be that th~ noise of a chain saw or a falling
tree, when we do harvest them, is going to be considered harassing
the species.
There is no relief under it, and we suggest the committee modify
the language so that on privat~ lands the definition of the word
"take" does not preclude normal cultural activities, normal land
management activities.
Just at first blush in looking at the amendment-and we will
submit more detailed informati9n and analysis later-we really
don't see any need for the inclusion of the subpoena and contempt
authorities for the committee that is outlined in it. There is just no
precedent for it, and we think per~iaps the committee should take a
second look.
Finally, in conclusion, we are in support of whatever staff it may
take with the Office of Endangere4 Species to get the job done. We,
too, would like to see the listing p~ocess accelerated. We would like
to see it move on with the efforts~ and especially if the committee
does give consideration to putting some kind of balancing mecha-
nism at the time the species are ~isted and the critical habitat is
designated, the agency is going to need a broader range of expertise
and the personnel to carry out the \function.
Senator HODGES. Thank you very much. I don't know about other
timber companies or other States, ~ut when I was chairman of the
Arkansas National Heritage Commission, Georgia Pacific cooper-
ated fully.
I was always very impressed with the activities of the timber
companies in Arkansas. That doesb't mean I always agreed with
them, but I would say that the major thrust they made was one of
PAGENO="0227"
223
cooperation. When we would designate an area, they were not only
cooperative, but they actually had a man on our commission who
served with us, one of our better members. So I thank you very
much for your comments.
The next witness is Mr. Kenneth Balcomb, Colorado River Basin
Conservation District.
STATEMENT OF KENNETH BALCOMB, COUNSEL, COLORADO
RIVER WATER CONSERVATION DISTRICT, ACCOMPANIED BY
ROBERT L. McCARTY, McCARTY & NOONE, WASHINGTON, D.C.
Mr. BALCOMB. Mr. Chairman, I guess the first thing I should do-
and I realize how staff will get the agenda slightly out of whack-is
say it is the Colorado River Water Conservation District. It is even
misapplied in my state, so I can't expect anybody here to not make
a mistake with regard to it.
Now, for the record, my name is Kenneth Balcomb. I am counsel
for the water conservation district, whose principal office is in
Glenwood Springs, Cob.
Today I am accompanied by Mr. Robert McCarty of Washington,
D.C., who is the attorney that my district uses on numerous occa-
sions for activities requiring legal services in Washington, princi-
pally before, now, the Federal Energy Regulatory Commission, for-
merly the Federal Power Commission.
I have a written statement, and I would like to submit the
statement for the record. [See p. 265.] And to save the time of the
committee, Mr. Chairman, I will just shortcut it so that my addi-
tional remarks would make some sense.
Senator HODGES. So ordered.
Mr. BALCOMB. Copies have been given to staff.
The statement is not only made on behalf of my water conserva-
tion district, which is generally referred to, but also on behalf of
the Southwestern Water Conservation District, which is represent-
ed by an attorney from Durango, Cob, by the name of Sam Manes.
Mr. Manes hopes to have the opportunity to present a supplemen-
tary statement of his own during whatever period your record is
kept open for that purpose.
The immediate problem that the Colorado River Water Conserva-
tion District has with the present act under consideration is the
court interpretation of that act. If I correctly read Hill v. TVA,
which, of course, will be argued in the U.S. Supreme Court next
week, it isn't the Secretary of Interior that has the so-called veto
power over projects in which other Federal agencies are involved;
it is the act itself. I don't think that the Secretary has any discre-
tion under the act to designate something as endangered when his
biologists tell him or he is convinced that something is endangered;
I think he has to designate it. And, of course, this protection has to
designate a habitat for that endangered species so it will not perish
from the face of the earth.
The problem as we view it is one of total lack of flexibility of the
law. There is no way that you can temper the rididity of the act
with the human requirements. There doesn't appear to be anything
in the act for that. And the Secretary, as I say, has to say this
thing is endangered, then he leans back and allows the citizen
PAGENO="0228"
224
interest groups to enforce the act for him. That is how Hill v. TVA
came to pass.
With that type of situatipn it is easy to understand why the
environmental entities are so~ anxious to see the act remain as it is,
because as far as they are cqncerned it is ironclad, and it reaches
every activity of the United states.
Our particular example is this: In connection with the statutory
obligations of our district, \4re have filed first with the Federal
Power Commission and now,~ of course, pending before the FERC
an application for preliminary permit, have been granted the pre-
liminary permit to construct ~ dam on the Yampa River, what we
call the Juniper Reservoir site, for the production of energy from
the use of falling water.
It is pretty difficult to pi.~t in a hydroelectric plant without
putting in a dam, I can assure you.
The Interior Department, in responding to the inquiries other-
wise by law, informed FERC~ that "At the present time there is
every likelihood that the Department would oppose construction of
Project 2757"-that is our project-"based upon anticipated de-
struction of habitat which is cQnsidered to be critical to two endan-
gered species."
Our problem is, No. 1, it is ~ little difficult for FERC to proceed,
in the face of obvious prohibition, you might say, because of the
Endangered Species Act, with construction of the dam.
Now, what is FERC to do? It has the obligation under law to pass
upon these matters and determine that a dam is necessary in order
to provide the energy, but it is blocked by this act, or they can see
now it will probably be blocked ~by this act.
Now, we agree with the previous witness, that the designation of
an endangered species or its h4bitat should require the same steps
as are required of FERC when it must determine whether or not a
dam should be built to provide the hydroelectric energy, and that is
compliance with NEPA, because they have taken one of the steps
by saying "this is the habitat ahd you can't inundate it because it
will destroy the species." That is part of the NEPA process. That is
what is no action, but nobody gets to determine what the result
would be of action to allow t~ie dam to be built. Everybody is
foreclosed from making that decision.
Now, we have examined, only to the extent that we heard yester-
day and today, the proposed amendments to the act. I can frankly
say we haven't had a chance to ~xamine the text because it wasn't
published in the Congressional Record. The statements of the Sena-
tors who introduced the legislation are there, and, of course, you
can get a picture of what they suggest from that. We would like
the opportunity at a later date, before the record closes, to com-
ment on the text itself. But, frankly, we have problems with setting
up another level to which appeal must be made, you might say, to
allow exception in the mandat9ry language of the act. And we
would like to have the committee at least consider what, for rea-
sons unknown to us, disappeare~1 from the act at the time of its
passage.
Apparently there were two or three safety valves in the act as
considered, and they were not ~iisapproved by Interior. Interior
specifically testified that they could live with a provision which
PAGENO="0229"
225
effectively said that the agency that was obligated by law to make
the decision must also make the decision as to whether or not the
habitat is to be destroyed.
The human need is greater than that of the endangered species.
But when it came out of the committees of both this body and of
the House, that language without explanation had disappeared.
And we suggest this is the answer, because this is what you told all
those other agencies by law to do, to make the determination-the
National Forest Service, to make a decision with regard tO preserv-
ing timber and water supply for land below the forests; the Bureau
of Land Management, utilization of other public land; National
Park Service in connection with the parks; and the FERC in con-
nection with the authorization of the construction of hydroelectric
power plants. You told them to do it, and now all of a sudden the
roadblock is there. I think it unfortunate that the matter has to go
to the U.S. Supreme Court. They may straighten it all out by
saying there is flexibility in the law and the district court was
right and the court of appeals was wrong.
I want to also mention-and Mr. Manes will elaborate on this
thing, but it is one of the oddest things being done, that Mr.
Manes, in addition to representing the Southwest Water Conserva-
tion District, is the attorney for the Southern Ute Indian tribe in
southern Colorado. The Southern Ute Indian tribe constructed all
their reservations, you might say a campground, on which they
hope to make a little money, and next to it a lake. And they were
providing the area with a needed recreation.
It is rather close to the national forest boundary, and the Forest
Service came to the Indians and said:
Today the Indians are in good shape with the Congressional committees passing
out money. Why don't you suggest you would like to go along with us in developing
the ruins, Indian ruins, up there and get that cleaned up, and in connection with
your fishing lake, it will expand your recreational activity.
Congress gave the forest the money. The ruins have been fixed
up and are available for public viewing, except that the public
access is limited by the determination of the Division of Wildlife of
Colorado under the Endangered Species Act, supported by the Fish
and Wildlife Service, that there are a pair of peregrine falcons who
are nesting and heavy use by the public of the roads would drive
the falcons away from their next, and this area is necessary for
their habitat.
Well, if you take that particular example to its ultimate, the
habitat of the perigrine falcon before the interference of man in
the western part of our country was the entire western United
States. And so I guess we just move everybody out so that 50 or 60
or 70 pair of perigrine falcons will have their normal situation.
I realize that is an exageration, but nonetheless it is possible to
raise the problem under the law to point out that this is a habitat
circumstance for this pair of peregrine falcons which could possibly
have been planted elsewhere and not created the problem.
The endangered species that are involved at the Juniper Reser-
voir, at least one of them, is called a squawfish, and he is a trash
fish. Every fisherman despises him, and I assume correctly he is
somewhat rare and endangered. I don't quarrel with that biological
conclusion. But at least the Division of Wildlife in Colorado, in
PAGENO="0230"
226
cooperation with the similar agency in the State of Utah, and I am
informed likewise the Fish and Wildlife Service of the United
States of America, at the tffne of the closure of Flaming Gorge
Dam on the Green River, poisoned the river to get rid of that very
trash fish and others, destroy~d it so they can reintroduce into the
river trout, rainbow trout. Nbw, that was in 1962, I believe, and
now 15 years later the trout i~ the endangered species because the
squawfish is being ignored urder Flaming Gorge Reservoir. They
are trying to muddy the wate~ so it will be too warm for the trout
to propagate. They are doing this so the trout can survive, but the
agency is looking at raising~ water that will be warm enough,
muddy enough that the squa~rfish can survive, at which time the
trout won't go in this area.
Sport fishermen would gladly welcome with great happiness the
expiration, as they have talked about, of the squawfish. And I don't
know how you feel about it, but I believe I could carry on my
conscience, I am happy to say.
We appreciate the opportunity to be here. If there is any ques-
tion you would like to ask, I wc~uld be happy to answer.
Senator HODGES. Just as a matter of curiosity, do you believe as
a matter of principle that the~e are certain species you would be
willing to see extinct?
Mr. BALCOMB. I must answer that personally, yes. And I would
like to call the chairman's attention to Mr. Hart's statement of
yesterday, the witness from th~ Smithsonian Institution, who said
that as a scientist he was conce~ned about the fact that there was a
designation of so many species that the Act was becoming unwork-
able and wasn't scientifically sbund to do this, that there were a
great many items that could ~e designated as endangered that
really had no useful human purposes. And he said he was willing
to take the responsibility for ta~cing them off the list. But there is
no recourse to do that at the present time.
And, frankly, if we can't live with the squawfish in the present
circumstance, the only organiza ion whO can take them off the list
is Congress, the only one. And 1 don't believe Congress wants to
deal with the species, these various endangered species, on a case-
by-case basis.
Senator HODGES. The dffficult~ is that once something is extinct,
it is gone. And then if we were~ shortsighted or if we took tempo-
rary passing values as our touchstone, how would you overcome
that again?
Mr. BALCOMB. Well, I recognize that that is a difficulty, Mr.
Chairman. I am not a biologist, but my wife is, and she has great
doubts about the efficacy of the *ay the law is written. I forget the
name of the fish, but he was t~tally gone, had been gone for 10
million years. He was evidenced in stone. All of a sudden they
found some down in Australia add the fish is not gone at all. Since
he became extinct 100 million ~ears ago and now showed up, he
ought to be on somebody's endar~gered species list, but I doubt he
is.
Senator HODGES. The difficulty is who is to make those decisions?
And if an area is the only place where an endangered species can
survive, should those decisions be made by that area for the rest of
us?
PAGENO="0231"
227
Mr. BALCOMB. We believe that the NEPA process will take care
of this problem, because then the balance would be weighed by the
agency charged with performing a primary purpose; that is, in this
case, our case, FERC. And they will say that there are enough
squawfish in Washington presently being poisoned, a different
branch of the same family, and we feel we can do without them in
the Yampa River. Let them go on the White River where they can
be put.
Likewise, we think maybe this problem can be reached by the
NEPA process before the critter ever gets on the list. We think it is
a major Federal action. Why isn't it tested?
I say to you, to this committee, that if and when the Fish and
Wildlife Service elects to try to designate the Yampa River as the
only habitat of the squawfish, I am going to ask the court to direct
them to return the environmental impact statement, because I
think it is a major Federal action.
I hope I have answered the Chairman's question. In other words,
I think you can balance this thing through the NEPA process. But
you can't balance it today because there is no balance to it.
I recognize the problem. I have to make up my mind about this,
that or another thing. But we are not talking about the things that
grab your heart and soul, the motherhood gut issues of the sandhill
crane or the bald eagle that is always mentioned. That isn't the
issue. It is these totally unknowns that all of a sudden rear their
ugly head to stop human endeavor. That is where the problem in
the act lies.
Senator HODGES. I understand what you are saying, but you used
a word which I think is significant-"unknown." You know, what
we know today is not what might be significant in the chain of life
20 years from now or 40. And when you break that-that is, when
you take action that will mean that forever more there will be no
more of something-that is a significant step to have taken, par-
ticularly when you don't know the impact of it or the effect of it.
And that is the thing that concerns me.
And as I look at it-and I am only going to be here this year,
and from my remarks, I am sure you are glad I am-the concern is
that I am not certain that we have sufficient knowledge to allow
any species, known or unknown, to become extinct, because we
don't understand the chain of life sufficiently, we don't understand
the effect on it sufficiently. And if there is to be error, I am
absolutely convinced the error should be on the side of preserva-
tion instead of on the side of continual exploitation. And I am not
willing to take my future and entrust it to the Fish and Wildlife
Service or Game and Fish Commission.
I served before I became Senator, and I resigned, on the Arkan-
sas Game and Fish Commission. And I can tell you that agencies,
as well as conservation districts, have tunnel vision. They are
interested in only what affects them. You are representing them;
that is your job. But the genius of the law of the Endangered
Species Act is that it does come down heavily on the side of an
absolute decision, that it is better to err on the side of preservation
than it is to err on the side of an action that is irrevocable and
irretrievable.
Mr. BALCOMB. Could I answer?
PAGENO="0232"
228
Senator HODGES. I didn't m an to get into a long-
Mr. BALCOMB. I want to point out-and I recognize what you are
talking about-if the only pl~ce that the creature or species in-
volved could survive is in a pa~ticular place in the United States of
America, if that is the only place he is, then your argument is
absolutely foolproof. I don't think there is any problem with that
particular thing, and we are going to have to work around that
circumstance.
But as our statement will indicate, if you read the recovery
team's notes and minutes of their various meetings in dealing with
the squawfish, we are not in that circumstance in this particular
species. We got two separate Federal hatcheries to successfully rear
them in the hatcheries. And I ~hink they have probably successful-
ly stocked them in various places. So we don't have that I-shall-
wipe-you-off-the-face-of-the-earth situation on the squawfish.
Too, I think in practically e~verything in which human life and
endeavor deals, somebody has got to make a gut decision. And if
you are an attorney-and I don't know whether you are or not--
Senator HODGES. I am, was.
Mr. BALCOMB [continuingj. `~Zou are aware of the fact-and I
don't know whether Arkansas has a death penalty for murder-
that we ask 12 jurors to make that decision and we don't turn a
hair, as lawyers, when we do it. We may not all be able to sleep at
night when we do it, but there is a life and death decision to which
there is no recall. They give hiM a chance, but in the final analy-
sis, if the law is right, if the ~1ecision is proper, if the case was
fairly tried, and the verdict is cut off his head, they cut off his
head.
We don't mind asking 12 good citizens to make this decision and
don't mind asking the Supreme bourt to say, finally, go ahead. But
you are telling me about fish I should have some reluctance. That
is where I leave you.
I just don't understand. Again and again this country has made
decisions about nuclear energy. They made the decision to drop the
bomb at one time. These decisions are made every day and they
are big decisions. But they have to be made.
All I am saying is let's put so~ne flexibility in them all and put
the responsibility where it goes, ~nd that is the llow that insists it
ought to be done.
If National Wildlife thinks that the squawfish must live over
every obstacle, let them prove it.
Senator HODGES. That is whai I think the amendment that is
proposed is intended to do.
Mr. BALCOMB. No, sir, I don't think so. I think you put another
level up here that has the final say. And it doesn't give the agency
that has the statutory duty that\ this Congress gave them to per-
form an act the opportunity to do~the act.
Senator HODGES. I will tell yo~i as an individual citizen and a
Senator, I am not willing to trust any single agency of this Govern-
ment with my final environment.
Mr. BALCOMB. I understand you, sir, but what NEPA does is
submit the matter back to the cdurt to see if the steps taken are
adequate under the law. That i~ what NEPA does. And if they
were adequate, the decisions made, all right.
PAGENO="0233"
229
~a~Qr~pqES. Thank you very much.
I see my good friend the Honorable Senator Jesse Helms is here.
Senator Helms, I think you are to introduce Dr. Mann.
STATEMENT OF HON. JESSE HELMS, U.S. SENATOR FROM THE
STATE OF NORTH CAROLINA
Senator HELMS. I have two distinguished citizens from North
Carolina, Mr. Chairman. It is certainly a pleasure to see you on
this beautiful April morning when all of us would like to be out
fishing, particularly in Arkansas.
Senator HODGES. For the squawfish.
Senator HELMS. In the interest of time, Mr. Chairman, I am not
going to go into great detail about the two North Carolinians. Ia~n
going to submit a résumé on each for the record. But suffice it to say
that they are both distinguished in their fields. I have known Dr.
Carroll Mann III, and I have known his distinguished father before
him. Dr. Mann has publication credits in such publications as
Qutdoor Life, American Rifleman, National Sportsman, Friends of
Wildlife, Wildlife in North Carolina. He is president and founder of
the North Carolina Safari Club International.
Mr. C. Allen Foster, who is also here this morning, flew here last
night from Las Vegas and must return there. His convention is in
progress. I suspect they will mention that.
Now, Mr. Foster is a distinguished attorney. He is now with
Kerner, Foster & Bernsley in Greensboro, N~C.
My purpose is not to describe their careers, Mr. Chairman, but
simply to commend these two gentlemen as dedicated Americans
and very knowledgeable on the subject to which they will address
themselves. And I thank you for the courtesy in letting them
appear and allowing me to present them.
Senator HODGES. It is a pleasure. It is always a delight to see
you.
Senator HELMS. Thank you.
[Senator Helms' statement follows:]
STATEMENT OF HON. JESSE HELMS, U.S. SENATOR FROM THE STATE OF NORTH
CAROLINA
Mr. Chairman, it is my pleasure to appear before this subcommittee today to
introduce two very distinguished citizens of North Carolina, Dr. Carroll L. Mann, III
and C. Allen Foster, Esq. These gentlemen are appearing before the subcommittee
to testify on behalf of Safari Club International.
Dr. Mann is .a long time friend and fellow-citizen of Raleigh. Indeed, I knew his
daddy before him. He is now a highly-regarded neurosurgeon and currently serves
as President of Safari Club International. Under his leadership, the Safari Club has
been turned from a largely social organization into an effective group articulating
the concerns and viewpoints of hunters and sportsmen everywhere. His appearance
before the subcommittee today is evidence of the new effectiveness of Safari Club
International.
Dr. Mann is also the past President of the N.C. Wildlife Federation and is a
member of such diverse outdoor organizations as the Alaska Professional Hunters
Association and the Society of the Conservation of Bighorn Sheep. His articles have
appeared in Outdoor Life, American Rifleman, National Sportman's Digest, Friends
0' Wildlife, Wildlife in North Carolina, and Safari.
Equally distinguished is Mr. C. Allen Foster, a resident of Greensboro, North
Carolina. He is now a partner in the Greensboro law firm of Turner, Enochs, Foster
& Burnley. Born in Monroe, Louisiana, he eventually adopted North Carolina as his
home, influenced no doubt by his wife, the former Patricia Pardee of Charlotte.
PAGENO="0234"
230
Mr. Foster is a magna cum laude graduate of Harvard Law School, stood first in
his class while receiving a Bachelor of~ Arts in Jurisprudence from Oxford Universi-
ty, and, slipping a bit, finished ninth in his class while receiving a Bachelor of Arts
in History from Princeton University.
He is a member of the National I~anel of Labor Arbitrators of the American
Arbitration Association and a public tsember of the North Carolina Tax Review
Board.
Allen Foster brings his legal knowledge and skills into good use in rendering
counsel to international hunters and~ sportsmen in regard to the complex and
delicate nature of the multitudinous game laws.
Safari Club International could not hope to have two better representatives, and I
and all of North Carolina are very pi~oud of them. It is therefore, a pleasure to
present them to your subcommittee.
STATEMENT OF CARROLL MA*~N, PRESIDENT, SAFARI CLUB IN-
TERNATIONAL, ACCOMPANIED BY C. ALLEN FOSTER, MANAG-
ING DIRECTOR OF THE AM~RICAN HUNTERS EDUCATIONAL
AND LEGAL PROTECTION FUND
Mr. MA1'~N. Thank you, Senator Helms.
My name is Dr. Carroll Manr~ of Raleigh, N.C. Professionally, I
am a neurosurgeon, but I am al~o a wildlife biologist and president
of the Safari Club International. I am appearing today on behalf of
the Safari Club International, the Safari Club International Con-
servation Fund and the American Hunters Educational and Legal
Protection Fund. Details with r~gard to the background of these
organizations are attached as exhibit I to the written statement of
my testimony.
With me is C. Allen Foster, an attorney from Greensboro, N.C.,
who is the managing director of the American Hunters Education-
al and Legal Protection Fund ~nd who has prepared the legal
portion of this statement.
The groups on behalf of whom\ I am appearing have a member-
ship in excess of 1 million AmeHcan citizens and, through their
activities, represent over 60 million other Americans who are
active hunters, fishermen, trappers and target shooters, these sta-
tistics being reflected in the FisI~ and Wildlife Service Survey on
Outdoor Recreation.
These groups wish initially to e~press their support for the con-
cept of wildlife management, in~luding the full spectrum from
seasonal harvest by sportsmen and others to, where necessary,
short-term species protection, all leading to the maintenance of
viable, balanced populations at levels consistent with available
habitat. As a result, these group~ supported the passage of the
Endangered Species Act of 1973 and, subject to the suggested modi-
fications of statutory language and administrative interpretation
set forth in this statement, suppor~ the extension of appropriation
authorization which is before this c~mmittee.
Because the groups on behalf of ~vhom I am appearing represent
sport hunters all over the world, they have probably had as much
practical experience with the En~1angered Species Act and the
species listed thereunder as any other group. As a result, we hope
that the following comments concerning the substance of the act
and its implementation will be helpful to this committee.
Mr. Chairman, we have seven prpposals, and for the interest of
time, I will read only the first and I\ would like for the rest of them
to be part of the record.
PAGENO="0235"
231
Senator HODGES. So ordered. [See p. 271.]
Mr. MANN. We believe that the act should be amended to exempt
from its prohibitions hunting trophies which are taken by sports
hunters in compliance with the laws of foreign jurisdictions in
which the species in question is found. There are a number of
reasons why such an exemption is both appropriate and would also
further the act's goal of long-term conservation or preservation.
First, there are many people who question the propriety of
Americans' determining the conservation status of species which do
not occur within the boundaries of the United States. The reaction
of foreign governments to the International Convention on Trade
in Endangered Species would seem to indicate that our government
seriously overestimated the international support for such activi-
ties. Moreover, the administrators who implement the Endangered
Species Act have little or no knowledge of the local conditions
peculiar to the countries of origin of the listed species. As a result,
American legislation and regulation creates foreign resentment
which detrimentally affects the very goals we are seeking to
achieve. For example, in a recent paper presented to the 43d North
American Wildlife and Natural Resources Conference on March 20,
1978, a copy of which is attached as exhibit 2, Messrs. Teer and
Swank, who had been employed by the Department of Interior to
conduct a status review of the leopard, stated:
In our recent study of the leopard practically every representative of natural
resources agencies that we contacted in Africa expressed the opinion that the
United States was presumptive in making rules and regulations which vitally
affected their internal affairs * * * . They wished to make it clearly understood
that they were quite capable and surely had more knowledge of their resources than
any person or government whose contact and tenure in their country was usually
short and desultory.
Second, it is common knowledge, and the Endangered Species
Act recognizes, that the primary forces which present danger to
the survival of certain species are, otie, habitat deterioration and,
two, overutilization for commercial purposes. As to the former,
hunters have historically been, along with Federal and State Gov-
ernments, the only source of funds for habitat acquisition and
improvement.
I know I need not cite to this committee the use of the Pittman-
Robertson and Dingell-Johnson funds in wildlife management nor
the activities of Ducks Unlimited in habitat acquisition. It is diffi-
cult to name even one group which opposes sports hunting but
which has made any significant contribution to the solution of the
problem of habitat deterioration.
As to commercial overutilization, it is well known that sports
hunters are not involved in their activities for monetary gain; in
fact, such considerations impinge upon their self-perceptions of the
value and meaning of their trophies. More important from the
regulatory context, the relationship of sport hunting to commercial
activity becomes even more remote when one considers the almost
negligible number of trophies involved annually in comparison to
species populations.
For example, in the case of the African elephant, as to which a
proposed threatened listing is now pending before the Office of
Endangered Species, trophy hunting in 1977 comprised approxi-
PAGENO="0236"
232
mately of 577 animals or less 1~han 0.04 of the minimum population
estimate with regard to the species. The scientific evidence is that
elephant populations can sust~in an annual offtake of 2.6 percent
to 5.7 percent, over 100 times the annual offtake by trophy hunt-
ers. The same thing is true w~ith regard to virtually every other
species which is listed as endai~igered or threatened under the act.
Third, the parallel regulatory framework represented by the In-
ternational Convention on Trade in Endangered Species is not, in
the vast majority of signatory ~ountries, interpreted to encompass
sport hunters within the prohibitions thereunder, even with regard
to species which are listed as endangered. The contrary interpreta-
tion of the United States is in a tiny minority.
The organizations which I rej~resent have urged the Department
of the Interior to institute a r~examination of the U.S. position
which was developed during a prior administration. And it is my
understanding that such a ree~amination may even be currently
underway.
Fourth, even current regulations promulgated by the Secretary
with regard to species listed under the act as threatened recognize
sport hunting as a legitimate utilization of wildlife resources and
an appropriate exception to gen~ralized prohibitions of taking or
even sale. For example, the griz~ly bear, which is listed as threat-
ened in the 48 contiguous States, can be hunted in limited numbers
in certain portions of its range.
More substantially, the alligato~ may be hunted in portions of its
range subject only to the regulations imposed by the local wildlife
authorities, in this case the State bf Louisiana.
We submit that this is precisely the type of exemption which
should be generalized for hunting trophies under the act. Surely,
`the local authorities are the mo~t able to determine population
goals and levels of annual offtake.
Finally, an exemption for sporth hunters would actively promote
the goals of long-term species conservation. As pointed out above,
sport hunting has a negligible inipact on population levels. Even
more important, in many cases the presence of sport hunters in
remote areas helps to control illegal poaching.
As Mr. A. L. Archer of Kenya, a knowledgeable observer of the
situation regarding the elephant in that country, recently com-
mented:
The majority of the uninformed overseas critics do not realize that many of the
major elephant hunting areas offer little e1~e other than elephants to hunt, there.
fore through banning elephant hunting one is playing directly into the poacher's
hands by at once removing a controlling fabtor in the presence of the professional
and his often influential and vocal overseas\ client. The field is thus left wide open
for large scale and unreported poaching acti*ities.
Innumerable members of Safari Club International report annu-
ally of their own personal efforts tQward the control of poaching,
ranging from the removal of hundreds of snares in a single day to
actually chasing and apprehending the poachers themselves. Fur-
thermore, sports hunting provides a major source of funds for the
economies and wildlife programs ~f affected countries. A game
trophy has a far greater economic value as such than any other
economic utilization of the resource.
PAGENO="0237"
233
The organization which I represent have recently compiled sta-
tistics in this regard concerning trophy hunting of the the African
elephant. In 1977, the approximately 577 elephants taken by sports
hunters produced in excess of $750,000 in license fees and taxes, all
or most of which was used in the affected countries' conservation
programs, an average of $1,360 per elephant. In addition, the same
approximately 577 elephants contributed a total of over $9 million
to the economies of the affected countries, an average of $14,373
per elephant. Thus, the total economic value per elephant was
$15,733.
I would again like to quote from the Teer and Swank paper
attached to my testimony as exhibit 2.
Many developing countries are abysmally poor in GNP and budgets for conserva-
tion are likewise very poor. Thus agencies charged with administering and manag-
ing wildlife resources have in the past earned funds to operate their programs
through licensing systems and sales of animal products. Often these funds provide
for an infrastructure in the capital city but almost nothing is left for program
implementation through a professional field force.
Funds urgently needed for conservation work have been cut off by the closure of
hunting seasons and by gazetting of species such as the leopard to endangered
status. Admittedly, the amount of financial loss attributable to the removal of a
game species from game status may be small, but relatively speaking, it is an
important loss to an agency whose budgets are already small. Moreover, it is
unlikely that any money will be forthcoming from general revenue to offset this
loss. The leopard can be taken legally in several countries in Africa, but its present
status as an endangered species prevents it from being imported' into countries
which are the primary sources of hunters for safaries in Africa. In addition to
economic losses to wildlife agencies in the losses of revenue to local people engaged
in these commercial enterprises can be substantial.
The potential economic return from many game animals provides an incentive to
the private landowner to protect and manage them for commercial purposes. On the
other hand, if the animal is a predator, real or imagined, of the landowner's
livestock, or depredator on his crops, and if he has no way to profitably market the
animal, the result is almost surely the elimination of the animal on that ranch or
farm despite its status as endangered to the conservationist.
In short, the marketplace can be the most important preservation technique
available to conservationists when wildlife species are present on private lands. The
placement of a species of economic importance on a protected list can defeat efforts
to protect or save it in some contexts.
I would again emphasize that the authors of this paper were
employed by the Department of the Interior to conduct a status
review of the leopard, and these are their comments about the
detrimental effect of banning the importation of leopards as sports
hunting trophies.
Two recent comments in this regard concerning the situation of
the elephant in Zambia and Botswana are particularly instructive.
As for Zambia, the following telegram was received:
U.S. Authorities dumb if elephant put on threatened list banning trophy imports
from Zambia. So abundant recent UNFAO Luangua Valley Reports stated elephants
causing excessive damage habitat. Advocated cropping some 1,000 annually for six
years. Not implemented due to lack funds. Foreign revenue to Zambia annually
exceeding $2,750,000. Ban exceeding detrimental and lost employment underprivi-
leged rural areas. Disastrous. Ban will not affect poaching.
Similarly, a letter regarding Botswana:
Should the bill to treat these animals as endangered be successful, it would
prevent the very person who is able to generate the money which will motivate
people to keep more elephant, from hunting in this country-the American sports-
man. The Botswana government places great store on the foreign currency they
receive from hunting licenses and in fact this easily gleaned revenue frequently
offsets public pressure to put land to better use-i.e., ranching with domestic stock.
PAGENO="0238"
234
Thus, the groups which I rejresent submit that the Endangered
Species Act should be amended to exempt from its restrictions the
trophies of sportsmen who obtain the same under legal hunting
licenses issued by the country of origin of the species.
Mr. Chairman, members of the committee, the groups which I
represent sincerely appreciat~ this opportunity to present our
views to your committee. I would be happy to answer any questions
which you might have.
Senator HODGES. Thank yoi.~ very much. The balance of your
statement will be put in the recprd.
Senator HODGES. I would certainly like to underline that I am a
member and have been for m~ny years of Ducks Unlimited and
other groups of similar import. `~Uhere is no question about the good
that they do. I appreciate your ~tatements.
Did you have anything you would like to add, Mr. Foster?
Mr. FOSTER. No, thank you, sir.
Senator HODGES. I am particularly pleased to see my good friend,
Jesse Helms. Thank you for bringing these fine men.
Senator HODGES. Mr. John Kane?
STATEMENT OF JOHN KANE, DIRECTOR, WILLIAM AMER Co.,
PHILADELPHIA, PA.
Mr. KANE. Senator Hodges, my name is John Kane. I am a small
businessman employed by William Amer Co., of which I am a
director. We are here today to present to the subcommittee our
thoughts on the Endangered Spec~ies Act, in particular as it relates
to the Australian kangaroo, thre~ species of kangaroo.
As leather tanners, we have been in Philadelphia for 145 years.
We ceased operation on January 1 of this year. We have, in fact, as
tanners, become extinct. A contributing factor to that has been the
long-delayed review of the situation involving three commercial
species of kangaroo.
The leather tanning business is one of the oldest businesses in
the world and in the United States. When I leave here, I will
continue down through Tennessee to Arkansas, where you have
many fme shoe manufacturers whom we count as long-time cus-
tomers. We are going to acquaint them with our situation in that
we no longer will be able to sujply them with certain products
which we furnished for many yeai~s.
Therefore, the points that I am~going to try to make today-and
I am not a lawyer or a lobbyist; I am an individual citizen trying to
express himself-are two. We ar~ greatly concerned that the act
require prompt and timely decisionmaking by those who are
charged with administration provi~ions of the act.
I am also going to cite my persçnal experience in attempting to
find on file in the public record sc~entific evidence which supported
the action of the Office of Fish and Wildlife in listing this kangaroo
first as endangered and then as threatened.
If I should lose the point I am t~ying to make I want to make it
clear in the beginning that this is what we are trying to do today.
We have submitted a letter to the subcommittee, signed by the
president of William Amer Co. I will not read that. I would ask
that it be entered into the record.
Senator HODGES. So ordered.
[The letter follows:]
PAGENO="0239"
235
T INO
I `a
KING KANGAROO
WILLIAM AMER COMPANY
215 WILLOW STREET * PHILADELPHIA, PA. 19123
215 MARKET 7.6229 CABLE "KINGID" Apr11 12, 1978
Resource Protection Sub-Committee
The Honorable John Culver, Chairman
Room L,20k, Oirksen Building
Washington, 0. C. 20510
`Mr. Chairman and Senators:
Thank you for the opportunity to appear before the Resource Pro-
tection Sub-.Comittee as it reviews Public Law 93-205, Endangered
Species Act of 1973.
We fully support the stated purposes of the Act, which are:
1. To provide a means whereby the ecosystems upon which endan-
gered species and threatened species depend may be conserved.
2. To provide a program for the conservation of such endangered
species and threatened species, and
3. To take such steps as may be appropriate to achieve the
purposes of the treaties and conventions set forth in (subsection a of)
this Act.
We compliment the authors of the Act for their clear and concise
definition of the responsibilities and procedures required to carry out
the purposes of the Act.
However, we are gravely concerned that nowhere does the Act re-
quire prompt and timely decision-making by those who are charged with
the administration of the provisions of the Act.
We respectfully cite the following history concerning the three
commercial species of the Australian Kangaroo:
Notice that certain species were proposed to be added to the en-
dangered species list was published in the Federal Register January 15,
1973. The comment period was sixty days until March 16, 1973.
A rulemaking published in the Federal Register dated June 1~, 1973
temporarily deferred action on the proposed rulemaking of January 15,
1973, pending receipt of more information.
A new proposed rulemaking was published April 1~, 197k, for the pur-
pose of reinstating the proposal of January 15, 1973 under the new statu-
tory authority, Endangered Species Act of 1973 (87 Stat 88k). Again a
sixty day comment period was permitted until June Lê, 197k.
PAGENO="0240"
236
On Decenter 30, 1971+ the Director, United States Fish and Wildlife
Service (USFWS) published a rulemakin~ that classified certain species of
kangaroo as threatened and set down certain prohibitions and procedures
that were applicable to those species. This rule was effective on January 29,
1975, fully twpyears after the original proposed rulemaking.
We digress here for a moment arid point out that the Act as written
does not mandate that "good and suffi~ient evidence" be available to support
a finding that a species is endangered or threatened, and that that evidence
be made available to the public through the public hearing process.
Our representative came to Washington to review the scientific evi-
dence that was supposed to support the~rulemaking. He came because the final
rulemaking published in the Federal Register Vol. 39 No. 251 of Monday,
December 30, 1971+ stated:
"Supporting evidence.. * is on fi e with the Office of Endan-
gered Species, United States Fi~sh and Wildlife Service,
Washington, D.C. Interested pCrties are invited to examine
and discuss this information at\ the Office if they desire."
Senators, there was no evidence, scient~ific or otherwiSe, available for exam-
ination at the Office of Endangered Spe~ies. The person who was responsible
for showing the evidence to the `public was quite upset and even after making
numerous phone calls was unable to produce even a single document.
We continue to digress on this s~bject because even today, more than
three years after being turned away en~,t~y handed, there exists no scientific
proof available to the public that the species of kangaroo in question are
likely to become an endangered species s.~ithin the forseeable future.
Please consider therefore our poi t of view, which would support an
amendment to the Act that would require he Office of Endangered Species to
utilize the public hearing process in orer to place scientific evidence
supporting their decisions on the ~ub1ic\record.
We now return to the recitation o~ events which pronpts us to plead
for an amendment to the Act, requiring pr~ompt and timely actions by the
Department of Interior.
Commencing January 29, 1975 the imports of skins of the three species
of kangaroo was unlawful; however the rul~rnaking stated that the Director
USFWS could permit importation upon recei~,t from the Australian Government,
certification that:
"(1) A particular Australian State has developed an effective
sustained-yield program for st~ch wildlife and,
"(2) The taking of.such wildlife ir~ that state will not be det-
rimental to the sur'/ival of tF~e species or subspecies of
which wildlife isa part"
Let us see what happened
PAGENO="0241"
237
The Australian Government on April 30, 1975 provided the Director,
USFWS with the required certifications from the Australian states of New
South Wales and South Australia. Copies of the approved Kangaroo Con-
servation Programs for those two states as well, as Queensland and Western
Australia were also submitted.
On September 25, 1975 the Australian Department of the Environment
and Conservation certified to the Chief, Office of Endangered Species, USFWS
that Queensland and Western Australia had implemented satisfactory kangaroo
conservation management plans and that exports of skins was permitted in ac-
cordance with those plans.
On April 28, 1976 the American Etthassy in Canberra transmitted to the
Secretary of State the full text of a diplomatic note from the Australian
Department of Foreign Affairs on the subject.of the ban on commercial im-
portation of kangaroo products into the United States. The diplomatic note
contained certification (again) that New South Wales, Queensland, and South
Australia completely satisfied the requirements of both the Australian
Government and the United States Government, and requested relaxation of the
Import ban.. -
A priority cable from our Secretary of Stateto the American Embassy,
Canberra, on October 5, 1976, began with this statement: "U.S. Department
of Interior officials are still reviewing Australian submissions.. ."(empha.
sis mine). An incredible admission, when you consider the resources avail-
able in Interior, to complete the review In a timely manner.
