Hearings to examine challenges and opportunities with implementing the Endangered Species Act.

All right, this subcommittee of the Environment and Public Works Committee on Fisheries, Water, and Wildlife hearing entitled Challenges and Opportunities with Implementing the Endangered Species Act will come to order. I appreciate the witnesses being here and the ranking member Senator Schiff as well. Before we get started, I want to recognize that Nebraska is currently experiencing wildfires that are largest that we've had since statehood. The fires have impacted more than 750,000 acres of land in my state and that roughly equivalent that's over 1 percent approaching 2 percent of our total state land area. I want to extend my gratitude to and appreciation for the entire state to our brave first responders. We have firefighters from across Nebraska, then we have federal firefighters, we have the National Guard, we have neighbors from Iowa who are helping out. I appreciate everybody who is helping out with trying to control this fire. And certainly want to pray that for all those who are impacted by these terrible wildfires and will continue to ensure that these impacted communities know that we are there to support them and get them resources to be able to help them recover. As wildfires spread throughout the US, rebuilding communities is a big part of the aftermath. I am concerned that the Endangered Species Act as well as other environmental laws can hinder the recovery after a natural disaster. The Endangered Species Act enacted in 1973 was written to conserve, protect, and ultimately recover endangered species. However, after more than 50 years, the actual recovery metrics for species raises concerns about whether the law is achieving its goal. Since the ESA was enacted, 57 of the more than 1,700 listed species have been delisted. That means roughly 3 percent of the species ever listed as endangered or threatened have recovered. And the US Fish and Wildlife Service has reported that only 4 percent of the listed species are improving. A three or 4 percent success rate does not seem very good to me. The agency projected 300 species to recover by now, yet only 57 have met that benchmark. These numbers are concerning and raise concerns about whether the ESA is effectively delivering to recover species. The ultimate goal of the law is to recover species to the point that federal protections are no longer needed. Yet the available data suggests that the current framework has not consistently achieving that outcome. In many cases, the process has also created uncertainty that can delay or complicate infrastructure projects without creating significant recovery outcomes. In Nebraska, the list of species that we focus on include the pallid sturgeon, the whooping crane, the piping plover, the least tern, and the American burying beetle. Detecting, protecting, and recovering these species requires state-led conservation efforts and Nebraska is a great example of successfully implementing programs to do so. When I was governor of Nebraska, I led the Platte River Recovery Implementation Program. This program is considered a major success story for its collaborative basin-wide efforts between Nebraska, Colorado, and Wyoming and the Department of the Interior to recover listed species in the river. It has successfully increased species populations, particularly the whooping crane, to historically high levels. However, this species still has not fully recovered. Overall, Nebraska's experience shows that conservation goals are most successful when implementation is collaborative, science-based, transparent, and predictable for all stakeholders involved. While all states represented on this committee have some local success stories, there are a lot of work that needs to be done to improve the implementation of the ESA. First, the focus should remain on recovery. The purpose of the ESA is not simply to list species but to recover them to the point where federal protections are no longer needed. Efforts have been made to improve clarity in ESA implementation. For example, US Fish and Wildlife Service during the administration during this administration took steps to provide additional regulatory clarity by rescinding the blanket rule and providing clearer definitions of habitat. Another critical issue is transparency and accountability from the Fish and Wildlife Service. In Nebraska, state agencies collect data that is used alongside federal information to inform listing and recovery decisions. State experts often have the boots on the ground and a direct understanding of the local species and habitats. Improving coordination, communication, and transparency among federal agencies, states, and other stakeholders should be an essential part of ESA's implementation moving forward. Programs like the Platte River Recovery Implementation Program demonstrate that collective conservation can work, but similar models have not been consistently applied elsewhere. Ultimately, the ESA has not consistently achieved its intended goal of recovering species and removing them from federal protection. And Congress needs to be at the forefront of these discussions and improve the law that has created more regulatory uncertainty than tangible success. I look forward to a discussion from our witnesses on the Endangered Species Act and what opportunities, challenges, and policy recommendations are needed to better support species recovery. And now I'll recognize the ranking member, Ranking Member Schiff, for his opening statement.

Good morning and thank you, Chairman Ricketts, for calling this hearing today. It's really a pleasure to be working with you on this subcommittee. And thank you to our witnesses for coming today and sharing your expertise. The Endangered Species Act maybe more than any other law represents the ideal of trying to leave the world in a better place than we found it. In 1973, Congress came together and observed that species were going extinct as a result of economic growth and development untempered by adequate concern and conservation. To address this, Congress declared that all federal departments and agencies shall seek to conserve endangered species and threatened species. It may surprise some to learn that this historic legislation passed the Senate by a vote of 92 to zero. We can't do that for anything other than a post office naming these days. The House agreed to the conference report by 355 to four. President Nixon, a Republican, signed it into law. Can we imagine everyone coming together in such unison to pass legislation of that magnitude today? It's hard to imagine. But this is how serious the situation was in the 1960s and 70s in terms of species and extinction. We would do well to take stock of just how far we've come since 1973. Of all the species that have ever been listed as endangered or threatened, 99 percent of them have been saved by the Endangered Species Act. That's a remarkable track record. The bald eagle, that proud, fierce symbol of our nation, is around today largely because of the Endangered Species Act. There are numerous other success stories such as the peregrine falcon, the American alligator, and the California condor. Today, I'm gravely concerned that we are no longer providing our Fish and Wildlife Service with what it needs to effectively implement the law. Since January 2025, almost 25 percent of the agency has left federal service. The Center for Biological Diversity found that approximately 530 biologists have left the agency. You really can't do the science required for species status assessments, Section 7 consultations, or listing decisions without proper expertise. Simply put, there is a staffing crisis. It's well known that Fish and Wildlife Service has been under-resourced for years, so this precedes the current administration. An analysis by Defenders of Wildlife found the agency receives about 50 percent of the funding required to properly implement the Endangered Species Act. And a 2016 analysis by the Center for Biological Diversity found that Congress only provides about 3.5 percent of the funding that Fish and Wildlife their service scientists estimate is needed to recover species. The recent loss of staffing makes a bad situation even worse. According to documents obtained through Freedom of Information Act requests, more than half of our nation's wildlife refuges currently lack the resources and staff needed to fulfill their missions. According to the agency, national wildlife refuges provide important habitat for more than 380 threatened or endangered species. With a total of 20 senators, I led a letter to Secretary Bergum and Director Nesvik in December to raise the alarm and ask them to provide Congress with a plan to address the issue. Like with almost every letter I've sent, we're still waiting for a response from the Department of Interior. We're here today because we all want to see the Fish and Wildlife Service move faster. We want more species to become fully recovered. That is what makes delisting possible and I think this is a bipartisan goal. I truly believe that Chairman Ricketts and my Republican colleagues want species to be successful and reach recovery as I do. We may differ in how we get there, but we all want to get there. Nevertheless, I'm confident we can't get there if the service doesn't have the experts and the resources that it needs. I'm encouraged by some of the ideas our witnesses are bringing to the table today. Contrary to popular belief, I think there are many bipartisan avenues to explore for improving the implementation of the Endangered Species Act. We can all get behind proposals to modernize the service's work, automate processes with machine learning and AI, provide greater flexibility to private landowners who are being good stewards and doing the right things, and promote greater collaboration with the states to harness their expertise. I'm very interested in embracing some of the innovative approaches of states, including the state of California. The Golden State is moving beyond the dichotomy of choosing between infrastructure development and environmental protection and showing that you can do both with smart policy. California uses habitat conservation planning to cover whole regions with a strategy to protect species and the state can use that plan to clear projects within the plan area instead of going through individual review. California also uses a tool called consistency determination where the state can approve a project if it has already gone through federal approvals. We need to think more outside the box, but to do it, we need proper resources at the federal level. The scientists and experts at Fish and Wildlife are a truly dedicated bunch who are being asked to do a lot with very little. I hope for greater collaboration between the service and Congress and this hearing is a great place to start. Once again, thank you to our witnesses and thank you, Mr. Chairman, for bringing us together for this hearing.

