ploited in prior Administrations. And even more flexibility can be gained through a moderate, sensible, centrist program of amendment in the reauthorization process. The Department is concerned that recent actions by the House Appropriations Committee related to the fiscal year 96 budget for the FWS will exacerbate rather than reduce problems which have been identified with the Act. The House Appropriations Committee's budget proposal cuts funding from science, outreach to landowners and State assistance. The Administration has been looking for ways to ei ther avoid the need to implement the Act through planning or to reduce its impact on landowners through activities such as the conservation agreements for the White Sands pupfish, to conserve species before they become endangered or threatened. Pre-listing, or candidate conservation funds are used for cooperative efforts with States, private landowners and Federal agencies. Pre-listing conservation activities are free of the formal prohibitions of the Acts preserving maximum flexibility while conserving the species. Under the current budget proposal by the House Appropriations Committee, however, the FWS would no longer be provided moneys to carry out these activities. In addition, the proposed elimination of funding for listing activities puts many species at risk of extinction. Endangered species will become more endangered and in some cases go extinct, while the status of threatened species will continue to decline and efforts to recover them will be more costly.

At a time when the administration is turning the corner in implementing reforms to the ESA, and seeing success, it would be shortsighted to disable our efforts. Our ability to effectively and flexibly implement the act is directly tied to the funding we receive.

Ultimately, the changes that have already been adopted in the Administration's strategy recognize that the central goal of the Act is protecting of habitat for threat ened and endangered species; that the most valuable habitat usually supports a rich mixture of species; and that the efforts to protect such habitat inevitably will involve weighing costs and benefits. The recent Supreme Court decision in the Sweet Home case will allow current and future conservation partnerships with landowners and local governments to remain on track. The Sweet Home decision confirms the regulatory interpretation of the last three administrations that the Act's section 9 "taking" prohibition restricts "significant habitat modification or degradation that actually kills or injures wildlife." Nothing in the Sweet Home ruling, however, will affect the availability of remedies for landowners, both public and private, who want to work cooperatively with the Government to resolve any ESA issue. Nor will the decision affect in any way the Administration's resolve to continue to institute new policies and other reforms to provide appropriate relief for landowners. Landowners across the country want and deserve fairness and certainty. The Administration is fully committed to making the ESA work better to achieve these goals.

Our approach to the Endangered Species Act is intended to recognize trade-offs and balance decisions, taking the long-term, not the short-term, view. If sound science and wise management of our natural resources guide our actions, we will benefit not only threatened and endangered species, but the human species as well.

STATEMENT OF DOUGLAS K. HALL, ASSISTANT SECRETARY FOR OCEANS AND
ATMOSPHERE, DEPARTMENT OF COMMERCE

Mr. Chairman and members of the subcommittee, I am Douglas Hall, Assistant Secretary for Oceans and Atmosphere, U.S. Department of Commerce, and I appreciate this opportunity to discuss the Endangered Species Act (ESA). I represent the National Oceanic and Atmospheric Administration (NOAA) which conducts research, gathers data and makes predictions about the marine environment and the atmosphere. Within NOAA, the National Marine Fisheries Service (NMFS) functions as the steward for America's living marine resources. These marine resources include valuable commercial and recreational fish, marine mammals, and sea turtles, some of which are imperiled with extinction.

Many of the commercial fisheries in the United States are managed by NOAA. All Federal fishery management plans are developed by regional fishery management councils for review by the Secretary of Commerce. As those deliberations occur, consideration is given also to reducing the impacts to protected species.

NOAA shares responsibility for implementing the ESA with the Department of the Interior's Fish and Wildlife Service (FWS). NOAA has jurisdiction over most marine and anadromous species and the FWS is responsible for birds, terrestrial, and

most fresh water species.

NOAA is responsible for the conservation and recovery of 29 marine and anadromous species listed under the ESA. Although I cannot over-emphasize that the ESA is meant to protect all animals, large and small, NOAA'S listed species are

truly magnificent animals. These include whales, sea lions, seals, sea turtles, various salmonids including West Coast chinook and cockeye salmon, and Gulf and shortnose sturgeon.

Marine species have a special place biologically, economically, and culturally in our Nation. Most of the marine species listed by NOAA are highly migratory. Managing the recovery of species that travel through multiple jurisdictions including local, State, tribal, Federal and international waters, requires an enormous amount of planning, flexibility and coordination.

USE OF SCIENCE

NOAA incorporates independent scientific peer review in listing and recovery activities to assure that there is high quality of information used in implementing the ESA through written policies. Each policy identifies procedures, criteria and guidance to ensure that these high standards are met.