What is the situation now, in April, 1978, three years.to the month
after the Australians officially submitted their kangaroo conservation plans?
We simply do not know. There have been no public hearings or deliberations
over the adequacy of the plans (or inadequacy). There has been nothing pub..
lished in the Federal Register. We have heard that the Australian Govern-
ment has complained formally to our Secretary of State about the treatment
they have received from our government In their attempt to resolve the kanga-
roo issue in a reasonable time and manner,
We understand their Impatience. We are impatient too. Both a sovereign
government and a small leather tanner like ourselves deserve better and fairer
treatment than has been given us under the present provisions of the Endangered
Species Act of 1973. Our impatience, and we presume the Australian Govern-
ment's as well, is aggravated by a lack of definition of the basis on which our
Government initially reached its threatened classification which it still main-
tains.
Thank you for considering our recommendations to improve the implemen-
tation of this Act. .
Respectful ly submitted,
WILLIAM AMER COMPANY
2~
Laird H. Simons, Jr., Pr sident
29-319 0 - 78 - 16
PAGENO="0242"
238
Mr. KANE. Before I go to those two main points, I know it is on
your mind, your Senate amenc~ment 2879. I did receive a copy of
that this morning from one of ~he gentlemen here. I would like to
echo what was said by a previous witness who sought a safety
valve for domestic "irresolvable conflicts" not involving Federal
agencies. I would ask that you t~onsider a safety valve for interna-
tional "irresolvable conflicts." And I think I can underline the
reason for doing that.
Although the issue of the k~ingaroo might be insignificant in
comparison to all of the other i~sues that face all of us today, the
Australian Government has had to file a formal complaint with the
U.S. Government, through dur Secretary of State, because of the
action or inaction, if you will, taken by the Department of Interior
in reviewing official managemei~t programs submitted by individu-
al states in Australia.
Now, Mr. Simons in his lett~r concludes that here we are, a
small leather tanner, and a sovei~eign government having the same
complaint. I think there has to be validity to that complaint.
Therefore, as I say, if you and the other Senators might want to
consider some legislation that pi~ovides a safety valve for interna-
tional "irresolvable conflicts," it *111 be welcome.
The gentleman before me mentioned "irresolvable conflicts" be-
tween states in Africa and the Endangered Species Act. I might
also point out if the Senator shOuld consider an amendment, in
that amendment I think there should be some additional definition
of the relationship between our~ government and the treaty to
which we are a party, which is the International Convention on
Trade in Endangered Species. We ~tre a signatory to that treaty. As
a matter of fact, Mr. Russell Train, who is the head of EPA, was
instrumental in 1969, in Kenya, ~n developing the concept of an
International Convention on Trad~ in Endangered Species.
The process by which an individual American citizen can apply
for relief through the mechanism of the International Convention
on Trade in Endangered Species is mindboggling. I could never do
it. We could never do it. There has to be some link whereby
appeals on animals listed on the lhternational Convention can be
carried out some way.
I might also point out what I corjsider to be an abuse, (and I can
document that abuse to your staff~ by the use of cablegrams and
actual minutes) of the International Convention on Trade in En-
dangered Species. The Federal Register, which listed these three
species of kangaroo as threatened~ never mentioned a listing of
these species on appendix 1 or 2 o~' the Convention. Yet we have
correspondence and cables which co~itinually refer to the listing on
appendix 2 of these species as a pre~equisite for the Director of the
Office of Fish and Wildlife to take action.
I was provided the minutes of th~ Convention meeting in Bern,
Switzerland, in 1976 and there was no record that such listing was
ever discussed by any person, any official of the U.S. Government.
Yet the Australian Government ha~ been consistently told by fish
and wildlife people to list the three species of kangaroo, and I have
evidence right here of that. I think this is wrong. It is interference
in another nation's affairs. It is telling the Australian Government,
PAGENO="0243"
239
"You don't know what you are doing in setting up rules and
regulations to insure that the kangaroo does not become extinct."
I think that the relationship between our Endangered Species
Act and the treaty to which we are a signatory should be consid-
ered in any amendment to the act which would attempt to resolve
international "irresolvable conflicts."
We fully support the stated purposes of the act. I have taught
myself a little bit about conservation. I began working in conserva-
tion in the Second World War by digging small ponds to preserve
stream flow and stocking them and so forth. I consider myself a
conservationist in the way Teddy Roosevelt defined it, that it is
"preservation with progress." Therefore, we do support the stated
purpose of the act.
We are concerned that nowhere does the act require prompt and
timely decisionmaking, and we respectfully cite in our letter to the
committee the history concerning the three commercial species of
the kangaroo that were proposed to be added to the endangered
species list in January of 1973.
A rulemaking in June of 1973, 6 months later, deferred the
action pending receipt of more information. A new rulemaking was
published in April 1974 for the purpose of restating the proposal
under the new statutory authority, which was 87 Stat. 884.
In December of 1974, the Director of the Fish and Wildlife Serv-
ice published a rulemaking that classified certain species of kanga-
roo as threatened, and set down certain prohibitions and proce-
dures applicable to those species. The rule was effective on January
29, 1975, fully 2 years after the original proposed rulemaking.
And I would address and speak to testimony given by Ms. Ste-
vens where she said that on the sea turtle she was taking the
opposite side. She said the sea turtle had not been listed for 4 years
despite the fact it is on appendix 1. I think the gentleman who
spoke on the Marine Fisheries Service referred to money to do
planned research on the sea turtle. And yet Ms. Stevens says we
need action. I submit, sir-and I am about to digress on the point-
we do not need action if there is no scientific evidence on the sea
turtle. I don't believe the Congress intended action to be taken
until scientific evidence is available.
Now, I know this conflicts with what the gentleman said before
about taking action to make sure something doesn't become extinct
while you are reviewing it. My own feeling is that that would not
happen. So I will digress for just a moment.
Once the rulemaking on the kangaroo was published in the
Federal Register, I came down here, and I went over to the Fish
and Wildlife Service. That was my first trip to Washington. I asked
a lady could I see this evidence. It was in Secretary Morton's press
release, and in the Federal Register, that it was available and so I
came. And, as stated in our letter, there was no evidence, scientific
or otherwise, available for me to examine at the Office of Endan-
gered Species.
And I would like to point out the act, in our opinion, as written,
does not (1) mandate that good and sufficient evidence be available
to support a species as endangered or threatened and (2) that
evidence be made available to the public through the public hear-
ing process so that we, therefore, who are nonscientists can read
PAGENO="0244"
240
what the scientists say. And if we wish to take an adversary
position to what they say, we would have an opportunity to exam-
ine the public record.
But at the moment all the act allows is publication in the Feder-
al Register. And, sir, I really think that a useful amendment would
be for that evidence to come up ~n a public hearing process.
My own association with govei~nment has been on a local level as
a township supervisor for the la~t 6 years. And I can say this, that
the public record is most useful when arguing a point, because
otherwise emotions take over s~ rapidly that discussion and peo-
ple's time is taken up unnecessarily. So that is another thing I
would like to ask the subcommittee to consider.
Three years, after being turne~l away empty-handed, I sit before
you today and I make this statement to you that there exists no
scientific proof available to the public that the species of kangaroo
in question is threatened; which\ means "likely to become an en-
dangered species in the foreseeabl~ future."
I know there were questions abbut the kangaroo's present status
submitted by the present Chief of Endangered Species to the Aus-
tralian Government. If they don't have the answers to those ques-
tions in front of them now, ho~ can they say the kangaroo is
"threatened"? We are expected to prove a negative proposition.
I am not a lawyer, but I have heard discussions on negative
propositions. Force of logic tells you that is an untenable position,
yet that is the position we put the Australian Government in-
prove the kangaroo is not "threate~aed."
Right now, 3 years later, there i~ no evidence, as I say, that the
kengaroo is "threatened". As proof of that, we are asking the
Australian Government to give us information that we should have
had a long time ago.
And I am not blaming any individual. As a Navy quartermaster,
I believed in reading the log to see ~what happened on the previous
watch. What I am told by USFWS is, "It didn't happen on my
watch, I don't have that information. I need it." That is wrong.
Every time the watch changes at U~FWS is there no "log"? There
would be a "log" if it was on the public record and the scientific
evidence was there; there would be a "log." There wouldn't be this
unnecessary delay in going back and trying to dredge up informa-
tion that should have been there in the first place.
On January 29, 1975, the imports ~f skins of the three species of
kangaroo was declared unlawful; however, the rulemaking stated
that the Director of the U.S. Fish and Wildlife could permit impor-
tation upon receipt of (1) Governmen~t of Australia (GOA) certifica-
tion that a particular Australian state had developed an effective
sustained-yield program for such wildlife and, (2) the taking of such
wildlife in that state would not be detrimental to the survival of
the species or subspecies of which wildlife is a part.
Let's see what happened.
The Australian Government on Ap~'il 30, 1975, provided the Di-
rector, U.S. Fish and Wildlife Service with the required certifica-
tions from the Australian states of New South Wales and South
Australia. Copies of the approved kan~aroo conservation programs
for those two states as well as Queen~land and Western Australia
were also submitted.
PAGENO="0245"
241
On September 25, 1975, the Australian Department of the Envi-
ronment and Conservation certified to the Chief, Office of Endan-
gered Species, U.S. Fish and Wildlife Service, that Queensland and
Western Australia had implemented satisfactory kangaroo conser-
vation management plans and that exports of skins was permitted
in accordance with those plans.
On April 28, 1976, the American Embassy in Canberra transmit-
ted to the Secretary of State the full text of a diplomatic note from
the Australian Department of Foreign Affairs on the subject of the
ban on commercial importation of kangaroo products into the
United States. The diplomatic note contained certification again
that New South Wales, Queensland, and South Australia complete-
ly satisfied the requirements of both the Australian Government
and the U.S. Government, and requested relaxation of the import
ban.
A priority cable from our Secretary of State to the American
Embassy, Canberra, on October 5, 1976, began with this statement:
"U.S. Department of Interior officials are still reviewing Australian
submissions. . . ." An incredible admission when you consider the
resources available in Interior to complete the review in a timely
manner.
What is the situation now, in April 1978, 3 years to the month
after the Australian officials submitted their kangaroo conserva-
tion plans? We simply do not know. There have been no public
hearings or deliberations over the adequacy of the plans, (or their
inadequacy). There has been nothing published in the Federal Reg-
ister. We have heard that the Australian Government has com-
plained formally to our Secretary of State about the treatment
they have received from our Government in their attempt to re-
solve the kangaroo issue in a reasonable time and manner.
I have with me here today the report by the U.S. Fish and
Wildlife Service dated September 10, 1975, submitted by Dr. Spen-
cer Smith and Dr. Ron Skoog, who was formerly the Chief of the
Office of Endangered Species, who is now with the Environmental
Department in Alaska. And on one occasion when I talked to him,
he sat in Juneau looking out over the bay and gave thanks that as
a "field scientist" he has an opportunity to work as one and is not
in a "biopolitical" situation, which we contend exists within the
Department of Interior.
Here is his report, and briefly he said in 1975:
Today, benefiting from a fund of information not available 15 years ago, from the
realization that more stringent management controls exist, with the knowledge that
most kangaroo populations are rising again after several wet years, we can replace
the hysteria with reason, confidence, and perhaps a sigh of relief. The hue and cry
served a good purpose, however, because it forced the producing states to take a
hard look at their management weaknesses and encouraged them to improve. The
management plans of all four states have been modified and improved since 1970.
The plans basically are sound, but their effectiveness will be hampered by a general
lack of research and enforcement personnel. That situation is not unlike all coun-
tries so far as ability to finance personnel.
In spite of that problem, however, the kangaroo will continue to survive. And one
can rest assured they will receive the protective considerations needed.
As appendices to Dr. Skoog's record are the management plans
submitted by the Australian Government, the points of view of the
Select Committee of the Australian Parliament, which began delib-
PAGENO="0246"
242
erations in 1970, the Fund for Animals statement, Dr. Baysinger's
statement, Dr. Bohien's statements and review.
We go from there to a comn~ittee which was set up by the Fish
and Wildlife Service back in November of 1975. Who -were the
members of this committee? t~r. Clyde Jones of the Smithsonian
Institute headed up this committee and included were Sydney An-
derson and John Kaufman, all ~xperts. As a result of that commit-
tee's report, which now is the ~econd committee, including report
Dr. Skoogs', there is a memorandum to the Director of the U.S.
Fish and Wildlife Service, dated January 2, 1976.
That memorandum from Mr. Keith Schreiner, Associate Direc-
tor-Federal Assistance speaks directly to the kangaroo importation
recommendations. In attendancb were Mr. Spencer Smith, Dr. F.
Eugene Hester, Mr. Harvey Nelson, Ronald Lambertson and Mr.
Keith Shreiner who acted as Chairman. John Spinks, who is pres-
ently the Chief of the Office of Endangered Species and Dr. Charles
Loveless were unable to attendi Dr. Clyde Jones and Dr. Ronald
Skoog, acted as expert witnesses. Amos Eno and Bruce Eggers were
present as observers.
In summary, the recommendation to lift the ban, subject to
conditions, sent forward by this committee was approved by the
director, USFWS on January 23, 1976, and I will leave this as part
of the record. Lynn Greenwalt said, "I concur with these recom-
mendations in full. Please procee~ to implement them."
Senator HODGES. We will include that in the record.
[The memorandum follows:]
PAGENO="0247"
243
) ~ CMLY ~C D:' ~
L ~ ri~:i ?.ND WILDU~C
Unitcd St'ites Depit tmcnt of the Interior
FISH AND WIIJ)LIF1~ SEItVICE
WASHINGTON, D.C. 20210
2 3
In Reply Refer To:
FWS/AFA
c~(
Memorandum: ,
To: Director, U.S. Fish a~&, lci'life Service
From: Associate Director - Fe~~al Assistance
Subject: Kangaroo Importation Recommendations -- Committee Report
On December 16, 1975, your Committee met to discuss the subject issue and
to arrive at a recommendation for your consideration. I am pleased to
report that we were able to do so. Our recommendation is attached.
In attendance were Mr. Spencer Smith, Dr. F. Eugene Hester, Mr. Harvey K.
Nelson, Mr. Ronald Lambertson, and myself acting as chairman. Mr. John
Spinks and Dr. Charles Loveless were unable to attend. In addition,
Dr. Clyde Jones and Dr. Ronald Skoog acted as advisors and expert witnesses..
Messrs. Amos Eno and Bruce Eggers were present as observers.
All pertinent aspects of kangaroo life history, management, and protection
were discussed for each of the three species concerned and the four
Australian states under consideration. The issue of preeminent concern
throughout our deliberations was the long-term viability of kangaroos in
Australia. A clear consensus was reached in determining that the long-
term viability of the three species in all four states is dependent upon
the interaction of three independent variables: (1) the relative density
of kangaroo populations; (2) the relative condition of the habitat; and
(3) the reaction of private landowners to the first two variables. It
is apparent that the three kangaroo species are not endangered, although
certain populations are threatened. It is further apparent that the
cooperation of private landowners, most of whom consider the kangaroos
to be serious and debilitating competitors wi.th domestic stock, is crucial
to the survival of viable kangaroo populations. To maintain equanimity
between landowners and kangaroos competing for the same habitat, we
believe it is imperative that the species be managed under an optimum
sustained-yield program which provides both harvestable surpluses yielding
~r'4o
PAGENO="0248"
244
financial rewards and evidences of control of kangaroo populations. No
reasonable decision on the conserv~tion of kangaroos could be made which
did not recognize the absolute nec~ssity of dealing realistically with
the private landowners who have or will have ultimate control of the vast
majority of kangaroo habitat and tt~us ultimate control of the kangaroo
themselves.
The Committee recognized that these plain, simple, biological, and
economical facts are often unaccept~ble to those laymen and private
organizations who are protection or~ented or oppose the killing of
animals. We hope they will understand and accept that (1) our delibera-
tions were careful and considered, (2) our recommendation represents
the best professional wildlife mana~ement judgment we could render, and
(3) that our interest in the long-term viability of kangaroos in Australia
is sincere.
If our recommendations are accepted, we are confident that you will be
acting in behalf of the best interests and long-term well being of
kangaroo resources in Australia and fulfilling your obligations and
responsibility under the Endangered ~pecies Act of 1973. If accepted,
our recommendation would be accompli~hed by Proposed Rulemaking and Final
Rulemaking with a 60-day comment per~od in between. Public hearings will
undoubtedly be requested, and we recOmmend that at least one be held.
Attachment 1
1' CC~"~~ ~
PAGENO="0249"
245
Recommendation to the Director
After receiving official certification from the Government of Australia
(GOA) that:
(1) New South Wales1', South Australiai./, Western Australia, and
Queensland have developed and implemented effective optimum sustained-
yield programsY for red kangaroos (F4egaleia rufa), Eastern gray
kangaroos (Macropus giganteus), and Western gray kangaroos (Macropus
ful iginosus);
(2) the taking of each of these three species in each of the four states
will not be detrimental to the survival of the species concerned;
(3) these three species are removed from the vermin list in Western
Australia; and
(4) all animals and parts and products of these three species will be
lawfully taken in Australia and will be lawfully exported from
Australia before they are shipped to the United States;
we recommend that the Director rescind the importation ban on these three
species of kangaroos along with the parts and products of these animals for
a period of 2 years from the effective date of final rulemaking as published
in the Federal Register. Further, it should be understood that imports of
these three species beyond 2 years time will be contingent upon the GOA
ratifying the Convention on International Trade in Endangered Species of
Wild Fauna and Flora, and adding the three species of kangaroos on Appendix 2
of this Convention. If this is accomplished, all future imports of these
three species and their parts or products will be governed by the Convention.
If ratification of the Convention and placement of the three species of
kangaroos on Appendix 2 is not accomplished, and if imports to the United
States are to be continued, the GOA will be required to justify annually
future exports to the USA with acceptable evidence that:
l'New South Wales and South Australia are legally certified now, but we
feel it would be desirable to ask for current recertification of these
two states in addition to certification of Western Australia and Queensland.
VAn "optimum sustained-yield program" means a kangaroo management regime
that is designed to provide continuing supplies of harvestable surpluses,
without harmful reductions in the base breeding populations of the animals,
recognizing that annual yields may fluctuate markedly with weather condi-
tions and habitat quality.
PAGENO="0250"
~46
(1) Effective optimum sustained_yield\ management prQgramS for all three
species in each state that will b~ supplying kangaroos and their
parts and products for export to the USA are being maintained and
where possible enhanced.
(2) The taking of these three species\in concerned states was accomplished
lawfully and will not be detrimer~tal to the survival of the species.
(3) Preserves and refuges (Federal, state, and private) are adequate to
maintain viable populations of all\ three species in habitat that is
not subject to loss or adverse alt~ration, and that continuing efforts
are being made to acquire addition~l preserves and refuges for these
species.
(4) Adequate resources (manpower and màney) are devoted to the management
and protection of these species in\each state concerned and that
additional resources are being devoted to this cause as the occasion
demands or the opportunity arises.
(5) Continuing efforts are being made to improve basic management data on
population levels, habitat trend, ahd kill statistics, and that these
data are utilized to enhance optimu~n sustained-yield management
programs, and that;
(6) Continuing efforts are being made to educate the public, particularly
landowners, to the value of kangaroc~s both as a valuable renewable
resources and a national heritage that must be maintained in perpetuity.
~
-
///~ / 1/ -
Senator HODGES. Does that conclude your statement?
Mr. K~E. I know I promised I wbuld be 5 minutes. My wife said
if I could be brief it would be better. But I am not. I just have two
more things, Senator. -
Senator HODGES. You are in a to~n that no one knows how to be
brief. It is catching.
Mr. K~&IcE. I just want to go on to ~ay that after that time, as Mr.
Simons said in his letter, we know nothing. There has been some
current correspondence which I think is reflective of part of the
problem of sOme of the language th~t administrative agencies put
into their regulations. This happens\ to be a cable which went out
on February 1, 1977, after all these years of effort. This states,
"Confusion has resulted from wordikig in State 43102 which para-
phrased actual regulation as it appeared in December 30, 1974,
Federal Register. State 43102 renc~ering, subsequently cited by
GOA, paraphrases operative portion pf regulation as: `Upon receiv-
ing such certification from GOA for\ any Australian State the Di-
rector will issue a proposed rulemaking.'"
PAGENO="0251"
247
And they go on to point out to the poor Australians that the
regulations didn't really say "will;" the regulations say "may." So
the Australians thought when they did permit their plans and
certifications, it was a "will" situation-USFWS "will" review it,
"will" get back, "will" tell them if the plans and certifications were
OK. The actual wording in that record is "may." I think that is so
discretionary and so much more than Congress anticipated that the
administrative agency could do; which is the reason we have asked
for a requirement for prompt and timely response to submissions
and that the scientific evidence and the submissions be made on
the public record.
The other thing that is interesting is on August 10, 1977, one of
my sales agents in Texas asked Senator Tower to try and let him
know what the kangaroo situation was, because there is a demand
for kangaroo skins for cowboy boots in the United States.
By the way, I might say between our company and the other
company in the United States, we have harvested kangaroo for
over 100 years. And I say harvested, because we have done just
that. And any species that lasts for 100 years certainly is proof of
its hardiness and resilience. And there is nobody in the industry
that ever would shoot the kangaroo out of existence.
Well, the answer that Mr. Williams got from Mr. David Hales,
Acting Secretary for Fish and Wildlife and Parks stated that
"during recent months"-this is last August-"the Australian Gov-
ernment has improved its management and so advised our Depart-
ment. In addition, we have been advised that the Australians plan
to nominate these three species for inclusion on appendix II of the
Convention on International Trade in Endangered Species of Wild
Fauna and Flora."
Senator Hodges, those two statements are totally untrue, and
this is the Acting Assistant Secretary giving information to a citi-
zen of the United States which simply is not true.
So I conclude with a statement I made before. What we said, is
we understand the Australian Government position, we understand
their impatience. We are impatient, too. Both a sOvereign govern-
ment and a small leather tanner like ourselves deserve better and
fairer treatment than has been given us under the present provi-
sions of the Endangered Species Act of 1973. Our impatience, and
we presume the Australian Government's as well, is aggravated by
a lack of definition of the basis on which our Government initially
reached its "threatened" classification which it still maintains on
three species of kangaroo.
Thank you for considering our recommendations to improve the
implementation of the act. I hope I haven't confused you.
Senator HODGES. Thank you very much, and we will find out and
get a response and forward it to you on the statements and repre-
sentations you have made.
Mr. KANE. If I can answer any questions--
Senator HODGES. We are just about out of time. Thank you.
Senator HODGES. Mr. Donald C. Simpson, Pacific Legal Founda-
tion.
PAGENO="0252"
248
STATEMENT OF DONALD C. SIMPSON, PACIFIC LEGAL
FOU?~DATION
Mr. SIMPSON. Mr. Hodges, members of the subcommittee, thank
you for the invitation to present! the views of Pacific Legal Founda-
tion on the Endangered Species Act.
Pacific Legal Foundation is a nonprofit, tax-exempt corporation
organized and existing under the laws of the State of California
with offices in Sacramento, Cali~L and Washington, D.C. PLF was
organized for the purpose of engaging in research and litigation in
matters affecting the public interest. Policy for the foundation is
set by a 17-member board of trustees composed of concerned citi-
zens.
The foundation supports the co~ricept that governmental decisions
should reflect a careful assessm~nt of benefits and costs. PLF has
been monitoring the administration of the Endangered Species Act
with growing concern over the failure to incorporate such assess-
ment. Accordingly, the board o~ trustees authorized foundation
participation in certain specific iswsuits involving the act, includ-
ing the Tellico Dam-Snail Darter ease.
The construction of the Columbia Dam on the Duck River illus-
trates several of the problems of~ particular concern. Most of the
information on this project disc~ssed below can be found in the
ifies of the Interior Department.
The Columbia Dam project is a\vital flood control and irrigation
project on the upper Duck River which was entered into by four
counties and the Tennessee Valley Authority. The listing of mol-
lusks as endangered was seen by some as a key to stopping growth
along stretches of the Duck and bther eastern rivers. In January
1974, the Fish and Wildlife Servic~ publicly described the Columbia
Dam area as a critical habitat for ~usse1s and snails, although the
first studies commissioned by FW~ would not be completed for 2½
more years. The determination to list was made by a small group
of "experts." Members of the gei~era1 public were not consulted.
Requests by individuals for publi~ hearings were ignored. FWS
used novel and inaccurate scientif~ic names which further limited
public participation because of difficulty in conducting a literature
search. Even FWS recognized that\ the novel nomenclature would
not permit adequate comments by ~he affected States, but failed to
change its practice. The tan riffle shell is typical of mollusks listed
by this process as an endangered spbcies.
According to the Federal Register, notice of intent to place the
tan riffle shell on the endangered species list, this fresh water
fnussel is threatened by construction of dams on the Duck and
Clinch Rivers in Tennessee. The Fbderal Register notice also con-
tains the negative assessment that ±Lo environmental impact state-
ment is needed because the listing impact on the environment.
Since an EIS had been essential foi~ the construction of the Duck
River dams, it would seem that an~rthing which stopped the con-
struction, and thus stopped the flo~d control and water conserva-
tion which the dams would provide, would also exert significant
impact on the environment.
* Investigation established that the~ dam was overwhelmingly ap-
proved and desired by the people in the area. Persons in New York
City, however, with a long history of concern for dams in other
PAGENO="0253"
249
people's areas, had been threatening the Tennessee Valley Authori-
ty with the strictures of the Endangered Species Act if they did not
cease and desist the dam construction.
PLF believed that the people of Tennessee should not be de-
prived of the benefit of this public works project, and the congres-
sional intent frustrated, without a full balancing of the risks and
benefits. Accordingly, on December 6, 1977, Pacific Legal Founda-
tion filed suit in the U.S. District Court in Columbia, Tenn., to
enjoin implementation of the act and the listing of any aquatic
creatures in the Duck River as endangered until such time as a full
environmental impact statement, as required by the National Envi-
ronmental Policy Act, has been filed by the Department of the
Interior.
NEPA is a full disclosure law designed to inform the Congress,
the public and the decisionmakers of the environmental conse-
quences of agency actions. Moreover, NEPA forces the agency initi-
ating action to consider alternatives to the action proposed. Consul-
tation with the public is required. The procedural requirements of
NEPA, if applied to the situation in the Duck River, will end the
closed process now taking place. The listing of the mollusks and
the available alternatives will be subjected to open discussion. The
net effect will be to reduce the suspicion the public now holds for
the Endangered Species Act and to permit more informed decisions
regarding the resources in the Duck River.
A second problem in the Duck River is the failure to list all
species believed to be endangered. Thus, several varieties of snails
are waiting in the wings for their moment on center stage.
Should the tan riffle shell, the orange footed pimpleback, the
Cumberland monkeyface, and the other mussels prove to be plenti-
ful, then the snails can be marched out and listed and again the
Columbia River Dam will be jeopardized. In the view of Pacific
Legal Foundation, such harassing actions should not be permitted.
All known species should be brought out and examined at one time
so that the status of the dam can be determined expeditiously to
the benefit of the public.
Much has been said about the consultation process of section 7 of
the act. Frankly, the Duck River case and others show this to be
only a diversion. Subsection (g)(1) of 16 U.S.C. 1540 (section 11 of
the act) permits citizen suits to enjoin alleged violations of the act
irrespective of whether there has been a consultation. Pursuant to
this provision, individuals threatened legal actions to enjoin con-
struction of the Columbia Dam despite its clear environmental
benefits, flood control and water conservation, and despite the
overwhelming support by the residents in the vicinity of this Ten-
nessee Dam.
This pattern has been observed in many cases in which the Fish
and Wildlife Service lists species as endangered and this action is
promptly followed by threats of civil action from no-growth advo-
cates outside Interior. At present, only capitulation, not consulta-
tion, will remove these threats of suit. Interior is quick to criticize
TVA and other Federal agencies for what Interior describes as a
failure to consult. If Interior would consult with the public in its
listing process at least to the same extent that TVA consulted with
PAGENO="0254"
50
Congress, the public, and Intdrior concerning the snail darter,
much of the criticism of the ~isting process might be avoided.
Did Congress, in passing the Endangered Species Act, intend to
give Interior and private citizei~s a virtual veto power over public
work projects which Congress f~nds to be in the public interest?
Interior reads "consultation" in~ section 7 of the act to mean con-
currence with Interior. The Sixth Circuit Court of Appeals held in
the Tellico case that it had no èhoice but to enjoin a violation of
the act as to any listed species aiid could not exercise its traditional
discretionary power of withholdirkg injunction.
Under these current interpr~tations and administrative prac-
tices, it is easy to target a project, identify and list an allegedly
endangered species and stop the project either through the Interi-
or's "consultation" process or by ~,ourt injunction. The needs of the
impoverished or unemployed, th~ need for flood control and water
conservation along the Duck River, the needs of national defense,
the need for energy deve1opment~ and a multitude of other public
benefits need not be considered in~ the termination of congressional-
ly authorized and funded projectsl The levels of agency concern for
people and their needs relative \to the concern for mollusks is,
perhaps, best demonstrated by th~ memorandum statement of one
biologist: "Present plans to improve economic life of the people of
Appalachia-could easily destroy what little remains of this rare
heritage."
Actions on the Cahaba River of\ Alabama demonstrate the scope
of misuse of the protective statutes. Opponents of growth attempt-
ed to have EPA declare the rive~ too polluted to permit further
effluent discharges. EPA found, however, that the river was capa-
ble of accepting additional effluent without significant impact on
water quality or public health. Mcordingly, the no-growth propo-
nents attempted to have the rivet~ listed as wild and scenic. This
also failed-perhaps because the riyer passed through the center of
Birmingham. Then, the no-growth proponents hit upon the Endan-
gered Species Act. Two species ar~ proposed for inclusion on the
endangered list. It appears, however, that the only things unique
about the species are their 1ocal~ names and their recently discov-
ered prevalance. Recent informaticm indicates there is now a dili-
gent search for historic sites for preservation along the Cahaba
River.
A different deficiency in the Endangered Species Act and a dif-
ferent method by which the pub1ic~ may be harassed is illustrated
by the Houston Toad case. The inclusion of a shopping mall as part
of the toad's critical habitat can, of ~ourse, be written off as simply
an administrative error. The failure\ to reach a conclusion as to the
critical habitat, however, is seriously injuring property values. A
first study on the critical habitat w~s set aside because of error. A
second study was inconclusive. A third is now underway. In the
meantime, persons owning property are fearful to commit funds to
its improvement for fear that the~j will find themselves in the
Tellico-like situation of being unable to get use permits for com-
pleted projects. No one is willing 1~o buy the property until the
problem is resolved. And, so, the sti.~dies go on while the property
owners are helpless. If the third study is inconclusive, can Interior
undertake a fourth study and a fift}~ study, and so forth, until the
PAGENO="0255"
251
property owner is forced to let the property go for taxes? The
Endangered Species Act places no limitation on this kind of activi-
ty by Interior.
The Houston Toad case is particularly irritating because it may
be disappearing as a result of its own nature and not the activities
of man. The toad has a significant proclivity for mating with any
available species of toad, particularly the Gulf toad, to produce
offspring that no longer bear the Houston toad's more significant
physical characteristics. Should Interior impose its standards on
the HOuston toad? Should they eliminate the Gulf toad from the
Houston habitat? Should the misbegotten offspring themselves be
protected as the carrier of the Houston toad's recessive genetic
characteristics? Similar natural evolutionary changes are occuring
in other animals; for example, the interbreeding of certain species
of wolves is leading to the disappearance of a protected species. A
number of mollusk species in the Duck River, supposedly threat-
ened by dam construction, have already disappeared from one of
Tennessee's rivers, the Buffalo, even though this river is protected
as a wild and scenic river and is free from dam construction.
Do Congress and Interior view themselves as modern King Can-
utes attempting to hold back the tide of evolution? The public is
not served when their appointed decisionmakers allow themselves
and the law to become the subject of ridicule.
The dilemma of dealing in absolutes instead of using risk-benefit
analysis to arrive at a balanced public interest is easily shown. At
the base of the Tellico Dam are several varieties of snails, at least
one of which is threatened. If preservation of the snail darter
which feeds on snails endangers the threatened snail, must preser-
vation of the snail darter cease? What if the prime food of the
threatened snail is an endangered aquatic plant?
According to recent newspaper accounts, for over 20 years mice
have been a problem in the White House and steps are being taken
to trap and remove them. However, after 20 years of interbreeding
in an isolated location such as the White House, it is probable that
unique "subspecies" or "lower taxa" have developed for which the
White House is a critical habitat. Should the extermination of
these unique mice be enjoined? Might not the preservation of these
creatures in their national historic site serve as a continuing re-
minder of this country's dedication to endangered species?
On a far more serious level, what should be Interior's action
when an aquatic species is found which depends for survival on
acid runoff from an open strip mine or depends on the thermal
discharge from power projects? At this moment five listed endan-
gered species including the peregrine falcon, the California brown
pelican and the California grey whale are known to depend, in one
habitat, on the ecosystem which has developed around sludge dis-
charge off the Pacific seacoast. The Environmental Protection
Agency projects that from one-third to one-half of the biomass in
the system would be eliminated if the sludge dumping is stopped.
What actions are permitted to EPA under the Federal Water Pollu-
tion Control Act to deal with this sludge-based ecosystem?
The abuse of worthwhile protective laws for purposes which
defeat the interests and concerns of the majority of the affected
people will ultimately lead to the demise of these laws. Pacific
PAGENO="0256"
~52
Legal Foundation favors a strong but reasonable Endangered Spe-
cies Act which is administered f~r the total public interest.
Unemployment problems in ~ppalachia must be weighed against
the value of the orange footed ~imp1eback. The disaster of floods
must be weighed against the tan riffle shell's dislike of slow
moving waters. The advantages of water storage for people must be
weighed against the advantage~ of drought to the Cumberland
monkeyback.
Interior must learn to consult ~vith the people in listing a species
if it is to be allowed to compel other agencies to consult about a
listed species. Citizen suits should not be permitted before there is
full public evaluation such as that NEPA provides. If the people as
a whole are not brought back into the decisionmaking process
concerning both the listing of th~ species and the identification of
its critical habitat, there is risk that public reaction to the Endan-
gered Species Act will lead to th~ throwing out of its good parts as
well as its bad.
Thank you.
Senator HODGES. Thank you vei~y much.
Senator Baker had a short statement which he would like intro-
duced in the record, and I will hind this over in order for it to be
done at this time.
[Senator Baker's statement follo~ws:]
STATEMENT OF HON. HOWARD H. BAKER, JR., U.S. SENATOR FROM THE STATE OF
TENNESSEE
Mr. Chairman, I noticed in yesterday's I~iearings that information was submitted
regarding the possibifity of using a dry dam as an alternative to full impoundment
at the Tellico project on the Little Tenness~e River.
When this option was first surfaced a fe~v weeks ago I asked that some prelimi-
nary analysis be done concerning this alternative to the planned project.
The Tennessee Valley Authority in responding to this request has come up with
the following preliminary findings. I would like to submit this information for the
record. I think it will be a useful addition to the information the committee has on
this issue.
From a flood control standpoint, the T~llico Dam and Reservoir project was
designed and has been built to operate in conjunction with the adjoining Fort
Loudoun Reservoir (by way of an interres~rvoir canal) and cannot in its present
form be safely and effectively used as a dry dam.
Converting the existing Teffico project t~ a project which could be safely and
effectively used as a dry dam would require a major structure addition and alter-
ations to the existing structure that would~ cost in additional appropriated funds
from $25 to $40 million. This is true because the required discharge capacity of the
existing Tellico spillway and canal was established from studies for various alterna-
tive combinations of canal and spillway size.\ The combination that was constructed
provides during the Tellico design flood that 135,000 cubic feet per second can be
discharged over the Tellico spillway and 15~,000 cubic feet per second through the
canal and thence over the Fort Loudoun spiiway. The canal would not be available
during the design flood in the "dry dam" coi~cept; thus, additional spillway capacity
would have to be provided in Teffico greatei~ than that now provided by the 3-bay
existing Tellico spifiway.
In addition, use of the project as a dry dam would result in a loss of the flood
control operating flexibility made possible by\being able to interchange floodwaters
between Tellico and Fort Loudoun through the connecting canal, as well as loss of
most of the other benefits of the project, including power, navigation, jobs, water
supply, etc.
Finally, using the Tellico project as a dry dam would not save the snail darter
since knowledgeable biologists now generally jagree that the Little Tennessee River
with the dam structures in place cannot sustam a viable, natural population of snail
darters because the dam structures prevent the fish from returning from the nurs-
PAGENO="0257"
253
ery areas of the main river (where they drift as larval fish) to the spawning grounds
of the Little Tennessee River.
Senator HODGES. There being nothing further, the meeting is
adjourned.
[Whereupon, at 11:45 a.m., the subcommittee recessed, to recon-
vene subject to the call of the Chair.]
[Prepared statements submitted for the record by today's wit-
nesses follow:]
29-319 0 - 78 - 17
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254
MONITOR
THE CONSERVA71ON, ENVIRONMENTAL
AND ANIMAL WELFARE CONSORTIUM
1522 Connecticut Ave., N.W.
Washington, D.C. 20036 (202)234-6576
April 14, 1978
STATEMENT IN SUPPORT OF APPROPRIATIONS AUTHORIZATION
FOR THE ENDANGERED SPECIES ACT THROUGH SEPTEMBER 30, 1981
The following Monitor organizat].ons join in endorsing this state-
ment: Rare Animal Relief Effor4, American Cetacean Society,
International Fund for Animal Welfare, American Littoral Society,
Humane Society of the United States, Let Live, The Fund for Ani-
mals, Committee to Preserve the Tule Elk, International Primate
Protection League, and the Soci~ty for Animal Protective Legisla-
tion.
The Endangered Species Act of l9\73 is major legislation. The
United States leads the world in\ the serious attention it has
given this vitally important matter. The soundness of the law
is due in no small measure to the hard work that went into it
with extensive hearings in 1966, 1969, and finally in 1973
following the three-week plenipotentiarY conference held in
Washington where 93 nations were\represented. Increased appro-
priations and authorization to mAke possible continuing improve-
ment in the administration of th~ Act are essential.
We support the increase in the F~scal Year 1979 budget for the
National Marine Fisheries Service Endangered Species Act admini-
stration. In particular, we hope the $205,000 earmarked for sea
turtle research will bring about ~.rigorous action to prevent the
extermination of these wonderful breatures.
