NPCA submitted the following positions to House Natural Resources Subcommittee on Federal Lands ahead of a hearing scheduled for September 26, 2018.
National parks would not be complete without the animals and plants that call them home. The Endangered Species Act (ESA) is arguably the most important tool to ensuring species vital to the parks are provided long-term protections; likewise, the ecological health and balance of the parks are equally dependent on these species.
From California condors to Florida panthers, there are more than 1,600 threatened and endangered species throughout the United States. In fact, a third of all ESA-listed species depend on habitat provided by our national parks; those 600 species are found in places like Great Smoky Mountains, Glacier, and Big Bend National Parks which provide some of the best, last or most protected habitats for these plants and animals. While national parks may be able to provide listed species with an added level of protection, those protections alone are not enough to revive and maintain healthy populations both within and beyond park boundaries.
Effectively, these nine bills undermine the protection of threatened and endangered species in our national parks. The National Park Service has an obligation under the Organic Act to “conserve the scenery and the natural and historic objects and the wild life therein.” As written, these bills would harm the agency’s ability to protect species that live in and move through national parks, illegally transfer management of park species to states, limit opportunities for critical habitat designations, and generally degrade the Park Service’s ability to carry out its mission.
H.R. 3608: The Endangered Species Transparency and Reasonableness Act – NPCA opposes this legislation which would automatically deem data submitted by a State, tribal, or county government to be “best available science.” This elevates states, tribes and counties above all other stakeholders—including national parks and their supporters—and takes the rigor out of the listing process, allowing information that could be contradictory, insufficient or unsubstantiated to guide listing decisions. The bill would also place an unreasonable cap on the recovery of attorneys’ fees in suits brought under the ESA, limiting fee recoveries to below‐market rates and making it difficult for many citizens to obtain effective legal representation.
H.R. 6344: Land Ownership Collaboration Accelerates Life Act – NPCA opposes this legislation which would provide that in the event an individual requested a determination from the Secretary whether a particular activity would constitute unlawful take and received no response within 180 days, that activity would automatically be considered to not be a take, effective for five years. This loophole could result in harm to threatened and endangered species, as well as in the destruction of critical habitat. Many threatened and endangered species move in and out of national park boundaries and their populations could be negatively impacted when available resources do not allow the Secretary to provide a timely response, thereby authorizing take by default.
H.R. 6345: Ensuring Meaningful Petition Outreach While Enhancing Rights of States Act – NPCA opposes this legislation which would elevate the role of states and counties above other stakeholders in the petitioning and listing process. Under current law, the Secretary is required to consult with the appropriate states. This bill would add the requirement to specifically seek out information about anticipated effects, which could include economic impacts. This would threaten the Secretary’s ability to make listing decisions based solely on scientific and commercial data. The bill also characterizes any decision that disagrees with a state or county’s recommendation as a “failure” by the Secretary and would require written justification why the Secretary did not abide by the state’s recommendation. This veto power creates an imbalance among all the stakeholders in a listing decision, forcing the Secretary to give precedence to state opinions in making listing decisions.
H.R. 6346: Weigh Habitats Offsetting Locational Effects Act – NPCA opposes this legislation which would allow the Secretary to consider nonbinding offsetting measures when determining jeopardy. During the consultation process, a federal agency action is reviewed for negative effects and any offsetting measures, such as avoidance, minimization, or mitigation, are considered. If nonbinding measures are considered as part of that review, and a federal agency action moves forward under a “no jeopardy” finding, the agency could choose not to carry out proposed avoidance or mitigation measures. This could result in jeopardy for the listed species or the destruction or adverse modification of critical habitat.
H.R. 6354: Stop Takings on Reserves Antithetical to Germane Encapsulation Act – NPCA opposes this legislation which would limit the Secretary’s ability to designate critical habitat in “any area in a water storage reservoir, water diversion structure, canal, or other water storage, diversion, or delivery facility.” This could hamper species recovery by preventing the Secretary from designating sufficient or appropriate habitat.
H.R. 6355: Providing ESA Timing Improvements that Increase Opportunities for Nonlisting Act – NPCA opposes this legislation which would deny protections for imperiled species due to resource constraints that prevent the Secretary from meeting statutory petition deadlines in a timely fashion. The bill would require the Secretary to automatically declare a “petition backlog” after a certain number have missed a 90-day or 12-month deadline. The Secretary would then be required to prioritize delist or downlist petitions over list or uplist petitions and would in fact automatically deny most petitions to list or uplist. In addition, those automatic negative petition findings would not be subject to judicial review. Rather than punishing species that are in need of protections, Congress should be providing sufficient funding for agencies to work through all petitions – delist, downlist, list and uplist – in a timely manner.
H.R. 6356: Less Imprecision in Species Treatment Act – NPCA opposes this legislation which would limit judicial review and deter public participation in the ESA listing process. The bill prevents judicial review for a finding by the Secretary that a species was listed in error. However, the bill explicitly allows judicial review of a finding that a species was not listed in error. This both stacks the odds in favor of wrongly delisting a species and eliminates a vital check on delisting decisions. The bill also prevents a party from submitting a listing petition for 10 years if they “knowingly” included inaccurate information in a listing petition. A process for determining “knowingly” is not provided by the bill, potentially deterring parties from submitting legitimate listing petitions in the face of an unknown and possibly invasive inquiry into their actions.
H.R. 6360: Permit Reassurances Enabling Direct Improvements for Conservation, Tenants, and Species Act – NPCA opposes this legislation which would weaken existing regulations governing cooperative conservation efforts between the agency and landowners. While the bill would allow landowners to continue to receive benefits through Candidate Conservation Agreements with Assurances and Safe Harbor Agreements, it weakens the requirements that landowners must adhere to under current regulations. These changes would make it more difficult for an agreement to be terminated if a landowner fails to meet their responsibilities and allows landowners to provide fewer conservation benefits, which could hamper the protection and recovery of imperiled species.
H.R. 6364: Localizing Authority of Management Plans Act – NPCA opposes this legislation which would undermine federal agencies’ ability to protect listed species. Under current law, the federal government can enter into cooperative agreements with states to conserve species. This bill would allow management of the programs under these agreements to be delegated to states, removing the federal oversight provided in current law. The bill also removes a provision that prevents states from setting less restrictive regulations against take than is required under federal law. This would effectively sanction the replacement of federal endangered species protections with less protective state laws and regulations.
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Associate Director, Government Affairs