Great, thank you very much, Ranking Member Schiff, and I agree, I think there are common ground on things we do want to improve to make sure that we are actually recovering species, which is kind of the point. So thank you. All right, well now we will turn to our witnesses for their opening remarks. Our first witness is Tom Riley, water resources and environmental consultant, testifying this morning on behalf of Riley Consulting. Mr. Riley was the director of the Nebraska Department of Natural Resources while I was governor. It's good to see you again, Tom. Thank you for testifying on the subcommittee today. At the department, Mr. Riley oversaw statewide water allocation, permitting compliance, and stakeholder coordination across agricultural, municipal, environmental, and governmental sectors. He also serves as a lecturer at the University of Nebraska-Lincoln where he teaches courses on water resources and environmental policy. His experiences implementing state-led conservation efforts combined with his private experience and expertise and academic background make him uniquely qualified, capable of speaking on the challenges and opportunities for ESA reform. Mr. Riley, you are recognized for your five-minute, again five-minute to all the witnesses, five-minute opening statement.

Chairman Ricketts and Ranking Member Schiff and members of the subcommittee, thank you for the opportunity to come here today and talk about the challenges and opportunities for the ESA. My perspective comes from several roles as Senator noted. I'm a professional engineer and I specialize in water resources and environmental restoration. I previously served as the director of the Nebraska Department of Natural Resources where I represented Nebraska in interstate water management in collaborative recovery programs including the Platte River Recovery and Implementation Program. I also teach college-level ecological engineering classes. From that perspective, many ESA challenges in the western United States are fundamentally systems management challenges. Balancing river ecology, water infrastructure, and the working landscapes. Those landscapes that support agriculture, communities, and regional economies. Places where human use and ecological function must operate together. Across much of the West, species recovery occurs where water is scarce and heavily managed. Large systems such as the Platte River and the Missouri River in Nebraska support irrigation, municipal water supply, flood control, hydropower, and navigation. ESA implementation therefore requires coordinated management across states and agencies. Nebraska's experience shows how ESA implementation can function effectively within these working landscapes when programs provide transparency and long-term certainty. One example is restoration of the eastern Nebraska saline wetlands and the habitat of the Salt Creek tiger beetle. These wetlands occur in soils that are difficult to farm and develop. Restoration has proven to be the most sustainable long-term land use, supporting species recovery while providing flood storage, ecological function, and open space for people. A second example is the Platte River Recovery and Implementation Program. This cooperative effort among states and federal agencies, water users, and conservation organizations takes a basin-scale approach. It combines habitat restoration, water management, and scientific monitoring across the river system rather than addressing ESA obligations project by project. Equally important, the program was structured with defined increments extending through 2032. That structure provided clear planning horizons and allowed states and water users to commit resources with confidence with the goal to achieve a program that becomes one of maintenance, not continually looking for more. That planning horizon matters. In western water systems, infrastructure investments and habitat restoration are planned over decades. Stakeholders know that agreements will remain stable long enough for those investments to succeed and that the goal line doesn't change. Transparency and regulatory certainty are therefore essential to maintaining the trust required for these programs. Nebraska's experience also reflects perspectives shared by many western states where species recovery must operate within highly managed river systems and interstate water agreements. These experiences suggest several principles to strengthen ESA implementation. First, species recovery in the West must occur within the working landscapes that support agriculture, communities, and economies. Second, conservation should be grounded in local science, the hydrology, soils, and ecological processes. Third, ESA implementation should coordinate with existing state water management and interstate governance. Finally, transparency and clearly defined milestones are essential for long-term participation. Based on discussions with Nebraska stakeholders, there are several practical actions Congress could consider right now. Congress could codify key elements of the critical habitat exclusion analysis and the withdrawal of the blanket section 4(d) rule to improve transparency and regulatory clarity. For example, considerations of economics and national security. Congress could expand incentives for voluntary conservation on private lands, which are essential to species recovery across much of the United States. And Congress could invest more in proactive conservation under the ESA section 7(a)(1), incorporating ecological considerations early and helping prevent new listings. From an engineering perspective, designing ecological function into projects early is also much better than retrofitting them later. When implemented with collaboration, transparency, grounded in current science, real-world ecological performance, and regulatory certainty, the ESA can protect species while supporting our communities across the West and the working landscapes and water systems that sustain our farms and our ranches that are working to feed the world. Thank you for the opportunity to testify, and I look forward to your questions.

Great. Thank you very much, Mr. Riley. I remember I think that Platte River Implementation Program was first talked about in like 2005, 2006, and it was very controversial at the time, but to your point about the long-term nature of it, I think it was signed up for 13 years and then we got another 13-year extension or something like that, but that long-term commitment made it possible for a lot of people to have certainty around that planning. All right. Next, we will hear from Brian Yablonski, the CEO of the Property and Environmental Research Center, PERC. Is that right?

That's right.