I would like to submit for the us~ of the Committee an article,
"The Shame of Escobilla, For 90 Million Years the Turtles Have
Massed to Lay Their Eggs, This Tine They Gather for Their Own
Mass Murder,' by Tim Cahill. The article documents shocking
falsification by the so-called la1~oratory whose owner is more
interested in putting on a show fdr television so he can continue
to profit from the slaughter of the nesting turtles than he is in
preserving the turtles into the fi~ture. This man' s profits should
be cut off by all civilized nations. Strict enforcement of the
Act with respect to sea turtle pro~1ucts is essential. The shame-
ful delays caused by the Commerce bepartment in making decisions
about sea turtles doubtless helped this individual in the hideous
PAGENO="0259"
255
destruction he has wreaked on these magnificent creatures. The
Department can make up for it now by redoubling enforcement
efforts.
The first thing it should do is to complete the listing of the
sea turtles. The planned research continues to be on population
assessment and habitat assessment. Nothing is planned to stop
this massive destruction for commercial purposes as described by
Mr. Cahill.
Already almost five years have passed since the turtles were
originally proposed for listing under the 1969 Endangered Species
Act; four years since they were petitioned for listing under the
1973 Act; and three years since they were formally proposed by
the Departments of Commerce and Interior for listing under the
1973 Act. The proposed listing was reopened for public comment
through Monday, April 17. We trust there will be no further delay
in listing the turtles.
The Pacific Ridley is already listed on Appendix 1 (endangered
category) of the Convention on International Trade in Endangered
Species of Fauna and Flora. Yet the United States has still
failed even to put it into the threatened category! The leather
from these turtles is shipped mainly to Italy for processing.
The meat is left to rot. Until listing is completed, products
from this leather can be shipped back into the United States.
The time left for several species of these turtles is so short
that immediate action is essential. Mr. Chairman, I hope that
you will bring home to the Department of Commerce the extreme
urgency of the situation. A leading turtle expert, Richard
Felger, states that Kemp's Ridley will be extinct this year.
The Pacific Ridley will be extinct in eight years or less, the
green in three years or less unless the present trends are
reversed. The duty of our government is clear. Not another
dollar should be allowed to leave this country to pay for any
product made fromthese vanishing creatures.
We support authorization for the Department of the Interior
Endangered Species Program of $23,000,000.00 for fiscal year
1979; $25,000,000.00 for fiscal year 1980; and $27,000,000.00
for fiscal year 1981.
For the Department of Commerce in the same period, we recommend
$2,500,000.00 for fiscal year 1979; $3,000,000.00 for fiscal year
1980; and $3,500,000.00 for fiscal year 1981.
The difficulties of enforcement of the Endangered Species Act
are great. One serious lack is an adequate number of inspectors
to examine and refuse or accept wildlife shipments. At the present
time, for example, there are only six inspectors for New York. To
PAGENO="0260"
256
do an effective job, the number s~iou1d be doubled or tripled.
You may recall the uncovering of ring of international fur
smugglers in 1973 when a carton marked leather goods broke open
and an alert airline employee nodced spotted cat fur sticking
out of the crate. Clearly, inte4or did not have enough inspec-
tors then to examine shipments fot~ accuracy, or the smuggling
would have been detected in a routine inspection. Equally clearly,
six inspectors for a port the size of New York is inadequate, and
throughout the entire country the~e is only a total of 35.
At the present time, there are at\least 15 part-time or temporary
appointments which cause a substar~tial turnover among these
inspectors, reducing their abilit~ to gain experience in the job.
We urge that the Congress give Int~erior the wherewithal to do the
job that needs to be done.
If the authorization for the coming three years can be increased,
we recommend that it be placed in enforcement.
We hope that Interior will make th~ decision to ban the importa-
tion of elephant ivory. It will bb cheaper and easier to enforce
a total ban than a partial ban. R~gardless of the final decision
on the type of ban, more personnel with good training will be
essential.
We earnestly hope that this distinguished Subcommittee will
decide to leave the Endangered Spe~ies Act intact without any
weakening amendments. The consu1t~tion system carried out by
the Department of the Interior has been remarkably effective in
solving conflicts that have arisen.\ In the future, this process
should become even more effective because all federal agencies
know of the Act's existence and of the need for consultation
before planning is completed.
Our country can surely continue to ~ievelop without rendering
more species extinct. We set the mbral standard for the world
in this field, and it is vitally im~ortant that we not be seen
to be .taking any backward steps. When the next conference of
the parties of the Convention on In~ernational Trade in Endan-
gered Species of Fauna and Flora takes place in Costa Rica, we
must maintain our leadership role s6 that species throughout the
whole world can be effectively prot~cted from the forces which
otherwise would lead to their extin~tion. Records of mammal
extinction for the past two thousand years show that over half
occurred within the last sixty year~. Putting it another way,
during the past 150 years, the rate of extermination of mammals
has increased 55 fold according to t~r. Lee Talbot of the Council
on Environmental Ouality. He stated that if these exterminations
continue to increase at that rate, iJn about 30 years all the
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257
remaining 4,062 species of mammals will be gone.
In closing, Mr. Chairman, we believe that the Congress can do
much to ensure that endangered species are preserved through the
work of the Departments of Interior and Commerce. Endangered
species need all the protection that it is possible to extend
to them. The next few years will spell success or failure
throughout the entire world with respect to maintaining the
inestimable diversity of life forms which we are fortunate
still to have with us. All is not smooth sailing in so broad
an endeavor, of course. But it would be disastrous if critics
of the law's administration should succeed in weakening this
landmark legislation. Nor should the undoubted fact that delays
have sometimes taken place in the processing of permits which
were appropriate to grant cause an attack on the essential require-
ment for examining permit requests with care. The Federal Wild-
life Permit Office is responsible for administering the Convention
on International Trade in Endangered Species of Wild Fauna and
Flora. This treaty needs to be cherished and nurtured until it
grows large and strong enough to stand up internationally and
bring a final halt to profiteering and smuggling in the greedy
race to exterminate rare animals and plants for the sake of n~oney.
There is much work ahead. Improvements can be made administra-
tively. At this time, this Subcommittee should encourage the
development, with adequate authorization for appropriations, of
the Endangered Species Act.
PAGENO="0262"
258
IWU
I4NATIONAL FOREST PRODUCTS ASSOCIATION
1619 MassachusettS Avenue. N. W., Washington. D. C. 20036
RESOURCES
STATEMEt~T OF
JOHN F. ItALL
OF TH~
NATIONAL FOREST PROJiUCTS ASSOCIATION
BEFORE THE
RESOURCE PROTECTION SUBCOMMITTEE
OF THE
SENATE ENVIRONMENT & PUBI4C WORKS COMMITTEE
ON
REAUTHORIZATION OF FUNDS ~ND OVERSIGHT ON THE
ENDANGERED SPECIES ACT OF 1973
APRIL 14, i978
Mr. Chairman and Members of the Comm~ttee:
I am John Hall, Vice President, Resource and Environment, of the National
Forest Products Association, headquarter~d in Washington, D. C. NFPA is a
federation of Z6 regional and wood product associations and several direct
member companies. We represent timber growers and manufacturers and whole-
salers of wood products throughout the country.
The forest industry is concerned with timber management on all commer-
cial forest lands in the United States: fede~a1, state, industrial and non-industrial
private lands. We support programs and p ojects at all levels which lead to
constructive and productive management of he nation' s forest lands and which
protect environmental values.
The forest industry supports the concep of preserving flora and fauna set
forth in the Endangered Species Act of 1973. However, we are suggesting changes
to foster better understanding, acceptance, ~nd implementation of the Act.
Almost no one is opposed to taking necessary and reasonable actions to insure
protection of our native flora and fauna. Hcru~ever, a rigid and absolutist inter-
pretation of the Act will create conflicts with other uses of natural resources.
On areas inhabited by endangered or threatened species, such interpretations
PAGENO="0263"
259
will lead to a system of management which has as its single goal the preservation
of a listed species.
Among our concerns with the Act are: (1) ways in which the industry can
play an active role in preserving endangered species, and (2) impacts the Act
does and will have on the industry1 s ability to provide the wood products desired
by the people of the United States.
One example of industry' s response to the problem is the action of St. Regis
Paper Company which, through a combination of donation and sale, transferred
6, 000 acres of land for inclusion in the Mississippi Sand Hill Crane National Wild-
life Refuge. This land increased the refuge to four times its previous size. St.
Regis land managers have been praised for their concern over the crane, without
which the species might long ago have disappeared. Other companies in the
industry are developing management practices which will be compatible with the
presence of anendangered species. International Paper Company's cutting policy
in the vicinity of red-cockaded woodpecker colonies is a good example of this.
However, there, are also problems. In 1975 it was proposed that about
13 million acres in the western United States be designated as critical habitat
for the grizzly bear. Our concerns in this matter are severalfold. What
criteria are to be used in designating critical habitat? Although the Fish and
Wilalile Service proposed 13 million acres as critical, other authorities on the
grizzly bear felt the data did not warrant critical habitat designation at present
and opposed the action. The Forest Service determined that only about 2. 5 mil-
lion acres were qualified as being critical. In addition, the area included by
the Fish and Wildlife Service contained areas that would never be considered
as habitat, i. e., cities and towns. In essence, the Fish and Wildlife Service
proposal included the entire existing range of the grizzly bear in this area.
For manyspecies, including the grizzly, it should not be necessary to set aside
the entire range of the species as being critical. It would be better to select
PAGENO="0264"
260
only areas known to provide grizzly requirements as those to be afforded maximum
protection as critical habitat. Will modification of habitat be taken to mean any
change? Under Section 7 of the Act, an~r modification could be considered a
violation. Changes which have positive impacts should be encouraged.
Several years of experience with the Act lead us to believe that there are
changes which need to be made so as to insure the Act will continue to be a strong
force in preserving our native flora and fauna.
First, we recommend that Section 7 of the Act be changed in several
respects:
1. There must be some balancing of riorities among the many goals set
for natural resources, of which preservir~g endangered species is only one.
2. Recognition should be given to national goals other than preservation
of endangered species by those agencies ~hose principal charge is not wildlife.
3. Only those parts of the habitat truiy critical to the species' continued
existence should be designated as critical.
4. Agencies such as the Forest Servi e that have wildlife expertise should
not be required to consult with the Fish an~ Wildlife Service as a matter of course,
but consultation should be available when r~iquested.
5. Modification of endangered species habitat should be constrained only
when it has an adverse impact on the perpe~uation of the species.
Second, we agree strongly that malicio~is activities must be prohibited, but
we urge that the term "take,' Section 3(14), be refined so as to not preclude nor-
mal land management practices. At present, it would be possible for a private
landowner to be penalized for carrying out n~rmal land management practices
if these had even an inadvertent impact on a listed species.
Third, the term `species' has a biological meaning and so should be defined
in the Act (Section 3(11)) as a group of physic~lly simiiar organisms capable of
interbreeding but generaUy incapable of prod cing fertile offspring through
PAGENO="0265"
261
breeding with organisms outside this group. Once this definition has been made,
then there must be a decision whether or not the Act will extend protection to
subspecies and smaller taxa, including populations. Extension to lower taxa
will be very troublesome in that there is often disagreement amongst the experts
as to the subspecies within a species. We are not against designating something
less than the species over its entire range as endangered or threatened, provided
this allows normal management practices over the remainder of the range and
provided problems which might arise under Section 4(e), Similarity of Appearance
Cases, are guarded against.
Finally, the Act should be modified so as to require an economic analysis
and an environmental impact statement whenever a species is to be listed or
critical habitat is to be designated. The decision, in effect, to dedicate certain
areas to a single purpose should only be undertaken with a full knowledge of the
economic benefits to be gained or foregone and the environmental effects to be
expected and after alternatives available have been examined.
These changes will help make the Act more flexible in achieving the wide
range of national goals we have set for ourselves over the years, including
the preservation of threatened or endangered species.
Thank you for this opportunity to give our views on the Endangered Species
Act. We offer our services in any way we can to aid efforts to refine the Act
and insure its continued implementation.
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262
The Nature
conservancy
Jack Lynn
National Office
1800 N. Kent Street
(703) 841-5340 (work)
683-2996 (home)
Arlington, Va. 22209
Release #41-77
For use: Wed., Dec. 28,. 1977
Contact:
Jack Lynn
The Nature Conservancy
(703) 841-5340
James E. Kussman~i
St. Regis Paper Company
(212) 697-4400
ST. REGIS PAPE~ AND NATURE C0NSE~VANCY (~0VE
TO PROTECT ENDANGERED SPECIES IN MISSIS~W~.i.
washington, D.C. --- In action that will help guarantee the future of an
endangered wildlire species the Misslss\PPi sandhill crane the St Regis
Paper Company has sold 5,000 acres and given the equivalent of almost 1,000
acres in Jackson County, Mississippi, to\The Nature Conservancy. The land
which supports the only known colony of ~he Mississippi sandhill crane was
purchased by the Conservancy, a. nonprofi~ conservation organizatton, for
$3,775,000, about $700,000 less than the ~1and's appraised fair market value.
In today's announcement of the purch~seand gift, David E. Morine,
who heads up the Conservancy's acquisitio~t program, said, "The land has
now been transferred to the Departiient of\the Interior at the Conservancy's
costs for inclusion in the new Mississippi Sandhill Crane National Wildlife
Refuge. The St. Regis land will increase the refuge to four times its
current size."
Morine continued, "St. Regis is to be congratualted for their decision
to sell their holdings for inclusion in th Mississippi Sandhill Crane
National Wildlife Refuge. By their action they have shown that for areas
which protect rare and endangered species, conservation is often the highest
and best use." Morine went on to praise~ S - Regis land managers whose
concern over the years for the cranes was v~tal to the birds' survival.
Morine pointed out that, "Without the fores~ght of the St. Regis employees,
the cranes would long ago have di~
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263
Only in 1972 did researchers realize that the Mississippi sandhill
crane is a distinct subspecies, Grus canadensispulla. Protectionof
nesting and living areas for the 3½-foot-tall bird has been given a high
priority by the Mississippi Wildlife Heritage Program. The program is an
effort by the state, with the help of The Nature Conservancy, to find and
protect the variety of wildlife and plants found in Mississippi.
In coirmenting on today's transaction, William R. Haselton, president
of St. Regis Paper Company, said, "Although we have been aware of the
fragile predicament of the Mississippi sándhill crane for many years and
have managed this land for their protection,we were glad to cooperate with
The Nature Conservancy in making this land available so that the Mississippi
crane would have perpetual protection."
The purchase was endorsed by the American Land Trust, which had named
the crane lands as its top preservation priority in Mississippi. The Trust,
a national citizens committee of business, conservation, and civic leaders,
has been involved in some 75 projects in its two-year bicentennial effort
to save at least one prime natural area in each of the 50 states. The
group, working in partnership with The Nature Conservancy, has sought
private donations of land and funds, especially from American business.
The St. Regis addition to the Mississippi Sandhill Crane National
Wildlife Refuge is the third major project for the Conservancy in the state.
Last year the Conservancy worked with the Mississippi Wildlife Heritage
Committee to acquire 32,000 acres along the Pascagoula River. The Conservancy
was also involved in the establishment of the first unit of the sandhill
crane refuge in 1974.
Nationally, the Conservancy and its 42,000 members have been responsible
for the preservation of some 1.2 million acres involving about 1,880 conser-
vation projects. The organization, given its present name in 1950, is
concerned with protection of natural areas and the wide variety of plant
and animal life the areas protect. Over the last four years, Conservancy
researchers have worked cooperatively with nine states and the Tennessee
Valley Authority to begin a series of identification programs aimed at
determining rare species and where they can be protected within the states.
In addition to assisting government conservation agencies, as in the sandhill
crane project, the Conservancy owns and manages about 680 sanctuaries across
the country. Almost all of the areas, which vary from a few acres to
thousands of acres, are managed by volunteers.
St. Regis is headquartered in New York and is a fully integrated
PAGENO="0268"
264
forest-based products company whose pr~mary lines of business are the manu-
facture and sale of -pulp, paper, packa~ing and converted products, and con-
struction products. The company opera~es 150 facilities in ten countries
and has investments and affiliates that operate 76 plants in 23 countries.
National offices for the Conservat~cy are in metropolitan Washington, D.C.
Regional offices are in Atlanta, Minneapolis, Boston and San Francisco.
PAGENO="0269"
265
BEFORE THE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
SUBCOMMITTEE OW RESOURCE PROTECTION
UNITED STATES SENATE
HONORABLE JOHN C. CULVER, CHAIRMAN
HOLDING HEARINGS ON THE ENDANGERED SPECIES ACT
STATEMENT OF KENNETH BALCOMB, ESQ.
ON BEHALF OF THE COLORADO RIVER WATER CONSERVATION
DISTRICT, GLENWOOD SPRINGS, COLORADO AND THE
SOUTHWESTERN WATER CONSERVATION DISTRICT, DURANGO, COLORADO
Mr. Chairman and members of the Committee:
I am Kenneth Balcomb, of the law firm of Delaney &
Balcomb, Glenwood Springs, Colorado, appearing here today
as counsel to the Colorado River Water Conservation Dis-
trict which maintains its offices in Glenwood Springs.
I am accompanied by Robert L. McCarty of McCarty & Noone,
1490 L'Enfant Plaza East, Washington, D.C., special counsel
tothe District.
We also appear today on behalf of the Southwestern
Water Conservation District, Durango,Colorado. Both the
Colorado River District and the Southwestern District,
which together cover all of the west slope of the Contin-
ental Divide within Colorado, including all of the drain-
age of the Colorado River and its tributaries within the
State, are greatly concerned about the effect of the Endan-
gered Species Act as it has been administered by the Fish
and Wildlife Service and the Interior Department, on the
responsibilities which the two Districts have to theState
under their respective Organic Acts.
The Colorado River Water Conservation District (River
District or District) is a public agency of the state of
Colorado and a municipality within the meaning of Section
3(7) of the Federal Power Act, 16 U.S.C. §796(7). The
District was established in 1937 by Act of the Colorado
State Legislature (Cob. Rev. Stat. § 37_146_lOl(l973) for
the purpose of conserving and developing the waters of the
Colorado River and its tributaries within Colorado and
.to safeguard for Colorado, all waters to which the
state of Colorado is equitably entitled under the Colorado
River Compact. The District is comprised of all of 12
and parts of three counties in western Colorado. The
District is the major water policy agency of the State re-
garding the principal headwaters of the Colorado River.
The District has a current assessed valuation of approxi-
mately $1,171,000,000 which in large part is dependent upon
the availability of Colorado River water to suppcrt agri-
cultural, municipal and industrial uses.
PAGENO="0270"
266
The Southwestern Water Conse~'vation District (South-
western District) is similarly a~ublic agency of the State
of Colorado, created by the State\ Legislature in 19141 (Cob.
Rev. Stat. 37-~47-l0l et seq. (l97~)), comprising all of six
and part of three other counties ~n Southwestern Colorado.
The Sputhwestern District, with a\current assessed valuation
of $189,000,000 wa~ formed for th~ purposes of the conserva-
tion, use and development of the water resources of the San
Juan and Dolores Rivers (rivers tr~ibutary to the Colorado),
and their principal tributaries wi~hin the- State of Colorado.
The Southwestern District, pursuan~ to its statutory respon-
sibilities, has been active in the planning and implementation
of projects to conserve and develop for beneficial use the
waters of such rivers, frequently in cooperation with the
Bureau of Reclamation of the Unitec~ States Department of the
Interior.
Pursuant to its statutory responsibilities with respect
to the waters of the Colorado Rivex~ system within Colorado,
the River District has applied for and received in state water
court proceedings numerous decrees ~or the right to the bene-
ficial use of such waters, includin~ uses for domestic, muni-
cipal, agricultural, industrial, power, recreation and other
beneficial public uses.
To this end, on August 14, 1975 the River District filed
with what was then the Federal Powe~ Commission (Federal
Energy Regulatory Commission since October 1, 1977) an appli-
cation for preliminary permit for it~ proposed Juniper-Cross
Mountain project on the Yampa River,\ FERC Project Mo. 2757.
The River District was issued a thre~ year preliminary permit
for this project on February 114, l97~. The preliminary permit
authorizes the District to conduct studies and feasibility
investigations of its proposed devel~pment on the Yampa
River near Maybell, Colorado and, pus~suant to statute, the
District is accorded a priority if i~ should apply for a
license to construct the proposed facilities upon termina-
tion of the study period. - -
The proposed project would provide approximately
1,220,000 acre feet of water storage ~or use for irrigation,
municipal and other beneficial purpos~s and for the generation
of 78,000 ku of hydroelectric power. The need for this stor-
age in the critically water-short West has become obvious to
almost everyone in the past two years and the need for addition-
al electric power is well documented.
However the availability of these\ valuable assets could
be threatened by the designation of th~ Colorado sauawfish
and humpback chub as endangered speciec on r-Tarch 11, 1967,
and'the assertion that critical habitat of these species
willbe adversely modified by the construction of this project.
PAGENO="0271"
267
The potential loss of this water and power exists
because of the prohibition in Section 7 of the 1973 Act
regarding modification of critical habitat which extends
to any project, public or private, which is supported by
Federal funds or requires Federal approval, such as approv-
al, by FERC of a license.
The Colorado squawfish has been commonly referred
to as a "trash" fish because of its carp-like proclivities.
to feed upon trout and other valuable game fishes. Until
recent years this fish was the subject of attempts at erad-
ication by the Colorado Division of Wildlife. Squawfish
which exist in other river systems and water bodies are
the subject of similar attempts. Indeed a letter from the
Department of the Interior to FPC, dated May 10, 1977, con-
cernidg FPC Project No. 935 in Washington State recognizes
efforts with chemicals to eradicate squawfish populations
in a reservoir there.
There has as yet been no proposed designation by FWS
of critical habitat for the Colorado squawfish and hump-
back chub but FWS through its Squawfish Recovery Team (now
Colorado River Fishes Recovery Team) has already taken the
* position that the river area being studied under the pre-
liminary permit for Juniper-Cross Mountain will tolerate
no development. A January. 16, 1976 letter from the Depart-
ment of the Interior to the FPC commenting upon the Dis-
trict's preliminary permit application stated:
At the present time there is every likeli-
hood that the Department would, oppose con-
struction of Project 2757 based upon anti-
cipated destruction of habitat which is
considered to be critical to two endanger-
ed species.
This is of much concern to the River District in light
of the consultationrequirements of Section 7 and the recent
judicial interpretations of the Section which appear, in
effect, to give the Department of the Interior veto power
over Federal projects despite pronouncements by Interior
itself to the contrary. This coupled with the Act's lack
* of standards and FWS's broad definitional rulemaking activity
cast a cloUd on the possibility of licensure of this Project.
It also presents a dilemma which is grossly unfair: the
District is required under its FERC permit to conduct expen-
sive investigati~ns on engineering as well as environmental
feasibility while it is faced at the same time with a pre-
judgment on impaôt by an agency which can apparently kill the
prpject. Groups like the River District tryinp tc devclop.
essential resources to meet human needs should not face such
an expensive, dismal project.
PAGENO="0272"
268
We agree with other witnesses who have appeared before
this Subcommittee and have so aptl~ stated that implementa-
tion of this Act should require a balancing of human needs
against those of endangered specie~. A finding that a project
could adversely affect, to some de~ree, the critical habitat
of an endangered species sh~uld.no~ wit'çiout further consideration,
result in the termination of that ~roject.
A project should be allowed t~ proceed if reasonable
mitigation and conservation measures can be adopted which
will provide reasonable habitat foi~ the species. Indeed, if
the benefits from such a project outweigh the value of
preserving the critical habitat, t1~e agency having authority
over the project should be permitte~d to allow the project to
proceed.
We point out that Congress mankated in Section 10(a)
of the Federal Power Act, 16 U. S. C. 803(a), that those
hydroelectric projects which are be t adapted to a comprehensive
river basin plan be licensed on the condition:
That the project adopted . . . shall be such as
in the judgment of the Commission will be
best adapted to a comprehensive plan fol'
improving or developine ~ waterway or water-
ways for the use or bene1~it of interstate or
foreign commerce, for th~ improvement and
utilization of water powe~r development and
for other beneficial publ~ic uses, including
recreational purposes.
The Commission was authorized t~ require such other condi-
tions not inconsistent with the prov~sions of the Act which it
might find necessary to provide for ~rarious public interests
to be served by the project (16 U. S~C. 803(g), 799). In
addition to the necessary standard safety and engineering require-
ments, licenses nay contain special ~rovisions in the interest
of flood control, navigation, water quality, public health, rec-
reation, preservation of scenic beaaCy, or protection and devel-
opmentof fish and wildlife. Each a~plication for a major license
requires the filing of an environmenbal impact statement (Exhibit
W) and specific plans for recreation (Exhibit H), and fish and
wildlife protection (Exhibit S).
The Federal Power Act granted fo the Commission the
authority necessary to order nitigati n of harmful environmental
effects prior to passage of statutes uch as the National Environmental
Policy Act, Fish and Wildlife Coordin tion Act, Federal Water
Pollution Act, and the Endangered SpeCies Act. While the
Commidsion must of course take these ~tatutes into account, we do
not believe Congress intended that th~y should override the
statutory authority granted by Congre~s to the Commission under
Section 10(a).
PAGENO="0273"
269
However, as a result of the recent decision of. the U.S.
Court of Appeals for th~ Sixth Circuit in Hill v~ TVA (now
before the Supreme Court) it appears that the Act may not
recognize conservation priorities and will allow no balancing
of human versus endangered. species need where it is shown
that there will be any. adverse modification of the critical
habitat of an endangered species. Section 7 is being inter-
preted to compel Federal agnndies to subordinate all other
policies or statutes to the Endangered Species Act. We
submit that this could. not have been intended by Congress
and sorts further Congressional declaration ispresently need-
ed to make this clear.. It is entirely possible because of the
particular facts of the "Tellico'~ case that the Supreme Court
will not reach these critical issues and this makes Congres~-
atonal direction even more imperative.
While relatively few conflicts. may have surfaced thus
far as a result of judicial interpretations of the Act, it
can be stated with certainty that there will be many in the
future in view of the great and growing number of listed
species, especially in light of the vast number of plant
species which are currently being considered for listing.
In-this regard, the latest communication the District has
had from FWS concerning the Juniper-Cross Mountain Project,
dated January 30, 1978 voiced concern about possible impacts
on rare plants in the study area, stating the likelihood that
such rare plants do exist there, without any specifics.
It is just as certain that the Act has been and will
again be used by those who care nothing for balancing the
*dictates of the Act against public needs but who simply
use the Act to stop water and other projects required to
serve public. purpose~. Even if a project is not complete-
ly stopped, it might be delayed by litigation involving
this Act. It is well known that because of inflation long
delays in the planning or construct.ion of major water pro-
jects bring increased costs for which the consumer must
ultimately pay.
The House and Senate Committees on Appropriations
have recognized that the Actis being used by some as a
roadblock to further development contrary to the intentions
of Congress. In S. Rep. No. 95-301 accomoanying N.M. 7553,
the bill making appropriations for public works for water
and power development and energy research for the fiscal
year ending September 30, 1978, it is stated at page 99
with regard to further funding' of TVATs Teilico and Duck
River multipurpose water resource projects:
A thorough balancing of the projects
against their environmental consequences
has been performed. These projects will
29-319 0 - 78 - 18
PAGENO="0274"
~7o
provide needed flood cont ol, jobs and
industrial development; water supply and
recreational opportunitie~; improved navi-
gation in the case of Tél]~ico; and other
* benefits. In addition, the Tellicopro-
ject will provide an avera~e of about
* 200,000,000 kilowatt hours\ of electricity
annually. These projects are sound region-
al development projects which are vitally
important to the people af~ected. This
Committee has not viewed t1~e Endangered
Species Act as preventing the completion
and use of these projects ~hich were well
underway at the time the a~fected species
were listed as endangered. If the Act
has such an effect, which is-contrary to
the Committee's understandi~ng of the in-
tent of Congress in enacting the Endanger-
ed Species Act, funds shoul~1 be appropriat-
ed to allow these projects ~o be completed
and their benefits reallzed\ in the public
interest, the Endangered Sp~cies Act not-
withstanding.
The House Committee report acco9~panying the same bill
(H.R. Rep. No. 95-379) states at page 1013 with regard to
the Tellico and Duck River projects:
...Theprojects have been op~osed by a few
litigious individuals and groups but they
are overwhelmingly supported\ by the people
in the areas in which they a~'e loaated...
It is the Committee's view t~iat the Endan-
gered Species Act was not inlended to halt
projects such as these in th~ir advanced
- stage of completion, and stràngly recom-
mends that these projects no~ be stopped
because of misuse of the actJ
We urge then that this Committee which has conducted
extensive oversight hearings on the Act speak out now
against such misuse of the Act and ma~e clear to all that
the Act did not intend that human need~ be ignored hut in-
tended instead that a Federal agency's~ statutory aims and
purposes be allowed to balance the oth~rwise laudatory
purposes of the Endangered Species Act~
In addition we support the poSiti~~n of others testi-
fying who believe that inflationar~' iroact statements and
preparation of adequate data and envir~nmental analysis in
the form of an environmental impact st~tement should accom-
pany listing of, and critical habitat aesignations for,
endangered or threatened species. In ~hus complying with
NEPA, the agency listing an endangered~Specie5 or
designating its critical habit should ~how the redeeming
human value to be served thereby. -
Thank you for this opportunity to appear.
April 114, 1978 -
PAGENO="0275"
271
STATEMENT OF DR. CARROLL MANN
ON BEHALF OF
THE SAFARI CLUB INTERNATIONAL
SAFARI CLUB INTERNATIONAL CONSERVATION FUND
THE AMERICAN HUNTERS EDUCATIONAL AND LEGAL PROTECTION FUND
IN CONNECTION WITH
OVERSIGHT HEARINGS
ON
THE ENDANGERED SPECIES ACT OF 1973
BEFORE THE SENATE COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
SUBCOMMITTEE ON RESOURCE PROTECTION
PAGENO="0276"
272
MR. CHAIRMAN, MEMBERS OF THE COMMIT~TEE:
My name is Dr. Carroll Mann of Raleigh, North Carolina. Pro-
fessionally, I am a neurosurgeon, but I am also a wildlife biologist
and President of the Safari Club Int~ernational. I am appearing today
on behalf of the Safari Club International, the Safari Club Inter-
national Conservation Fund and The American Hunters Educational and
Legal Protection Fund. Details with~ regard to the background of these
organizations are attached as Exhibi~ 1 to the written statement of
my testimony. With me is C. Allen. F~ster, an attorney from Greens-
boro, North Carolina, who is the Man~ging Director of The American
Hunters Educational and Legal Protection Fund and who has prepared
the legal portion of this statement.
The groups on behalf of who I am appearing have a membership
in excess of 1 million American citi~ens and, through their activities,
represent over 60 million other Ameri~cans who are active hunters,
fishermen, trappers and target shoote~s, these statistics being
reflected in the Fish & Wildlife Servkce Survey on Outdoor Recreation.
These groups wish initially ~o express their support for the
concept of wildlife management, incluc~ing the full spectrum from
seasonal harvest by sportsmen and others to, where necessary,
short-term species protection, all le~ding to the maintenance of
viable, balanced populations at levels consistent with available
habitat. As a result, these groups su~ported the passage of the
Endangered Species Act of 1973 and, su~Dject to the suggested modif i-
cations of statutory language and admi~istrative interpretation set
forth in this statement, support the extension of appropriation
authorization which is before this Committee.
Because the groups on behalf of whom I am appearing represent
sport hunters all over the world, they have probably had as much
practical experience with the Endangered Species Act and the species
listed thereunder as any other group. i~~5 a result, we hope that the
following comments concerning the subst~nce of the Act and its imple-
mentation will be helpful to this Commi tee.
PAGENO="0277"
273
1. We believe that the Act should be amended to exempt from its
prohibitions hunting trophies which are taken by sports hunters in
compliance with the laws of foreign jurisdictions in which the species
in question is found. There are a number of reasons why such an exemp-
tion is both appropriate and would also further the Act's goal of long
term conservation or preservation.
First, there are many people who question the propriety of
Americans' determining the conservation status of species which do
not occur within the boundaries of the United States. The reaction
of foreign governments to the International Convention on Trade in
Endangered Species would seem to indicate that our government ser-
iously overestimated the international support for such activities.
Moreover, the administrators who implement the Endangered Species Act
have little or not knowledge of the local conditions peculiar to the
countries of origin of the listed species. As a result, American
legislation and regulation creates foreign resentment which detri-
mentally affects the very goals we are seeking to achieve. For
example, in a recent paper presented to the 43rd North American Wild-
life and Natural Resources Conference on March 20, 1978, a copy of
which is attached as Exhibit 2, Messrs. Teer and Swank, who had been
employed by the Department of the Interior to conduct a status review
of the leopard, stated:
"In our recent sttxly of the lecpard practically every representative
of natural resources agencies that wa mantacted in Africa expressed the
cpinion that the United States was premxnptive in making rules and regu-
lations which vitally affected their internal affairs***They wished to
make it clearly understood that they ware quite capable and surely had
sore kncwledge of their resources than any person or g~vernmant ~tose son-
tact and tenure in their sountry was usually short and desultory. ` (Pg. 13)
Second, it is common knowledge, and the Endangered Species
Act recognizes, that the primary forces which present danger to the
survival of certain species are (1) habitat deterioration and
(2) overutilization for commercial purposes. As to the former, hunters
have historically been, along with federal and state governments,
PAGENO="0278"
274
the ~ source of funds for habitat acquisition and improvement.
I know I need not cite to this conunttee the use of the Pittinan-
Robertson and Dingell-Johnson Funds in wildlife management nor the
activities of Ducks Unlimited in habitat acquisition. It is diffi-
cult to name even one group which opposes sport hunting but which
has made any significant contributi~n to the solution of the problem
of habitat deterioration. As to co~ercial overutilization, it is
well known that sports hunters are n~t involved in their activities
for monetary gain; in fact, such co~siderations impinge upon their
self-perceptions of the value and me~ning of their trophies. More
important from the regulatory context, the relationship of sport hunting
to commercial activity becomes even ~ore remote when one considers
the almost negligible number of trophies involved annually in comparison
to species populations. For example,~ in the case of the African
elephant, as to which a proposed thre~tened listing is now pending
before the Office of Endangered Speci~s, trophy hunting in 1977 com-
prised approximately of 577 animals or less than .04 percent of the
minimum population estimate with regar~d to the species. The scientific
evidence is that elephant populations ~an sustain an annual of f take
of 2.6% to 5.7%, over 100 times the annual of ftake by trophy hunters.
The same thing is true with regard to ~rirtually every other species
whichis listed as endangered or threatened under the Act.
Third, the parallel regulator~ framework represented by the
International Convention on Trade in En~iangered Species is not, in
the vast majority of signatory countrie , interpretated to encompass
sport hunters within the prohibitions t ereunder, even with regard to
species which are listed as endangered. The contrary interpretation
of the United States is in a tiny minor~ty. The organizations which
I represent have urged the Department o the Interior to institute a
reexamination of the United States' position which was developed during
a prior administration, and it is my understanding that such a
PAGENO="0279"
275
reexamination may even be currently underway.
Fourth, even current regulations promulgated by the Secre-
tary with regard to species listed under the Act as threatened
recognize sport hunting as a legitimate utilization of wildlife
resources and an appropriate exception to generalized prohibitions
of taking or even sale. For example, the grizzly bear which is listed
as threatened in the 48 contiguous states, can be hunted in limited
numbers in certain portions of its range. More substantially, the
alligator may be hunted in portions of its range subject only to the
regulations imposed by the local wildlife authorities, in this case
the state of Louisiana. We submit that this is precisely the type of
ememption which should be generalized for hunting trophies under the
Act. Surely, the local authorities are the most able to determine
population goals and levels of annual offtake.
Finally, an exemption for sports hunters would actively pro-
mote the goals of long-term species conservation. As pointed out above,
sport hunting has a negligible impact on population levels. Even
more important, in many cases the presence of sport hunters in remote
areas helps to control illegal poaching. As Mr. A. L. Archer of
Kenya, a knowledgeable observer of the situation regarding the ele-
phant in that country, recently commented:
The majority of the uninformed overseas critics
do not realize that many of the major elephant
hunting areas offer little else other than
elephants to hunt, therefore through banning
elephant hunting one is playing directly into
the poacher's hands by at once removing a con-
trolling factor in the presence of the professional
and his often influential and vocal overseas
client. The field is thus left wide open for large
scale and unreported poaching activities."
Innumerable members of Safari Club International report annually of
their own personal efforts toward the control of poaching, ranging
from the removal of hundreds of snares in a single day to actually
chasing and apprehending the poachers themselves. Furthermore,
sports hunting provides a major source of funds for the economies
PAGENO="0280"
276
and wildlife programs of affected ~ountries. A game trophy has a
far greater economic value as such than any other economic
utilization of the resource. The c~rganization which I represent
have recently compiled statistics in this regard concerning trophy
hunting of the African elephant. 1977, the approximately 577
elephants taken by sports hunters p~oduced in excess of $750,000.00
in license fees and taxes all or mOk~ of which was used in the
affected countries' conservation pr~grams, an average of $1,360.00
per elephant. In addition, the sam~ approximately 577 elephants
contributed a total of over $9 million dollars to the economies of
the affected countries, an average ~f $14,373.00 per elephant. Thus,
the total economic value per elephan~t was $15,733.00.
I would again like to quote from the Teer and Swank paper
attached to my testimony as Exhibit
`Many developing countries are abysmally poor in
GNP and budgets for conserv~tion are likewise very poor.
Thus agencies charged with ~dministering and managing
wildlife resources have in 1~he past earned funds to
operate their programs through licensing systems and
sales of animal products. c~f ten these funds provide
for an infrastructure in the capital city but almost
nothing is left for program implementation through a
professional field force.
`Funds urgently needed f~r conservation work have
been cut off by the closure pf hunting seasons and by
gazetting of species such as\ the leopard to endangered
status. Admittedly, the amo~int of financial loss
attributable to the removal bf a game species from game
status may be small, but relatively speaking, it is an
important loss to an agency whose budgets are already
small. Moreover, it is unlikely that any money will be
forthcoming from general rev~nue to off-set this loss.
The leopard can be taken legally in several countries
in Africa, but its present st~atus as an endangered species
prevents it from being import~ed into countries which are
the primary sources of huntez~s for safaries in Africa. In
addition to economic losses t~o wildlife agencies the losses
of revenue to local people engaged in these commercial
enterprises can be substantial.