NOAA knew that the potential listing of Snake River salmon was of significance to many groups in the Pacific Northwest. To ensure that the best science available was used, NOAA assembled a biological review team of scientists and other experts, from within and outside the agency, who were familiar with Pacific salmon. The Biological Review Team provided scientific information to NOAA to use in reviewing the status of the species. We believe this process guarantees that the best science is used from the initial stages of the ESA listing process.

NOAA also appointed a seven-member scientific recovery team. The team consisted of three fisheries scientists, one economist, two engineers, and one ecologist, comprised mostly from the academic community, to develop a Snake River salmon recovery plan. The recovery team submitted its draft recommendations to a scientific group for peer review.

NOAA also wanted to ensure that this information was available to all interested groups. Therefore, all scientific information and comments related to the ESA listing and recovery plan process were deposited in an administrative record available for public review in four separate locations (Seattle, WA; Portland, OR; Boise, ID; and Washington, DC).

In addition, the recommendations and conclusions in the biological opinion prepared for the effects of the Federal Columbia River Power System on listed salmon was reviewed by a biological review team.

SCIENCE AND POLICY

Science should control the determinations about the status of the species (does it warrant protection) and what is needed for a species to recover. However, once these determinations and requirements are made, we provide the public with this information, and actively involve them in the designation of critical habitat and the development of recovery plans. For example, to carry out the scientific recommendations of the Northern Right and Humpback whale recovery teams, NOAA established implementation teams composed of representatives from county, State and Federal agencies, private organizations, and scientific researchers.

The emergency listing of the Stellar sea lion was supported by a variety of interests including commercial fishing groups. Immediately following listing, NOAA appointed a Stellar Sea Lion Recovery Team that included representatives from State and Federal agencies, the fishing industry, native Alaskans, private groups, academics and researchers to address all aspects of research and management needs for the species. All actions taken on behalf of the Stellar sea lion by NOAA have been discussed and commented upon by the Recovery Team prior to implementation. The Recovery Team continues to provide NOAA with diverse and necessary expertise to address issues affecting the Stellar sea lion. Since the final listing, NOAA has worked with the fishing industry and the regional fishery management council to develop additional fishery management regulations under the Magnuson Fishery Conservation and Management Act (MFCMA) for further reduction of the affects of commercial fisheries on Stellar sea lions. NOAA established management measures through the appropriate fishery management council to ensure that the Gulf of Alaska pollock fishery would not jeopardize the continued existence or recovery of Stellar sea lions. For example, the fishery management council established buffer zones around rookeries to reduce the effects of groundfish trawling on the foraging success of Stellar sea lions. All of these actions, which were based on the best available scientific and commercial data, were done with participation of the fishing industry and the appropriate regional fishery management council.

CHANGES TO THE ESA

First, I must say that I believe that for the most part, the ESA has worked well. There are basic tenets of the ESA that must not be changed. I have already mentioned that listing decisions and recovery requirements must be based solely on the best available science. In addition, we must protect a species' habitat to obtain recovery and fulfill our stewardship obligation to the Nation. Without habitat protection, whether on private or public land, a species cannot survive or recover. There is no alternative. We are pleased that the Supreme Court agreed in its recent Sweet Home decision.

However, in the past year we have made many administrative changes and related legislative suggestions. These are reflected in the ten point plan to improve the ESA issued earlier this year by Secretary Babbitt and Under Secretary Baker. This plan would the role of States, streamline implementation of the ESA, and increase certainty for landowners. Many of the following policies published last July clarify the role of science or increased public participation in endangered species protection: • incorporate greater peer review to ensure scientific scrutiny of ESA listings and recovery plans;

clarify how States may participate in the ESA activities of NOAA and FWSincluding prelisting, listing, consultation, recovery, and issuance of permits;

• increase opportunities for the consideration of social and economic impacts in developing and implementing recovery plans;

• identify activities, when a species is listed, that will or will not constitute a taking of the species; and

• establish criteria, procedures and guidelines to ensure that decisions of NOAA and PWS are based on the best available scientific and commercial data. In addition, NOAA is working more closely with the Department of the Interior and other Federal agencies to ensure that our ESA policies, guidelines, and programs are consistent. This consistency is essential for efficient protection of listed species. It is equally important for all other groups, whether private or State, tribal, or local governments, to know that, when their activities bring them under the authority of the ESA, they will receive consistent treatment from NOAA and FWS.