As CEO of PERC, Mr. Yablonski helps lead national conservation issues ranging from national parks management and national forest restoration, elk migrations on ranch lands, endangered species recovery, to the Great Salt Lake conservation and market-based private land stewardship. Before moving to Montana, Brian served as chairman of the Florida Fish and Wildlife Conservation Commission, the state agency directed to conserve and manage Florida's wildlife and marine resources. Mr. Yablonski, you are recognized for your five minutes.

Chairman Ricketts, Ranking Member Schiff, and members of the committee, thank you for inviting me to testify on ways to promote species recovery under the Endangered Species Act. My name is Brian Yablonski, and I serve as the CEO of the Property and Environment Research Center based in Bozeman, Montana. For more than 45 years, PERC's work has been premised on a simple idea: incentives matter for conservation. When people benefit from stewardship, they will do more of it. Before coming to PERC, I spent 14 years on the Florida Fish and Wildlife Conservation Commission. In that role, I worked alongside biologists, landowners, hunters and anglers, and conservation groups on recovering species including the manatee, Florida panther, and gopher tortoise. Time and time again, I saw that conservation works best when done with people, not to them. The Endangered Species Act sets an ambitious goal of recovering all at-risk species. After 50-plus years, I like to describe the ESA as a tale of two cities: it was the best of times, it was the worst of times. In the best of times, it has largely succeeded by preventing extinction, with 99 percent of imperiled species persisting to this day. In the worst of times, it has recovered only about three percent of all listed species. Indeed, PERC examined the government's own recovery plans and found that the Fish and Wildlife Service failed to recover 96 percent of the species it predicted to recover by 2023. These results, while disappointing, should not be surprising. The ESA provides too many sticks and too few carrots. Rigid regulations are tools for preventing extinction, not for spurring recovery. To recover species, we must encourage and reward, make species an asset, not a liability. As the late Sam Hamilton, former director of the service under President Obama, summed up: the incentives are wrong here. If a rare metal was on my property, the value of the land goes up. But if a rare bird occupies my land, its value disappears. We simply cannot achieve the ESA's ambitious goal of recovering species without a new mindset and new tools that change the incentives. Across the country, private lands provide habitat for two-thirds of our at-risk wildlife. And states are the principal wildlife managers for the nation. An ESA listing can bring resources to each, but how those resources are deployed matters. Every dollar spent navigating the notoriously complex consultation and permitting process is a dollar not spent on restoring habitat. Those who bear the cost of recovering species need support, not red tape. Fortunately, there's a lot we could do to supercharge species recovery without sacrificing the ESA's effectiveness at preventing extinction. I offer three ideas. First, we should consistently reward recovery progress with regulatory relief. The promise that recovery effort may someday be rewarded by species delisting isn't enough. As species improve, we should reward success gradually by giving agencies, states, and landowners more flexibility. For instance, instead of the current one-size-fits-all approach, regulations for threatened species should incorporate incremental recovery goals and automatically provide regulatory relief as they are met. Recovery need not be an on-off switch. Second, we should shift from top-down mandates to bottom-up conservation by fully engaging the states. To date, no recovered species transferred to state management has backslid. I've seen firsthand how states can find novel and effective ways to recover species. The ESA encourages such creativity by offering to any state with a comprehensive conservation program the authority to decide whether federal take prohibitions apply. This is akin to how we implement the Clean Water Act. But this robust federalism provision in section 6 has been hollowed out by agency policy into a mere grant-making program. We should restore Congress's original intent by embracing conservation federalism. Finally, we need to lower the temperature around recovering species. Too often, recovery news has provoked a race to the courtroom rather than a celebration. To fix this, we need a cooling-off period, requiring litigants to wait for the service to complete its post-delisting monitoring period. At the end of the day, conservation works best when it brings people together. If we align incentives, empower bottom-up conservation and reward success, we can dramatically improve the recovery of imperiled species across America's landscapes. Thank you.

Thank you, Mr. Yablonski. Next we will hear from Jake Li. Mr. Li is the vice president of conservation policy at the Defenders of Wildlife. Mr. Li previously served as the assistant director of the U.S. Fish and Wildlife Service's Ecological Services Program, which leads the agency's national work on endangered species conservation and environmental review of federal projects. Jake has also served in the Biden administration as a deputy assistant administrator in EPA's chemical safety office, where he worked with industry, environmental advocates, and states and others on chemical regulation. Mr. Li, you are recognized for your five-minute opening statement.

Good morning Chairman Ricketts, Ranking Member Schiff, and members of the subcommittee. Thank you very much for inviting me to testify today. As you noted, I'm Jake Li, the vice president of conservation policy at Defenders of Wildlife. You also noted that I was previously the assistant director of the U.S. Fish and Wildlife Service's Ecological Services Program, which leads the agency's work on the Endangered Species Act. I see two ways that Congress can help the service and other federal agencies advance the purpose of this hearing, which is more recoveries, more transparency and more accountability. First, Congress can encourage the agencies to identify new policies and new approaches that improve how they implement the ESA. Because the ESA is flexible enough to accommodate these types of improvements, I don't think legislation is actually needed here. Second, the service absolutely needs the capacity to do this work. None of the recovery and permitting outcomes that I think we all want to see happen without agency staff to do the hard day-to-day work. Unfortunately, the service's capacity is more diminished than ever. When I worked there, I heard example after example of how staff were trying to juggle 20 balls at once, only to have more balls thrown at them. And this was all before the agency lost a quarter of its staff within the last year. This is an incredible depletion of capacity, expertise, and relationships with states, with private landowners, with businesses, and with many others. This loss includes nearly 40 percent of the senior executive team, myself included, and hundreds of scientists and program managers with unique knowledge about how the ESA is implemented within the Fish and Wildlife Service. The agency has lost several centuries' worth of institutional knowledge overnight. Having lost so much capacity, the service will absolutely struggle to meet expectations for recovering species and its other mission work. But Congress can actually help fix this deficit through targeted investments in how the service implements the ESA in at least three areas. One, more recoveries; two, more flexibility for landowners; and three, better ways to authorize projects under section 7 and section 10. Let me start with recovery progress, and here I'll highlight two opportunities. One, if the service were to receive targeted funding for recovery actions, it could begin recovering species soon after a listing, rather than waiting years for a recovery plan to be drafted first. We usually actually know how to begin saving a species soon after a listing, but the problem is that the funding isn't there to carry out these interventions. Another recovery opportunity is that in its recovery reports to Congress, the service could actually improve its reporting on which species are progressing towards recovery and by how much, even if that progress doesn't rise to a level of a downlisting or a delisting. So why is this incremental progress important? It's important because it can open up new ways to give landowners regulatory flexibility and incentivize recovery. Here's one vastly underused example. So under existing ESA regulations, the service can offer regulatory flexibility to landowners who demonstrate meaningful progress towards recovery, even if downlisting or delisting is nowhere in the horizon. This approach would offer landowners a far stronger incentive to help recover species because they wouldn't need to wait decades for a delisting before benefiting from regulatory relief. The service has actually applied this approach only a handful of times, notably with the Department of Defense. I know of two examples, one of which I was personally involved in, in which a military installation gets fewer ESA requirements on its training activities if it can demonstrate recovery progress for species on the installation. So rather than treating ESA regulatory flexibility as a binary on-off switch at delisting, we can think of it more as a dimmer switch that adjusts as the species shows recovery progress. My final topic is section 7 consultations. My written testimony describes five opportunities here. For now, I'll just quickly underscore that I think there's no better return on investment than continuing to fund the service's IPaC system, which is an online tool that streamlines section 7 consultations. It's already saved the equivalent of over 37 full-time salaries annually. This is to say nothing of the time and cost savings for permittees. So if Congress invests in these and other improvements, I really think we'll see real progress towards recovery in the coming years. Thank you.