"The potential economic re~urn from many game animals
provides an incentive to the private landowner to protect
and manage them for commercia~L purposes. On the other hand,
if the animal is a predator, real or imagined, of the land-
owner's livestock, or depreda~or on his crops, and if he has
no way to profitably market the animal, the result is almost
surely the elimination of the\animal on that ranch or farm
despite its status as endangeted to the conservationst.
"In short, the market plac~e can be the most important
preservation technique availalle to conservationists when
wildlife species are present n private lands. The place-
PAGENO="0281"
277
rrent of a species of eanncznic iir~ortantance on a
protected list can defeat efforts to protect or
save it in sate contexts." (Pgs. 15-16)
I would again emphasize that the authors of this paper
were employed by the Department of the Interior to conduct a status
review of the leopard, and these are their comments about the
detrimental effect of banning the importation of leopards as sports
hunting trophies.
Two recent comments in this regard concerning the situation
of the elephant in Zambia and Botswana are particularly instructive.
As for Zambia, the following telegram was received:
"U. S. Autherities dirnb if elephant put on threatened
list banning trophy ~iports fran Zan~ia. So abundant recent
UNFAO Luangua Valley Reports stated elephants causing excessive
damage habitat. Advocated cropoing sate 1,000 annuafly for six
years. Not inplerrented due to lack funds. Foreign revenue to
Zambia annually exceeding $2, 750,000.00. Ban exceeding detri-
mental and lost e'splopent underprivileged rural areas. Disas-
terous. Ban will rot affect poaching."
Similarly, a letter regarding Botswana:
"Sheuld the bill to treat these animals as endangered
species be successful, it would prevent the very person whe is
able to generate the noney which wifl irotivate peDple to keep
sore elephant, fran hunting in this country---the American
sportsmen. The Botswana government places great store on the
foreign currency they receive fran hunting licenses and in fact
this easily gleaned revenue frequently offsets public pressure
to put land to better use--i.e., ranching with dcvestic stock."
Thus, the groups which I represent submit that the Endangered Species
Act should be amended to exempt from its restrictions the trophies
of sportsmen who obtain the same under legal hunting licenses issued
by the country of origin of the species.
2. The second primary comment which these organizations would
like to present is that listings of species as endangered or threatened
under the Act, have, in the past, been made in a manner which violates
both the letter and the spirit of the Act. 16 U.S.C. §1533(b) (1)
clearly provides that "the Secretary shall make determinations [with
regard to endangered or threatened listings] on the basis of the best
PAGENO="0282"
278
scientific and comrnerical data available to him..." We have concrete
proof that the listing of the leopard as endangered was based upon
hysterical emotion instead of scie~tific and commercial data as
required by the Act. Again citing the statement of Messrs. Teer and
Swank to the 43rd North American Wi~Ldlife and Natural Resources
Conference,
"In spite of the fact\that the lecpard is the
syrr~ol of the rare and endangered species rtov~nt and
is featured as a species b~ought to the verge of extinction
by cxxrrrercialization, our conclusion was:
Tho placze~nt o~ the lec~ard on
the list of endangered species
of the internatibnal Unicn for
ti-n conservation\ of Nature and
the U.S. Fish and Wildlife Ser-
vice, and its as~igw~nt to
Appendix I of International
Convention of Trade in Endangered
Species of Wild ~auna and Flora
is not defensible. The leDpard
is not endangered under mmuronly
used definitions that endangered
status inplies, and it has been
irrproperly gazett~d to that status.
Similarly, a 1976 report by Dr. Randall L. Eaton, a member of the
Cat Specialist Group of the internati~onal Union for the Conservation
of Nature, which report was presented to the Department of the Interior
as part of a Petition to delist the l~opard as endangered, concluded:
`I was asharred for having an readily a&)pted and further
contributed to the n~ widespread belief that the leccerd
is endangered in Africa. Such a belief was and is
scientifically unfounded, and by aU present evidence,
entirely false. Such action by myself and others can only
foster division betweeen sci~ntific conservation and the
concerned citizens and socie~.ies whose responsibility it
is to manage their wildlife ±esources. scientifically
based conservation has lost ~redibiity; it cannot withstand
succunubing to faultless erroticnalism and its r~reCu5Sions
it if is to play the necessai~y role it should."
The organizations which I rep~esent submit to this Committee
that there are numerous additional spe~ies which have been listed as
endangered or threatened under the End~ngered Species Act which did
not then nor do they now fit the Act's definition of such status.
It is our information and belief that i~umerous species have been listed
as endangered or threatened without an~ scientific information what-
soever. I am pleased to report to this committee that, through the
PAGENO="0283"
279
efforts of Safari Club International and the American Hunters Educa-
tional and Legal Protection Fund, litigation is being instituted to
compel the secretary of the Interior and his administrators to delist
these species which have been listed illegally and to enjoin the
Secretary from further listings in the absence of the statutorily
required scientific and commercial data.
We would submit, however, that this Committee should be
concerned that it became necessary for interested citizens to initiate
litigation to compel governmental officials to comply with the explicit
provisions of the statute under review. It is difficult for me to
envision how the statute could be amended to make its commands more
explicit. What is needed at the present time is a congressional
insistence that the administrators in question fulfill their legal
responsibilities.
We do not however, lay all the blame at the door of the
Department of the Interior. There exists in this country a small but
vocal minority of persons .who would like to preclude any utilization
of wildlife resources which includes mortality other~ than from natural
causes. These groups have mounted well-financed and publicized
campaigns not to promote habitat acquisition or scientifically controlled
utilization, but instead to inflame emotions, frequently with exaggerated
rumors or downright misrepresentations, leading to absolute protection
measures. These groups manipulate public opinion to produce a constant
and unrelenting pressure upon the Department of the Interior to make
these listings which are not based upon scientific data. We submit
that this Committee and the Congress can and should by resolution
communicate the insistence of our citizens and their representatives
that administrative action be taken pursuant to the requirements of
the Act for scientific evidence and not because of baseless, albeit
well-articulated, emotionalism.
I might add that the same absence of scientific data in
connection with species listing has existed with respect to the
International Convention on Trade in Endangered Species. Just
PAGENO="0284"
280
recently, a Working Group establis ed under the Endangered Species
Scientific Authority considered th~ biology and management of the
bobcat, the lynx and the river otter in the face of urgent pressures
fron preservationist groups to move these species from Appendix II
(threatened) to Appendix I (endange~ed) status under the Convention.
The draft report of this Working Group, a copy of which is attached
hereto in full as Exhibit 3, makes ~he following poignant points:
"It becarre clear early in t1~ie deliberations of the
Working Group that rnenbers felt extretely uncreifortable
about their charge. This discx~nfort arose fran the
feeling that the 1x~cat, l~nx and river otter had been
pla~d on Appendix II fran ~x)litical rather than
biological reasons. Furthirnore, cuncern was voiced
by several iretibers that sei~her status nor recognized
authorities on the status o~ the subject species were
consulted before the inclu$on of the species in
Appendix II. In view of this sentiirent the following
resolutions were passed:
"Whereas species of Lu&inae and Felidae
have been included on Appendix II of the
Convention on International Trade in Endangered
Species of Wild Fauna and Flora, and are
thereby subject to re9ulation in international
trade, and
Whereas these taxa in the United States
were listed on Appendix II without adeguate
consideration of the a~7ailable biological
information, and
Whereas the Working Group expresses its
disatisfaction with th~ manner in which they
were listed on Appendi~c II, and
Whereas the available data indicate that there
are regional differenc~s in populations of
river otters and bcbca~s and that individual
states' managerent pro~rams differ markedly, and
Whereas seven rrernbers c~f the Working Group
believe that the river otter and bcbcat are clearly
not currently threatened by unrepilated inter-
national export (5 abst~ntions; no negative votes),
but 5 nethbers believe that the lynx is clearly
currently threatened b~ unregulated international
export (seven ebstentiolLis; no negative votes)
~ therefore be it r~lved that ~ Wor~g Group
expresses its reservati~bns about the appropriateness
of the blanket inclusige of these species on Appendix
II, and recxxrrrends that\ as soon as possible the
manage-rent authority examine all available information
pursuant to this questic~n and re-evaluate the inclusion
of these species in 2\ppóndix II. (Passed ten-zero, one
abstention)
PAGENO="0285"
281
Mr. Chairman, and members of this Committee, where have we come in
this country when a panel of scientists appointed by the government
of the United States is forced to pass a resolution such as this
criticizing the political rather than scientific" basis for the
decisions of our governmental officials?
3. A problem, parallel to the foregoing comments with regard
to scientifically unfounded listings, exists in connection with the
Sceretary's failure to abide by 16 USC §1533 Cc) (1) which requires
that
"Each list. . . shall specify with respect to each such
species over what portion of its range it is endam~ered
or threatened."
The organizations which I represent submit that the Secretary has
no discretion to do what has been done in the past---listing a species
as endangered or threatened throughqut its range when the "best
scientific and commercial data available" indicates that it does not
have that status except in certain areas.
We would invite the Committee to review the list of endangered
and threatened wildlife contained in 50 CFR §17.11. Of the over 800
species listed as endangered or threatened, all but three are listed
as having the specified status in their entire range. It is simply not
intellectually comprehensible or believable that all of these species
are actually endangered or threatened throughout their entire range.
In his testimony before the Committee on Merchant Marine and Fisheries
of the United States House of Representatives in its hearings on the
elephant as a potentially endangered species, Mr. Assitant Secretary
Herbst explicitly recognized the statutory requirement of limited
listing:
"The fact that there are a number of distinct populations
of the el~hant in Africa raises the possibility of
different listings for elephants fran different countries.
This has been done in this country with the Anerican
alligator and the bald eagle. Elephants in sate areas
might be listed as endangered, these in other areas as
threatened, and those in still other areas might not be
listed at all. This alternative might reflect nost
closely the actual status of the elephant in Africa."
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282
In the face of the clear command o~ the statute and the recognition
of Assistant Herbst of the proper ¶ethod of listing species, one
can only conclude that actual listings which violate these principles
are the result of administrative sloppiness, political pressure or
craven desires for ease of enforcement, or some combination of the
three. I have already spoken to tl4e first two points; as to the
question of ease of enforcement, the groups which I represent recognize
that detailed treatment pursuant to the statutory command will
potentially increase administrative workloads and make enforcement
more difficult. Our government, ho1qever, should not curtail its
citizens' liberties and privileges i~ierely to make its own tasks less
troublesome. When ease of administration is in the balance with
individual liberties, the latter sh~uld always prevail except when the
enforcement difficulties are utterl~ unsurmountable. And that is not
the case here. The Endangered Speo~es Act and the regulations
thereunder, specifically 16 Usc Sl533(e) and 50 CFR Sl7.52, explicitly
contemplate regulatory mechanisms to deal with siniliarity of appear-
ance cases and the enforcement probl~ms created thereby. Again, Mr.
Assistant Secretary Herbst recognize~ this option:
"The ~ct irekes provision for ~ioiliarity-of-a~pearar~e
situations and aflcMs non-endangered or rxDn-threaterled
species to be listed as str.h to better protect the
listed species."
We respectfully submit that these mechanisms can just as easily be
applied when some species population~ are not listed at all; at the
very least, populations as to which ~he scientific and cornmerical
data does not support an endangered ~r threatened status should be
listed only under the similiarity-of-appearance provisions so that
permits will be available under 50 CF~ S40.52. In addition, candor
compels me to say that such permits s~iould not be accompanied by the
calculated inattention and predetermi ed disinclinations to issue
PAGENO="0287"
283
sane that have characterized permit applications under 50 CFR §17. 22,
e.g. permit applications for import of specimens taken for scientific
research and for enhancing the propagation and survival of the species.
The only objection which I have heard voiced to the fore-
going flexible approach to listing, that is, listing only within
those portions of their ranges in which species are actually en-
dangered or threatened, is that, in the absence of regulation either
by the Endangered Species Act or by the International Convention,
the otherwise applicable mechanisms under the Lacey Act and the
Tariff Classification Act are inadequate. The allegation is that,
because certain foreign governments are in complicity with the
violation of their own laws, the documentation required under the
Lacey and Tariff Classification Acts is not worth the paper it is
printed on. The groups which I represent submit that such fears
are groundless in all but a few, well-known and specific instances.
In such cases, in the event that th~ Fish and Wildlife Service
determines that the documentation is unreliable from a country in
which a species has not been listed as endangered or threatened, a
listing can be proposed under 16 USC §15.33 (a) (1) (4) - the inadequacy
of existing regulatory mechanism". The "ham-handed" approach pre-
viously used by the Department of the Interior to list species
throughout their range abandons the flexibility under the Act for
distinguishing among countries based upon the effectiveness of their
management schemes. It is the regulatory equivalent of using an
atomic bomb to drive a nail, and results in profit to no one except
our federal administrators while causing extreme detriment to
millions of American sport hunters.
4. Another area in which the administration of the Act
has been contrary to both its language and spirit is in the require-
ment that, prior to listing a species as endangered or threatened,
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the Secretary shall consult with the states or countries, as the
case nay be "in which the species concerned is normally found..
In actual fact, there has been litt e, if any, communication in
the ordinary bilateral sense of tha word. Instead, what we have
had is really a notification from I tenor to the state or country
that such-and-such action is being ¶aken. A case in point is the
listing of the leopard as an endang~red species which was acconplished
by a nere notification to the count~ies involved with an effective
date so quickly after the notification that any meaningful exchange
of views was impossible.
At the present time, the pr~posed listing of the elephant
as threatened has been met with empa~sioned objections from at least
four African countries in which larg~ numbers of elephants are found.
These countries, together with other commenting organizations1 have
furnished the Department of Interior with detailed evidence relating
to the biological and commercial st~us of the elephant, all in-
dicating that the elephant is neithe~ endangered nor threatened in
many countries. We all await with in~erest the action of the Depart-
ment of the Interior from which we wi~Ll know whether the statutory
command of consultation has any meaning to the Department other than
bare notification of unilaterial American action.
Nor is the statutory requirer~ient of consultation merely a
placebo inserted to soothe the affect~d countries or states; instead,
it is a provision with a realistic pu~pose. As Messrs. Teer and
Swank state in the presentation attached hereto as Exhibit 3,
"Familiarity with the local scene and personnel can
be most helpful in sorting ou~ motives and values. It is
often useful to make contract~ with field and research
scientists in addition to state spokesmen when positions
of government are to be evaluated."
Similarily, the draft report to the En~aangered Species Scientific
Authority by the working group, quoted above, deals directly with
the problem I am addressing here:
PAGENO="0289"
285
"Whereas U. S. diplomatic contracts between nations
and to international bodies are traditionally accomplished
by political appointees and career diplomats with extensive
legal, economic and political experience or training; and
"Whereas those delegations often deal with conventions
or agreements which affect wildlife species; and
"Whereas it is generally accepted that states possess
management responsibility for resident wildlife species;
and
"Whereas, U. S. National Delegations usually fail to
include state representatives or even seek information and
concurance from them; and
"Whereas persons with pertinent professional, biological
expertise are seldom included in these delegations, and
adequate biological input is thereby not provided;
"Therefore, this working group recommends that in the
future the U. S. National Delegations to conventions
affecting wildlife seek adequate consultation, ensure flow
of information, and invite state and/agency participation
to guarantee a balanced, biologically sound, and documented
presentation by the U. S. delegation. (Passedunanimously).
Throughout the Endangered Species Act, there is a theme of
proposed consultation and cooperati6n between the Department of the
Interior and affected states and countries which, as is demonstrated
by the foregoing, simply has not been the case in fact. As a result,
the groups which I represent recommend an amendment to the Act to
substitute concurrence and consent to the part of affected states
and foreign countries for the current language of conference and
cooperation. Only when the respective parties are truly equal in
power can there be a realistic expectation of meaningful cooperation
and governmental interaction.
5. I have briefly mentioned above the total disinclination
of the Department of the Interior to issue permits for importation
of certain listed species, despite the clear contemplation of and
provision for such permits under the act and the regulations issued
thereunder. In particular, 50 CFR S17.52 contains detailed provisions
for the issuance of permits for the importation of species which have
29-319 0 - 78 - 19
PAGENO="0290"
286
been listed as endangered or threa~tened due to similarity of appearance.
Because of the broad-brush approac~i taken by the Department of the
Interior in listing species as end~ngered or threatened throughout
their range, rather than in those ~ortions of their range in which
they are actually endangered or th~eatened, the Department has
administratively nullified this fl~xible provision. The effect upon
sport hunters is to effectively eliLinate such ~pecies from utiliza-
tion even though, in certain areasi\ they may be no more endangered
or threatened than the common houseby.
Similarly, 60 Usc §lS.39(a~ provides that the secretary may
issue permits for otherwise prohibitLed acts "for scientific purposes
or to enhance the propagation or su~vival of the affected species."
While the terms "for scientific purposes" and "to enhance the pro-
pagation or survival of the affected species" are not specifically
defined in the Act, 16 USC Sl5.32(2) does define "conservation"
(which would certainly seem to be a, em even more restrictive than
the conditions for the issuance of a permit for scientific purposes)
to include regulated taking "where p pulation pressures within a
given ecosystem cannot otherwise be elieved...". To our knowledge,
however, the Secretary has never issued a permit for the importation
of an endangered or threatened specie under the permit provisions of
16 USC §15.39(a). As a specific case in point, one member of Safari
Club International obtained a permit issued by the Mexican government
for the regulated taking of a jaguar in an area where the population
pressure of jaguars was in excess of ~he carrying capacity of the
ecosystem. Such permits are issued annually by the Mexican govern-
ment in order that the specimens colle~ted may be examined and
recorded to further the scant scientif~c information available with
regard to the species as to growth rates, preferred diet, presence or
absence of various disease organisms a~d other similar scientific
inquiries. In each case, a Mexican go erriment official and staff
PAGENO="0291"
287
biologist accompanies the permitee to gather and record the foregoing
and other information. Despite the obvious scientific purposes which
are the object of the permit letting and the indubitable beneficial
affect upon the long range propagation and survival of the jaguar as a
species, the Secretary has consistently declined to issue permits for
the importation of this and other similarly situated species.
Mr. Chairman, and Members of the Committee, the inaction and
refusal to act on the part of the Department of Interior in these
permit cases speaks loudly and clearly to the sportsmen of America.
The Department is under the thumb of persons who are opposed to the
scientific management of wildlife, including regulated sports hunting.
The Department is the handmaiden of the few but vocal and wealthy
so-called "preservationists" who look upon hunting as immoral and who
would prefer to have the surplus population of a species die the
painful and wasteful death of starvation rather than be usefully
taken and consumed by Americans in pursuit of their traditional
heritage of sport hunting. We do d~t think that this is the attitude
that was intended by Congress when it adopted the Endangered Species
Act of 1973, nor do we think that this is the attitude of Congress
today or of the vast majority of the American people. We respectfully
invite and urge this Committee to take whatever action may be necessary
to redress the highhanded way in which the Department of the Interior
is perverting the language and the spirit of the Act.
6. The groups which I represent feel that they must also bring
to this Committee's attention the inconsistent, deceptive and some-*
times even apparently malicious action of agents of the Fish and
Wildlife Service in enforcing the Endangered Species Act. Some of
the most egregious cases seem to have arisen in the case of lechwe.
One hunter inquired of the Fish and Wildlife Service for a list of all
PAGENO="0292"
288
endangered or threatened for at least one year following such listing
to allow the adequate disseminatio~i of the information thereof to
potentially affected persons and f~.rms. In this way, government
agencies and agents can enforce their rules and regulations consis-
tently and fairly and the public trust of the citizen in his govern-
ment can be restored.
7. Finally, the groups w1~ich I represent believe that the
provisions of the Act and regulations thereunder dealing with legally
held captive, self-sustaining popul~tions do not now operate to fur-
ther the purposes of the Act. Obvi~Dusly, the existance of legally
held captive, self-sustaining popul~tions tends to enhance the poten-
tial for survival of a species because of the scientific research,
controlled breeding and protective ~are available to these populations.
Furthermore, the more widely distriI~uted the captive species are,
the less likely additional ones will be taken either legally or illeg-
ally from the wild. Thus, the Act a d the regulations should encourage
captive populations and the further issemination thereof.
At the present time, intra- tate transactions in captive, self-
sustaining populations are not regulated by the Act, but inter-
state transactions are. As a result~ the vast majority of all trans-
actions in species held in captive, ~elf-sustaining populations are
regulated. 50 CFR §17.33 allows a permit to be issued allowing any
activity otherwise prohibited in the ~ase of such captive, self-
sustaining populations. Unfortunatel~, however, the permit procedure
is typically involved, and delays in jssuance or refusal to issue the
permits are the rule rather than the ~xception.
As a result, we would submit that the Act should be amended
to exempt captive, self-sustaining po~ulations from its prohibitions.
At the very least, the Act should be a~ttended to exempt the progeny of
captive, self-sustaining populations which existed on December 28,
1973 (the effective date of the Act) which are themselves exempted
PAGENO="0293"
289
the citizen in question was not having copies of the Federal Register
shipped to him in Botswana so that he could be aware of administrative
actions while he was on his hunting trip. Upon returning to the United
States, this hunter imported his trophy which passed through customs
and Fish and Wildlife clearance without difficulty. As the case
later developed, the Fish and Wildlife agents who examined his trophy
upon importation were as unaware of the addition of the lechwe to the
endangered species list as the citizen was. Some time later, the
sportsman was contacted by officials of the Fish and Wildlife Service
who asked to see the lechwe horns to identify them. `The hunter agreed
after receiving a promise from the agent that it was not his intention
to sieze the horns. At the appointed time, however, the agent appeared
at the hunter's home with a search warrant and demanded the horns,
which were confiscated. Throughout the hunter and representatives
of Safari Club International had been in personal contact with the
Department of the Interior under the understanding that the Department
and its agents would cooperate in reaching a mutually acceptable
solution. In fact, the hunter agreed that he would not contact his
attorney and begin a legal proceeding under the Act because of this
understanding. Needless to say, there is at least one ~merican who
is convinced that he was defrauded by his own government.
Unfortunately, I can cite you other examples of similar con-
duct. Government by regulation pursuant to publication in the Federal
Register is offensive enough to the ordinary citizen who is con-
strained thereby, but when not even minimal efforts are made by the
agencies in question to disseminate accurate information concerning
regulations appearing in the Federal Register, it becomes intolerable.
The groups which I represent submit' that the Act should be amended
to suspend any prohibitions resulting from listing a species as
PAGENO="0294"
290
endangered and threatened specie so that he could be certain not
to shoot any such species. He was provided such a list by the Los
Angeles office of the Service and~ the list did not indicate that
there were any prohibitions with ~egard to the lechwe. As a result,
the hunter in question proceeded ~n his safari and, in the course
of it, took a red lechwe pursuant~to a valid hunting license issued
by the government of Botswana. `Or~ his return, his trophy was con-
fiscated. Upon checking, thehun~er discovered that he had been
sent an out-of-date endangered spe~cies list by the Fish and Wildlife
Service and that the Service was still sending out such out-dated
lists fran their offices in Housto~, Sacramento, Denver and
Washington, D.C., a full year afte~ the lechwe had been added to the
endangered species list. Nor had ~ny notice been given to poten-
tially affected parties, such ast e largest taxidermy firms in
the world, of over 200 new animals which had been added to the En-
dangered Species list. Under these~ circumstances, one night have
anticipated that the Service would ~iave revised its list and would
have granted permit exceptions to a~l hunters in the meantime.
Instead, however, the Service assessed a civil penalty of $200 and
insisted upon a signed acknowledgem~nt of guilt and abandonment of the
hunter's trophy. The citizen in qu~stion has been forced to pursue
his rights to clear his good name~ir~ an administrative proceeding which
is costing him thousands of dollars ~nd in which the result is still
not yet known.
Perhaps an even more offensive case involves a hunter from
the Northeast who took a lechwe one or two days after the animal had
been added to the Endangered Species\list and sometime after his
safari had already begun. In other s~ords, this hunter was on safari
in Africa when the lechwe was added t~o the list by publication in the'
Federal Register. I am sure I do not\ need to tell this Committee that
PAGENO="0295"
291
pursuant to 16 Usc §15.38(b) so long as the same were not held in the
course of commercial activity. We would also submit that the condition
of the exemption - noncommercial holding - should be eliminated because
of the beneficial effect that these captive, self-sustaining popu-
lations have upon the particular endangered or threatened species. In
the event that no amendment is made, the permits available under 50 CFR
§17.33 should be granted expediciously and generously, for the sane
reasons.
Mr. chairman, members of the committee, the groups which I
represent sincerely appreciate this opportunity to present our views
to your committee. I would be happy to answer any questions which you
might have.
PAGENO="0296"
292
Exhibit 1
BACKGROUND OF COMMENTING ORGANIZATIONS:
1. Safari Club Internatio al and Safari Club International
Conservation Fund.
Safari Club International SCI) is an international
non-profit organization* whose ~urpose is to conserve wildlife
and preserve sport hunting. Its headquarters are located at
5151 East Broadway, Suite 1680, ucson, Arizona, 85711. Through
regular, associate and affiliate memberships, SCI represents over
1,000,000 individuals in the United States, Canada, Europe, Asia,
and Africa. The following organizations are affiliated with SCI:
American Sportsmen's Club
Arizona Wildli~e Federation
California Wildlife Federation
United Sportsmen's Council of Colorado
Illinois Wi1d1i~e Federation
Indiana Sportsm~n's Council
Michigan United\ Conservation Clubs
North Carolina ~i1dlife Federation
Everglades Coordinating Council
San Fernando Valley Sportsmen's Clubs
South Louisiana Gun Club
Game Conservatic~n International
Big Game Hunter~, Inc.
Shikar Safari Cl1ub International
Texas Trophy Hunters Association
Alaska Professio~ial Hunters Association
International Prpfessional Hunters Association
Montana Outfitte~s and Guides
Associated Taxid~rmists of North Carolina
National Taxidermy Association
Citizens Committ~e for the Right to Keep
and Bear Arms
SCI, together with the Safari Club International Conservation
Fund** (SCICF), sponsors American ildlife Leadership Schools in
* Qualified under Section 501(c) (4) of the Internal Revenue
Code of 1954, as amended.
** A non-profit organization nder Section 501(c) (3) of the
Internal Revenue Code of 1954, as ai~ended.
PAGENO="0297"
293
Wyoming and British Columbia where students, who attend on
scholarships contributed by Sd members, learn survival skills,
the importance and methods of wildlife conservation, and the role
of the sport hunter in nature and in American historical tradition.
rn addition, SCICF sponsors workshops for key state level
educational administrators and teacher trainers involved in en-
vironmental education and followup workshops for secondary
school teachers in cooperation with the state level administrators,
the purposes being to create a core of properly trained outdoor
educators and to motivate them to organize and implement outdoor
education programs in the public schools.
Further, SCI makes direct grants to various local and regional
conservation projects including the reintroduction of the caribou
in Minnesota, the study of the impact of human population on black
bears in Southern Michigan, the study of the status of the African
leopard, the reintroduction of the Shiras moose in Colorado, the
rescue and supplementary feeding program for stranded elk herds in
Wyoming and the construction of watering facilities for desert big
horn sheep in California.
Finally, SCI also provides vehicles and equipment to foreign
governments to assist in game management and control of poaching,
and participates through its leadership (at United States Govern-
ment invitation) in both observer and delegate status in the
Convention on International Trade in Endangered Species of Wild
PAGENO="0298"
Fauna and Flora (the "Convention" and in various committees
organized under the Convention an the U.S. Endangered Species
Act, 16 USC Sl531, et ~
2. American Hunters' Educational and Legal Protection Fund.
The American Hunters' Educational and Legal Protection Fund
(AMHELP) is a non-profit organizat~ion for which an application
for tax exenpt status under Section 501(c) (3) has been filed and
which, in the opinion of counsel, ~ualifies as a public interest
law firm under Treas. Reg. l.5Ol(c~ (3)-l. Contributions to the
Fund are primarily solicited from ~he general public by direct
nail and other means, but grants t~ the Fund are received from
organizations supporting the purposes of the Fund. The Fund
is governed by a Board of Directors, elected by its
contributor/members, including bot~ persons prominent in outdoor
sports and others who, like millions of ordinary citizens, partici-
pate in such activities.
AMHELP was organized and exist~ to protect and preserve the
right of the public to participate in and enjoy outdoor sports.
As a result, its constituency incluLs the over 16 million
Americans who purchase hunting licer~ses annually, approximately
28 million persons who hold fishing licenses each year, 900,000
or more licensed trappers, together with the additional 30.4
million who participate in such spo ts without being required to
PAGENO="0299"
295
purchase licenses*, over one million target shooters**, their
family members, and the tens of millions of non-participating
individuals who derive their livelihood, in whole or in part,
from such activities. While the foregoing statistics may duplicate
individuals in two or more categories, it is conservatively esti-
mated that AMHELP Fund represents the interests of a majority of
all Americans and is the only known organization protecting their
legal rights as the same pertain to hunting, fishing, trapping,
target shooting, and other similiar outdoor sports.
* The above statistics regarding holders of hunting and
fishing licenses and additional unlicensed hunters and fishermen
are derived from the Fish and Wildlife Service Survey on Outdoor
Recreation, published in 1978 for calendar 1976.
** Source: American Trapshooting Association and National
Skeetshooting Association.
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296
Ex~hibit 2
INTERNATIONAL IMPLICATIONS OP DES~GNATING SPECIES ENDANGERED OR
T}mPATENED1
James G. Teer and Wendell G. SwanI~
Department of Wildlife and Fisheries Sciences
Texas A&M University
College Station, Texas 77843
The new, vigorous thrusts to rotect and restore endangered
and threatened animals and plants ~o safe or usable numbers have
presented far-'reaching practical ax~d philosophical considerations
to the wildlife biologist and the administrator. New federal,
state, and provincial laws and an i~iternational treaty to protect
forms of life designated as rare or threatened have put conserva~
tion agencies into jurisdictions and wildlife professionals into
programs where they have had jittle if any former roles and
experience. Most have been concerne~1 almost totally with animals
of interest to sport hunting and fis~iing or with animals and
plants which directly affect man thr ugh his health, agriculture,
and industry. Moreover, relatively ew conservation agencies
and professional conservationists in the United States have had
experience in international conservat~on affairs.
`Presented at the 43rd North American Wildlife and Natural
Resources Conference, Phoenix, Arizon~, March 20, 1978
PAGENO="0301"
297
In spite of this the conservation community has pushed
forward with the conviction that to wait for all of the needed
information and resources may be too late for many life forms.
Non-game wildlife, rare and endangered species, and
extinctions and extirpations of organisms of economic value
throughout the world are now within the province and scope of
these agencies. Additions of these new charges to the already
over-extended agencies of govertiment and to the practicing
wildlife biologist have been accepted with mixed feelings.
Those close to the program realize that too much has been expected
and too few personnel and resources have been made available to
carry out these new duties.
The purpose of this paper is to present information which
has direct relevance to the administration of the provisions of
the Convention on International Trade in Endangered Species of
Wild Fauna and Flora and The Endangered Species Act àf 1973
(U. S. Congress, 1973). The background material for this paper
has been derived from information gained by a combined experience
of over ten years working with wildlife and those concerned with
wildlife in international circles, principally in Africa and South
America. In addition more relevant and recent information was
obtained from a study made of the status of the leopard (~ntI~çrp
pardus) in sub-Sahara Africa in early 1977 for the Office of
Endangered Species, U. S. Fi8h and Wildlife Service (Teer and
PAGENO="0302"
298
Swank 1977). We personally cont~cted and talked with about 40
chief administrators, wildlife scientists and biologists working
for governments, for internationa~L conservation agencies, and
private enterprise. We specifically obtained their viewpoints
on the present status of the leopard, and measures needed for its
perpetuation, protection and use; In addition another 30 people
in conservation work were contacted by either telephone or cor-
respondence to obtain information. People in Kenya, Tanzania,
Ethiopia, Sudan, Botswana, Rhodesia, Zambia, South West Africa,
Zaire, the Republic of South Afric~i, Uganda, Central African
Empire, and Camaroon were contactect. Interviews also were held
in Europe with representatives of 1~orld Wildlife Fund, Inter~
national Union for Conservation of ~ature, Fauna Preservation
Society, and Food and Agriculture 0~ganization of the United
Nations.
In spite of the fact that the leopard is the symbol of the
rare and endangered species movement~ and is featured as a
species brought to the verge of extikiction by commercialization,
our conclusion was:
"The placement of the\ leopard on the lists
of endangered species of the International
Union for the Conser$tion of Nature and
the U. S. Fish and Wildlife Service, and
its assignment to App~ndix I of the
International Convention on Trade in
Endangered Species of Wild Fauna and Flora
is not defensible. The leopard is not
endangered under conmio~ily used definitions
PAGENO="0303"
299
that endangered status implies, and it
has been improperly gazetted to that
statue. It is threatened as are many
species of organisms of varying abundance
and limits of distribution. Losses of
habitat, poaching, and conflicts with
man and his industries are operating
against the leopard just as they are
for a myriad of other forms of life
and assemblages of, biota in the world".
Our recommendation to the U. S. Fish and Wildlife Service
was to begin proceedings to get the species in sub-Sahara Africa
reduced from endangered to threatened status.
Where does the United States obtain its charter to gazette
to a conservation statue species that do not occur within its
boundaries? It seems that the western world, the United States
in particular, has a large influence on conservation of many
forms of life in the world because it provides markets for
animal products and other industries surrounding wildlife
resources. Moreover, many countries that produce species with
high market value do not have the capabilities of prohibiting
illegal export of the items. Hence the international conservation
community has called upon the countries -that provide the major
markets to control imports. Thus the leadership has passed by
default from the producer nations to the consomer nations.
While it is not possible to present a complete history of
the evolution of regulations in the United States which deal
with rare species, it is appropriate to review some of the
PAGENO="0304"
300
legislative milestones to demonstrate how the United States
came to assume this role.
The United States Congress passed its first law to protect
endangered species in 1966 (U. S. ~ongress, 1966). This law, The
Endangered Species Preservation AcL was updated by Congress in
1969 with the passage of the Endä~ered Species Conservation Act
of 1969 (U. S. Congress, 1969). Tl~e act required the Secretary
of the Interior to publish in the ~ederal Register and periodi-
cally to modify two lists of species of selected groups of animals
threatened with extinction within t~ie territory of the United
States or threatened with worldwide extinction.
The International Union for the Conservation of Nature and
Natural Resources (IUCN) was the lea~ing international organiza-
tion in promoting the developing of treaty among nations to
protect rare forms of life through control of trade of these
animals and plants and their products (Department of State 1973).
Drafts of a treaty or agreement were circulated in 1967, 1969 and
1971 by IUCN for cottmienta by governments and private conservation
agencies. The Congress of the United States through section 5
of the Endangered Species Act of 1969 instructed the Secretary
of Interior acting through the Secretary of State to seek the
enactment of an international convention on trade in endangered
species. The United States assumed the leadership in this role
when it agreed at the United Nations Cpnference on The Human
PAGENO="0305"
301
Environment to host a meeting to consumate such an agreement.
After soma early abortive attempts to convene the conference,
the Departmant of State called a Plenipotentiary Conference
to Conclude an International Convention on Trade in Certain
Species of Wildlife in Washington, D. C., in February, 1973.
The convention drafted a treaty,., developed definitions for the
status of rare forms of life, and proposed regulations for
signatory countries to use in protecting the designates.
Endangered and threatened were the two principal categories
defined, and a great many species were assigned to Appendix I
* (Endangered) and Appendix II (Threatened). The assignments
were done in conference by delegates. Most of the cats of the
Ethiopian Realm and many others from other life zones were
placed in Appendix I, purportedly because of the great numbers
of spotted cat skins being marketed in world trade.
Forty-three nations are now parties to the Convention
(IIJCN Bull. Dec. 1977). The Convention cane into effect, on
July 1, 1975, 90 days after the deposit of the 10th nation's
instrument of ratification. Some changes were made in the list-
ings in Appendices I and II at a formal Meeting of the Parties
to the Convention in Berne, Switzerland 2-6 November, 1976. The
leopard was retained in Appendix I. The United States now stations
a wildlife scientist in Berne, Switzerland. Responsibilities
of this scientist are to work closely with IUCN and other inter-
29-319 0 - 78 - 20
PAGENO="0306"
302
national consnrvation organizatio~is to monitor cOfl8erVatiOll
efforts and to as8ist in developm~nt of plans to protect
endangered species.
Thus the United States by a mandate of congress is committed
to world conservation efforts. TF~e United States Government
has assumed an active role and this role has been condoned by
many nations. Ethics aside, the c~rnclusion must be reached
that because its citizens create ni~irkets for animals and plants,
the United States has a vital role in conservation efforts
to protect those forms of life whi h serve the markets. Moreover,
world-wide the United States is rec~ognized as a potential
source of financial resources to promote conservation efforts.
In this context, it seems appr~priate to examine some
procedural and professional codes a~id some contextual problems
if this role is to be successful.
GOALS MORE IDEALISTIC THAN REALISTI
Congress, in its mandate to the Secretary of the Interior
to assume a leading role in bringing about an international
convention, may have overestimated w ridwide support for such a
convention. Wildlife administrators of some African countries
were very active in pushing for the onvention; however, some
of these very countries have not yet ratified or acceded to the
Convention. There are several reason~ for the difficulty in
PAGENO="0307"
303
achieving goals of the Convention.
Eliminating world trade in wildlife products is a tremendous
undertaking affecting several million people. Those affected
range from people who literally live off the land and are depen-
dent for their survival upon wildlife they can catch to those
who are willing to~ pay a high price for something which they do
not need but which serves as a status symbol. Some items,
through centuries of use, have become interwoven in social
customs that are not readily changed. Examples of customs
which are part of tradition and culture are the use of leopard
skins as a sign of nobility among some tribes in Africa, eagle
feathers as a decoration and sign of status by American Indians,
rhinoceros horns as an aphrodisiac in the Orient, whale bone
masks by the Eskimos and Aleuts, and many others.
There are also subtle international disputes which affect
traffic in wildlife products and which cannot be fully appreciated
by organizations with little or no knowledge of local politics.
As an example, it is contended by well informed sources in East
Africa that the major illegal movement of wildlife products out
of Kenya is by Somalis who are there with the sanction if not
active support of the Somalia Government. The purpose, it is
said, of the Somalia Government is to produce a cadre of personnel
who are familiar with the country to serve in the repeated
attempts by Somalia to annex northeastern Kenya which they claim
PAGENO="0308"
304
is rightfully their pre-colonial territory.
Because of the tenuous natur~ of governments and the low
priority for wildlife conservatio~i matters, heads of wildlife
agencies change frequently in developing countries. This
presents a very difficult task to conservationists interested
in international or global affairs who must search for and
identify the most reliable informa~ion on biological subjects.