NATIONAL RESEARCH COUNCIL'S FINDINGS

It is appropriate at this hearing to mention how pleased we are with the recent National Research Council (NRC) report to Congress on "Science and the Endangered Species Act." It states that although the ESA is not perfect, it is built on the foundation of sound biology and science. It goes on to state that "[s]pecies extinctions have occurred since life has been on earth, but human activities are causing the loss of biological diversity at an accelerating rate. The current rate of extinctions is among the highest in the entire fossil record, and many scientists consider it to have reached crisis proportions."

The report reviewed the role of science and policy in the ESA. No major scientific conflicts were identified as hindering the implementation of the ESA. It recommends that some new approaches need to be developed and implemented as complements to the ESA. The NRC recognized that the law, by itself, cannot prevent the loss of species and their habitats. Instead, the ESA should be viewed as only one part of a comprehensive set of tools for protecting species and ecosystems.

NOAA agrees with the NRC and believes the most efficient, effective and economically viable way to conserve species is to prevent species from becoming threatened or endangered in the first place. Other laws-including the National Environmental Policy Act, the Fish and Wildlife Coordination Act, the Magnuson Fishery Conservation and Management Act, the Clean Water Act, and the Marine Mammal Protection Act-provide important mechanisms for conserving species before they are listed. When all else fails, the ESA serves as a final tool to prevent the extinction of species.

CONCLUSION

The administration has offered a series of administrative improvements and legislative suggestions to accomplish the ESA's goals. These efforts embody the administration's philosophy of ecosystem based management while allowing for economic development, recovery of listed species, and the prevention of further species listings. Thank you for this opportunity to testify before the subcommittee. I will be pleased to answer any questions you may have.

STATEMENT OF MICHAEL T. CLEGG, CHAIR, NATIONAL RESEARCH COUNCIL'S
COMMITTEE ON SCIENTIFIC ISSUES IN THE ENDANGERED SPECIES ACT

Good morning. My name is Michael Clegg. I am professor of genetics at the University of California (Riverside). I chaired the National Research Council's Committee on Scientific Issues in the Endangered Species Act, whose report, Science and the Endangered Species Act, was released May 24, 1995. I am pleased to be here this morning to tell you about the report. The committee that my colleagues and I represent includes a wide spectrum of expertise in areas such as ecology, population biology, systematics, paleontology, wildlife management, law, decision analysis, and economics. We come from universities and private industry. Some of us have government experience. Our report is a consensus statement that reflects the range of our perspectives, and we all agree with its conclusions and recommendations.

Our study was initiated by the National Research Council nearly two and a half years ago in response to a bipartisan_request from three congressional leaders: former House Speaker Thomas Foley, Senator Mark Hatfield, and Representative Gerry Studds. This was a most welcome request, because sound public policy often depends on sound science.

in broad terms, we were asked whether the Endangered Species Act conforms to contemporary scientific knowledge about habitat, risks to species, and identifying species, subspecies, and other biological groups below the species level. We also were asked to consider whether the Act conforms to what we know about the factors needed for recovery of endangered species, possible conservation conflicts between endangered species, and the timing of key decisions under the Act.

The 1973 Endangered Species Act and its amendments constitute the broadest and most powerful law in this nation to protect endangered species and their habitats. The survival of species such as the whooping crane, American peregrine falcon, southern sea otter, and blackfooted ferret attests to the Acts success. But it is also a controversial law, particularly in cases where its implementation has delayed or prevented public and private development and other economic activities. Many of these conflicts have played out in the public-policy arena and in the courts.

The distinction between science and public policy is often fuzzy, because the possession of scientific knowledge and the implementation of that knowledge are so closely linked. But we have endeavored to restrict our advice to the scientific aspects of the Act. We were not asked to comment on the social and political decisions concerning the Acts goals and tradeoffs, and have not done so. Nonetheless, we believe that some of our recommendations, if adopted, will improve the Acts implementation and will make some of the tradeoffs easier to understand and resolve.

Since the Act was first passed, scientific knowledge has been anything but static. Our understanding of biological species, in terms of their genetic makeup and evolutionary heritage, has greatly expanded during the past two decades. A rich array of new experimental tools has been acquired from both genetics and computational biology and has helped drive a revolution in the study of the diversity of organisms and their natural relationships. Likewise, developments in conservation biology and population genetics have greatly increased the scientific understanding of risk to endangered species. We believe that these new tools should be put to work to inform decisions associated with the Act.

Nevertheless, our committee finds that there has been a good match between science and the Endangered Species Act. Given new scientific knowledge, we simply recommend changes to improve its effectiveness.