Thank you. Thank you, Mr. Li. I think we're already hearing some common ground ideas on things, so that's a great start. And again, thank you to all of our witnesses for joining us here this morning. Now we will start off with a round of five-minute questions and I will lead off here and then we'll turn to the ranking member. Let's start with one of the challenges with the U.S. Fish and Wildlife Service is that decisions are often made without historical scientific data. In many cases, we simply don't have data that dates back 100 or 80 years. And for example, in Nebraska, the habitat of the American burying beetle has been difficult to find with certainty. The Endangered Species Act requires decisions to be based on the best available science and data, but those decisions should not rely on speculation when clear evidence does not exist. This lack of evidence consistently defaults to regulation. In addition, agency's interpretation of environmental baseline has created challenges. In places like the Platte River, we already have decades of real-world data showing how species respond to current conditions. Policymakers should rely on that existing science rather than assuming the river must be restored to an uncertain historical state. Mr. Riley and Mr. Yablonski, how can we encourage the U.S. Fish and Wildlife to utilize the best current available science? Mr. Riley, we'll start with you.

Thank you, Senator. And you're spot on that we need to use local available science and recognize that that often is the best information that we are going to have. I've experienced a couple of times where that's not the case, though, that the service in some instances will recognize their own data or maybe use something from a site far away because a lot of times the data is prepared by an applicant or the stakeholders themselves. And I think we need to then build on this transparency and trust and collaborate to make sure that that data is available and used in the decision-making process and not necessarily dismissed.

So let me interrupt you there for just a second. So you're saying is what your experience has been in the past is say we're looking at something in Nebraska, the service is using data maybe from someplace else on the Platte River that is not Nebraska and applying that and saying, hey, these two things are similar. Is that accurate?

I think that is accurate and it's not good enough just to grab the latest and greatest paper somebody wrote if it's not applicable to the area that you're looking at. These sites and rivers are very unique. And one of your other thoughts on the baseline issue, these we need to really incorporate the idea of our landscapes are already built, especially in the West. They're highly managed and those areas that include dams and other entities like that need to be considered. We just can't consider those as not being there in a baseline analysis.

Mr. Yablonski.

Yes, Mr. Chairman. I actually think that how the agency applies rulemaking and planning for species should be more science-based as well. We have something called the 4(d) rule. The 4(d) rule is the playbook. It's kind of the rules of the road for an individual species. But as you mentioned in your opening comments, if we apply that rule as a blanket rule where just strict regulation is done across the board, it disregards, it kind of dismisses science-based recovery for species. The beauty of a more creative use of the 4(d) rule is to have tailored science-based rules for each specific species as opposed to applying sort of a blanket strict regulation across the board. And I think that's a way to encourage the agency to do more on the 4(d) side, especially for threatened species, is going to lead to more science-based decisions in the future.

Mr. Riley, I want to get back to something else you talked about. Talk about the environmental baselines and have you run across situations where that's created some false assumptions and what can we do to address that? What directors need to fix that?

So one example, even though we've talked about how successful it is, the PRIP program. The Platte River Implementation Program. We can't start with not recognizing that we have these working landscapes in place. And to be successful with these programs, that baseline has to recognize that if a project comes along, it can't be bearing the entire weight of what the baseline is. It has an incremental impact, not the impact that you have to go back to the baseline. And we need to do a better job of that. And I think there's an opportunity within the rules and within the service's ability to look at that in a different light.

So what I think I hear you saying is that if a new project is coming along, it's not fair to say, well, you've got to take it back to 300 years ago where the Platte River was then. You need to think about where is the Platte River today and what kind of incremental impact is it making on the working lands that we have right now with the Platte River, not something that was 300 years ago, which frankly we don't even have the data for.

And maybe a finer point that if a new project comes along and it shouldn't have to bear the entire weight of that existing baseline condition be compared to it. Its impact is incremental. It can't fix everything that's already been there for many, many years.

Great. Thank you, Mr. Riley. Senator Schiff.

Thank you, Mr. Chairman. And thank you for the testimony. Really very helpful. It seems like one area of overlapping interest and agreement is the idea of providing incentives and rewards for those progress, rewards for progress with flexibility. And I wonder if we can drill down a little bit more on that. And Mr. Yablonski, I'd ask you what concretely do you have in mind, what kind of incentives? Mr. Li, I'd love to get your reaction too to that. And then maybe at the risk of stirring a hornet's nest, is there any applicability of that idea to grizzlies or gray wolves, or are we stuck in the binary delisting or not delisting debate?

Yeah, thank you, Mr. Senator. I think you heard me say in my opening statement that recovery doesn't have to be an on-off switch. I can fully say I plagiarized that from Jake Li next to me there because I thought it was a pretty good way to look at life. I think one thing that can be done, delistings will happen or not happen. And oftentimes, especially in the case of grizzly bears or wolves, they get thrown to the judicial roulette wheel that exists out there. But alongside of that, we talked about the 4(d) rule being the sort of the playbook. You could establish a 4(d) rule with specific recovery goals and as those recovery goals are met by state and landowners, you could shift incrementally more flexibility to the states and the landowners. And over time, as they're hitting those markers and more management authority is shifted to the states, by the time you get to the end, they'll essentially be delisted. They'll be managed as if they were delisted, except there would be sort of federal oversight through that graduated process. So it's not to diminish delisting because delisting needs to occur, but I think of the 4(d) policy as almost an insurance for delisting because delisting will go to courts and a lot of times they get knocked out. But a 4(d), I think, is a more gradual path and can get you to the same place and should be sort of the baseline for a lot of these species.