The natural resources agencies are the obvious repositories of
information; however, there are often many conservation organiza-
tions in the country. Some are pri~vately funded groups from
the western world, and their professional staffs usually have
considerable experience and knowled~e of wildlife resources and
conservation needs in the country o~ region. The problem for
the international conservationist i~ to separate the problem
of sourcing good information from t1~e sure knowledge that the
solutions to conservation issues are the soverign right of
only the government in the country.
This matter is often compounded in countries formerly held
as colonial states. In Africa and tin America, this means
practically all nations. The conser~~ation ethic and practice
were often much further advanced in colonial governments than
in the newly emerging countries struggling for political
identity, economic growth and stability and social justice. The
history and new order of things set the stage for conflicting
PAGENO="0309"
305
philosophies to meet. The new government most often seeks develop-
ment and utilization of resources. The sense of world opinion,
and that of expatriota still residing in the country and who
may have promoted world opinion, may be a very conservative,
almost protectionist, attitude. Of course, in some cases preserva-
tion is the proper management strategy. Examples of such con-
flicts with which we have had experience in the past decade,
aside from that of our work with the leopard, were the problems
of gazetting lands to national parks in highly productive
agricultural areas, the cropping of wildlife for meat, and the
protection given to elephants whose ranges were no longer able to
support them.
Moreover, the spokesman for conservation issues in a
government may indeed not be the best informed or the views
espoused may be self-serving at home in the political arena or
even in international conservation circles. Familiarity with
the local scene and personnel can be most helpful in sorting
out motives and values. It is often useful to make contacts
with field and research scientists in addition to state spokesmen
when positions of governments are to be evaluated.'
PRIORITY OP WILDLIFE IN DEVEWPING COUNTRIES
The highest priority `of leaders of governments in most
developing countries is to maintain their leadership; i.e.,
PAGENO="0310"
306
to remain in power. In newly fozkmed countries the record demon-
strates that power is tenuous an~ short-lived. The governed have
not bad a long history of having had the opportunity to express
themselves, and their expectation~ have increased faster than
their government' s capacity to produce. Many in government have
assumed tremendous reaponsibilit a, frequently not by choice.
Many also have not had the opportt~nity to mature through
experience. Tribal ties often are stronger than alliances to a
central government, and in many ca es, tribal ties are of primary
consideration to the well being of the individual and his family.
Moat of the developing countri~es in Africa and in other
continents as well are preoccupied th erasing vestiges of some
"lam" whether it be colonialism, co~muunisTn or imperialism. On
the positive side, education, healt~i and agricultural development
receive highest priorities. If we ~pply tunnel vision conserva-
tion goals, however, this is detrimental because it increases the
demand for products from the land ar~d increases human population
which in turn decreases space for wi~Ldlife.
Efforts of International conseryationists to increase the
proficiency level by training of pe4le to fill key wildlife
positions In developing countries have met with only partial
success. People with several years of training have frequently
returned to their homelands where the~ are appointed to positions
PAGENO="0311"
307
in other agencies of government than those devoted to conserva-
tion and management of wildlife and other natural resources.
Governments have higher priorities for their services in manage-
ment and administration. This demonstrates that wildlife conserva-
tion is not held in high regard by developing nations, but in fact
it is the expediency of assignin~ capable people to the most
pressing problems of the nation.
The budgeting process in developing countries, though
somewhat different from that in the western world, ends up
with the same result. After the more pressing problems of the.
nation are met, very little money is available to manage and
develop the wildlife resources.
SOVEREIGNTY AND PROFESSIONAL PARTNERSHIPS
Many of the developing countries of Africa have very young
conservation agencies. Some have ministeries of natural resources
whose duties and responsibilities involve all activities in
wildlife conservation and management, tourism, and national parks.
Others have several agencies, often with conflicting charters
and responsibilities, to handle these matters and resources.
Most of the agencies still reflect in some degree the philosophies
and operational methods of former colonial powers which recently
staffed them. ~
PAGENO="0312"
308
Whatever the form and organization of the conservation
agencies in the developing countries of Africa, they are trying to
manage extensive resources with s 11 professional staffs and
inadequate funds. What they do have is a very large measure of
pride - pride which has developed as a consequence of their
evolution from a colonial governmer~t to independent nations.
In our recent study of the leopard practically every rep-
resentative of natural resources agencies that we contacted in
Africa expressed the opinion that t~ie United States was presump-
tive in making rules and regulations which vitally affected their
internal affairs. While these repr~sentatives did not have
assigned diplomatic duties, they ~*7et~e representatives of their
governments and were responsible for~ the administration and
management of wildlife and other nat ral resources in their
countries. They trished to make it c~Learly understood that they
ware quite capable and surely had more knowledge of their resources
than any person or government whose c~ontacts and tenure in their
country was usually short and desultory. Resentment was evident
on the part of resources personnel of one-time colonies of foreign
governments. This resentment was pronounced in come cases toward
international conservation organizations with offices in their
countries whose headquarters were in Europe or North Merica
and whose financial support came from abroad.
Conservation practices have lost some ground in the newly
PAGENO="0313"
309
emerging nations in their struggle for economic growth and
stability, social justice, and national identity. Forests are
being converted to agriculture crops, and rangelands are being
opened up to settlement. The past practice of gazetting large
areas to national parks has decelerated and is being questioned.
The utilization of wildlife to produce food is continuously
under consideration. It is obvious that some concessions will
have to be made if the developing countries are just to supply
food and fiber for their increasing populations. It is
unrealistic to assume that present day agriculture and livestock
husbandry practices can be carried on in the same areas that
provide a home for free ranging elephants, buffalo and hundreds
of wildebeest. Marauding lions and leopards were not tolerated
by European ranchers in East Africa during the colonial period.
Can we ask the Africans to react differently? World opinion, as
nebulous as the source and strength of it might be, can and
does affect decisions of governments in developing nations.
However, developing nations are now more often than ever asking
the question: What is this thing the world wishes us to do and
for whom are we doing it? The question, of course, is only
rhetorical; they have the answer.
ECONOIIIC VALUES AND PRESERVATION
Many developing countries are abysmally poor in GNP and
PAGENO="0314"
budgets for conservation are like se very poor. Thus agencies
charged with administering and managing wildlife resources have
in the past earned funds to operate their programs through
licensing systems and sales of anin~al products. Often these
funds provide for an infrastructure\ in the capital city but
almost nothing is left for program ~mplementation through a
professional field force.
Funds urgently needed for consE~rvation work have been cut
off by the closure of hunting se.ason~ and by gazetting of species
such as the leopard to endangered status. Admittedly, the amount
of financial loss attributable to th~ removal of a game species
from game status may be small, but r~latively speaking, it is an
important loss to an agency whose bud8ets are already small.
Moreover, it is unlikely that any monry will be forthcoming from
general revenue to off-set this loss. The leopard can be taken
legally in several countries in Africa, but its present status
as an endangered species prevents it f~rom being imported into
countries which are the primary source~ of hunters for safaris
in Africa. In addition to economic losses to wildlife agencies
the losses of revenue to local people engaged in these commercial
enterprises can be substantial.
The potential economic return from many game animals
provides an incentive to the private lai~idowmer to protect and
PAGENO="0315"
311
manage them for conmiercial purposes. On the other hand, if the
animal is a predator, real or imagined, of the landowner's
livestock, or depredator on his crops, and if he has no way to
profitably market the animal, the result is almost surely the
elemination of the animal on that ranch or farm despite its
status as endangered to the conservationist.
In short, the market place can be the most important preser-
vation technique available to conservationists when wildlife
species are present on private lands. The placement of a species
of economic importance on a protected list can defeat efforts
to protect or save it in some contexts.
DISPLACEMENT OF EMPHASIS IN CONSERVATION AFFAIRS
How much has the new conservation movement's preoccupation
with endangered species and with all life forms been responsible
for displacement of interest in those organisms of traditional
economic value? This point is debated often by traditional
wildlife managers and ecologists. The proper position or
pragmatic answer is, in our view, that the values for whatever*
purpose of a group of organisms will not depreciate values of
any other group used for another purpose.
The problem has little if anything to do with the ethics
and morality of taking life through sport hunting or the slob
hunter syndrome on which the protectionist movement has feasted
PAGENO="0316"
312
in the last few years. It is the ransfer of that protectionist
philosophy to ail organisms that makes a serious problem for
conservation. The anti-aanagex~nt attitudes of a large section
of our society can be attributed in part to the new emphasis
on protecting endangered forms of ~ife. Unfortunately, these
people fail to recognize that management to restore endangered
forms of life is a strategy of almo~t all conservation organiza~-
tions.
We see real dangers in a protectionist philosophy being
developed in countries where conservation has a short history
and where economic and social problems far outweigh other less
inmiediate needs. It is just too eas~r for a government to develop
its resources with the exclusion of ~onsideration for wildlife
and wildiands when the economics of preservation cannot be
demonstrated.
REEVALUATING TilE STATUS OF AN ORGANI
A review of the operations of tb Convention since its
inception indicates that there is mucl~ more of an inclination
to place an organism in the appendice than there is to take one
off. I4any species were placed in the original lists without
either adequate data on their status o~ consideration for their
biological traits contributing to their survival. We believe
the leopard is a case in point.
PAGENO="0317"
313
Other animals which seem to have been struck with the same
brush are some of the corcodilians of the New World, spotted
cats of the World, and many herbivores of the African, South
American, and Asian Continents. Among the larger mammals, the
African elephant, the bobcat, and the kangaroos are now being
considered for assignment to endangered or threatened status.
There seems to be very serious questions about their status and
proper use of them as renewable resources.
One only has to examine the procedures for reassignment of
organisms or for amending the appendices that were developed at
the formal Meeting of the Parties to the Convention in 1976 to
see that the process is a very lengthy and demanding one. While
it may be proper to make the process exacting and scientifically
correct, the same process should be used to make original assign-
ments to the lists.
The basis for assigning a species to one of the three
appendices is largely biological.. More specifically, numbers and
populations of an organism carry the most weight in review processes.
For an animal that is as shy and as widespread geographically and
ecologically as the leopard, it is an almost impossible task to
obtain the kinds of information needed to judge its status.
Further, the review process and role of the Endangered Species
Scientific Authority (ESSA), a U. S. Government review body, has
PAGENO="0318"
14
alientated many agencies, especial~Ly local and state government
agencies, because they have no representation on the board.
Some believe that the board is ver~~ heavily protectionist in
philosophy. It will be extremely d~Lfficult for the U. S. Fish
and Wildlife Service to carry out i~s responsibilities without
the support of the states.
CONCLUSIONS AND RECO~tENDATIONS
Our experiences and studies in ~he international arena of
conservation affairs lead us to admonish ourselves and our
colleagues not to expect dramatic results in conservation
programs where utility and economics are not primary targets
or results of conservation measures. The historical, political,
cultural, and economic contexts in which foreign governments or
international conservation bodies interject themselves through
programs to protect endangered species are often so fixed that
conservation efforts often cannot be expected to be little more
than token efforts. The western world~s efforts to decrease
traffic in animal products by restri~4ng imports into countries
where markets are large may be an impoz~tant technique, but some
adverse feedback to the countries of origin of the products can
be expected.
Our recoendation is to determine\the biological parameters
PAGENO="0319"
315
of any species or conimunityof organisms before it is relegated
to any status other than that imposed by the country which controls
its destiny. A partnership arrangement in international efforts
at the field level seems to us to be a necessity for building
trust between the developed and developing nations and data
banks on which delicate and corr~ct decisions can be made. The
life and tines of any organism is wedded to the life and times
of the people in a country, and the efforts of international
groups must not fail to consider this fact. Unilateral or "big
brother" decisions find little acceptance in foreign or domestic
conservation circles.
LITERATURE CITED
Department of State. 1973. World Wildlife Conference: Efforts
to Save Endangered Species. Department of State Publication
8729. General Foreign Policy Series 279, Washington, D. C.
30 pages.
IUCN Bulletin. .1977. Three New Parties to Endangered Species
Convention. News Article, International Union for the
Conservation of Nature and Natural Resources Bulletin,
8(12): 74.
Teer, James C. and Wendell C. Swank. 1977. Status of the
Leopard in Africa South of the Sahara.. Multilithed report
submitted to the Office of Endangered Species, U. S. Fish
and Wildlife Service, Washington, D. C. 264 pages.
U. S. Congress. 1966. Endangered Species Preservation Act of
1966, Public Law No. 89-669.
______________ 1969. Endangered Species Act of 1969, Public
Law No. 91-135.
______________ 1973. Endangered Species Act of 1973, Public
Law No. 94-359.
PAGENO="0320"
316
DRAFT ~PORT TO THE ESSA BY ~FHE WORKING GROUP Exhibit 3
ON BOBCAT, LYNX, AND RIVER OTTER
The Convention on Internatior~al Trade in Endangered Species
of Wild Fauna and Flora was negoti~ted and signed In February and
March, 1973, and took effect on Ju1~r 1, 1975, after the tenth country
ratified it. The Convention establishes rules for the trade~in
endangered and other species of wil~1life and plants between countries
that are Parties.
Appendix II of the Convention was supposed to include the
-. following:
`(a) all species which althou~h not necessarily now threatened
with extinction may become so unless trade in specimens of such
species is subject to strict r~gulation in order to avoid
utilization incompatible with their survival; and
(b) other species which must be subject to regulation in
order that trade in specimens ~f certain species referred
to in sub-paragraph (a) of this paragraph may be brought
under effective control."
The Convention req~iires federal permits for export of species
included in Appendix II, and such per~nits can only be issued
after it is determined that export "w~ll not be detrimental to the
survival of the species.' The Conven~ion includes bobcat, lynx,
and river otter in Appendix II.
To insure the scientific soundness of governmental decisions
concerning trade in species included In the Convention, the Endangered
Species Scientific Authority (ESSA) wa~ created by Executive Order,
on April 13, 1976. The same order ai4 designated the Secretary
of the Interior as the Management Authc~rity (MA) for the Convention.
Federal export permits cannot be issued for Appendix II species
unless the ESSA finds that export "will not be detrimental to the
survival of the species," Convention Article IV 2.(a). Thus, the
Convention establishes a presumption ag~inst export unless the ESSA
has adequate information in support of a positive finding. Although
PAGENO="0321"
317
detriment to the survival of a species is not defined in the Convention,
the ESSA is oblige~ by Article IV 3. of the agreement to use its
authority to monitor the exports of each Appendix II species and to
limit their exports to maintain each species `throughout its range.
at a level consistent with its role in the ecosystems in which It
occurs and well above the level at which the species might become
eFigible for inclusion in Appendix I,' which lists species actually
threatened with extinction which are or may be affected by trade.
To assist the ESSA in judging whether international trade in
Appendix II species will not be detrimental to their survival, the
Executive Secretary of the ESSA selected 12 scientists expert in
the biology and management of these species. Selection was primarily
based on the advice of the American Societ~ of Mammalogists, the
Wildlife Society, and members of the ESSA, and included the appointment
of a Chairman. The group is known as the "WoPking Group on Bobcat,
Lynx, and River Otter," or the "Working Group.'
The charge of the Working Group was to determine as specifically
as possible what biological information and management programs will
ensure that harvest of bobcat, lynx, and river otter is not detrimental
to their survival or to the species maintaining their normal roles
in their ecosystems.
The Working Group was composed of seven representatives from
the academic world, four members of State conservation agencies, and
one employee of the U.S. Fish and Wildlife Service. Working Group
members are listed in the appendix. Observers included only
representatives of the ESSA, the Management Authority, and the
Office of Endangered Species. The group met in New Orleans on
January 23 and 24. 1978, and prepared this draft report.
29-319 0 - 78 - 21
PAGENO="0322"
318
The Working Group discusse~1 the use of critical terminology
and adopted the following definitions:
Misunderstandings arise over the, use and meaning
of the terms "management,' protection,' and `preser-
vatlon," in relation to wildlife species. With this
report, and as this report relates to the implementa-
tion or amendment of listings under the Convention on
International Trade in Endangered Species of Wild
Fauna and Flora, both `mana~err!ent' and "protection"
are used to imply means to ~reserve species or their
habitat. "Management' is uhderstood to encompass
greater flexibility, rangin~ from short-term total
species protection to habitat manipulation or sea-
sonal harvests as necessary~to maintain viable, bal-
anced populations at dt~sire~levels, i.e., to achieve
long-term preservation. Concurrently, this Working
Group understands the term `~conservation" that is,
the wise and proper use of our wildlife resources,
to be a general goal of the ~nanagement process.
(Passed u~nanimously)
It became clear early in the\ deliberations of the Working
Group that members felt extremely ~jncomfortable about their charge.
This discomfort arose from the fee~ing that the bobcat, lynx and
river otter had been placed on Appendix II for political rather
than biological reasons. Furthermore, concern was voiced by sev-
eral members that neither states nor recognized authorities on
the status of the subject species w~re consulted before the in-
clusion of the species in Appendix ~I. In view of this sentiment
the following resolutions were pass~d:
(1) WHEREAS species of Lutri~ae and Felidae have been
included on Appendix II of the Convention on International
Trade in Endangered Species o1~ Wild Fauna and Flora, and
are thereby subject to regulat~ion in international trade,
and
WHEREAS members of these wo taxa in the United
States were listed on Appendix II without adequate con-
sideration of the available bi logical information, and
PAGENO="0323"
319
WHEREAS the Working Group expresses its dissatis-
faction with the manner in which they were listed on
Appendix II, and
WHEREAS the available data indicate that there
are regional differences In populations of river ot-
ters and bobcats and that individual states' manage-
ment programs differ markedly, and
WHEREAS seven members of the Working Group be-
lieve that the river otter and bobcat are clearly not
currently threatened by unregulated international ex-
port (five abstentions; no negative votes), but five
members believe that the lynx Is clearly. currently
threatened by unregulated international export (seven
abstentions; no negative votes)
NOW THEREFORE BE IT RESOLVED that the Working Group
expresses its reservations about the appropriateness
of the blanket inclusion of these species on Appen-
dix II, and recommends that as soon as possible the
Management Authority examine all available informa-
tion pertinent to this question and re-evaluate the
inclusion of these species in Appendix II.
(Passed 10:0; 1 abstention)
(2) WHEREAS U.S. diplomatic contacts between nations and to
international bodies are traditionally accomplished by political
appointees and career diplomats with extensive legal, economic,
and political experience or training, and
WHEREAS those delegations often deal with conventions or
agreements which affect wildlife species, and
WHEREAS it is generally accepted that states possess
management responsibility for resident wildlife species, and
WHEREAS U.S. national delegations usually fail to include
state representatives or even seek information and concurrence
from them, and
WHEREAS persons with pertinent professional biological
expertise are seldom includec~ in those delegations, and
adequate biological input is thereby not provided,
THEREFORE this V~rUng Group recommends that In the future
the U.S. n t~r~; delegations to conventions affecting wildlif.
~ adequ~t~ pric~ consultation, ensure how of information,
ar~ invite state and crcss-agency participation to guarantee
~ bala,~ced~ biologically sound, arid doct~mented presentation
by th~ U.S. delegation.
(Passed unanimously)
PAGENO="0324"
320
* (3) WHEREAS the determination for listing of certain wildlife
and plant species In the A~pendices to the Convention roust be
based on sound scientific information,
THEREFORE, be it resolved that the Working Group recommends
that the Management Authori~ty seek the advice of recognized
scientists with expertise o~ the individual species. (Listin
in the Appendices should be by species and not by broad taxa.
This advice should be sought by the U.S. ESSA and MA from an
advisory panel of scientist~ specifically selected for each
species. The process of se'ecting advisory panels should be
impartial and aided by professional organizations such as the
Wildlife Society, American Ornithologists Union, American
Society of Mamalogists, and the American Botanical Society.
- (Passed unanimously)
(4) WHEREAS certain species of wildlife native to the
U.S. may become threatened w th extinction unless trade in
such species is subject to strict regulation, and therefore
are appropriately listed on 4ppendix II of the Convention,
and are in need of intensive management, and
WHEREAS such management can generally be best achieved
00 a local or regional scale, and
WHEREAS states possess responsibility for resident wildlife
species.
THEREFORE be it resolved that this Working Group recommends
that, where appropriate, states be encouraged to form regional
technical committees to consider management of Appendix II
species based on similar ecological and population data.
(Passed unanimously)
(5) WHEREAS, in several state~, a serious lack of research
on, and management of, bobcat,\lynx, and/or river otter
prevails, and whereas prices for the fur of these animals have
recently been high, now
THEREFORE be it resolved that ~ach state review its research
and management of the bobcat, lynx, and river otter, and seek
to improve its research and man4gement such as to insure the
continued survival of these spe~ies.
(Passed 9:O;\2 abstentions)
The Group recognized that many refinements to the listing and
delisting process, state participation, etc., will be necessary
in the future. Perhaps workshops similar to the Boone and Crockett
workshops on mountain sheep and black rears will be necessary to clarify
the status of certain species. Action on the changing of species
status under the Cong -~-&- -
PAGENO="0325"
321
following resolution, which we offer as an example:
WHEREAS~3jnx populations in Alaska, as in the boreal
forest ecosystem of rnuch.of Canada, fluctuate in a broadly
synchronous `ten~~year cycle of abundance, and this cycle is
imposed on the lynx population by the cyclic fluctuation of
their staple food, the snowshoe hare, and
WHEREAS because of the persistence of the hare cycle,
which periodically generates food in superabundance for lynx;
and because of the size of Alaska and the large numbers of
lynx present there, as evidenced by recurrent peak harvests
of between 3,000 and 9,000,
THEREFORE, be it resolved that the Working Group recommends
that the Management Authority should act immediately under
Article XV of the Convention to amend the Convention so as to
remove the lynx (~yj~ canadensis) in Alaska from its present
Appendix II classification.
(Passed 7:0; 4 abstentions)
The Working Group then proceeded to consider recommendations
it could make that might aid ESSA In establishiág criteria for
States to meet In order to allow exportation of species appropriately
included In Appendix II. In doingso, the Group stressed that
now
species on Appendix II by definition are notgn danger of extinction,
and secondly, that its recommendations and statements do not
necessarily apply to species that are endangered.
Furthermore, the Group adppted the phrase `species appropriateJy
included in Appendix II'~ to indicate (1) that it does not necessarily
agree that bobcat, lynx, and/or river otter are appropriately
included in Appendix II, and (2) that unless otherwise specified,
its recommendations apply to hypothetical species appropriately
included inAppendix II.
PAGENO="0326"
322
* The Working Group then recc~rnmended to the ESSA that, to help
insure that harvest of species a1~propriatelY included in Appendix
II not be detrimental to their sL~rvival -
(l)Each state should be required to register every individual
* harvested of each species, ~nd that such registration should
automatically allow export.\ (Passed unanimously.)
(2) Each state wildlife ag~ncy should have the authority to
regulate the taking of each species. (Passed unanimously)
(3) Each state should develop and impose an annual desired
harvest level for each species, such level to be set
to Insure the continued survival of those species. (Passed
9to2.)
(4) The setting of harvest level objectives should consider
Information describing population trends, previous harvest
levels, and how these harvest levels relate to the corresponding
seasons or methods of harvest. Additional considerations
* should include the relationships of populations to available
habitat and the desired popu~ation.leVel as determined by
biological and management cor~sideratioflS. (Passed 9:0
1 abstentIon.)
Although the Working Group remained skeptical about Inclusion
of bobcat, lynx, and river otter in Appendix II, It also felt a
responsibility to provide specific guidelines to ESSA regarding
exportation of pelts of these specl~s. Following are its
recomendations:
(1) No pelt from any of the t ree species shall be allowed
Into international export if I was taken in a state In whlch~
the wildlife management agency does not have the authority
to regulate the taking of the pecles.
(2) Pelts taken and tagged ln\any state which meets the
minimum standards for biolog1c~l information and management
programs* shall automatically t~e approved for International
export.
*~j~mum~ irnents for biological information
1. Population trend info~-mation.. .the method
of determination to be a t~iatter of state choice~
2 Total harvest of the ~pecies.
3. Distribution of harve ~t.
4. Habitat evaluation.
PAGENO="0327"
323
Minimum requirements for a management program
1. Controlled harvest.. .methods and seasons
to be a matter of state choice.
2. All pelts to be registered and marked.
3. Annual determination of harvest level
objectives.
As its final item of business, the Working Group considered
certain terminology Included in the Convention. Article IV, Sec-
tion 3 Includes the following statement:
"Whenever a Scienti fic Authority determines that the export
of specimens of any such species should be limited in order to
maintain that species throughout its range at a level consistent
with its role in the ecosystems in which it occurs and well above
the level at which that species might becon~e eligible for inclusion
in Appendix I, the Scientific Authority shall advise the approp-
riate Management Authority of suitable measures to be taken to
limit the grant of export permits for specimens of that species.~
(Underline added by Working Group)
The meaning of the underlined phrase is critical to the
ESSA in deciding when to limit export permits. However, the
Working Group decided 8:0 with 2 abstentions, that this term-
inology was so ambiguous that it defies adequate definition.
The Working GrOup then adjourned after two days of de-
11 berations.
PAGENO="0328"
Dr. L. David Mech, Chairman
Wfldllfe Research Biologist
U.S. Fish and Wildlife Service
c/a North Central Forest
Experiment Station
1992 Folwell Avenue
St. Paul * Minnesota 55108
Dr. Ralner H. Brocke
Aolrondack Ecological Center
College of Environmental
Studies and Forestry
State University of New York
Newcombe, New York 12852
Dr. Douglas M. Crowe
Wyoaing Game and Fish Department
5400 Bishop Boulevard
Cheyenne, Wyoming 82001
Dr. Edward P. Hill
Assistant Unit Leader
Alabama Cooperative Wildlife
Research Unit
Auburn University
Auburn, Alabama 36830
Mr. Roger Holmes
Chief, Wildlife Section
Department of Natural Resources
300 Centennial Building
658 Cedar Street
St. Paul, Minnesota 55155
Dr. Maurice Hornocker
Leader, Idaho Cooperative Unit
University of Idaho
Moscow, Idaho 83843
Dr. James H. Jenkins
Professor, Wildlife Management
School of Forest Resources
University of Georgia
Athens, Georgia 30602
Dr. Ch4rles Jonkel
School of Forestry
University of Montana
Missoula, Montana 59801
Dr. Lloyd Keith
Department of Wildlife Ecology
Russel 1 Laboratory
University of Wisconsin
Madison, Wisconsin 53706
Mr. Chet McCord
Chief, Wildlife Research
Division of Fisheries and
Wildlife
Field Headquarters
Route 135
Westboro, Massachusetts 01581
Mr. Lee Perry
Assistant Chief of Wildlife
Division
Inland Fisheries and Wildlife
Department
284 State Street
Augusta, Maine 04333
Dr. Philip Wright
Zoology Department
University of Montana
Missoula, Montana 59801
* 324
Apper~dix 1
Meithers of W~rking Group
PAGENO="0329"
325
APPENDIX
STATEMENTS SUBMITTED FOR THE RECORD
SPARK M.MATSUNAGA CFDEPUTY
`~JCnUe~ ~4ez ~ena1e Cr
WASHINGTON, D.C. 2O~IO
April 11, 1978
Honorable John C. Culver, Chairman
Subconunittee on Resource Protection
Committee on Environment and Public Works
United States Senate
Washington, D. . 20510
Dear . airman:
I understand that the Subcommittee on Resource
Protection will be conducting two days of oversight and
reauthorization hearings on P.L. 93-205, the Endangered
Species Act of 1973, on April 13 and 14. I would,
therefore, like to convey to the Subcommittee for
consideration during those hearings an issue which has
seriously affected the State of Hawaii since the initial
implementation of the Act.
As you know, Hawaii is geographically isolated
from the continental United States by over 2300 miles
of open ocean. Hawaii's natural environment has,
therefore, evolved vast numbers of plant and animal species,
which are truly unique to the world. In addition, Hawaii's
volcanic origin has provided its natural environment with
enormous ecological diversity which range from lush
tropical rain forests and marsh lands, to volcanic deserts,
to alpine regions similar in climate and ecological
features to that found throughout other alpine regions of
the world, to snow-capped mountains in the winter months.
However, due to the limited land area and the
natural absence of predatory plant and animal species,
Hawaii's flora and fauna have evolved into uniquely fragile
ecosystems unlike that which are typically found in the
continental United States. As one could, therefore, expect,
many of the State's unique plant and animal species and
ecosystems have undergone dramatic and often irreversible
changes since the first arrival of man in Hawaii around
750 A.D.
To date, Hawaii sadly has 5 percent of the country's
endangered mammal species, 45 percent of the country's
endangered bird species, and 50 percent of the country's
PAGENO="0330"
326
endangered plant species. This is a total endangered
species list for the State which is more than twice the
total amount of endangered s1~ecies of California, the
State with the second largest number of endangered
species in the country. For plant taxa alone, Hawaii
has nearly half of the entire list of endangered,
threatened,~ii~ extinct species for the country that
was compiled by the Smithsonian Institution at the
direction of the Endangered S~ecies Act.
As you know, pursuant ~o the requirements of the
Endangered Species Act, each State is required to
inventory its total list~of ei~dangered plant and animal
species. However, the original Act provided Federal
funding only for the animal species inventory. As you can
imagine, the absence of Federal funding for plant
inventories under the Act and the large number of Hawaii's
endangered plant species have created significant problems
for the State of Hawaii in complying with the requirements
of the Act. Adding to this prbblem is the fact that many
new plant and animal species a~e being discovered every
year in Hawaii.
I strongly believe that\the burden imposed on the
State of Hawaii and the State botanists by virtue of
having to comply with the plane inventory requirements of
the Endangered Species Act without ~ Federal support in
recognition of Hawaii's unique disadvantage in this area
is unreasonable and should, therefore, be corrected through
appropriate amendments to the A~t.
I respectfully request y~ur thoughtful consideration
of this important matter to the State of Hawaii and the
conservation community at large during your Subcommittee
oversight and reauthorization hearings on the Endangered
Species Act.
Aloha and best wishes.
ly,
Matsunaga
Senator
PAGENO="0331"
327
STATEMENT
of the
HONQRAB LE
JOHN K. BUCHANAN, JR.
before
the
RESOURCE PRQTECTION SUBCOMMITTEE
of the
SENATE COMMITTEE ON PUBLIC WORKS
~n.d the
ENV I RONMENT
PAGENO="0332"
328
Mr. Chairman and members of the Subcommittee:
I am very pleased to have an opportun ty to address problems with the
implementation of the Endangered Species Act of 1973 by the United States
Fish and Wildlife Service.
The Endangered Species Act of 1973 rep~esents landmark legislation to
protect the plant and animal life of this nation. I do not doubt the
necessity of the Endangered Species Act. I do have serious reservations,
however, about the manner in which it has been applied and implemented -
particularly in a case involving the Congressional district which I have
the honor of representing.
On 29 November 1977, the Department of the Interior, Fish and Wildlife Service,
Office of Endangered Species, proposed the inclusion of four southeastern
fish species on the endangered species ~ist. Two of these species, the
Cahaba Shiner and the Goldline Darter, are alleged to reside primarily in
the Cahaba River which flows through ce~tral Alabama.
The basic thrust of the proposal was th~t `the section of the Cahaba River
inhabited by the Cahaba Shiner (and the Goldline Darter) has been severely
degraded during the past 15 years. The major problem has been the degra-
dation of water quality due to urbanization and coal strip mining."
The Service made no effort to cite speci~ic biological data to substantiate
these assumptions, although it is required by law to base such proposals
only upon the best scientific evidence ayailable. Examination of the
Service's files on these species points to the fact that this proposal is
the culmination of several years of effo~t by Dr. James D. Williams, staff
icthyologist, Office of Endangered Speci~s. Dr. Williams is formerly
Chairman of the Alabama Conservancy, a v~ry active environmental group in
my state.
In a memo to the Director of the Fish and Wildlife Service dated 21 January
1976, Dr. Williams proposed a number of s ecies, including the Cahaba Shiner
and the Goldline Darter, as candidates for inclusion on the national list
of endangered species. In this memo, Dr. Williams recommends to the Director
that he: 1) ask EPA to prepare a full environmental impact statement on
the 201 facilities plan. 2) ask EPA to s~ek alternatives to putting
additional treated waste into the Cahaba 1~iver. 3) ask EPA to examine the
treated waste problems, including strip mi~ie run-off, of the Cahaba River.
4) recommend a higher priority for the Cahaba Wild and Scenic River Study.
5) initiate studies to obtain status information on endangered and threat-
ened species of fish and mollusks in the C~haba River. The avowed purpose
of these recommendations, and I quote direètly from the memo, is to "relieve
some of the pressures presently bearing on the Cahaba River and to establish
ways whereby additional attention could be given the Cahaba in future years."
PAGENO="0333"
329
It should be noted, Mr. Chairman, that the Director did not see fit to act
upon any of the recommendations of Dr. Williams, including his request
for further studies on the fish and mollusks of the Cahaba River. The 29
November proposal is based solely upon Dr. Williams' `personal observations"
and a single study by Dr. John Ramsey of Auburn Universitywhich was part
of the publication Endangered Plants and Animal Species of Alabama, Bul
letin of the Alabama Museum of Natural History, May 1976. This work notes
fifty species of fish which, in Dr. Ramsey's opinion are worthy of listing
as endangered, threatened, or of special concern. It should be emphasized,
however, that this paper was meant to be a preliminary investigation and a
catalyst fOr further study. Quoting directly fromthe publication:
"The reader should note well the possible (if not probable)
occurance of undiscovered populations elsewhere in the state.
Much more collecting is needed - especially using suitable
techniques - before aquatic biologists will be substantially
more confident in summary statements on distribution and
limitation. It is anticipated that new information will
enable revisors to subtract from and add to the list of
less competitive freshwater fish in Alabama."
I think any reasonable person would agree that this is a very tenuous
basis for the listing of a species as endangered.
Given the extremely vague nature of the 29 November proposal ;and the feeling
by many persons within the community that the assumptions upon which it was
based were unfounded, the Environment and Economics Committee of the Bir-
mingham Area Chamber of Commerce funded a study of these species and their
habitat. This investigation was conducted by two professionalicthyologists
at Samford University in Birmingham, Alabama. No restrictions were placed
on their work or findings. In addition, a professional consulting firm
carried out an analysis of the water quality of the proposed critical
habitat area using data provided by the Environmental Protections Agency,
I am furnishing the Subcommittee with copies of the water quality data,
the icthyological report and addendum, and the results of a helecopter
overflight of the Cahaba River. As these documents clearly illustrate,
the assumptions upon which the Service has based this proposal are
bankrupt.
I believe that it is unfair for th.e Service to base a proposal on inadequate,
substandard biological dtat and expect to ram it down a cornmunit's throat,
or force them to find adequate data with which to defeat it. It is even
more unfair for the Service to disregard biological data which contradicts
the assumptions and substance of its proposals, as I feel they have done
in this case.
Our evidence also shows that critical habitat areas can be imposed and
implemented by bureaucratic fiat without adequate evidence to substantiate
their validity. In our own case, we find no specific evidence to substan-
tiate the Service's delineation of the critical habitat requirements of the
species in question.
PAGENO="0334"
330
Mr. Chairman, it is past time for the Congress to tighten the reins on
this bureaucracy. I urge the Subcommittee to examine ways to prevent the
Service from proposing species as endangered or threatened on the basis
of inadequate, substandard biological evidence. One can only surmise
how many species and critical habitat designations have been railroaded onto
this list in similar fashion by the F1sh and Wildlife Service.
I have no quarrel with including species which are truly endangered or
threatened and have been determined a~ such by the Service in a truly
objective, reasonable manner. It is ~imply wrong, however, for federal
bureaucrats to attempt to manipulate this act to stop or slow down deve-
lopment in this country. The Endanger~d Species Act of 1973 was not
designed to be federal land use 1egisl~tion and it is both unwise and im-
proper for the Congress to allow a fed~ral bureaucracy to delegate to
itself such responsibility without 1eg~slative mandate.
PAGENO="0335"
331
JOHN H. BUCHANAN. JR. ~ss~s*nvt AII1t?ANT
eThDI$TSCT. AIJ.~A~A JAMES 1. APPI.E
ITROREI.ATIONS Qton~rt~ of t~ie ~nttcb ~`tatc~ WASHINGTO~DC Z0$15
INTERNATIONALOPERASONS 3~ou~e ot ~ipre~entatibe~ CAROLYN R. GOLDEN
DUCATIONANOLADOR ~ 205t5 ROOM ,OLFEOERALBamDNO
SUBcOMMITTE~
~1~NO March 31, 1978
POST.SEOONOARYEOUCATI0N
COMPENSATION. HEALTh.AND
COMMISSION ON SECURITY
ANDCOOPERATION INEUROPE
Mr. Lynn A. Greenwalt
Director
U.S. Fish and Wildlife Service
Department of the Interior
Washington, D.C. 20240
Dear Mr. Greenwalt:
Last November 29th, the Fish and Wildlife Service, Office of Endangered Species,
proposed four southeastern fish species to be included on the national list of
endangered species. These fish included the Cahaba Shiner (Notropis sp.),
the Spring Pigmy Sunfish (Elassoma sp.), the Goldline Darter (Percina avro-
lineata), and the Pigmy Sculpin (Cottus Pigmaeus). Two of these species, the
Cahaba Shiner and the Goldline Darter, are said to reside primarily in the
Cahaba River, which flows through Jefferson County, Alabama.- Hence, my deep
interest in this proposal.~
The November29 proposal.ls theculmination.of several years o~ effort-on
the part of Dr. Jamés *D. Williams, -Staff Biologist, office of Endangared
Species. Dr. Williams is formerly Chairman of the Alabama Conservaxtc1y~ a
very active environmentalgrdup within :~our -state.. Since leaving Alabama,.
Dr. Williams has remained active with the Conservancy, serving~ on the
Conservancy study team attempting to reverse the United States Forest
Service recommendation on the Wild and Scenic River Status of the Cahaba,
and most recently, agreeing to be a key speaker at the annual Conservancy
meeting in Birmingham. The Alabama Conservancy, and those associated with
it, are on record as being~ committed to maintaining the Cahaba River and the
surrounding area in a wild and pristine condition.