The ultimate goal of the Endangered Species Act is to ensure the long-term survival of a species. We all know that species extinctions have occurred since life has been on Earth. But the current rate of extinction is among the highest in the entire fossil record, in large part because of human activity. The introduction of non-native species and especially the degradation and loss of habitat are causing extinctions at a rate that many scientists consider a crisis.

The relationship between vanishing habitats and vanishing species nationwide is well documented. Consequently, protecting species in the wild most often means conserving the habitats where they live and breed. The Acts emphasis on protecting habitat reflects current scientific understanding of this crucial relationship.

We endorse the regionally based, negotiated approaches to the development of habitat conservation plans provided for by the 1982 amendments to the Act. Although difficult to negotiate, because they require agreement among many contending parties, such plans are already in use in several regions of the country to protect endangered and threatened species. The U.S. Fish and Wildlife Service should provide guidance on obtaining the necessary biological data and other information to help develop these plans.

The 1978 reauthorization of the Act requires the identification of "critical habitat" based on the best available science, after the consideration of economic and other relevant impacts. We realize that detailed information needed to designate critical habitat for a given species often is lacking. Just because a species occurs within a habitat does not necessarily mean that it requires that habitat for survival. To complicate matters, the absence of a species from a given habitat does not mean that the habitat is not critical to the survival of the species. These uncertainties, combined with public concern over economic consequences, often make designating critical habitat both controversial and arduous. This can delay or even prevent protection.

To avoid such situations, we recommend that when a species is listed as endangered, a core amount of survival habitat should be protected as an emergency, stopgap measure without reference to economic impact. This survival habitat should be able to support either current populations or the population necessary to ensure short-term survival for a period of 25 to 50 years. When the required recovery plans are adopted or the required critical habitat is identified and designated, the survival-habitat protections should automatically expire.

Shrinking amounts of available habitat are creating conflicts between what is needed to protect different species in the same region, though such conflicts have been rare in the past. The most effective way to avoid conflicts is to maintain protected areas large enough to allow for the existence of a diverse array of habitats within a single area.

There is no scientific reason that standards relating to protecting habitat and species should differ on public and private lands. As our report says, the degree to which public and private entities should bear the responsibilities of the Endangered Species Act is a policy and not a scientific matter. But there is no escaping the scientific conclusion that all species have certain requirements no matter who owns the habitats. Public and private landowners do not always respond in the same way to laws, regulations, and other incentives. As a result, regulations applied equally on both public and private lands might not provide the same degree of species protection. For this reason, different management policies may be required for them. Our committee also was asked about the definition of species. The question of what constitutes a species under the Endangered Species Act can be difficult to answer, requiring scientific interpretations about the subtle physical, genetic, or behavioral characteristics that distinguish subgroups within a species from one another. We believe that the Acts inclusion of these distinct population segments is scientifically sound and should be retained.

But to provide greater scientific objectivity in identifying these population segments, we recommend using the concept of evolutionary units that identify biological groups with distinctive behavioral and genetic characteristics, and that possess the potential for a distinct evolutionary future. By focusing attention on the important, distinctive attributes of organisms, the use of evolutionary units would provide policymakers with an additional scientific basis for determining which groups of plants and animals merit protection.

The scientific identification of evolutionary units should be made independently from decisions about whether they need protection. What I mean by this is that although there may be persuasive reasons unrelated to science to protect certain plants and animals, there might not be scientific reasons for listing them as evolutionary units. For example, bald eagles in the lower 48 United States and in Canada intermix and are not biologically distinct, so there is no scientific justification for identifying the U.S. population as an evolutionary unit. Similarly, protection status of the American alligator and the American brown bear have been based more on management, aesthetic, and political considerations than on scientific grounds.

We believe that the recovery plans designed to achieve the goals of the Endangered Species Act often are developed too slowly or have provisions that cannot be justified scientifically. To ensure that these plans are effective, the U.S. Fish and Wildlife Service, which oversees each plan, should establish explicit guidelines for developing them. Species recovery plans should include as much guidance as possible concerning which human activities are likely to harm recovery and which are not, to enable people to plan economic activities. Also, for purposes of evaluation, plans should incorporate estimates of the probabilities of achieving various recovery goals over different periods of time.

The Endangered Species Act was not designed to carry out all of our country's conservation policies. More approaches need to be developed and implemented as complements to the Act to prevent the continued, accelerating loss of species and to reduce economic and social disruption and uncertainty. The Endangered Species Act by itself cannot prevent the loss of all species and their habitats, but should be viewed as one essential part of a comprehensive set of tools for protecting them.