And explain what you mean by 4(d) process.

Yeah, the 4(d) process is again, it is the section of the ESA that actually establishes the management plans for each of the species that tells the states and landowners what they can and can't do. And so if you and one of the challenges you have today is that recovery goals and recovery plans are often outside of the 4(d) rule. So if you put recovery goals within the 4(d) rule, there's more an incentive for states and landowners to respond to that, knowing that they could get some flexibility on the back end.

Mr. Li, does that sound good to you?

Yes, as a general matter, I've written in the past about opportunities to use 4(d) rules to loosen some of the ESA regulations as species demonstrate progress. Let me also just highlight two other opportunities that complement the use of 4(d) rules. One is what I mentioned earlier, the use of Section 7 consultations, in particular for species on federal lands. I gave the example of the Department of Defense and how this winding down of regulatory requirements is working really well for certain military installations that are voluntarily helping to recover species. I think that approach could apply to more types of federal agencies and federal lands, including BLM, Forest Service, to create stronger incentives for those agencies to help recover species. The other example I'll offer is the use of what you mentioned earlier, habitat conservation plans, of which California has more than any other state. I can imagine approaches to habitat conservation plans in which as a species moves towards recovery, the mitigation requirements in habitat conservation plans are more flexible, or the process for getting a HCP approved is more expeditious because a species is doing better. So you can imagine the need for less review, easier NEPA, and just easier permitting requirements as a species demonstrates progress. So to wrap up, there's a number of tools that the service actually has to do this.

And Mr. Yablonski, is this something to incentivize a program that incentivizes incentives and rewards? Is this something that requires a legislative fix, or is this something already fully within the discretion of the agency, or would legislative ideas help prompt the agency in that direction?

Yeah, I think I think it's already existing in the law. This is something as Jake Li has mentioned that the agency could do today. I remember having a conversation a couple years ago with a with a chief scientist at the Fish and Wildlife Service, and we were talking about legislation that could potentially encourage this or nudge this, and he said, "But we can already do this." And I said, "Well, the point is you don't already do this." And so maybe there would be legislation needed to move this along, but it is within the authority of the agency to use this creative way to move the 4(d) rule.

Thank you very much. Thank you, Mr. Chairman.

Senator Capito.

Thank you. Thank you, Mr. Chairman. It's nice to be here, and thank the the folks on the panel and the witnesses. Certainly coming from a state like West Virginia, we're very, as every state is, familiar with the Endangered Species Act and some of the pluses and some of the minuses, because in some in some cases, the ESA has at times been used to unnecessarily kind of slow down progress, and particularly in our timbering and our energy industries, we've had and actually some of our construction on our on our highways going through the mountains. And it's it's inhibited our ability to really build or build, I wouldn't even say build quickly, like I'm talking like decades here. And so those impacts are felt everywhere. So I guess I was really pleased to hear I have heard all three of you say at least several words. Seems like there's a a lot of agreement on the panel on directions that can make for improvements to alleviate some of these, but also help us understand how the process is. I am curious to know, I think Mr. Yablonski, you mentioned that the states could play maybe a bigger role here. Could you elaborate on that a little bit and what kind of capacities you I know you live in Montana, but you you were in Florida, so you've been in several different states.

Yeah, I'm a former former state wildlife chairman in Florida, and so I'm a little partial to states being able to manage wildlife. There's something like 200,000 species, domestic species in North America. The states probably manage 99 percent of those species, and they do it pretty well. But I think there's another provision in the ESA under Section 6 that allows for ESA cooperative agreements that could be used more robustly. And essentially, think of it as how we delegate authority under Clean Water Act, Clean Air Act to the states. The states have within the statute it lays out sort of five requirements that the states would have to hit in order for the Fish and Wildlife Service to shift management of species, oversight of species, take permitting of species to the states. And I think in a state like Florida, all five of those are very doable. Some of those are like habitat acquisition programs and public process and a and an agency to actually do this.

Why do you think that's not occurring? Why do you think that is there lack of trust that the states don't have the capacity or they're not going to oversee properly, or why is it still so federalized?

Yeah, I would say it's part of it's a mindset at the agency itself. It's hard to just kind of shift something directly back to the states. The other is litigation. We actually tried this in Florida in 2012, and the service at that time, actually under President Obama, actually agreed to do it, but we were the state of Florida was sued, the agency was sued right away, and Florida ended up backing off of it because of the litigation. I see.

You know, one thing I've always been curious about, the northern bat, the northern long-eared bat, I think, I think it's anyway, it has a white-nose syndrome. It has an illness that's making it the species die out, yet it is on it's on on a list that you have to watch it. How do you see that as conflicting when you have a species that has a an inherent disease that's killing it, and it has nothing to do with the development around it or the or the environment or the habitat or any kind of activity? How how do we balance that? Because this this has been an issue for us. And I don't know, Mr. Li, you're shaking your head. Is it Li or Li?

Li.

Li. What would you what would you say about that?

Thank you for that question, Senator Capito. Actually, this is very close to me because one of the last things I did at the U.S. Fish and Wildlife Service was to sign a policy that gives flexibility in that very situation. The example there is that we know the northern long-eared bat and many other bat species are listed because of white-nose syndrome. If it weren't for white-nose syndrome, they wouldn't be on the ESA list at all. So the policy we signed was actually to allow, in this case, wind energy companies to fund mitigation measures for white-nose syndrome as a way to meet the ESA requirements for mortality from wind turbines. So that's an example of flexibility because you're actually funding the most important needs of the species, i.e., white-nose syndrome, even though your take is actually from something completely different, right, which is wind turbine operations. So that gives a lot more flexibility to energy companies.