In a memorandum to the Director, dated January 21, 1976, Dr. Williams proposed
a number of species, including the Cahaba Shiner and the Goldline Darter, as
candidates for inclusion on the national list of endangered species. In this
memorandum, Dr. Williams notes that the "geographic setting, biological diver-
sity, and productivity of the Cahaba River make it an extremely unique and
valuable resource." He further states that "the Cahaba River harbors an
interesting, diverse and sensitive fauna, much of which is intolerant of
treated or untreated waste. Numerous studies by the Environmental Protection
Agency and others have shown that treated waste (chlorinated) over a long
period of time results in mortality for mussles, snails, fish and other aquatic
PAGENO="0336"
332
organisms." Dr. Williams makes no at~tempt to substantiate these statements
which are somewhat misleading. While\ it is true that heavy levels of
chlorinated waste are dangerous to so~ne fauna, it is inaccurate to imply
that all or most forms of animal life\ in the Cahaba are intolerant to all
levels of chlorinated waste. It should be noted that the Environmental
Protection Agency has given the Cahab~ a Fish and Wildlife classification.
No plans are underway to alter this classification to the detriment of the
fauna and flora of the Cahaba.
The January 21 memorandum concludes with a list of alternatives which, in the
opinion of Dr. Williams, are open to t~ie Director. Dr. Williams states that
"I would make the following recommendations to relieve some of the pressure
presently bearing on the Cahaba and to establish ways whereby additional
attention could be given the Cahaba in future years. 1) ask EPA to prepare
a full environmental impact statement on the 201 facilities plan. 2) ask
EPA to examine the treated waste prbblems, including strip mining run off,
of the Cahaba River Basin. 4) recommen~1 a higher priority for the Cahaba
Wild and Scenic River Study. 5) initia e studies to obtain status information -
on endangered and threatened species of fish and mollusks in the Cahaba River."
Rather than concentrating on species wh ch are becoming endangered or threatened,
which I understand is his primary respor~sibility, Dr. Williams seems concerned
with relieving "pressures on the Cahaba." The present proposal in question is,
in my estimation, a product of the same goals on the part of Dr. Williams.
The proposed rule in the-November 29 Ped~ral Register cites a severely degraded
water quality within the Cahaba during the past--iS years as a primary reason- -
for declaring the Cahaba--Shinar and the ~oldline Darter. as endangered. ~On
page 60765, it is stated that "the sectic~n of the Cahaba River inhabited by
the Cahaba Shiner has been severelydegi±~ded during~the past-15 years. -The
major problem has been the degradation o~ water quality due to urbanization
and coal strip mining. The urbanization activities in the headwaters have
resulted in an increased silt load, while~ euthrophication has commenced in
response to enrichment from newly constru~ted sewage treatment plants. The
habitat is clearly changing and the activ~Lties which have brought about the
changes are continuing."
Similar statements were made regarding the Goldline Darter. On the-same page,
it is stated that "the Goldine Darter is t~hreatened in the Cahaba by pollution
from domestic, industrial waste and acid 4rainage from strip mining. The large
volume of water presently being released i~ito the Cahaba, as well as strip mine
run off, has greatly degraded the water qu~lity in recent years. Proposals
call for additional waste to be released i~ito the Cahaba River in the near future.
Any increase in the silt and nutrient load\will seriously jeopardize the exis-
tence on the Cahaba population of the Goldine Darter."
PAGENO="0337"
333
In order to determine the validity of these considerations, an examination
has been made of available Cahaba River water quality data (see Appendix I).
Water quality from 17 stations was examined, and detailed analysis was made
at sampling stations downstream, from, within, and upstream from the proposed
critical habitat reaches. Examination of data presented in Table I of this
study leads to the unmistakable conclusion that water quality for the Cahaba
River is excellent. In fact, -the study concludes that there is no evidence
of "severely degrading water quality", upon which the Fish and Wildlife has
based this proposal. I would urge the Fish and Wildlife Service to review
this new, additional data and to respond directly to the question as to whether
the water quality in the Cahaba has, or has not, been severely degraded in
recent years.
The secondary basis for the proposal to list these two species is a single
study by Dr. John Ramsey of Auburn University which was part of the publi-
cation EndangeredPlants andA.ninal Species of Alabama, Bulletin of the -
Alabama Museum of Natural -History, May 1976. This work notes 50 species
of Alabama fish, including the Cahaba Shiner and the Goidline Darter, which
in Dr. Ramsey's opinion, are-worthy of listing as endangered, threatened or
of special concern.
It should be noted, however, that this paper--was meant to be a preliminary
investigation anda catalyst for further study. Quoting directly from the
publication:
"The reader should note well the possible (if not probable) occur-
rence.of undiscovered populations elsewhere in the state. -Much - -
more collecting -is needed -~especial-ly~using suitable--techniques
bef ore -aquatic-biologists-will be substantiaily:more-confident~-in
summary -statements --on distribution and r'iimitation..-~rIt is antici-
patedthat new infdrmation will- ;enable~revisors to subtract iron--
and -add ~to. the list of l-es~-: -competitive freshwater - fish in Alabama."
I believe --that this -is a very -tenuous:~basis upon -which to formulate this pro-
posed rule. It should be noted-that the Fish and Wildlife Service has made
no attempt to gather further data -on these species. I would appreciate being -
informed as to why the Service felt that this meager study was sufficient to
initiate the promulgation of a proposal of such importance to the area which -
I represent. -
Given the obvious lack of firm biological data, and the importance which this
proposal has for the Birmingham area, the Birmingham Area Chamber of Commerce
Environmental Economics Committee funded an independent study of the range and
habitat of the Cahaba Shiner and the Goldline Darter. This study was carried
out by twoprofessional icthyologists, Doctors Mike Howell and Robert Stiles
of Samford University. Both men are respected scientists and members of the -
Southeastern Fish Council. No limitations were put on their activities and
they were under no obligation to find any specific conclusions (see Appendix II).
29-319 0 - 78 - 22
PAGENO="0338"
334
The Stiles and Howell report clearly illustrates the bankruptcy of the
biological data upon which the Service h~s based this proposal. Significant,
new populations of the Goldline Darter hive been found in the Little Cahaba
River, a stream which has had almost no i~mpact from industrial, commercial
or residential development. As stated in the report, no populations of the
Cahaba Shiner were located due to the tis~e of year of the sampling efforts.
I would respectfully request the Fish and~ Wildlife Service to follow the
Stiles/Howell recommendation regarding tht Cahaba Shiner and defer any judgment
on this species until later this year when suitable collection techniques can
be employed in a search for viable popula~ions of this species.
I believe that it is wrong for a group of local businessmen to be forced into
funding a research project of this kind which is rightfully the job of the
United States Fish and Wildlife Service. 1 strongly object to the Service
placing this burden-on my constituents. i~s it the frequent policy of the
Service to solicit necessary biological d~ta in such a manner?
Another fact also disturbs me about this p\roposal. In the ~4~~lReister
of November 29, the maps and critical habitats of the Cahaba Shiner and the
Goldline Darter were reversed. This fact ~as pointed out to Dr. Williams
on January 23, by one of my constituents. He was told that this matter
would be corrected in the issue of the ~ noting the time of the public
hearing and extension of the public comment period on this proposal. As of
this date, no such correction has ever been made. I am sure that you can
understand the confusion which -such a mist4ke would cause~-per5On5 interested
in this proposed~rule.- WhatI cannot~nndatstand,-i5 why this matter has never -
been corrected by the Service. Can you en]~ightenifle? -
As the above indicates, this proposal is replete with inaccuracies, false
assumptions and biological-data which is we~k and-substandard~ I sincerely- -.
hope that this is not representative of the\work of the Office of Endangered
Species. As you know, the Fish and Wildlife Subcommittee on the House
Committee on Merchant Marine and Fisheries will soon hold oversight hearings
on the implementation of the Endangered Spe&ies Act. You may be sure that
I will fully inform the Committee of this ux~fortunate scenario in the hope
that other members and their districts will be spared a recurrence.
In conclusion, I urge the Fish and Wildlife Service to withdraw this entire -
proposal for further study. Rather than an attempt to prevent further
eradication of species which have been seriously studied and examined, this
proposal seems to be a hasty attempt to save the Cahaba River Basin from
further growth and development. I, and many of the people which I represent,
object to the apparent misuse of a federal s atute and agency in such a
manner. After close and careful analysis, I am sure that you will agree.
PAGENO="0339"
335
I am looking forward to hearing from you on this matter at your earliest
possible convenience.
With kind regards, I am,
~
J94N H. BUCHANAN, JR.
~~~fember of Congress
JHB/mwc: k
PAGENO="0340"
211918 D~
~rchl5 1978
Dear ~ Clark
The Iowa Conservation Casnission has 1ee~ extreiely concernel with tha
develc~ztent of a Mississippi River Flyway Systen that wuld ensure
stability of waterfowl resa-nrces. The first Iowa Duck Stain~ was sold in
1972. Since 1973, wa have sent fran $33,00b to $35,000 annually to
Canada via Ducks Unlimited to specifically acquire ath develop laths for
waterfowl nesting. ¶ib date slightly over $160,000 has been provided
fran the Duck Step fuading effort. The St~te of Iowa through this
department has truly carrnitted itself to acl~ieve this realistic goal.
In addition to the state effort, the 67,000 Iowa waterfowl hunters have
provided thxisaads of dollars directly to the IXJ effort as a result of
the many chapter futh raising functions sad ~linners.
The other area of concern ~thich wa feel nee~ inrrthiate attention is the
preservation of the existing wintering areas~ One of the priire areas
affecting the mallard in the Mississippi Flyway is the Cache River Basin.
The mallard is vital to air Iowa waterfowl program. The authnrized
Corps of Ehgineers project in the Cache Basin ware viewa~ by us as being
detrimental, sad wa opposel the project on t1~is hasis.
In October, 1977, a task force was foritth to ~monsider alternatives to
the authnrized Corps of Rugineers Cache Rivé~ Basin Project. ¶Ito task
force consisted of the following representatibn:
1. U.S. Fish sad Wildlife Service.
2. Enviroanental Protection J~gency.
3. Arkansas Fish ath Cane Ccrrrnission.
4. Arkansas Pollution Control sad Ecol
5. Citizens Conservation Coalition.
They reviewaf six alternatives for managanent ~f the Cache Basin, inclading
the autlxmrized sad revised Corps plan. ~M~e task force firalings sad
reczxnnem3ations ware recently piblishef in a document entitled, Cache River
Basin Arkansas - A ¶Ibsk Force Report.
The (bnservation Onernission, at the 6 ireeting, voted to su~ort
the ¶[~n-Year Le.veei FlocxEway Plan (P1~n 5) as reoramnended 1y the task'
force and Mississippi Flyway Oz)urx~il. We feel that Plan 5 addresses
both the ecenanical and envirorinental needs of the basin. We urge your
favorable su~ort for this vital waterfowl area.
FRED A. PR]B'1E1~T, DIREC'lOR
I~A ~~SERV7~JTIG~ ~M'fESSKt~
FAP~MB/tl
(3954 and 3955)
CbMMISSIONEe
JouNc.moMpsoN.0~a.._c~~.stO'?'
JOHNC$ROPHY-t~~*k~~
JOHN 0.
CARO4aNT.LUMBASD_O,$MQ.S
M.ee,ANpne-wweg
HcR8EeTT.KEED-W~~1.~$
FRED A. PRIEWERT, D!rector
WaiiaceState Office Building, Des Moines, 1owa50319
515!281~5145
An EQUALOPPORTUNI1Y Agency
The Honurable Dick Clark
Congress of the United States
404 Russell Office Building
Washington, D.C. 20510
PAGENO="0341"
337
Cache River Basin, Arkansas - Task Force Recommended Plan
WHEREAS the following Environmental Deficiencies exist with the Corps of Engineers
Authorized Plan and the Authorized Plan as Revised:
1. Net projected loss in excess of 100,000 acres àf woodlands/wetlands;
2. Channelization of 156 miles of natural stream reaches;
3. Loss of 85% of the Basin's fishery resources;
4. Degradation of the water quality within the Basin and downstream in the
White River;
5. Disruption and habitat losses expected to amount to 2,000 acres on three
Arkansas Case and Fish Commission Wildlife Management Areas purchased
and/or managed with Pittman-Robertson Funding; and
6. Inadequate environmental safeguards relative to easement estates associated
with the authorized mitigation plan which is acknowledged by the Corps of
Engineers to be sufficient to secure only 20,000 of the authorized
70,000 acres due to it~adequate funding.
WHEREAS the Mississippi Flyway Council, recognizing that the authorized Federal
project in the Cache River Basin of Arkansas is the single moat damaging Corps
project to migratory waterfowl in the North American Continent, endorses the ten-
year Leveed Floodway Plan, Plan 5, as recommended by the Cache River Basin,
Arkansas Task Force Report.
WHEREAS the major attributes of the Recommended Plan are the dedication of 116,500
acres. of woodlands/wetlands subject to existing overbank flooding cycles in the
Cache River Basin; and that this acreage through a combination of fee and compre-
hensive easement estates would present a manageable woodlands/wetlands complex in
the heart of the mallard terminal wintering area.
WHEREAS additional attributes of the Recommended Plan are:
1. Provide flood control for agricultural production;
2. Provide a 2.2 to 1 benefit to coat ratio with total cost $103,000,000;
3. Would not channelize natural stream reaches;
4. Would maintain or improve existing water quality and comply with existing
water quality standards through use of buffer zones and sediment retention
structures;
5. Would improve fishery resources within the Basin's natural stream reaches; and
6. Would increase the acreage of woodlands/wetlands in the basin.
NOW, THEREFORE, BE IT RESOLVED that the Mississippi Flyway Council reapectfully
urges and requests that Congressional delegations of the represented states support
and seek authorization for immediate implementation of the Recommended Plan.
PAGENO="0342"
~!
~th ~uutIi QI1~arm -Etw ~stdI~rsgrfB5~'
The Honorable John C. Culver, Chairman
Subcommittee on Resource protection
Senate Environment and Public Works Committee
Washington, D. C. 20510
Dear Senator Culver:
We the residents of Middle Tennessee ar~a are in the process of trying to
complete the Duck River Dan project. T1~is project was conveived during the
19605 by the Congress of the United States and has slowly but surely been
funded, sometimes under funded from its very beginning.
This is one of the most beautiful areas kn the entire world sometimes called
by poets, the Dimple of the Univer5e~. It is a historic part of this
nation. Tennessee has furnished three p~esidents, all three of whom came
from or lived in Middle Tennessee area. Two of these presidents, James K.
Polk and Andrew Johnson lived in Columbin, Tennessee where the last part of
Duck River project is now being con~plete~.
We are conservationists in this area and have great respect for this
beautiful environment and all the cretur~5 who reside here. We know that
90% of all earths creatures have long sir~ce vanished from the face of this
earth. Man alone is the only creature st~ill here in almost the same form i
which he began.
We have filed environmental impact statem~nts which have been, accepted by
federal courts and by all the agencies of\ the federal government including
both houses of Congress and ind~1the Pre~ident. There are four counties
directly involved in the Duck River Dam p~oject and perhaps two or three
more who will benefit greatly from its building. Our goals clearly state ar
to eliminate a great flood problam in thi~ entire area that has seem millior~
of dollars in damages over the years. In \addition~ the State of Tennessee
condemned some 80% of our springs and wel3~s in this area as being polluted
and unfit for animal consumpation.
The dam at Columbia will bring several mi3~lion touristc to this area. It
will furnish recreation of all types, incl~iding fishing, boating, swimming,
and all water sports. It will also bring hew industry to this area, which
in the next few years will need new industry, we can produce some power if
it becomes necessary. As a side benefit Lt will allow u~3 to keep our
PAGENO="0343"
339
children at home instead of seeking employment elsewhere.
As to the endangered species, we have successfully transplanted the mussel
into other areas where it thrives and we intend to make every effort to
see that no species shall be endangered.
We are putting Sixteen and two-tenths million dollars of our own money
into this project which as you know is unusual.
Sir, our whole future is wrapped up in the successful completion of the Duck
River Dam project. We promise you to potect every creature concerned in
this project, including man.
We hope you will look at our record and the beautiful environment in which
we live and join with us in this great project which the congress has seen
fit to build. Two years ago, we received 377 votes to 28 against in the
House of Representatives and 81 for and 5 against in the Senate. Every
speaker of the house has supported from the dams inception, as has the
leadership and committee of the Senate.
With your help, we can finish this beautiful and much needed project.
Thank you very much.
Respectfully,
Taylor Rayburn
Naury County Judge
TR: mjp
cc: Senator Edmund Muskie, Maine
Senator Malchom Wallop, Wyoming
Senator Howard Baker, Jr.
Senator James McClure, Idaho
Senator Kisester Hodges, Arkansas
Senator John Stennis
Senator Jim Sasser
PAGENO="0344"
iA. MGGS e1~ Of Coord
CALOWAY CRUNK 5 JOHN C. LEONARD. M.D.
Councilman. First Word Councilman. Fourth Word
3. I.. MOSS. JR. A. C. SWEENEY. JR. EN VWAL
MACVAUGHN d CtyM g ctyi c D Ffthw d
M R ERANDON - 359.~544 STEVE BOWDEN
City Judge. Recorder JediiIS4dic~J9~ `7s.~n~essBe .3709/ City Attorney
April 0, 1978
The Honorable John C. Culver, Charman
Subcommittee on Resources Protection
Senate Enviroment and Public Works Committee
Washington, D. C. 205i0
Dear Senator Culver:
Please let these comments be apart of the Senate Subcommittee
records regarding the Endangered S~pecies Act, April 13-14, 1978.
The citizens of our area are ~reat1y concerned with the
way the ESA is beir~g used and to a~ greater extent abused. The
Duck River Dam Project - TVA Columbia and Normandy Dams in Middle
Tennessee - was started in 1958. ~resently the Project is 70%
complete. We do not believe that ~he same Congress that authorized,
and funded, this project intended ~or it to be halted by the
inactment of the ESA.
Senator Culver, we share all peoples concern for our environ-
ment but the time has come to amend~ the ESA possibly with a `tgrand-
father clause" so that the worthwhi'e public interest projects -
like the Duck River Project; can be\ completed.
Sincerely,
~--t b~
Jr.
3L14,Jr. /pal
cc. The Honorable Howard Baker
The Honorable Jim Sesser
PAGENO="0345"
341
J. A. RIGGS f~,.. 1) / RALPH WHITESELL
L'i/i/ (JI .LewisOurQ Councilman. Third Word
CALOWAY CRUNK I - .1 JOHN C. LEONARD. M.D.
Counc~lmon. F,rst Word Councilman. Fourth Word
J. L. MOSS. JR. A. C. SWEENEY, JR.
MAC VAUGH~& d City Monoger City Treasurer DENNY WALKER
mon. econ or Councilman. Fifth Word
City Judge. Recorder S~/EA~WDEN
April 11, 1978
The Honorable John C. Culver, Chairman
Subcommittee on Resource Protection
Senate Environment and Public Works Committee
Washington, D. C. 20510
Dear Sir:
The following statements on the Columbia Dam I wish to have
entered into the record:
1. The Endangered Species Act was passed in December 1973 in
an effort to add balance to a world where the scales
had tipped in favor of economic growth and development
to meet man's needs without regard to the loss of various
species of fish, wildlife, and plants. The statute speaks
of development "untempered by adequate concern and con-
servation."
2. The act, as interpreted by the Sixth Circuit Court of
Appeals in the snail darter case (Hill v. TVA) which halted
the Tellico project in an advanced stage oTZompletion,
has turned the statute into an absolute and inflexible
command that precludes balanced decisionmaking. The needs
of the species must always prevail.
3. Species preservation and the maintenance of the diversity
of life are important goals; yet the oth~ needs of man
will sometimes require the development of all or a portion
of the resources which a particular species inhabits.
We must strive to conserve our resources as we develop
them.
4. Section 7 of the act should be amended in order to restore
its original purpose of providing balance between pre-
serving endangered and threatened species and economic
growth and development.
5. The inflexibility of section 7 and any other problems with
the act should be corrected before legislation is enacted
this year to authorize appropriations for future years.
Presently, appropriations to carry out the Endangered
Species Act are authorized only through September 1978.
Before any reauthorization legislation is enacted, it
should be modified to include the amendments to the act
which are necessary to solve these problems.
PAGENO="0346"
342
The Columbia Darn portion of th~ Duck River project in middle
Tennessee is facing a similar prob1~m as a result of the listing of
several species of mussels and snai~.s as. endangered. This project
has the strong support of state and\local governments, a support
which includes the contribution of over $16 million of the project
costs. The Normandy Dam component c~f the project has already been
completed and work on Columbia which began in August 1973 is approx-
imately one-fourth complete. The p~oject will provide needed flood
control, recreation, water supply, and other benefits for a growing
area.
The Duck River project is consi~ered a key element in the
coordinated plan for the unified dev~lopment and use of the natural
resources of the four-county Upper D~ick River area and is being
carried out jointly by TVA a"d local governmental and community
organizations, including the Tennessee Upper Duck River Develop-
ment Agency, which was created for tI~is purpose by the Tennessee
Legislature, the Upper Duck River Ddelopment Association, and the
Upper Duck River Regional Planning Commission.
When completed, the Duck River p~oject will reduce destruc-
tive floods on urban and agricultural~ lands; provide a supply of
water of improved quality for residen~tial, commercial, and industrial
use; create new jobs; and provide a b~oad range of new recreational
and fish and wildlife development opportunities. On July 1, 1971,
the Tennessee Upper Duck River Development Agency entered into an
agreement with TVA to, among other th4ngs, repay $16,200,000 of
the project's costs attributable to tI~e water supply being made
available to the four-county water system and to use its best
efforts to secure $50,000,000 of non-1~ederal investment in approved
development projects for the area. The Development Agency, in
our conjunction with area cities and n~ater systems, has already
paid over $1,200,000 into a trust fund for that purpose. Local
communities have also made substantial investments in the expan-
sion of the water supply and waste wat~r treatment systems, in the
improvemnt of roads, and in other non-~ederal development commit-
ments. More than $8,500,000 has been invested in the expansion
of the water supply system alone. Fai~ure to complete the Columbia
Dam portion of the project would clearly disrupt regional planning
activities in the Upper Duck River pro.~ect area, as well as subject
the people and their homes, businesses,~ and farms to the ravages
of floods along the Duck River. It would also restrict both the
quality and quantity of their future water supply, with a resulting
loss of industrial job opportunities in the area.
Yours t uly,
CITY OF LEWISBURG
J. A. Biggs
Mayor
JAB/pal
PAGENO="0347"
343
$t~ethg~U1e ~at~r $getrm
SHELSYVILLE, TENNESSEE 37160
~ jcc~ 7 ~ April 11, 1978
`The Honorable John C. Culver, Chairman
Subcommittee on Resource Protection
Senate Environment and Public Works Committee
Washington, D.C. 20510
Re: Changes in the Endangered Species Act
~The Shelbyville Board of Power, Water and Sewerage are concerned about
changes in the Endangered Species Act. We think it is absolutely necessary
* that the Act be amended or modified to provide proper coordination with the
funding of public projects. Our Board serves the City of Shelbyville and
surrounding rural areas with electric power, water and sewerage services.
We are particularly concerned with the Columbia Dam now under construction
by TVA as a part of the Duck River Project. This Project is threatened
under the Endangered Species Act because of so-called endangered species
of mussels and snails.
A water control system on Duck River `is a must. It is vital to the future
growth and economic development of the area. The Duck River Project is
about 70% complete. Normandy Dam was completed in 1976 and Columbia is
approximately 35-40% complete. A water control system on Duck River will
provide flood control, stable water supply, improved, water quality for
residential, commercial and industrial uses, create new jobs and provide
a broad range of new recreation, fish and wildlife opportunities.
Work, on the Columbia Dam was started in August, 1973 before the enactment
of the Endangered Species Act in December, 1973. The complete inflexibility
and other problems with the Endangered Species Act should be corrected. We
feel that substantial changes in the Act must be made which will allow a
sensible weighing of values. We strongly recommend amendments to the `Act
,,which would coordinate the Act with the funding of Federal, State and local
projects. We are convinced that it was not the intent of Congress that the
Endangered Species Act impair public works projects
I respectfully request this lett r be made a part of the record
Sincerely
SHELBYVILLE POWER, WATER AND SEWERAGE SYSTEM ``
Theron A. Bracey, Manager (/
cc: Honorable Howard Baker(/'
Honorable Jim Sassar.
PAGENO="0348"
AMERICAN
MINING
CONGRESS
FOUNDED 1897
SING BUILI)ING
WASHINGTON
D.C. 20036
2023318900
TWX 7108220126
Oth~
cham~
N. I
N~cha~ ~
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caa= F
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MJSH,tt}L ~.. ~ Id~h,
D. A. ~ OkI~ht~ttt~City
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Tht,tttt!~L Dttt~.,.Mit~k~.
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JNd~td A. I..wa Ub~ttyeiJ~. a
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a B. L.ts~ewg. It.. PhI~1pwt
G&ttg,a At~t.td~ Tewn
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B. MnEUwttnn. Ptttsbtegh
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JnJtnJ. Dnynt Clnnntnnd
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NannetJ. Trnntn, LnnAngnlnn
JnnnnnW. knnk. Pittnbtegh
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NnnnGnttnnnmnn~ Gnnnen~th. Cent.
ThtnnnnP. K,nnhin, Meinn. Chin
SnnBA. Bn~ntn. Ginnnlntnl
NJnW. Stnlhnttnt. SnltLnknOty
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.W. A Mnthg. Clnnlnttd
~44
April 11, 1978
~`I? I~ 3 t:I~ F11 `Th
The Honorable ~phn ~ILn!=er
Chairman p.:~t.
Subcommittee on Resource Protection
Committee on Environment and Public Works
United States Senat~
Washington, D.C. 2O~lO
Dear Mr. Chairman:
The Endangered Species Act of 1973 should
be amended. The Ame~ican Mining Congress urges the
Subcommittee on Reso~irce Protection to consider
amendments which will maintain the goals of the Act
while providing a me~.hod for balancing the benefits
of achievement of these goals with the other equally
important needs of t1~e United States. Specifically,
the prohibition in Section 7 on actions by federal
agencies should be, rdmoved.
A witness ~or the American Mining Congress,
Jerry L. Haggard, tes~tified before the Subcommittee
on July 28, 1977 duri~ig the oversight hearing on the
Endangered Species Ac~ in the first session of this
Congress. A copy of ~.hat statement which sets forth
the concerns and recoi~imendations of the American
Mining Congress is enClosed with this letter.
We did not x~equest an opportunity'to
testify at the Subcomn~ittee's April 13 and 14 hear-
ings on reauthorizatidn and implementation of the
Endangered Species Act~ of 1973. This is not indica-
tive of a waning of in~erest. The problems discussed
in our previous statem~nt still need to be addressed
by Congress and the Am~rican Mining Congress urges
the Subcommittee to adapt the amendments recommended
in that statement.
/
Enclosure
PAGENO="0349"
Statement of the
AMERICAN MINING CONGRESS
In Regard to the Endangered Species Act (PL 93-205)
Before the
Resource Protection Subcommittee
Public Works Committee
United States Senate
Washington, D.C.
July 28, 1977
* Mr. Chairman and Members of the Subcommittee:
The American Mining Congress appreciates this op-
portunity to assist your Subcommittee in identifying, and
considering solutions to, the severe problems which. are
being experienced in the operation of the Endangered
Species Act of 1973. The American Mining Congress is a
national trade association of United States mining com-
panies which engage in mineral activities on the public
lands of the United States to which the Endangered Species
Act applies. . My name is Jerry L. Haggard from the law firm
of Evans, Kitchel & Jenckes, P.C., Phoenix, Arizona, and a
member of the Public Lands Committee of the American Mining
Congress.
As with much environmental legislation enacted
in recent years, the Endangered Species Act speaks in
345
A~ICAN
CONGRESS
FOUNDED1897
RING BUILDING
WASHINGION
DC~O36
2023318900
TWX 710:8220126
M~7ERlONJR
PAGENO="0350"
3~6
idealistic and absolute terms~ to accomplish desirable but
limited goals without recogni~ing the necessity to balarce
the achievement of thesc goa~s with other equally impor-
tant needs of the United States. This is the sort of
legislation which receives mu~h public and political sup-
port in the abstract but whi~h creates extreme problems
when it becomes necessary in the real world to balance
those ideals with the other needs of the United States.
There has now been sufficient experience and
litigation involving the Endan~ered Species Act that the
need for amendment has been mad~ clear. This Subcommittee
is to be commended for holding these hearings in recogni-
tion of that need. The need for amendment arises from
nroblems in the terms of the ~ in its administration,
and in its judicial construction. We have attached to
this statement specific propos~ed amendments to the Act
and we will discuss generally in this statement the needs
arid purposes for these amendments.
In considering amendments which should be made
tDthe Endangered Species Act, ci!e urge this committee to
re~ognize that, not only must ~ statute be designed te~
carry out its purpose, it must ~lso be designed to safe~
guard agains' its purpose bE.ing. abused. It is as important
PAGENO="0351"
347
for Congress to place a limit on the authority to achieve
worthwhile goals as it is to provide the authority. Other-
wjse, as has been seen with the Endangered Species \ct,
advantage willbe taken of the statute to accomplish other
unintended purposes and the resulting backlash can destroy
what could have been achieved by the statute.
Section 7 Problems.
We invite the attention of the Subcommittee first
to the provisions of the statute which have created the
greatest difficulties. Section 7 of the Act has been. con-
strued to require Federal agencies to subordinate all other
national policy and statutes for which they are respon-
sible to the preservation of endangered and threatened spe-
cies. This section provides in part:
"All other Federal departments and
agencies shall, . . . utilize their
authorities in furtherance of the pur-
poses of this chapter . . . by taking
such action necessary to insure that
actions authorized, funded, or carried
by them d. not jeopardize the continued
existence of such endangered species
and threatened species or result in the
destruction or modification of habitat
of such species . . ." (16 USC S 1536).
Some of the cases which have applied the provisions of this
section have gained national recognition for their extreme
results. Although this Subcommittee is undoubtedly aware of
PAGENO="0352"
348
these cases, a very brief review may be helpful. One of
the first cases construing Section 7 enjoined the constrL~-
tion of a Federally subsidized highway in an area inhabited
by the Mississippi Sandhili drane which the Fish and Wild-
life Service designated (one~day before the trial of the
case) as a 100,000 acre critical habitat. National Wild
life Federation v. Coleman, 5~9 F.2d 359 (5th Cir. 1976.)
The case which, of course, has received the greatest
notoriety because of its mos~ extreme effect is Hill v.
Tennessee Valley Authority, 549 F.2d 1064 (6th Cir. 1977).
In that case, the 6th Circuit ~ermanently enjoined further
construction on the 90% comp'eted $100 million Tellico
Project. The court held that\the absolUte provisions of
Section 7 required the proje~t to be enjoined because,
applying the prohibition of th~ regulations, the project:
* * might be expect~ed to result in a
reduction in the number or distribution
of Ithe snail dartei~J of sufficient
magnitude to place th~ species in fur-
ther jeopardy, or res\trict the poten-
tial and reasonable expansion or re-
covery of that species." (40 Fed. Reg.
17764-17765 (1975) ~t page 1070.)
The court, finding that the Ac~ requires enforcement to
be taken to the logical extremc stated
PAGENO="0353"
349
"So long as the snail darter remains on
the endangered species list and its
critical habitat comprises miles .5
through 17 of the Little Tennessee
River, we have no recourse but to en-
join creation of the reservoir." at
page 1074.
Other projects which are being threatened by endangered
species designations include the Lukfata Dam in Oklahoma
($31.5 million) and the $1.3 billion Dickey-Lincoln Hydro-
electric Project in Maine, and others. In addition to
Section 7., there are other provisions of the Endangered
Species Act which, if not amended, could lead to the same
result.
Even before the Tellico Dam decision, the Fish
and Wildlife Service had commenced applying the Endangered
Species Act in a very forceful manner through regulations
and policy announcements. In the proposed regulations pub-
lished in the Federal Register on January 26, 1977 (42 Fed.
Reg. 4868), the Fish and Wildlife Service takes the fol-
lowing positions:
1. Section 7 requires that every, action pro-
posed by every Federal agency which might modify a cri-
tical habitat or listed species must be presented to the
Fish and Wildlife Service for advice.
29-319 0 - 78 - 23
PAGENO="0354"
350
2. Section 7 requires that the Endangered Spe-
cies Review procedures must be in addition to National
Environmental Policy Act re~iews.
3. Section 7 p~ohibits the exemption of ad-
vanced Federal projects fron review.
4. Applying Section 7, the Fish and Wildlife
Service has developed the cc~ncept of "critical habitat" to
mean the present habitat of a listed species plus ad-
ditional areas for expansion.~
Further i1lustrati~g the inflexibility of Section
7 and the view that the Act~supercedes all other national
interests are the followin~ statements of the Fish and
Wildlife Service in proposin~ the critical habitat for the
grizzly bear on November 5, 1976:
"A Critical Habitat designation must
be based solely 9n biological fac-
tors . . . . It would not be in ac-
cordance with the l~w to involve other
motives; for exampl~, . . . to reduce
a delineation so that actions in the
omitted area would not be subject to
evaluation." (41 Fed. Reg. 48758).
Administrative Problems.
The pervasive and extreme nature of the Endan-
gered Species Act has been extended by the administrative
PAGENO="0355"
351
system being established by the Fish and Wildlife Service.
The system has developed into a multi-step process which
leads toward excessive listings of species, excess :ve
designations of critical habitats, inadequate opportunities
for the expression of public opinions and excessive re-
strictions on land uses which nay be more important than
their effects on listed species.
Abuse For Other Purposes.
The first step in the system is the process for
the listing of endangered or threatened species. This may
begin by anyone petitioning the Secretary and providing
Hsubstantial evidence" for the listing of a species as
endangered or threatened. Recognizing that many petitions
are submitted to carry out the legitimate purposes of the
Endangered Species Act, others are not. For example, in
the Tellico Dam case, environmental groups first succeeded
in stopping work temporarily on the project by suing under
the National Environmental Policy Act. When that injunc-
.tion ran out, some of the same interests involved in that
suit caused a petition to be filed to list the snail darter
as an endangered species which led to the present injuric-
tion under the Endangered Species Act. It is reasonable
to conclude that the motive for this action was more to
PAGENO="0356"
~352
stop the development -than to save the snail darter. Similar
actions are being carried o~.it by environmental groups in
other parts of the country and the probability exists that
this device to halt land used Will be used with increasing
frequency.
Criteria For Listing Species.
The criteria in th~statute and regulations for
listing endangered species o~ threatened species is ex-
tremely broad. The statute defines "endangered species"
to mean amy species which is in danger of extinction
throughout all or a signifi~ant portion of its range,
and a "threatened species" isLany species which is likely
to become an endangered speci~s. (16 USC § 1532). These
terms have been expanded by .tt~e Fish and Wildlife Service
regulations through an exam~le of the "ABC sparrow".
In 50 C.F.R. S 17.50, the éx~mple is given as follows:
"Suppose the ABC sparrow is listed as
endangered in only ~ portion of its
range. Within the m~aning of the Act,
the ABC sparrow is defined by geo-
graphical boundaries~ as a `species'.
The ABC sparrow which occurs beyond
those boundaries is ~ different spe-
cies, even though i~t is identical,
except in location, to the listed spe-
cies."
The opportunities for listing uz~ilimited numbers of species
through this device is clear. Almost every species of
PAGENO="0357"
353
plant or animal has adapted to certain climates, latitudes
and altitudes, arid, while abundant in their central area,
their population may grade from abundance to zero in ot~ier
areas. If these fringe areas are regarded as being a
"significant portion" of *its range, the species, although
abundant in some areas, may be listed as endangered or
threatened. The result is that: the entire United States
could be covered with separate fringe areas by species
grading from abundance to zero population.
Next comes the "look-alike problem". The statute
(16 Usc § 1533(e)) authorizes the secretary to treat any
species as an endangered or threatened species even though
it is abundant, if he finds that such species resembles an
endangered or threatened species. This means that, if. an
abundant species has undergone a sufficient mutation to
create a similar but separate species, both species must be
declared endangered or threatened. For example, because
four endangered species of the genus Alliuin have been pro-
posed for listing among the 1,700 endangered and threatened
plants, the entire genus of this wild onion with its 70
species in North American might have to be placed on the
endangered or threatened list.
PAGENO="0358"
354
When the Endangered Species Act was passed in
1973, it appeared that Congtess had in mind that the number
of animal species threatene~1 with extinction in the United
States was in the range of 100 and in the range of 300 in
foreign countries. (Senate report No. 93-307, July 6,
1973, Commerce Committee.) By 1975, there were over 400
animal species listed in the United States. By 1976, 598
animals had been listed and the Fish and Wildlife Service
proposed the listing of l,70c~ plants. (41 Fed. Reg. 27381.)
As of October, 1975, the De~artment had received 19 peti-
tions requesting the listing of 23,962 species of domestic
and foreign plants and animals. Nnw, figures in the area
of 200,000 to 300,000 species worldwide are being mentioned
as qualifying for threatened, or endangered status. This
demonstrates clearly that the Endangered Species Act must
be amended to limit the nunber of species which may be
listed as endangered or threatened.
Critical Habitat.
Once an endangered~ or threatened species has
been listed, the approach of ~±e Fish and Wildlife Service
is that it is "both necessary and desirable, whenever and
wherever possible, to designm~te `critical habitats" for
those species. (40 Fed. Reg. 17765.) The FWS defines
"critical habitat" to mean "ant... area. . . the loss of which
PAGENO="0359"
355
would appreciably decrease the likelihood of the sutvival
and recovery of a listed species. ..Critical habitat may
represent any portion of the present habitat of a 3isted
species and may include additional areas for reasonable
population expansion." (42 Fed. Reg. 471.)
Once the endangered species has been listed
and the critical habitat has been designated, Section 7
of the Endangered Species Act applies to all Federal, or
Federally assisted, actions which take place in the area
and prohibits actions which jeopardize the continued
existence of the endangered or threatened species or re-
sults in the modification of their habitat. The result
of this prohibition has been seen in ~he cases mentioned
above.
Administrative Procedures Preclude Meaningful Comment.
One of the difficulties which has arisen in this
system established by the FWS is the staged sequence of the
steps in the system. First, the listing of endangered or
threatened species is proposed for public comment. The
mass of the public does not have the technical ability or
information to make knowledgeable comments on such pro-
posals. Although the statute requires that there must be
"substantial evidence" to warrant consideration for listing
a species (16 uSC S l533(c)(2)), at least some of the
PAGENO="0360"
~56
substantial evidence which~ has been accepted has been
limited to a few cryptic nc~tes on the occurance of the
species. Furthet, attempts~ to obtain from the FWS t; e
basis on which such proposals are made have been net with
little success.
After a species ha4 been established as endan-
gered or threatened, the F~S establishes the critical
habitat for that species. I~ is not until this point is
reached that the communities and persons within or near the
designated critical habitat t~ealize that they have been
affected by the previous lis~ing of the species. For
example, the bald eagle has b~en listed as an endangered
species in 48 states and a thr~atened species in 5 others.