Well, I mean, I think there has to be some flexibility here, because in the end, even if the bat is still suffering from a terminal terminal disease, it's it's going to naturally the habitat, you know, the numbers are going to go down whether it's getting hit by a windmill or not. And and so I don't know, I've always kind of wondered about that, like how do you solve that problem? I'm sure if we went back 200,000 years ago, there's species that are no longer here because of the evolutionary nature of of of life, I guess. So the other question I'm going to ask, well, I'm out of time, so I'll let well, I was going to ask because I'm from more the East Coast, Senator Whitehouse is more East Coast, you guys are Western, California, Midwest. What do you see in terms of differences as we go? Just really generally, is there a big difference in terms of looking at species compared to the East, Midwest, or West? Because I've always thought it's more of an issue out West, maybe it's because there's more federal lands. I don't know. Does anybody have an answer to that?

I think it's interesting, one of the commonalities are large charismatic species. Whether I was in Florida dealing with Florida panther and manatee, woke up the next day I was dealing with grizzly bears and wolves out in Montana. They tend to get all the attention and suck the oxygen out of the room, but it also drains a lot of the resources of the agencies for the agency where some of these species should be coming off list and we should be putting resources towards other species that really need it.

Okay. Thank you. Thank you, Mr. Chair.

Senator Whitehouse.

Thanks very much. I have in mind a sort of a graph that shows the biomass of mammals on planet Earth, and the whole graph is filled with images of cattle and of goats and of sheep and of horses and then all human-managed livestock. And then down in the corner is this tiny little remaining quadrant for all other living species. We're really running wildlife off of the planet, and that I think creates a real value to avoiding unnecessary extinction of species that exist. And Mr. Li, how successful has the ESA been at protecting species when they're listed?

Yeah, I think it's been incredibly successful. I think there are hundreds of species that would be extinct by now without the ESA having been in place over the last 50-plus years. You think about islands like Hawaii that are at the epicenter of extinction, and without the funding and the protections that the ESA, I think we would have lost many, many species in states like Hawaii.

And there's a tendency, and it's a particularly acute tendency in this building, to only see value in money and to look at any question in terms of how it can be monetized. It's hard to monetize the extinction of a species. How should we take into account just the moral and environmental value of not crushing that remaining tiny corner of wildlife that exists on our planet through extinctions if there's no immediate monetary gain to somebody from that?

Yeah, it's a great question. I personally think there's a lot of intrinsic value to all of the species that are protected under the ESA. And there are also, you know, many of you have heard this before, the next possible cure for a disease, right, in a plant or an insect or a fish that scientists have yet to discover. So even if there's non-monetary value, I think there's utilitarian value to humans from a lot of these species that we have yet to uncover.

Yeah, and even that, you know, is monetizable. I think there as human beings, we can appreciate that there's value even beyond that. I went to Delaware Bay some years ago to witness the arrival of the red knot, which is a little bird that comes to Delaware Bay for the smorgasbord of crab eggs that are available to it. And the remarkable thing about that is that it has flown up from the tip of South America, kicked off from Brazil, flew over the water from Brazil all the way to Delaware Bay. It's such an arduous flight that the bird actually has to physically morph during the course of that flight in order to make that journey. I flew down to Brazil for the COP in a jet plane, and this little bird has to do it on its own. And so it's kind of one of the miracles of nature that a creature can do this. And if we screw things up so that those crabs aren't there when that bird lands and the red knots all starve when they need to be feasting in Delaware Bay because the timing has gone askew because we've warmed things up and screwed things up, I'm prepared to argue that even if it makes exactly zero dollars difference in any person's life, just to know that there's a species out there that does that kind of a thing, you know, we kind of have to defend that stuff. So I hope we can steer away from the monetization fetish that currently shadows our environmental protection. And I'm about out of time, so I'll leave it there. Thanks.

Great. Thank you very much, Senator Whitehouse. We're going to go ahead and do another round of five-minute questions. So I will go ahead and kick us off here. The Flood Control Act of 1944 authorized the Army Corps of Engineers to develop and manage the Missouri River system for several purposes, including flood control, navigation, power generation, and water supply. After the Endangered Species Act was enacted in 1973, the way the Corps operates the river changed significantly as the agency began incorporating species protection requirements into its management decisions. When species such as the pallid sturgeon and piping plover were listed, the Corps was required to modify certain river operations to support habitat for those species. For example, adjustments in flows from Gavins Point Dam has been used to help create and maintain sandbar habitat used by the piping plovers for nesting. In addition, river engineering features such as dikes and habitat structures have been constructed to improve spawning conditions for the pallid sturgeon. Manipulating river flows and altering river structures can have complex consequences, and those decisions must carefully weigh both ecological goals and the potential risks to people and infrastructure. These changes can protect species, but sometimes at the cost of human life when we have a terrible flood event such as we have had on the Missouri River in the past. Mr. Riley, how should the Corps balance its flood control mission with species protection requirements under the Endangered Species Act?

Well, they're in a tight spot, in that they have to balance all of those items: flood control, habitat, water supply together. But one way to do that is to recognize that system has to deliver all those, and that you have to be able to measure and understand the metrics of success to what you do. I worked personally on a design project for some restoration that was part of the Corps' mission, and that restoration was wiped out by the first big flood. So trying to manage those different dichotomies and understanding that there's a lot of cost involved, but you have to balance everything together and do that within the landscape which we have. We need the dams for flood control. We need to have some ability to protect our farmland and our ranches, especially along the Missouri River, and as you well know, Senator, our devastating floods from 2011, 2019, it's hard to come back from those things. So measurable success from the biological standpoint is really important.

Well, let me dig into that a little bit more. Can you speak to the benefits and disadvantages of habitat modifications if these changes are producing measurable recovery metrics? So again, getting back, you talked about measurements. What was your experience with the Corps as far as measurements with regard—I'm going to make something up, but you can talk to anything you like—but think about the pallid sturgeon and its breeding habitat. Did the Corps have good measurements when it was creating these programs in place, and were they able to measure what happened after those big floods? Just tell me a little bit about kind of your experience with regards to those types of metrics, and were there other metrics besides just species recovery, but also like flood control and things that the Corps used?

Yeah, well, there's a lot of data they collect for the pallid sturgeon, and my own personal opinion is they've been around for a long time, the pallid sturgeon, not the Army Corps, and they've figured it out to be able to survive on their own. You don't see, after a large flood, a bunch of pallid sturgeon gasping for air like carp in a farm field. So they know when to move and when not to be there, and I think the data shows some of that element. But we continue to collect data, but I'm not sure if we're really deciding what we're doing with that data. I'm going to give you one example. The Platte River Recovery Program has a connection to pallid sturgeon. The connection is this: that that program, which is really defined in the Central Platte Valley of Nebraska, that any action taken for water shouldn't impact downstream pallid sturgeon. Now, I worked on a study that looked at this, and in my own personal opinion and the science, the connection isn't there. But yet we go on to try and make a connection. So I think there's a time and a place, and I think Mr. Li said it, where we need to move on when we have the defined science and say we're good enough. And that's a place where pallid sturgeon isn't being affected by at least the PRRIP program, in my opinion. So let's move on and take it off of that system.