(41 F. R. 28525.) Most of th~ communities and people who
will be affected by such iistik~g will not become aware of
the effect of the listing and will have less reason to
comment on the proposed listing until the critical habitats
are designated. It is then too late to have any influence
on the species listing.
Meaningful comment on proposed designations of
critical habitats is precluded further by there being no
way of determining what restrict~ions Federal agencies will
choose, or will be required, to ~ipp1y in these areas. For
example, in the proposed desxyn~tion of the grizzly bear
PAGENO="0361"
357
critical habitat, the FWS states only that "there may be
many kinds of actions which can be carried out within the
critical habitat, of a species which would not be expected
to adversely affect the species." (41 Fed. Reg. 487.8).
The FWS states only that it is the responsibility of the
Federal agency having jurisdiction over the area to control
the actions in the critical habitat. Such statements are
of no assistance when the public is not advised of the
kinds of activities which cannot be carried out in the
critical habitat.
Excessive Power of Fish and Wildlife Service.
This leads to the final step in the system which
provides the FWS with a near veto power over proposed
actions by other Federal agencies based upon the sole con-
sideration of protecting endangered species. In the
January 26, 1977 edition of the F. R. (42 Fed. Register
4868), proposed provisions for "inter-agency cooperation"
were published by the FWS. These regulations would require
each federal agency proposing to take an action which may
affect a listed species to carry out a formal consultation
process with the FWS. The FWS provides biological opinions
and recommendations on theef feet of the proposed actions
and "it will then be the responsibility of the Federal
agency to determine whether and how to proceed in light of
PAGENO="0362"
358
its Sec n 7 ob1i9~t~0~.\" The circle is completed by
reference to Section 7, as nOted above, which prohibits any
federal agency from carrying out any action which would
jeopardize the existence ~f the endangered species or
destroy or modify the habita~ of the species. Oncethe FWS
provides its opinion that an~ther agency'S proposed action
will adversely affect a listed species or its habitat,
Section 7 applies to prohibit the action regardless of
other national benefits the action would provide.
The Fish and Wildlife Service states assurances
that it has no authority t~o dictate to other Federal
agencies the actions necessary to comply with Section 7.
Although it is true that t~e statute provides no such
authority, the effective powe~ of the FWS to do so has been
demonstrated. In National Wi~dlife Federation V. Coleman,
the court enjoined the Secr~tary of Transportation from
continuing the highway project until the Secretary of the
Interior (Fish and Wildlife Service) approved the project.
Furthermore, once th~ FWS presents negative com-
ments on a proposed action, ~he citizens suit provisions
of the Act (Section 11(g)) pr~vide adequate means to halt
any action of a federal agenc~ on the basis of endangered
species protection alone without any regard to other
PAGENO="0363"
359
responsibilities of the agency. The citizen suits can be
brought by any citizen whether they have an interest in the
species or whether their sole purpose is to stop the
federal action by any means. The most recent example of
this is in the Tellico Darn case, where the court observed
that this was the third time in five years in which en-
vironmentalist have attempted to stop the Tellico Dam and
the reservoir project. They succeeded through Section 7 of
the Act.
Conclusion.
Mr. Chairman, we urge your committee to re-
cognize the extremely serious threat which the Endangered
Species Act and its administrative system pose to the
United States. Although a rational system to prevent
unnecessary harm to endangered or threatened species is a
desirable national goal, this goal must be balanced with
other equal or more important programs and goals which the
United States government must carry out. We urge your
Subcommittee to give serious consideration to, and adopt,
the amendments we have attached to this statement.
Thank you for your attention and for the op-
portunity for the American Mining Congress to present to
the Subcommittee these changes which should be made in the
Endangered Species Act of 1973.
PAGENO="0364"
360
AMENDMENTS ROPOSED DY
THE AMERICAN MINING CONGRESS
TO THE ENDANGERED ~PECIES ACT OF 1973
1. Amend the first sentence ot puragraph (2) of
Section 3 (16 USC § 1532(2)) to read as follows:
"The terms `conserve', `conserving',
and `conservation' mean to use and
the use of all methods and proce-
dures which are con~istent with other
national policy and law to bring any
endangered species ~r threatened spe-
cies to the point at which the mea-
sures provided pursuant to this chap-
ter are no longer necessary."
2. Delete the phrase, "throughout all or a
significant portion of its range" in paragraphs (4) and
(15) of Section 3 (16 USC S 1532(4) and (5)).
3. In paragraph (l]~) of Section 3, changeS the
word "any" in the first and sec~nd lines to "all".
4. Delete the follo~Qing phrase from subsection
(c)(l) of Section 4 (16 USC S 1533(c)(l)):
"and shall specify with respect to each
such species over what portion of its
range it is endangere~1 or threatened."
5. Add the following phrase to the first sen-
tence in paragraph (d) of Section 4 (16 USC S 1533(d)):
"and which are consi~tent with other
national policies and laws."
PAGENO="0365"
361
6. In the first sentence of paragraph (e) of
Section 4 (16 USC § 1533(e)) delete the words "he deems
necessary" and insert the following in lieu thereof:
"necessary to protect endangered spe-
cies or threatened species."
7. Add the following sentence to paragraph (e)
of Section 4 (16 USC S 1533(e)):
"Such species may be tçeated as an
endangered species or threatened spe-
cies only within the same range in-
habited by the endangered or threatened
species."
8. Add the following subparagraph (4) to para-
graph (f) of Section 4 (16 USC § 1533(f):
"Each publication in the Federal Re-
gister of a proposed listing of each
endangered or threatened species
shall be accompanied by the publica-
tion of proposed critical habitat
designations for such species and
shall also be accompanied by criteria
sufficiently specific to determine
the nature of actions which would and
would not jeopardize the continued
existence of such endangered species
or threatened species."
9. Amend Section 7 (16 USC S 1536) to read as
follows:
"The Secretary shall review other pro-
grams administered by him and utilize
such programs in furtherance, of the
purposes of this chapter to the extent
that such utilization does not conflict
PAGENO="0366"
~62
with the purpose such other pr~'jr~ms
or witri other n~tiona1 policit.'~; and
law. All other F~deral departments and
agencies shall, ~n consultation \with
and with the assistance ot the Sec~e-
tory, utilize their authorities jn
furtherance of~ ~he purposes of. thi~
chapter to the ext~ent that such consul-
tation or utilizat~ion does not conflict
with the purposes of such other ~uthori-
ties or with other national policies
and law."
10. Delete parag aph (g) of Section Il (16 usc
S 1540(g)).
11. ACId the follo ing new section to the Endan-
gered Species Act:
"Section 18. Wotw~Lhstanding ar.y other
provision of thisjAct or of any other
law, an action taken by any Federal. de-
partment or agency~invo1ving the desig-
nation of endanq~ered or threatened
species or of ari~' area or areas as
critical habit~t~ of endangered or
threatened specic~s shall be deemed
to be a major Fed~ral action siynifi-
cantly affecting the quality of the
human environment requiring the filing
of an environment~l impact statement
under National Er~vironnenta1 Policy
Act of 1969. SUc~i action shall also
require the preparation of an economic
impact statement considering, mong
other things, the ~ol1owing catc~ories
of impact:
1. Cost impact c~n consumer3, busi-
nesses., markets, .~nd federal, sLate
and local governmen~s;
2. Effect on prductivity of wage
earners, business, or governiicrt. at
any level;
3. Effect on cornpe~ition;
4. htfect on supkiies of imprtant
resources, produc s, or services."
PAGENO="0367"
363
I cg4,
ADVANCING VOLUNTARY LEADERSHIP IN A CHANGING WORLD
~1jjII'~
Chamber of Commerce of the United States 1616 H STREST, NW.
LEGISLATIVE ACTION VICE PRESIDENT
April 14, 1978
The Honorable John Culver, Chairman
Subcommittee on Resource Protection
Committee on Environment and Public Works
United States Senate
Washington, D. C. 20510
Dear Mr. Chairman:
Attached is a statement expressing the views and recommenda-
tions of the Chamber of Commerce of the United States on The Endangered
Species Act of 1973.
We will appreciate your consideration of these views and re-
quest that the statement be made a part of the record.
H lton Davis
Vice President
Legislative Action
cc: Subcommittee Members
Kathleen Korpon
James Range
PAGENO="0368"
364
State ent of the
CHAMBER OF COMMERCE OF THE
UNI]~'ED STATES OF AMERICA
The Endangered Species Act
of 1973
to: Subcommittee on Resource
Protection, Senate Committee
on Environment and Public Works
t~y: Linda M. Anzalone
date:
(044
April 14, 1978
PAGENO="0369"
365
STATEMENT
on
THE REAUTHORIZATION OF THE ENDANGERED SPECIES ACT OF 1973
for submission to the
RESOURCE PROTECTION SUBCOMMITTEE
of the
SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
for the
CHAMBER OF COMMERCE OF THE UNITED STATES
by
Linda M. Anzalone*
April 14, 1978
The Chamber of Commerce of the United States is the
largest federation of business and professional organizations
in the country. The Chamber represents more than 3,700 trade
and professional associations and chambers of commerce and has
a direct membership of over 69,000 business firms.
We recognize the need to insure the survival of
both threatened and endangered species. Protection of our
vanishing flora and fauna is an important endeavor, worthy of
the attention it has been given by the Congress and by this
Committee.
Congress now has the opportunity to make the Act
more workable. Toward this end, the Chamber has two basic
recommendations. First, there should be more careful definition
of the terms of the Act. Second, there should be a mechanism to
resolve inevitable conflicts between this statute and other
federal program objectives.
When the Endangered Species Act was passed, the
public's understanding of the problem was considerably more
limited than it is today. In 1973, 109 American species were
listed. Congress rightly felt there was a need to increase the
protection of such species as the bald eagle -- our national
symbol -- the whooping crane, the black footed ferret, and the
grizzly bear.
The Act further provided that private citizens could
petition for the listing of other less-familiar species;
consequently, by 1975, there were 24,000 plants and animals
* Associate Manager, Resources and Environmental Quality Division,
Chamber of Commerce of the United States
29-319 0 - 78 - 24
PAGENO="0370"
~66
suggested for the threatened or endä
task of listing these species is enc~
seven scientists of the Office of,E
of years to complete the effort. I
100,000 insects in North Junerica,
half-acre distributions night also
Noah, himself, would have found the
The following are recomme
problems in the immediate fbture.
Definitiox~ of Terms
It is apparent that sever~l key terms in the Act need
better definition. In particular, Cc~ngress should give further
guidance as to the meaning of the tei~ms "species," "range,"
"significant," `portion of range,", "1-~abitat," "critical habitat,"
"endangered," and "recovery." Variai~ions in the interpretation of
these key terms will hinder the effec~tiveness of the Act, and cause
uncertainty and misunderstanding on ~he part of business and federal
program managers faced with potentiaJ1 endangered species problems.
To avoid unnecessary litigation and delay, clarification of these
terms must be provided.
The determination of "cri1~ical habitat" is defined in
the Endangered Species Technical.Bul]ietin of August, 1976, as that
area of land, water, and airspace rec~uired for the normal needs and
survival of a specie. "Needs", howe~er, is defined as that space
needed for "growth, movements, and behavior; food and water; sites
for breeding and rearing of offspring~ cover or shelter; and other
biological and chysical requirements."
By prohibiting any federal
modification which would be detrimenta
area designated as critical habitat, S
sharpest cutting edge. It makes the A
is not only possible, but very probabl~
ngered categories. The
rmous. It could take the
dangered Species hundreds
you consider the nearly
ny tiny creatures with
e eligible for listing.
task an impossibility.
dations that should avoid
agency from making any
1 to a given specie in any
action 7 becomes the Act's
ct so inflexible that misuse
e. We recognize that critical
PAGENO="0371"
367
habitat need not be a single use of land. There may be nany kinds
of actions which can be carried out within the critical habitat
of a species that would not be expected to result in a reduction
in the numbers or distribution, or otherwise adversely affect such
species. However, there is no definition of what constitutes a
permissible action in an area designated as critical habitat.
Without such definition, the result will be continued confusion
and unequal application of the concept.
A Balancing Mechanism
One of the concepts underlying the Endangered Species
Act was the fact that man has little understanding of the
interlocking roles played by different species in our ecosystem.
How important is a given species to man's well-being, or to that of
other species? The value of a species is difficult to measure.
If the value is purely esthetic, it is almost impossible to quantify.
But, if part of the value lies in its support of other forms of life,
then a different measurement might result. However, no method was
provided in the Act for measuring the importance of the snail darter,
or the furbish lousewort. We are not suggesting that a numerical
standard be provided, only that a mechanism for conflict resolution
be devised.
Section 7 requires that, once a critical habitat has
been declared for a listed species, all federal or federally assisted
action which might jeopardize the continued existence of the species
is prohibited. Thus, Section 7, which has not yet been fully
implemented, compels all federal agencies to subcrdinate all other
policy or statutes to the End~ncered Species Act.
While relatively few conflicts have arisen thus far,
it is apparent that, as more species are listed and more critical
habitats are designated, confrontations between federal agencies
and federally assisted programs will increase. There are now 172
species listed as endangered or threatened. There are an additional
60 or 70 for which rules have been proposed. There are some 1700
PAGENO="0372"
368
plant species which are under notiCe of review by the Fish and
Wildlife Service. If particular h~bitats were to be designated as
critical for each of these species,\ conflicts with other program
objectives are sure to arise.
How are such conflicts r~solved. There is, at present,
an informal negotiating process in `~ihich critical habitats are more
carefully delineated, and through which certain actions can be
deemed consistent with the maintenai~ce of a habitat or a species
within a habitat. However, such in~ormal arrangements are uncertain
and, perhaps, unfair for other prog~am managers.
Therefore, there should b~e a formal mechanism by which
the Secretary of Interior can determ~ne that a proposed action by
his department, or assisted by his d~partment or by any other
department or agency, significantly ~utweighs the benefit of
maintaining the critical habitat. S~nce it is difficult, if not
impossible, to quantify the benefits and values of a given species
or a given habitat, any balancing mechanism should be weighted
toward the maintenance of the species.
We are not proposing that a Secretarial determination be
made as to whether a species is, in fact, endangered. That decision
must be left to the biologists.
We are proposing that the ~ecretary, mindful of his role
as protector of our vanishing plant ax~d animal life, be empowered
to make judgements as to whether a proposed action has sufficient
social and economic benefits to outwei1gh significantly the need to
preserve a given species in a given lc~cation where a conflict exists.
No such flexibility exists ~n the law today. No
matter how great the proposed action, ~r how insignificant a species
may be, the law, as currently worded, allows no exception where the
proposal jeopardizes the existence of that species.
A properly considered and properly worded mechanism
is needed to allow the Secretary of Interior, or the Secretary of
Commerce, to make appropriate exceptio s to the requirements of
PAGENO="0373"
369
Section 7 to permit federal actions or federally assisted action to
occur where:
1. No reasonable alternatives to the proposed action exist.
2. The benefits of the proposed action are significantly
greater than the benefits of maintaining the critical
habitat.
Without such a mechanism, we foresee growing conflicts
between the laudable goal of maintaining a variety of our wildlife
and the need to maintain a healthy economic basis. We wish to
diminish such conflict by providing a reasonable and rational means
of administrative resolution.
Conclusion
Let me reiterate that the National Chamber has no
quarrel with the purposes of the Endangered Species Act, We
wish only to avoid the problems we foresee in its admjnjstr~tion,
We stand ready to work with the environmental community and this
Committee, to help devise an appropriate method to resolve those
problems equitably.
PAGENO="0374"
City & ~ounty Bank
OF~M NROE COUNTY
DAVE CRAIG.
PRESIDENT
Pipril 7, 1978
Tbe:'Hcinorable John C. Culver, Cha an
Subcommittee on Resource Protecti~,n
Senate Environment and Public Works Committee
Washington, D.C. 20510
Dear Mr. Culver:
Scrapping the Tellico projec , which has been built at a cost
well in excess of $100 million, t~ avoid affecting the darter doesn't
make sense. There is a limit to the number of dollars taxpayers can
afford to pay for species protecti~on-let alone the vast array of
federal goals and programs-and tI~is waste is entirely unwarranted.
This is a lot of money when there ~re children in this country who are
going withàut adequate food, clothing, shelter, and a decent education.
The act must be amended to provide\ for better allocation of scarce
resources. With adequate planning~ and the addition of flexibility to,
this act, we can achieve a much hi~her level of environmental and
species protection for the money s~ent.
The Endangered Species Act was passed in December 1973 in an effort
to add ~ to a world where ~th~ scales had tipped in favor of eco-
nomic growth and development to meet man's needs without regard to the
loss of various species of fish,~ wildlife, and plants. The statute
speaks of development "untempered 4 adequate concern and conservation."
The Tellico project/snail dari~er controversy illustrates the basic
problen with the Endangered Species\ Act. Congress first funded this
project in 1966, and construction h~s been underway since March 1967.
The work was over half completed wh~n the Endangered Species Act was
passed `and, more importantly, neárl~ 80 percent completed at the time
the snail darter was found'to be .a ~eparate species and listed as
endangered. Th~ project has been h~lted even though TVA has done
everything possible to reconcile the continued existence of the snail
darter with the completion, inc~.udi~ig an apparently successful trans-
plant of the 3-inch fish to the Hiw~ssee River. The needs of the
people of east Tennessee, who have ~orked hard for the project and
who are now on the verge of realizir~g ito benefits, are considered
secondary and unimportant under thi~ law.
P.O. Box 71, SWEEIWATER. TENNESS E 37874 * TELEPHONE e151337-357l
PAGENO="0375"
371
The problem is broader than Teflico. The Columbia reservoir
portion of the Thick River project may be halted because of the discovery
of an endangered species of mollusk. These projects are not alone. We
understand that the Tennessee-Tombigbee Waterway and the Dickey-Lincoln
projects, among others, are running into trouble. On a national level,
the Sixth Circuit's decision mean's that once a determination has been
made that a Federal project, or even a private project that receives
Federal funds or a Federal permit, would adversely affect any endangered
or threatened species or its critical habitat in any way, the project
must automatically give way. It doesn't matter whether the activity
is still on the drawing board or is within hours of completion. Indeed,
the continued operation of a fully completed facility that is affecting
a listed species or its habitat would also appear to be ~ulnerable to attack
under this law. The money invested, the availability or lack of alternatives,
costs, and the needs of man are all irrelevant. Minnows, snails, and bugs
are now more important than man.
The Endangered Species Act at present makes no distinction based on
the relative importance of the species involved or the number of members
affected. The inflexibility and any other problems with the act should
be corrected before legislation is enacted this year to authorize
appropriations for future years. Presently, appropriations to carry out
the Endangered Species Act are authorized only through September, 1978.
Before any reauthorization legislation is enacted, it should be modified
to include the amendments to the act which are necessary to solve these
problems.
The overwhelming majority of the people of the area support the
Tellico project. This is shown by opinion polls (including one conducted
by Representative Duncan), as well as by three joint resolutions adopted by
overwhelming majorities of both houses of the Tennessee Legislature with
the concurrence of the governor endorsing the project and recommending to
Congress and the President that ti be completed as designed.
The people of this three-county area need decent paying jobs-
opportunities to improve their lives-and not snail darters, or rafts
for the leisure class to float the river. Monroe County has an unemployment
rate of 12 percent, the second highest in the State of Tennessee. Indus-
trial development creating some 6,600 jobs in an area suffering from
outmigration and underemployment is the very heart of the very heart of the
Tellico project. Three quarters of the nearly 20,000 persons who left the
three-county area between 1950 and 1970 were the younger, potentially
more productive people in the 15- to 29-year-old age group.
I would appreciate your concern for this matter.
PAGENO="0376"
72
THE GARDEN LUB OF AMERICA
595 MADISON AVENU~E, NEW YORK, N. Y. 10022
NATIONAL AFFAIRS AND LEGISLATION COMMITTEE
CHAIRMAN APRIL 15 1978
SENATOR JOHN CULVER
CHAIRMAN, SUBCOMMITTEE ON RESOURCE PROTECTION
4204 DIRKSEN SENATE OFFICE BUILDING, ~VASHINGTON, D.C.
DEAR SENATOR CULVER,
I SINCERELY APPR~CIATE YDUR OFFER TO ALLOW THE GARDEN
CLUB OF AMERICA THE OPPORTUNITY TO PF~ESENT TESTIMONY BEFORE YOUR COMMITTEE.
OUR ORGANIZATION 15 DEEPLY CONCERNED ~BOUT THE DAMAGE THAT THE PROPOSED
AMENDMENTS TO SECTION 7 OF THE ENDANGERED SPECIES ACT OF 1973 WOULD INFLICT
ON CARRYING OUT THE LAWS EMBODIED IN fl-IE ACT.
FIVE YEARS OF SUCCESSFUL NEGOTIATIONS BETWEEN ANY CONFLICTING INTERESTS
HAVE BEEN ACHIEVED UNDER THE PRESENT ~AW.ONE PARTICULAR INTEREST SHOULD NOT
BE ALLOWED TO OVERTHROW THE LAW.SOU~ID ECONOMIC DEVELOPMENT HAS BEEN ACCOMPLISHED
WHILE ENVIRONMENTAL CONSIDERATIONS H~IVE BEEN TAKEN INTO ACCOUNT. RESPONSIBLE
INDUSTRY AND PROJECTS;BY RECOGNIZING CRITICAL HABITATS AND BY BEING DIRECTED
BY ENVIRONMENTAL CONSIDERATIONS, IN T~-1E END~HELP PROTECT AND CREATE A VIABLE
CAPITAL BASE, THEIR OWN RESOURCES.
PROTECTION OF PLANTS, FISH, AND WILDLIFE, AND DETERMING THE BEST
POSSIBLE COURSE FOR AND PURITY OF THE EATERS IN ThE RIVERS SHOULD NOT BE
CONSIDERED AN ALIEN FORCE TO THE CREAI~ION OF NEW BUSINESS OR NEW PROJECTS.
IT SHOULD BE AND INTEGRAL PART OF THE F~LANNING AND SITING OF NEW PROJECTS,,AN
UNDERLYING COST FACTOR. TO OVERLOOK ~COLOGICAL CONSIDERATIONS IS AS UNREALISTIC
AS OVERLOOKING THE COST OF MATERIALS /~ND LABOR.ThE PRECIPATING CAUSE FOR
THE NEW AMENDMENTS WOULD SEEM TO HA~E OVERLOOKED BOTH ECONOMIC ANP ENVIRONMENTAL
FACTORS.WHAT BECOMES OBVIOUS THROUDH~STUDY IS THAT ANY COSTS THAT OCCUR
TO A NEW PROJECT WHICH ADHERES TO ENVI~IONMENTAL CONSIDERATIONS WILL BECOMES
PART OF A LONG TERM BENEFIT TO THE BUSINESS AND TO THE CREATION OF OTHER
BUSINESSES.
EARTH IS OUR CRITICAL HABITAT.HOP~FULLY, UNLIKE THE DINOSAUR WHO WAS
UNABLE TO ADJJST TO,OR RECOGNIZE~FACTOf~S LEADING TO HIS EXTINCTION, MAN IS
BBGINNING TO BE ABLE TO RECOGNIZE SOME ~`OSSIBLE WNOWBALLING EFFECTS THAT
EXTINCTIONS OF OTHER SPECIES HAVE ON HUMAN EXISTENCE.THE ENDANGERED SPECIES
ACT OF 1973 ATTESTS TO THIS FARSIGHTED RECOGNITION. IT MERELY NEEDS TO BE
STRENGTHENED IN SOME AREAS.
LOCAL INTERESTS MUST MESH WITH LARGER PLANS AND WITH NATURES DEMANDS.THE
LAW IMPLEMENTS THIS NICELY. CONTRIVED ~ROJECTS RESPECTING NEITHER THE LAWS OF
MAN OR THE OLD LAWS OF NATURE OFFER HU~.IANS VERY LITTLE SECURITY, SINCE BOTH
CAN SO EASILY BE OVERTURNED. THIS ACT SI~IOULD NEVER BE ALLOWED TO FOUNDER ON
SUCH A LOCALIZED,ILL CONCEIVED ISSUE.
ANY FURTHER OVERVIEW OF THE END~NGERED SPECIES ACT BY A COMMISSION
MADE UP OF THE HEADS OF AGENCIES SEEMS R~UMBERSOME AND WOULD CREATE ANOTHER
100% RECYClED PAPER
PAGENO="0377"
373
DUTY FOR VASTLY OVERWORKED SECITETATIES AND CHAIRMEN OF AGENCIES WHOSE KNOWLEDGE OF
THE DETAILS WOULD BE DERIVED FROM OTHERS IN ANY CASE. (MORE GOVERNMENT EMPLOYEES)
THE LAW HAS ALREADY STOOD QUITE WELL ON ITS OWN.
IF MORE EMPLOYEES ARE TO BE HIRER, THEY SHOULD BE HIRED IN THE PRODUCTIVE
AREA OF STUDYING PLANTS, FISH)AND WILDLIFE, OF MONITORING, AND OF DETERMINING
WHERE THE CRITICAL HABITATS ARE. FUNDING FOR THE ENDANGERED SPECIES STUDY
AND PROMOTION IS NEEDED. IF THESE FACTORS OF THREATEBED AND ENDANGERED
SPECIES ARE ADEQUATELY FUNDED THEN COLLISIONS BETWEEN ENDANGERED AND
THREATER1ED SPECIES AND INDUSTRY OR PROJECTS CAN BE PREVENTEB. GUIDELINES
CAN BE DEVELOPED THAT WILL OBVIATE CONFLICT.
PROMOTION, REGULATION,AND ENFORCEMENT OF THE NEED FOR PROTECTING
CERTAIN SPECIES ALSO NEED ENCOURAGEMEMT THROUGH THE ACT.I CONFESS THAT I
(3 YEARS AGO) AND SOME OF MY FELLOW GARDENERS (NOW) HAVE REMOVED SOME
"SO CALLED" OVERLOOKED PLANTS IN THE WOODS AND TRANSPLANTED THEM 1N WOODY
AREAS IN GARDEN.~ OFTEN THEY DIE I DID NOT KNOW ENOUGH ABOUT THEIR TOTAL
ECOLOGICAL NECESSITIES; SOME MIGHT HAVE BEEN RARE. IN ANY CASE~THE POINT IS
THAT THIS PRACTICE IS UBIQUITOUS. THE PUBLIC'S AWARENESS OF THE THE NEED TO
PNOTOGRAPH,NOT TRANSPLANT;TO COLLECT SEEDS, NOT PLANTS; TO STUDY 5011/AND
ECOLOGY BEFORE ATTEMPTING WILDFLOWERS AND FRUITS; ALL THIS NEEDS EMPHASIS.
RESTRAINTS SHOULD ALSO BE PLACED ON COMMERCIAL SALES OF RARE PLANTS SUCH AS
CERTAIN CACTI, WHICH HAVE GRACED EVERY COLLEISZDORMITORY ROOM FOR 6 MONTHS
AND THEN DIED;~ MEANWHILE, A FEW OF THE SPECIES MAY BE WIPED OUT.
IN SUMMARY, THE GARDEN CLUB OF AMERICA RESPECTFULLY ASKS YOU TO
CONSIDER STRENGTHENING THE ACT, NOT WEAKEN IT BY REMOBIN& CRITICAL HABITATS.
PLANTS, AFTER ALL, WERE THE REASON FOR THE ~ASCENT OF MAN" (BRONOWSKI)
AND THOUGH THEY ARE NOW OFTEN CONSIDERED LOWLY IN RELATION TO MANS NEWEST
EFFORTS, THEY SrTILL MAKE UP THE ROOTS OF HUMAN EXISTENCE. PLANT CULTURE
PROVIDES MANKIND WITH GOOD AIR, SOIL, SHADE, F000(DIRECTLY AND INDIRECTLY
THROUGH FEEDING THE ANIMALS WE RAISE),PAST MEDICINAL AND DRUG BENEFITS, FUTURE
HOPES FOR NEW CURES, AND LAST OF ALL AS AN UPLIFTING EXAMPLE OF BEAUTY,WHICH
YOU AAN SEE IF VOU LOOK UP AT THE MOLDINGS OF YOUR VERY MEETIN3ROOMS.
THANK YOU FOR CONSIDERING THIS TESTIMONY,
SINCERELY
NATIONAL AFFAIRS AND LEGISLATIVE CHAIRMAN
GARDEN CLUB OF AMERICA
PAGENO="0378"
374
Statement I
The Izeak Walton Leegue of America
Before the Subcommittee on Resource Protection
of the
Senate Corenittee on Environment and Public Works
on
The Endangered Species Act of 173
May 12, 1978
Mr. Chairmen:
I am Maitland Sharpe, Director of Environmental Affairs for the
~zaak Walton League of America. The League is a citizen-based conservation
organization of approximately 50,000 members, dedicated to the conservation
and wise use of the nation's resources.
We thank you for the opportunity to presen our views on the implemen-
tation of the Endangered Species Act of 1973. ~e will restrict our corrmtents
to the issue of primary concern here this mcmi g: whether or not it is
necessary or desirable to amend Section 7 of the\ Endangered Species Act.
In passing that Act in 1973, Congress made ~n important advancement in
endangered species protection by providing a mec~ianism whereby federal agencies
would not knowlingly cause the extinction of an ~ndangered species. Congress
did this through Section 7 of the Act, which reqt~ires federal agencies to
consult with the Fish and Wildlife Service to in~ure that actions authorized,
(~~) National Office: Suite 808. 7800 N. Kent Street. Ariingtun~ Voginia 22209 * Phone 703-528-1818
THE IZAAK WALTON LEAGUE OF AMERICA
~~iNC0RP0FiATED
PAGENO="0379"
375
funded, or carried out by them not jeopardize an endangered or threatened
species.
Since 1973, more than 200 federal actions have been modified in some
way to prevent harmto an endangered species or its habitat. It is sobering
to imagine at what rate such federal projects might have impacted endangered
species if the Section 7 requirement had not been in place; it is alarming to
envision the impact future federal actions could have if the Section 7 re-
quirement were removed.
Section 7 has proven itself a vital mechanism for endangered species
protection; it is central to the effectiveness of the Act; and it is working
well. Under Section 7, more than 4500 consultations have taken place in the
past 5 years, only three cases have gone tocourt, and only one--the Tellico
dam controversy--remains unresolved.
Out of this single, controversial case has come the impetus to amend
Section 7 of the Act so that projects like Tellico--which prove resistant
to compromise in the consultation process--could be completed in spite of
their impacts on endangered species.
In theory, such an amendment would ease the implementation of Section 7
by providing a method for handling the rare cases that cannot be resolved by
consultation. We are convinced, however, that any amendment that removes the
categorical prohibition of Section 7 would greatly expand the number of
seemingly unresolvable conflicts and would sharply undermine the proven effec-
tiveness of Section 7.
We believe it is the absolute mandate of Section 7, which has forced
PAGENO="0380"
~76
federal agencies into a conscientious and xhaustive consultation process
to determine how they can modify their ~ro~ects, that has led to the success-
ful resolution of so many conflicts. `Any ~mendment that establishes a post-
consultation review procedure will encoura~e federal agencies to adopt an
inflexible posture in the normal consultation process and discourage them
from fully considering alternatives or modi ications to their projects,
because they can look forward to a possible exemption from Section 7 if and
only if the conflict seems irresolvable.' Mission-oriented federal agencies,
committed to their projects, will have ever reason to attempt to demonstrate
that the conflicts with their projects canHt be resolved through consultation,
in order to gain access to the review prc~es~ and the possibility of the
uncompromised authority to proceed with the roject as planned.
The result will be both predictable and unfortunate. Rather than solving
the problem of irresolvable conflicts, the p oposed amendment will enlarge it;
the perceived need for a means of handling "i~rresolvable" conflicts will be-
come self-fulfilling. The review process--in~tended to deal with only the ex-
traordinary cases--will tend to become the st ndard arena for conflict resolution,
while the consultation process becomes a mere preliminary procedure on the way
to review. Meaningful , productive, good-fait negotiations over alternatives
and modifications will tend to be postponed un\til the review process has been
exhausted and relief has been denied. In the eeanwhile, decisions will be
left unmade, agency positions will harden, and delay costs will mount
relentl essly.
Our fear that the potential for relief fr m the categorical prohibition
PAGENO="0381"
377
of Section 7 will undermine the consultation process is confirmed by the
only species-project conflicts that have been handled outside of the con-
sultation process: the Interstate lO-sandhill crane conflict and the
Tellico dam-snail darter conflict. In each case, the agency supporting the
project failed to exhaust the consultation process, hoping that the courts
or Congress would provide relief from the Section 7 requirement.
In the case of Interstate 10, the courts failed to grant such relief,
and ordered the Department of Transportation and the Department of Interior
to negotiate a workable solution to the problem. The conflict was solved
simply: the Department of Transportation bought up the land necessary to
prevent development along the highway interchange, and the sandhill crane's
critical habitat remains protected. This same result could, of course,
have been achieved administratively under Section 7 without the cc'jrt's
intervention if complete consultation had taken place.
Similary, TVA, the agency constructing Tellico dam refused to consult
to consider modifications and alternatives to the project, hoping initially
for relief from the courts. However, the U.S. District Court enjoined TVA
from further construction, finding that Tellico was not exempt from the
mandates of Section 7. Still refusing to comply with the Department of
Interior's requests for consultation, TVA is now seeking relief from the
Supreme Court and from Congress. As long as TVA sees the possibility of
avoiding the requirements of Section 7, it will have little incentive to
follow through with the required consultation process. There is every
reason to believe that alternatives that would not jeopardize the snail
darter nor destroy its critical habitat will not be seriously considered
PAGENO="0382"
378
until both Congress and the courts make it clear the Tellico will in no
way be granted relief from Section 7.
It is in only these two cases, where the hope of relief led the
agencies to adopt inflexible negotiating positions, that we have had
seemingly unresolvable conflicts under Section 7. The consultation process
under Section 7 has failed to work only when the agencies refused to make
it work.
Any amendment that weakens the mandate f Section 7 will invite more
such intransigent behavior on the part of federal agencies. Any amendment
that weakens Section 7 would undermine the cc~nsultation process, which has
proven consistently effective in resolving conflicts between federal pro-
jects and endangered species. Rather than ea~ing implementation of the Act,
we are convinced that an amendment to Section 7 would aggravate the problems.
If Congress makes it possible for agencies to circumvent the categorical
prohibition of Section 7, more agencies will ollow the path of DOT and TVA,
refusing to actively consider such a compromise solution that would avoid
harming a species. The very possibiility of relief will ensure that more
conflicts become `irresolvable.'
The Izaak Walton League of America urges ~he Subcommittee to retain
the mandate of Section 7. The Tellico case is an aberrant one; it does not
justify wholesale amendment of the Act, which ~ould weaken protection for
all endangered species. To do so would reward the intransigence of TVA and
would encourage such behavior on the part of ot~ier federal agencies. We hope
you will reaffirm the integrity of the consulta~ion process embodied in
Section 7 by rejecting proposals to establish a review-relief procedure. We
do not hold that there will never be a case whei~e good faith consul-
tation will not be able to resolve a conflict between an endangered species
and a federally permitted or constructed project~, but we do believe that
we have not yet seen such a case, and to amend S~ction 7 is to needlessly
undermine endangered species protection efforts n this country.
PAGENO="0383"
379
McCAi~rv & N0ONE
CouNsEu~oss AT LAW
490 L'Esy~urr PLAZA EAST
Suers 3306
BoSEEr L. HcC~m WASHINÔTON. D. C. 20024 ~pflOSE
CHARLES M. NOOSE 054-2955
CxmsToPm D. WILLIASS AVEEL CODE 202
April 27, 1978
Senator John C Culver
Chairman
Subcommittee on Resource Protection
Committee on Environment and
Public Works
* United States Senate
Washington, D. C.
* Re: Endangered Species Act
Dear Senator Culver:
The Colorado River Water Conservation District and the South-
western Water Conservation District would appreciate your
consideration of the following views concerning the amendment
(S. 2899) proposed to the Endangered Species Act and currently
being considered by yàur committee. These additional views will
-. supplement the testimony of Kenneth Balcomb, Esquire who appeared
* on behalf of the two districts before the hearings held by you
on April 1~.
The amendment in our view unnecessarily complicates and
-: confuses the existing situation. It in effect passes the present
statutory responsibilities of the entire governmental structure
to a super agency to make determinations which should be left to
* the responsible department of government. Those determinations
are always subject to judicial review as well as Congressional
oversight, and thus to corrective action should an agency act
contrary to law or overstep its duties in some policy fashion.
* As Senator Garn has noted (Release lVl3/78) ESA has been
* misused and applied too rigidly, adding Thesituation that prevails
is not what Congress intended." We concur in that view and accord-
ingly urge the Committee to clarify the real intent that no
absolute veto power is provided in ESA. Unfortunately, the
amendment proposed by S. 2899 does just the contrary by assuming
the existing Act to be a flat proscription where an endangered
* species is involved and passing the decision making process along
to yet another new agency. Delay in the government decision
making process is already an abiding concern for whlch solutions
must be found. We take note for example, of the study of federal
regulation recently completed by the Senate Committee on Governmental
PAGENO="0384"
80
Affairs, particularly Volume IV of hat study entitled
Delay in the Regulatory Process" (S. Doc. No. 95-72). We
understand that legislation has alr~ady been.introduced to
implement the recommendations of `th~ report, which was
unanimously approved by the Committ~e. To add yet another agency,
a sort of super agency, with all of\the trappings provided for in
S. 2899, on top of the already top-1~eavy administrative structure,.
would hardly assist the Senate's ef~orts to provide less regu-
lation and sake: that, regulation more speedy and efficient.
We think. the provision for a ne~ agency particularly map-
propriate in the context of the siti~ation presented to the
Committee in Mr. Balcomb's statement~ concerning the Colorado River
District's preliminary permit from the Federal Energy Regulatory
Commission for the Juniper-Cross Moubtain Hydroelectric Project
for which the District hopes to nake\ application for license. If
an application for a license for this `project is filed with FERC
public notice will be given and oppo~'tunity will be provided for
petitions to intervene as well as public participation, together
with any intervenors, in a full adju~icatory hearing before an
Administrative Law Judge at which wit~nesses.are examined and
cross examined, subpoenas are issued as may be necessary, and all
testimony and any supporting exhibit~ are taken under oath. The
Interior Department has been a not'ir~frequent intervenor in such
proceedings before FERC. Following a consideration of the full
record, the Administrative Law Judge issues an initial decision
which is in turn subject to appeal ,to~ the full Commission on any
exceptions which any participating pa ty may have to the initial
decision. Thus, the entire record is subject to scrutiny a second
time, this time by the full five mernb r Commission. This review
process by the Commission itself freq ently consumes more than a
* year and can require even longer as t. e Commission considers the
myriad items which appealing parties an find in initial Administra-
tive Law Judge decisions dealing with\projects of this magnitude
and complexity. When the Commission'~ decision is reached, it
is subject to a statutory provision' far rehearing which objecting
parties properly avail themselves of i~n an effort to bring some
change in whatever decision the Commi~sion may have reached.