So what you're saying is, look, you think that what the science was showing is that what was going on in the Platte River was not impacting the pallid sturgeon in the Missouri River. So stop looking there for the impacts and focus on the things that are going on in the Missouri River about how it can impact the pallid sturgeon. Is that a fair summary?

That is a great summary.

Great. Thank you very much. Senator Schiff.

Mr. Yablonski, in the north and east of my state, I'm hearing increasingly from constituents who are concerned about gray wolves. That they're seeing more and more gray wolves. They've got children outside at play. They're losing horses and cattle and pets to the wolf population. How do you approach the need for the community to be safe and to be able to protect its investment with the desire to make sure that we protect the species? How should we approach this? How have you approached the issue?

Yeah, thank you, Senator. You know, the gray wolf has actually been a real recovery success story. I'm from the Greater Yellowstone Ecosystem area, that's where some of the initial wolves were transplanted from Alberta, Canada, and they've thrived there and they've dispersed. We started with something like 1,000 wolves in America and we're up to 6,000 wolves right now. But as those wolves move along and as you recognize, there are costs that come with that, and the cost oftentimes relates to conflict, especially with cattle ranchers and livestock ranchers. Credit to organizations—one of the models we've picked up on is something Defenders of Wildlife, when the wolves were reintroduced in Yellowstone, they stood up a private compensation fund to offset depredation of cows and sheep and did a very good job monitoring that. We think that's as species start to move out, two things: one, we should try to offset the cost that that imposes to landowners who are providing the habitat for species as they move. And then the other thing is, as species disperse, they may have—like in the Rocky Mountain West, we have—we're delisted in Wyoming and Idaho and Montana with the gray wolf. But as those wolves start to move into other states, which is successful, they all of a sudden get Endangered Species protections, and it sort of flips the incentives a little bit. We should be encouraging that rather than creating a situation where all of a sudden there's strict regulation if wolves are moving into Washington or Oregon or Utah.

And Mr. Li, first of all, apologies for mispronouncing your name. What are your thoughts on the same subject?

Yeah, so I think some overlapping sentiments. In particular, I want to underscore the importance in your state with the California wolf situation of adequately staffing the human-wolf coexistence work. My organization thinks that's really the most important thing to do. So examples include at the state department level, conflict reduction specialists to work with landowners, in particular ranchers, on conflict reduction tools like fladry. Another example would be the use of range riders in large allotments to help reduce depredation of wolves of livestock. So these are all things that we actually know how to do. It's not rocket science. And the unfortunate killing of the four wolves last year, we think was largely because there wasn't enough funding and there wasn't enough deployment of these intervention tools early on. In other words, we know what to do, we just need a bit more money to actually get the work done immediately.

And Mr. Li, you mentioned in your testimony that the Fish and Wildlife Service has an online tool that helps with endangered species consultations, allowing projects to get an answer in minutes regarding whether they need to go through a more formal consultation process. How can this tool be replicated? How can we make use of AI to expedite ESA reviews without sacrificing environmental safeguards?

Yeah, great question. So this tool is called IPaC, and right now it handles about a quarter of all the Section 7 consultations that I mentioned, and there are about 10,000 Section 7 consultations every year. So it's an enormous workload for the U.S. Fish and Wildlife Service. And right now, IPaC actually streamlines a whole bunch of Section 7 processes. So for example, if I'm a project developer, I can go into IPaC, I can enter where I want my project to occur, I can enter some of the details of the project, and for a lot of the projects, IPaC in 15 minutes will tell me whether I'm done with Section 7 consultation or I actually need to talk to a service biologist. So every year, there are tens of thousands of projects that get resolved really quickly through IPaC like this. And so that's why I mentioned earlier, it's an enormous return on investment because if we can continue building out IPaC with more information on more species and more types of projects, we can get a lot more project developers using IPaC and taking advantage of this expedited online process. And I can imagine in a few years using AI, for example, to go through all of the mitigation measures in IPaC, right, and to figure out, you know, what is the most cost-effective and biologically effective set of measures that people can cut to the chase of. So all of that information I think is there. We need a bit more capacity to actually just do the work.

Thank you. Thank you, Mr. Chairman.

Senator Whitehouse.

On the subject of resources for enforcement of the Endangered Species Act, what has happened during the Trump administration to those resources? I've heard stories of as many as 530 staff biologists either fleeing or being thrown out by the—what I call the doggy boys—or being fired and driven out of the agency. What's your report on what the staffing and funding and morale of the agency looks like right now?

Yeah, it's a fairly dismal one. I'll point to myself as Exhibit A of those hundreds of people. I believe I was illegally pushed out of the U.S. Fish and Wildlife Service at the start of this administration, and the program I used to run, Ecological Services, which oversees ESA, has lost nearly 25 percent of its staff. This is hundreds and hundreds of people. And you can't have staff losses like that overnight without huge morale hits to the very, very difficult work of implementing the ESA, right?

A lot of empty desks to walk by on your way to do work that the White House doesn't seem to want accomplished in the first place, doesn't seem to appreciate at all.

Yep, exactly. And yet there is the expectation to expedite permitting too, right? So you can't have both at the same time. You can't have staff that are really sort of downbeat and then expect them to do the most brilliant work when, you know, again, 25 percent of their colleagues just disappeared overnight. So that's a real issue. Again, I think that can be addressed with more investments in how the Service does its work.

And we were talking about wolves a moment ago. I commend to anybody who's watching this a maybe four- or five-minute-long YouTube video that you can find quite easily by searching "When Wolves Return to the Yellowstone." And it's quite a beautiful piece of film about what happens when a top species, a predator species, returns to an environment where it had not been and the cascade effect of that to the great benefit of the Yellowstone River environment. It's worth four or five minutes of your time to watch that, and of course you see the same thing with sharks returning to reefs and other apex predators being allowed to rebound. So thank you all very much.