Finally, this full process is subject to judicial review directly
in the U. S. Court of Appeals. To add yet another level to this
meticulous regulatory process is in oi.~r view not only unwarranted
but would represent a rejection by the~ Congress of the regulatory
processes it has established, to be cohducted under the safeguards
* of the Administrative Procedure Act, i~i order that decisions may
be reached taking every' facet of the p~iblic interest into account.
* S. 2899 would simply duplicate an exisjing procedure, add yet
another administrative level, and in effect impeach the whole
`purpose of regulatory control in the process.
PAGENO="0385"
381
We accordingly urge the Committee not to go down this trail.
We submit that Congress was on the right track in the language
of the bills it had before it in the 93rd,Congress at the tine
of the enactment of the Endangered Species Act. The language
of the several bills then under consideration, proposed by the
sponsors and supported by the Administration, provided that
federal agencies should utilize their authorities in furtherance
of the purposes of the Act . . . wherever practicable . . ."
or ". . . insofar as is practicable and consistent with the
primary purposes of such bureaus, agencies and services, . .
While we certainly have no objection to requiring consultation
~with Interior in order to further the purposes of the Act we
think Congress should confirm what we consider was really its
intent originally, namely that agencies having responsibilities
by statute to conduct programs and responsibilities required of
then by the Congress should also be permitted to make the final
decision they think necessary in order to implement those
responsibilities even though modification of habitat of some
endangered species may result. There is after all the availability.
of the citizen suit provisions of ESA to guard against arbitrary
action and there is also always available Congressional oversight
* so that any pattern of wanton action by an agency can be readily
detected and corrected by the Congress.
* We appreciate the opportunity provided to supply these
additional comments.
* Respectfully,
Robert L. McCarty.
ELM: slr
PAGENO="0386"
The Honorable John C. Cu ver, Chairman
Subcommittee on Resource Protection
Senate Environment and Public Works Committee
Washington, D. C. 20510
Dear Chairman Culver:
I ~m writing you th~s letter to advise you of my
support for the Tellico dam Project.
The needs of the peo le of East Tennessee, who
have worked hard for this project and who are just now
on the verge of realizing its benefits, are considered
secondary and unimportant under the Endangered Species Act.
As TVA has done everythin possible to reconcile the
existence of the snail datter it appears to me that the
species in question are n~t in danger of extinction.
Section 7 of this Act shoi~ld be anwnded in order to
restore its original purpc~se of providing balance be-
tween preserving endangerE~d and threatened species and
economic growth and develc~pment.
I would appreciate anything you can do in support
of the Tellico Dam Project.
Very truly yours,
~f~'eMcHahan'~
County Judge
Blount County
382
April 12, 1978
(
CM: cc
PAGENO="0387"
383
SOUTHEASTERN LEGAL FOUNDATION, INC.
1800 Century Boulevard, N.E., Suite 950, Atlanta, GA 30345 / Phone (404) 325-2255
April 14, 1978
The Honorable John C. Culver
Chairman, Subcommittee on Resource
Protection, Senate Committee on
Environment and Public Works
United States Senate
Washington, D.C. 20510
Re: The Endangered Species Act of 1973, 13 U.S.C. §1531 et~~j.
Dear Senator Culver:
This comment is submitted to your Subcommittee in relation to the hear-
ings it is conducting on the Endangered Species Act. We respectfully request
that your Subcommittee consider our position in its deliberations.
The Southeastern Legal Foundation is a not-for-profit public interest law
firm organized in 1976 for the purpose of representing the broad public
interest. We believe the broad public interest demands that conflicts between
legitimate environmental concerns and reasonable economic development be
avoided where possible. Where the conflict cannot be avoided, it must be
resolved in an even-handed manner. The general public has no use for abso-
lutists who cry for environmental protection at any cost or for those who push
for economic development regardless of the environmental cost. Reasonableness
demands a balancing approach--an approach which may be impossible under the
Endangered Species Act of 1973. Because we see this new absolutism as inim-
ical to the broad public interest, the Foundation has participated in several
cases involving endangered species during the last six months.
In January 1978, the Foundation submitted a brief amicus curiae to the
United States Supreme Court in the case of Tennessee Valley Authority v.
Hill, Docket No. 76-1701 (the snail darter case). In addition, the United
States Fish and Wildlife Service has proposed endangered status and critical
habitats for several fish in the Birmingham, Alabama, area--including the
Cahaba shiner and the goldline darter. We have submitted comments to the Fish
and Wildlife Service on the merits of that proposal.
The Foundation regularly monitors the status of endangered species cases
and has done considerable research into the.legal questions in the field.
Based upon this experience we offer the following observations and suggestions
for the consideration of your Subcommittee.
PAGENO="0388"
HOW FAR DOES THE ACT GO?
When Congress enacted the Endanger d Species Act of 1973, it recognized
the need for action aimed at saving man~~ of the Earth's creatures from ex-
tinction. Over the years people had be~un to realize that various fish,
birds, animals and flora were going the\same path trod by the dinosaur.
Concern for the future of the bald eagle, the leatherback sea turtle and the
humpback whale was translated by the Cor~gress into apparently workable mech-
anisms which would achieve the salvatior~ of these endangered species. Now,
less than five years after the Act took effect, we are forced to ask ourselves--
how far does the Act go? Perhaps more ~o the point, we must also ask: Can we
afford to go so far?
No one can seriously dispute the wi~dom of Congress in taking definite
action to prevent the extermination of e~dangered species. And no one can
seriously quarrel with the spirit and pu poses of the preamble to the Act.
Congress declared that
"various species of fish, wildlife, and plants . . . have been
rendered extinct as a consequence~ o economic growth and de-
velopment untempered by adequate concern and conservation;
[that] other species of fish, kdldlife and plants have
been so depleted in numbers that the~ are in danger of or
threatened with extinction; . . . [a~id that] these species of
fish, wildlife, and plants are of es~hetic, ecological, educa-
tional, historical, recreational, anc~ scientific value to the
Nation and its people
16 U.S.C. (Supp. V)cl53l. The Act pledged the United States, to the extent
practicable, to conserve various species c~f fish, wildlife and plants pur-
suant to certain treaties and conventions.
Through the Act, Congress intended to provide a means whereby the ecosystems
upon which endangered species and threaten d species depend may be conserved
and to provide a program for the conservation of such species. In connection
with these purposes, all federal departmen~s and agencies are required to
conserve endangered and threatened species
Some would assert that these declarations and purposes are meant to be
read in a non-absolute manner. Such a reac~ing leaves room for flexibility in
the administration of the Act so that factors other than purely biological
considerations may be weighed by those who ~nust make decisions about the
future of endangered or threatened species. This view, in certain circum-
stances, would accept something less than t e most optimal conditions or
chances of survival for such species.
Unquestionably, the TVA has accepted the flexible interpretation of the
Act's requirements in dealing with the conflict between the Tellico Project
and the snail darter. Taking into consideration the importance of the pro-
ject, the degree of completion, and the dir~ction from Congress that the dam
be built, TVA has concluded that transplant~tion of the fish is a reasonable
alternative which gives the species a chance for survival while at the same
time permitting the project to be completed.
PAGENO="0389"
385
A similar view was adopted by the House Appropriations Committee in its
report of June 2, 1977, which recommended appropriation of the full amount re-
quested in the President's budget for the Tellico Project (H.R. Rep. No. 95-
379, 95th Cong., 1st Sess. 103 (1977)). The Committee sta~ted:
"It is the Committee's view that the Endangered Species Act
was not intended to halt projects such as these in their
advanced stage of completion, and [the Committee] strongly
recommends that these projects not be stopped because of
misuse of the Act."
Id. at 104. The Committee went on to recommend relocation of endangered
species as an alternative and specifically allocated money for such reloca-
tion.
Courts have disagreed on the scope of the Act. Lining up on the flexible
view side of the fence was United States District Judge Taylor, who denied an
injunction sought to halt the Tellico Project. Judge Taylor determined that
the Endangered Species Act allows for a flexible approach including a balanc-
ing of non-biological factors. Thus, he found that some factual circumstances,
such as the degree of completion of a federal project and the amount of money
spent upon it, were relevant in determining if the Act required the cessation
of the project out of deference to an endangered species. Hill v. TVA, 419
F.Supp. 753 (E.D.Tenn. 1976).
On the other side of the doin there are those who apply a stricter con-
struction to the Act. According to their approach, the survival of the
endangered species is paramount. Any factor which would interfere with or
diminish the chances of survival of any endangered species is treated as ir-
relevant by this absolutist view. In imposing the present injunction upon the
Tellico Project, the Sixth Circuit Court of Appeals disagreed with Judge
Taylor by stating unequivocably that "[cloncientious enforcement of the Act.
requires that it be taken to its logical extreme." Hill v.TVA, 549 F.2d
1064, 1071 (6th Cir. 1977). The United States Supreme Court is now being
asked to confirm or deny the absolute position as the law of the land.
Maximum protection of endangered and threatened species would seem to
require nothing less than the extreme measures consistent with an absolute and
strict construction of the Act. If we hope to protect the bald eagle, does it
not make sense to take that action which gives it the best chance? On the
other hand, how much interference with human progress and development are we
willing to accept as the price for maximum protection of just any species?
The ultimate reference point for these questions is Nan himself.
If Man ceased to exist one could argue that there would be no more en-
dangered species because Man would not be around to label them as such.
Likewise, if Man had time only for the collection of food for survival, he
would have no time to worry about endangered species. He would be an endan-
gered species.
Thus it is that decisions about endangered species must be made from the
egocentric standpoint of Man. How will these decisions affect Man? Will they
hurt or benefit him? If decisions designed to protect endangered species
PAGENO="0390"
~86
are perceived as being devoid of benef t to Man they could be rejected as
absurd.
The Endangered Species Act of 1973 has the potential for being car-
ried to the ridiculous extreme. If th~ position taken by the Sixth Circuit
Court of Appeals is accepted by the Sup\reme Court, the Act will be applied in
the most rigid fashion. From such an a~plication could come a decision which
places the interests of a moth or fièh ~head of the interests of Man.
Unfortunately we are hampered in t~iis field by our ignorance. No one
knows what effect the survival or demis~ of the snail darter or the Socorro
isopod will have upon Man. Perhaps the\mold found next year living on the
launch pad for the space shuttle will hld the secret of a new penicillin.
Perceiving that we are ignorant ha presented us with tough choices. The
safest course is the course of inaction If we do not know the consequences
of our action we might be wise to do no hing. Thus, when confronted with a
conflict between certain action and the survival of an endangered species, we
would defer to the species and cease ou activity. Perhaps the rashest course
would be to plunge uncontrollably ahead ~iith whatever we are doing without
regard for the consequences. The middle ground involves compromises, cal-
culated risks and an acknowledgment that, despite our ignorance of the unknown
consequences of our actions, nonetheless what we do is for Man's benefit as
he can best perceive the situation. Such a course would acknowledge that
transplantation of a species in a given ~ase, while not the course most likely
to protect that species, is justified in view of the other interests involved.
What course will we follow? Unless the Supreme Court reverses the Sixth
Circuit Court of Appeals we will follow he absolutist course--the course which
translates our ignorance into inactivity.\ It is a course which allows for no
balancing of any kind. If an oil field were discovered in an area inhabited
by an endangered worm, the oil could not be extracted if to do so would fur-
ther endanger the worm. Yet, much as we knight value the protection and sur-
vival of that worm, might we not value ev~en more the economic stability and
energy independence the oil could produce~?
Before additional funds are appropri ted for the Act, Congress must
consider carefully if the Act does what C~ngresa wants it to do. Does the Act
hold the promise of cutting off our nose ~o spite our face? We believe we
should preserve our freedom to make reasoi~ied choices between a range of
options. As presently constituted, the E dangered Species Act of 1973 may not
permit such freedom.
PAGENO="0391"
387
INTERAGENCY CONSULTATION PROBLEMS
Section 7 of the Endangered Species Act requires that Federal agencies
consult with the Fish and Wildlife Service and the National Marine Fish-
eries Service in order to insure that actions that they authorize, fund, or
carry out do not jeopardize the continued existence of endangered or threat-
ened species or result in the adverse modification or destruction of their
critical habitats.
Consultations have resolved most potential conflicts between federal
projects and the protection of endangered species. Hearings in the Subcom
mittee on Resource Protection of the Senate Committee on Environment and
Public Works, 95th Cong. 1st Seas. 61, 63-64, 69-70 (1977). Several conflicts
have been forced into the courts, the most prominent of which is the Tellico
Project case. The failure of the consultation process in that case may be
attributed to at least two reasons. First, of all the conflicts meant to be
resolved through consultation, the Tellico Project case presented the respec-
tive federal agencies with a truly irreconcilable problem. TVA officials
charged with the responsibility of completing the project knocked heads
against Department of Interior officials charged with the responsibility of
protecting endangered species. Neither side could acknowledge any room for
compromise. Indeed, for the project to be fully completed the reservoir had
to be filled, while to fully protect the snail darter the reservoir could not
be filled. There was no room to maneuver. While each side of the controversy
might be accused of inflexibility and intransigence, in fact it is reasonable
to conclude that both the TVA and the Department of Interior were actually
fulfilling their separate and conflicting responsibilities. In such situa-
tions the consultation requirement of the Act will fail to serve its intended
purpose.
Recognizing that there are problems in the consultation process, the
United States Fish and Wildlife Service, and the National Marine Fisheries
Service promulgated regulations earlier this year designed to correct these.
problems. 43 Fed.Reg. 870 (1978). While these agencies should be commended
for this effort, it points to the second reason why consultation failed in the
Tellico Project case.
From these regulations we can perceive that the absolutist, rigid inter-
pretation of the Act has been adopted by the Fish and Wildlife Service and the
National Marine Fisheries Service. These agencies specifically rejected
suggestions that non-biological factors be considered in the determination of
critical habitats. Refusing to grant relevance to socio-economic factors, the
agencies decided that the entire focus should be on the biological and eco-
logical needs of the listed species. Although these regulations were finally
adopted in 1978, there can be little doubt that the absolutist position pre-
vailed at the Fish and Wildlife Service during the consultation period with
TVA over the Tellico Project. This position unquestionably is an honest
attempt to deliver maximum conservation of species, but presents serious
problems when other agencies have different interpretations of the Act's re-
quirements. Thus it was that consultation with TVA over the Tellico Project
achieved no satisfactory conclusion.
PAGENO="0392"
388
While we understand the position of the Fish and Wildlife Service in the
context of achieving maximum protectiqn for species, we wonder if there exists
an unwritten policy of expediency guic~ing the agency in certain situations.
No agency can maintain its effectiven~ss if its credibility is undermined by
decisions which are regarded as irrati~nal, unworkable and most importantly.
unpopular. The positions of the Food nd Drug Administration on saccharin and
laetrile have certainly weakened that gency's credibility with the people.
Obviously, unpopular decisions must be made, but we would be blind to believe
that credibility questions are never c nsidered by federal agencies.
A source of our wonderment is the\Fish and Wildlife Services handling of
the Houston toad case. Widely reported by the news media, this case dealt
with the designation of critical habit~t for the Houston toad. When origin-
ally proposed, the designation includec~ several areas in and around Houston,
Texas. 42 Fed.Reg. 27009 (1977). Aft~r the public was told through the media
that parts of this designation included parking lots where toads presumably
lived in potholes, the final designatio~i of critical habitat was issued,-minus
highly developed urban areas. 43 Fed.R~g. 4022 (1978). Insufficient data and
lack of records of toads were given as ~he reasons for limiting the area of
critical habitat.
Undoubtedly, designating sections ~f Houston as critical habitat would
have met with intense opposition and wot~ld have caused major problems for the
public and private instrumentalities in that area. The growth of Houston
would have been threatened by the propo~ed designation.
We can certainly understand if the Fish and Wildlife Service realized
that discretion was the better part of v~lor when it came to the Houston toad
designation. There will no doubt be mor~ Houston toad cases in the future
with all their attendant pressures. Sho~ild the Fish and Wildlife Service be
forced to make decisions having such dra~natic socio-economic impact? Is that
what Congress intended when it enacted ti'e Endangered Species Act of 1973?
We believe that the Congress should reexamine the impact of the Act upon
the affected agencies. We believe that the present state of affairs has the
potential for creating serious conflicts in the future. While apparently
ignoring socio-economic factors, agencie~ are making decisions with major
socio-economic consequences. This situa1~ion must be corrected. In those
cases where conflicts are irreconcilable~\ perhaps the best forum for resolu-
tion is the Congress itself. At present ~uch conflicts end up in court.
Since it is Congress which must make the ~iard choices about protecting en-
dangered species, perhaps it should be Cohgreas that decides those cases which
the executive and judicial branches canno~ resolve.
PAGENO="0393"
389
THE SPECTRE OF SECTION 9
Section 9 of the Endangered Species Act of 1973 holds the potential for
much litigation and interference in th~ lives of private citizens. That
section provides that it is unlawful for any person to "take" an endangered
species of fish or wildlife. 16 U.S.C. §1538. "Taking" is defined by 16
U.S.C. §1532 to mean "harass, harm, pursue, hurt, shoot, wound, kill, trap,
capture, or collect, or to attempt to engage in any such conduct."
The term "harm" has been defined admininistratively to include "signi-
ficant environmental modification or degradation" which "significantly dis-
rupts normal behavioral patterns, which include, but are not limited to breed-
ing, feeding or sheltering. The Fish and Wildlife Service has indicated that
the word "taking" should be defined in broad terms to include any action by
anyone which significantly disrupts the normal behavioral patterns of an
endangered species.
Little imagination is required to conceive of the way in which Section 9
could be used and the havoc it could wreak.
Citizen suits to enforce Section 9, as provided for by 16 U.S.C. §l540(g)(l),
could easily be instituted. These suits would go far beyond conflicts between
federal agencies and the protection of endangered species. Every private citi-
zen in this nation could be subject to endangered species litigation. All
private business activity, churches, community organizations, sports teams and
the like could become defendants if their activities interfered in any way
with an endangered species.
Any number of extreme situations can be imagined. Whether the Act would
be taken to extremes we cannot say, but it is not unlikely. The private
ownership, use and enjoyment of property as well as various freedoms of acti-
vity stand subject to the Act. In our efforts to avoid "taking" endangered
species, we may be taking even more from ourselves.
We urge this Subcommittee and through it, the Congress, to consider how
far it wishes to go in protecting endangered species and to make appropriate
changes in the Endangered Species Act of 1973 in order to guarantee a rational
approach to this subject.
Sincerely yours,
s-w~
Wayne T. Elliott
,~ ~
Allen R. Hirons
Attorneys for Southeastern ~
Foundation
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390
HONORABLE MEMBERS OF SUBCOMMITTEE ON RESOURCE PROTECTION
SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
U. S. Senate Office Building
Washington, D. C. 20510
STATEMENT URGING CHANG~S IN ENDANGERED SPECIES
ACT SO THAT IT WILL ~O-ORDINATE WITH AND
NOT DISRUPT FEDERAL FUNDED PROJECTS
BY: LON P. MACFARLAND
FOR
UPPER DUCK RIVER DEVELO MENT ASSOCIATION
UPPER DUCK RIVE~ AGENCY
UPPER DUCK RIVER PLANNI~G COMMISSION
April 13-14, 1978
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391
STATEMENT OF LON P. MacFARLAND ON BEHALF OF THE UPPER DUCK RIVER
DEVELOPMENT ASSOCIATION, THE UPPER DUCK RIVER AGENCY AND THE
UPPER DUCK RIVER PLANNING CO~1ISS ION
MR. CHAIRMAN AND MEMBERS OF THE CO~2'1ITTEE:
I represent- the Upper Duck River Development Agency
and the Upper Duck River Planning Commission which are agencies
created by the State of Tennessee for the development of the
Upper Duck River. The Upper Duck River flows through-Bedford,
Coffee, Marshall and Maury Counties, Tennessee, on its way to
the Tennessee River.
From about 1960, many people in this area have worked
with TVA to develop this project. It is a very necessary one,
and is the key to the development of the area since it will
provide flood control, improve water quality, expand recreational
facilities, afford a very necessary water supply, and will enhance
the job opportunity in this area.
The Duck River is one of extremes. There are frequent
floodings and in the dry season the flow is very small which
results in a very questionable water supply for the area. The
wells throughout the area are more than 8O7~ contaminated and
unfit for use. The Normandy Darn and reservoir was completed
in 1976. The Columbia Dam was started in 1973, and is now more
than 35 to 407, complete with the concrete work on the dam
practically finished, so that it is contemplated that water will
flow over the concrete structure in 1978 when the present river
diversion channel is removed. The entire project is approxi-
mately 50+7, complete. Numerous tracts of land have been
purchased for the Columbia reservoir, approximately 8,000 acres
out of 27,500 acres total. The project has had wholehearted
local support and the support of the Conservation Commissioner,
the Governor, the Legislature, Senators Sasser and Baker,
Congressmen Beard and Gore, and many others.
The water systems of the five cities in the area have
entered into a contract with the Agency and TVA to repay to TVA
and the government $16,200,000 as a local contributor to water
supply. To accomplish this, the five water distributors in
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~92
the aria have charged 5 cents per 1,000 gallons of water sold
and pay these funds monthly into a trust fund for the repayment
of the $16,200,000. Under the cpntract between the Agency, TVA
and the five cities approximately $1,600,000 has already been
paid into the trust fund. At the~ same time another contract was
signed between the Agency and TWA under which the Agency was
obligated to promote $50,000,000\in non-federal area development
projects. In this connection the local and private sector have
demonstrated their good faith in~the Duck River project and
already the water system expansic~n amounts to $9 million; waste
water system expansion $3.38 million; new and improved roads
more than $13 million; and privat~e industry development in excess
of $48 million, for a total of m~re than 60 million dollars.
Testimony has been presented befdre Appropriation Congressional
Committees relative to the appro~~riatiOfl for the fiscal year
1979, and the President has recommended in the 1979 budget additional
expenditures for the project.
It is our understanding t~'iat Senator Culver's Subcommittee
on Resource Protection, Senate En~iironmental and Public Works
Committee, will on the 13th and 1k~th of April consider further
appropriations for funding of the~ Endangered Species Act.
It is our further underst~inding that the "Tellico" case,
TVA v. Hill, et al, No. 76-1701, kill probably be argued in the
UiiiE~ed States Supreme Court on Api~i1 18. Whatever the Court's
decision in that case it is obvious that the Endangered Species
Act needs amending to make common sense which the public can
understand.
A problem facing this project is the application of the
Endangered Species Act, USC Title 16, Section 1531, et seq. This
Act passed in 1973, long after th~ project started, allows the
Secretary of Interior, after consulting with affected States,
interested parties and organizatio~I5, to determine endangered
species. Although we are interest d parties and organizatiOn5~
`we have never been consulted in th s regard. Mussels and several
snails, etc., have been put on the endangered list. The mussel
is a subspecies of many mussels. ~e are advised that as to the
species listed one is no longer in the reservoir, another has
been successfully transplanted bel w the impounded area, and all
exist in other streams. There is o evidence that the mussels
or snails are of significant consequence. We respectfully suggest
that the Endangered Species Act Ce~ds substantial revision because
the Act as it has been construedb~ the Court gives no consideration
as to whether or not the species i~ of value or consequence and
the construction given the Act doe~ not provide for any weight
PAGENO="0397"
393
to be given to the economic and other effects of putting
species on the endangered list. Yet, the Fish and Wildlife
Service of the Department of Interior in the administration of
the Act, can put an inconsequential species, such as the snail
darter, on the endangered species list, declare a critical
habitat and'this will have the capability of stopping any project,
no matter how worthwhile or beneficial, as was the result, at the
TVA-Tellico project.
We likewise respectfully suggest that the placing of a
species on the endangered species list and the subsequent
declaration of a critical habitat is a "substantial federal action".
Under NEPA, a "substantial federal actior~" which will affect the
human environment requires an Environmental Impact Statement to
be filed. An Environmental Impact statement was required before
the Duck River project could be started. Certainly an Environ-
mental Impact Statement is required when an endangered species
is listed and a critical habitat is declared; since if the effect
of this is to stop a major federal project, it unquestionably is a
substantial federal action affecting the human environment. A
suit, Pacific Legal Foundation et al v. Cecil D. Andrus et al,
No. 77-l054-C-CV, is pending in the U. S. District Court for the
Middle District of Tennessee. This suit questions the legality of
placing species on the endangered list without a NEPA statement.
The Endangered Species Act, as it has been interpreted by
the Sixth Circuit Court of Appeals in the snail darter case
(Hill v. TVA) has turned the statute into an absolute and inflexible
command that precludes balanced decisionmaking. This interpretation
places the need of the species always above the needs of man
which sometimes requires development of all or a portion of the
*resources `which a particular species inhabits. We are concerned
that the important Duck River project could be halted because
of the listing of insignificant species.
We respectfully suggest that there should be, and must bé,~
substantial revision to the Endangered Species Act, which will
allow a sensible weighing of values. We do not suggest that the
Act be done away with, but do suggest that the administration of
the Act as it has been construed and administered does not reflect
the true intent which Congress had at the time of enactment. So
as to bring order and common sense out of the chaos which now exist,
we suggest that amendments to the Act which would co-ordinate the
Act with the funding of federal projects is very badly needed,
because we do not believe that Congress ever intended the Endangered
Species Act to have the disruptive and chaotic effect on federal'
PAGENO="0398"
394
funding of projects that it now\has. Section 7 of the Act
should be amended in order to restore its original purpose of
providing balance between preseikring endangered species and
economic growth and development.\ The complete inflexibility of
Section 7 and other problems of the Act should be corrected before
legislation is enacted this year~. We believe that such amendments
could be done in a number of ways, such as
1) The~Alaskan pipeline exemption.
2) An amendment to Sect~Lon 7 of the Act, 16 USC §1536
(Interagency Cooperation) by inserting after the word "action"
and before the word "necessary" in the eighth line "to the maximum
extent practical and consistent ~iith the agency's statutory goals".
3) Specific exemptions.
4) Exemptions of project~s started before the enactment
of the Endangered Species Act, arid numerous others.
We therefore urge that C~ngress give serious consideration
to amendments to the Act so that it will be co-ordinated with and
will not disrupt federal funded projects, including the Columbia
dam and reservoir, as well as projects throughout the Nation.
Re~pectfully submitted,
/,~ ,/
Lon P. MacFarland
April 7, 1978
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395
PRESIDENT VICE PRESIDENT SECRETA~j TREASURER EXECUTIVE DIRECTOR
Jet., W. Roy W. H. Cebi., Sn. Bob o.etli., Li U / ~ Teylen Roybum Chybo.m. Boa
CLJppe~ ~ £Ri~~~ .cDwe1op~nent LAgency
- Consisting of Dedfoed. Coffee, Moesholl and Mouny Counties
Phone 684-7820 -:-` Cou~thosse -~- Shelbysille, Tennessee 3760
~"L- ~`j - / 294/f `7~
~~~t.n.z/e !? ```~`* `~ -
Ap 1 13 1978
The Honorable John C. Culver, Chairnsan
Subconosittee on Resource Protection
Senate Environment & Public Works Committee
Washington, D. C. 23513
Dear Mr. Culver:
Subject: Changes in the Endangered Species
Act so that it will Coordinate with
and not Disrupt Federal Funded Projects
On behalf of the 133,030 people residing the the Upper Duck River Waterohed, we wish
to submit to you the following comments:
It in the general consensus -- a snail is a snail, a mussel is a mussel,
and we have no concern for then as endangered specie. These endongered specie
have no econcosic value. The public's understanding of the Endangered Species
Act was to protect the bald eagle, the hooping crane and some of the cats,
species that have had a significant role in our heritage. It is evident that
this was recognized by the fact that the Endangered Species Act provides that
species nay be killed or destroyed by nan in the case of self-defense. It
appears to the public that these insignificant species are being found where
there are Public Works Projects.
We wish to call to your attention that our phosphate deposits were at one
tine marine animals which are extinct. Dir coal deposits are plants many
of which are extinct; perhaps it is intended that specie become extinct in
the plan of the Universe.
Our public are concerned about a stable water supply, flood control and our
future ecomcssic developsent. We are concerned f or the wellbeing of humans.
The listing of insignificant and publicly unknown specie of the Duck River
Watershed as endangered specie provides for a possible consultation; En-
dangered Specie versus Duck River Project (Normandy and Columbia Dams).
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396
Those who take extreme measures t~ protect the least of God's Creatures,
such as fish, mussels and snails, somehow forget or neglect the wellbeing
of the Lord's most remarkable Cre~ture of all, Man.
We, therefore, respectfully urge that ~,rour Committee give serious consideration to
anendments to the Endangered Species Mt. such as the Alaskan Pipeline exemption,
specific exemptions, exemption of Proj~cts started before the enactment of the En-
dangered Species Act, or before the de~ignation of Endangered Specie in the area
of the projects. The changes should require that the Act be coordinated with and
will not disrupt Federal funded projecis including the Columbia Dam and Reservoir,
as well as projects thronghout the Nation.
It is further requested that this lett~r be made a part of the Committee's record.
*ne 1,
Clay on a Ross
Exe uti e Secretary
CE/mas
cc: Senator Howard Baker, Jr.
Senator Jim Sasser
Senator Ec~aond S. Muskey
Senator Malcolm Wallop
Senator James McClure
Senator Kisester Hodges
Mr. Lon MacFarland
PAGENO="0401"
397
754~
WATERWAYS
JOURNAL
314-241-7354
SINCE 1887
April II, 1978
The Honorable Jennings Randolph
of West Virginia -
Chairn~an
Committee on Environment and Public Works
Senate Office Building -
Washington, D. C. 20510
Dear Senatoi~ 1~andoiph:
We understand that there viii be an oversight hearing held by your
committee sometime in April on the Endangered Species Act.
We have been continually concerned about what this Act is doing to
commerce and industry and we would appreciate it if this letter was
entered into the record of this hearing.
We appreciate your consideration of this request and we would be glad
to furnish you and the Committee with additional information and back~
ground.
Sincerely,
c~\,7 6~L~
UJanes V. Swift
Vice president
JVS/kbw -
Enclosures
P. S. I understand that the Fish and Wildlife Service is now including
the water moccasin in the endangered species list.
`jorth Fourth St.
666 Security Bldg.
St. Louis, Mo. 63102
29-319 0 - 78 - 26
PAGENO="0402"
398
RWAYS
JOURNAL
314-241-7354
SINCE 1887
Statement resented at the
Oversight Hearing on i~he Endangered Species Act
April, 1978, Before the Committee on Environment and public Works
We are sure that the Congr ss was correct when it approved the
Endangered Species Act several ~rears ago. However, during the time
of its implementation there is vidence that the Act has been used
unnecessarily, we believe, to a op water projects and industrial and
commercial expansion which are vital to the welfare of the American
people.
754~
April 11, 1978
"Endangered species" have ~
improvement projects, ports and
of vital concern to the continue
We feel that the time has n
the implementation and regalatio
see whether or not the U. S. Fial
ority under the Endangered Speci
groups such as the Sierra Club, I
een found at the sites of dams, channel
iarbor improvements, and other projects
I wefl-being of the American people.
w come for Congress to investigate
~i of the Endangered Species Act to
~ and Wildlife Service, which has auth...
5 Act, has been working with special
he National Environmental protection
PAGENO="0403"
399
pund, and other environmental organizations in an attempt to stop pro-
jects these environmental organizations do not like.
We must emphasize that these environmental organizations are indeed
special interest organizations with considerable budgets and staffs in
Washington who are attempting to influence Congress through lobbying.
We feel, then, that these organizations should be placed on the sane
level as other persons who are interested in specific projects.
We would point out that the American taxpayer is losing millions
of dollars because the implementation of the Endangered Species Act
has stopped projects which in some cases were nearly complete, such as
the Tellico Dam in Tennessee, and we cannot believe that such action
is in the best interest of the American people.
We have seen other effects of the Endangered Species Act which to
us are incongruous. Such examples are:
The alligator was placed on the endangered species list even
though there were many alligator farms in the south, particularly
in Florida, where thousands of baby `gators were hatched every year.
Because the alligator was not allowed to be killed we understand
that they were eating livestock, dogs, and cats and even ducks in
zoos in the south, including New Orleans. A man who was losing
pets because of the predatory alligator had a difficult tine getting
a permit to destroy the reptile.
Because wolves were on the endangered species list in Minn~
esota they were allowed to destroy livestock, even going into barns
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4C~O
to kill and eat cows and calves.
species category of these animals
but had to call on state agencies
out of the area.
We believe that the time has come
hard look at the Endangered Species Ac
acutally in the best interest of the A~
that no additional funds shuld be a14
this Act until a balanced and va].idpr
and Wildlife Service which would prote
by those persons ~tho are more conce~ne~
species, homo sapiens.
Respe
jaine~
ice
But, because of the endangered
farmers could not destroy then
to trap and transport the wolves
for Congress to take a good and
to see whether or not it is
rierican people. We further believe
)cated for the implementation of
gram is set up by the U. S. Fish
~t the American people from abuse
I about nature than their own
ctfufly submitted,
V. Swift
president
PAGENO="0405"
401
STATEMENT OF
GLOVER W ILKINS, ADMINISTRATOR
TENNESSEE - TOMBIGBEE WATERWAY DEVELOPMENT AUTHORITY
BEFORE THE SENATE ENVIRONMENT AND PUBLIC WORKS COMMITTEE
WASHINGTON, D.C.
APRIL 13-14, 1978
Mr. Chairman, distinguished members of the Committee, my
name is Glover Wilkins, administrator of the Tennessee-Tombigbee Waterway
Development Authority, a five-state compact composed of the states of
Alabama, Florida, Kentucky, Mississippi and Tennessee.
I appreciate this opportunity to present a statement of behalf of
the Tennessee-Tombigbee Waterway Authority.
The Tennessee-Tombigbee Waterway is the first waterway developed
under the National Environmental Policy Act (NEPA). Initial funding of this
waterway came almost simultaneously with the nation's increasing environmental
awareness and recognition of the importance of preserving and protecting our
natural resources.
This project has been the subject of extensive environmental
studies and significant efforts and dollars have been expended to produce a
waterway that will be a model for future development.
The environmental studies, as well as various aspects of project
design, have been fully coordinated with local, state and federal agencies.
Consultation with these agencies has led to many refinements, at a cost of many
millions of dollars, in the interest of environmental quality.
Examples of this concern is demonstrated in numerous major
structural changes in the originally-designed waterway. We re-designed and
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moved a $46 million lock and dam so as no
archeological site. We changed the crest
order to provide higher dissolved oxygen c
We completely re-designed a 4
a perched canal to a chain of lakes concept
mentally sound. Just this year, we delaye
Lake to aid in spawning of fish.
We are carefully planning this
recreation paradise in an area that has vex
facilities. We coordinate planning with all
Federal Government to insure orderly and
There are no state or federall
scenic rivers that would be affected by the
More importantly, we have not
species designated by federal agencies thai
are also no areas designated as criticalh
endangered species.
We firmly believe the Tenness
many environmental advantages.
Although several years away
already serving as an economic stimulus
depressed region of the United States --
confidence where, previously, little exish
2
to inundate Plymouth Bluff, a rare
a spillway at Gainesville, Ala. in
)ntent.
i-mile section of the waterway from
that is more aesthetic and environ-
I full impoundment of Gainesville
vaterway to insure that it will be a
ir few water-related recreation
agencies in five states and the
sound development of our resources.
designated wilderness areas or
waterway.
identified any rare or endangered
will be affected by this project. There
itat for federally-designated rare or
se-Tombigbee Waterway will offer
om completion, this Waterway is
r a previously economically
ving this area of the South economic
d.
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403
This era of increasing economic stability would be severely weakened
by any major setbacks in water resource development..
The Endangered Species Act, when carried beyond its original intent,
could bring water resources development to a halt. Too strigent environmental
regulations, in addition to erecting new legal, political and public opinion
obstacles, also drive up the costs of developing and maintaining a strong natural
waterway system.
Development of waterway projects contribute immensely to the
future welfare of citizens in this nation by providing much needed jobs, electric
energy, water supply, flood protection and recreation. Such projects also
stimulate commerce, creating new employment opportunities.
In matters relating to economic growth balanced against environmental
needs, emphasis should be focused on real environmental issues and alternatives,
with all citizens having a voice.
The Tennessee-Tombigbee Waterway Development Authority represents
a broad spectrum of citizens from a five-state area who are vitally concerned and
whose very livelihoods are closely linked to continued water resource development.
At the same time, our citizens believe environmental quality and
sustained growth can be simultaneously attained with wise, careful and thoughtful
planning. Legislation must allow for responsible balancing of all factors relevant
to man's environment, including his economic and social needs, as well as
important ecological concerns.
We urge that the Endangered Species Act of 1973 be amended
to provide for balancing conservation interests with the social and economic
needs of the people and to allow for completion and use of projects that are
already under construction.
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404
* * Stát~rnent *
*to~ the
Subco~mnittee of ~esources Protection*
.of~the
Senate Committee on En~iironment and Public ~Works
SubLtted
iNay 1978
Dr. Thomas E. Lovej oy
Program Director
World Wii$life Fund
* Washing~on, D. C.
PAGENO="0409"
405
Iu]plementation.of the Endangered Species Act has raised the
spectre of important public works being prevented by seemingly obscure
and esoteric forms of life, many of which are new to a biologically
unsophisticated public. To many the problem is perceived as a choice
between biological trivia and significant public benefits. As one
critic asked me with respect to a potential conflict with a nuclear
power plant, can a clam generate electricity?
Leaving aside the electrical systems of clam gang~tia which
have furthered our understanding of the functioning of our own nervous
systems, the important point to which I would like to bring the
committee's attention is that we never really know what we are losing
when a species becomes extinct.
The importance then of the biota to Man has been too little
explored to sensibly contemplate casting any species away, and it is.
fundamentally disturbing to contemplate any extinction. With each
reduction in natural diversity the planet's capacity to. support. Man is
diminished. Given this, the question. of an amendment to Section 7
of the Act becomes a matter of whether and to `whom society should
delegate the Godlike-'~-actually anti-Godlike--.power to decide which
species should go extinct.
How many~of us would not be here had a moldy cantelope
been tossed away and anti-biotics not discovered?
0
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