Great. Thank you very much, Senator Whitehouse. I take it since you didn't use up all your time, you need to take off, is that accurate? Okay. Well, great. Thank you very much for being here, appreciate it. Well, apparently I think Senator Lummis is coming, so I am going to stall for just a little bit longer and give her a couple more minutes to show up really quickly. I'm going to ask one last question, and then if Senator Lummis gets here, we'll take her questions and then we'll conclude the hearing, unless there's another Senator who shows up and wants to ask questions. We have seen situations where local stakeholders develop practical solutions to protect species, but regulatory uncertainty makes it difficult to move forward. In Nebraska, Lake McConaughy is one of the state's most popular recreational attractions. This lake serves as a habitat for the piping plover, which nests along its shoreline, and the species is protected under the ESA. Because water levels fluctuate with inflows, rising water can sometimes flood nests during breeding season. Local dam operators have worked to protect the nests by marking them and carefully moving protective boards as reservoir levels rose, allowing the birds to continue nesting while preventing the nests from being submerged. However, there were initial concerns that these actions could violate federal rules because approval had not been formally granted. Even though the approach was ultimately allowed, the uncertainty created confusion and concern for those trying to do the right thing. This example highlights the importance of clear guidance, better communication, and greater flexibility so that practical on-the-ground conservation solutions can move forward without unnecessary delays or threats of enforcement. Mr. Yablonski, have you seen other examples like this in the Service, and how can we better ensure collaboration among our state and federal stakeholders?

Yes, thank you, Chairman. Yeah, specifically with grizzly bears where I come from, there's been some uncertainty with how policy is applied. As we know, grizzly bear populations in the Greater Yellowstone Ecosystem have rebounded dramatically and do warrant delisting. We were at the time of the ESA something like 100 bears and now we're over 1,000 bears there, so the science is pretty settled, the agency recognizes the science is settled. And at the same time, there's another species of grizzly bear up in the northwest part of the state, the Northern Continental Divide Ecosystem, and what has been happening is those bears have been recovering very successfully as well, over 1,000 bears there. So both of those populations have actually met their recovery goals and should be delisted, but what has now happened, and it was just a matter of about a year ago that this happened, is that those two populations have been creeping closer together and started to intermingle between the two. The service made a decision not to delist either of those grizzly bear populations because what they said is those distinct population segments were no longer distinct because they had been merging. So in other words, we were being penalized for too much success because the bears were growing too much, dispersing too much, and then becoming its own distinct population segment. So I think that uncertainty sends a wrong message to landowners and states that, wait a second, we were told if this distinct population segment reached this recovery goal we could have a delisting and now you just changed the rules of the road.

Mr. Riley, did you have any thoughts on this? Again, just thinking about that piping plover example.

Yeah, Brian makes a great point that the goal line can't change. I mean, this is the frustrating component when we work on these success programs and I'll use the Platte River Implementation Recovery Program as an example. We're coming up on another increment. We've done a lot of great work, there's been a lot of recovery, the least tern's been delisted. The plover we're doing great work to protect it. Whooping cranes are more than we've ever had. Again, in my opinion, the pallid sturgeon shouldn't be a player in that program. But I think as we come up and start to negotiate this next round, if there is one, it feels like there's a lot of pressure to add more, more water, more land, more species. And when you have a collaborative effort, it's really difficult for those that are participate, the water users, the stakeholders, to know what they're getting into if the goal line is going to change. So I think that's something where we need to stick by those, once you've reached a certain limit, a certain recovery, recognize that that's it, we've done our work and that we should be in a maintenance level for those programs.

Mr. Li, I know Senator Lummis is here but I'm going to continue on for just a moment. Getting back to the example I used of that piping plover and putting up the boards to protect their nesting sites without having the okay from the Fish and Wildlife. What, you were there, what can we do to, you know, again, here we got the power company trying to do the right thing to protect the nest, you know, within the spirit of it but not having the official sign-off. Is there anything we can do to make sure that collaboration is such that they don't have to worry about an enforcement action afterwards to do the right thing to be able to protect that?

Yeah, it's a great question. I'll say, you know, I can imagine the service adopting more policies and guidance that streamline approval of these positive conservation actions. I know the service has been trying to do this for over a decade now in various regional offices and, you know, it can only move so fast, right? So as more and more of these examples come up, I think the service is aware of them and can think about nationwide guidance, for example, in situations like this to say if someone's trying to do something good for a species and it's a positive benefit for the recovery, let's figure out a way to streamline the approval or almost make it automatic.

Great, thank you. Senator Lummis.

Thank you, Chairman Ricketts, for assembling the subcommittee today, and thank you witnesses for being here to talk about the Endangered Species Act. Being from Wyoming, I know how helpless people can feel when Washington makes decisions to list a species as endangered or threatened and then that species never comes off the list. In my office, we call those zombie listings because even if recovery goals are met, they remain on the list. A perfect example is the grizzly bear. You know, the original goals when grizzly bears were listed back in 1975 was a target of 70, excuse me, 500 bears. And today we have over 1,100 grizzly bears and the frustration of Wyoming ranchers and individuals is heightened. Every year, people are killed by grizzly bears in my state, every year, because they don't fear humans. So my office gets videos of grizzlies chasing ranchers while they're working their cattle. So I have a bill, it's S. 315, the Grizzly Bear State Management Act, to ensure that state expertise drives species management moving forward, and I still think for grizzly bears that that's the appropriate approach. Then I want to pitch another bill that I have, and it's so simple it just changes the name of the Endangered Species Act to the Endangered Species Recovery Act because our focus should be on recovery, not on listing, on recovery. And another issue that's always kind of vexed me over the years with regard to the ESA is that certain science was viewed as paramount and science that was generated at the state level was tended to be ignored. So that's where I want to take my first questions. And I want to pose these to Mr. Riley and Mr. Yablonski. Welcome, gentlemen. Do you believe all the best available science should be included in ESA listing and delisting decisions? And do you think that's currently being done?

So I'll start off. And I think in general there's an appreciation to take into consideration what science is there. But I'm going to give a very specific example in my understanding of this issue in Nebraska. There's a power district near Columbus, Nebraska, that recently had to go through a biological opinion and had an order issued in the last decade or so. And there was science that the applicant had put together that clearly showed there was a concern about river temperatures in the Platte River. Clearly showed that there was no statistically different temperature downstream so that there wouldn't be a challenge to that. Now the service in the end disregarded that data, that local science that was conducted, and decided that there should be a temperature differential. And what this did was give the Fish and Wildlife Service, and this is my opinion as a former director of the state water management program, gave them their own water right to decide who and what got water. Now that was a mistake. The first time that this rule was then implemented because temperatures downstream were too high, this owner of the system was not able to divert water. Water went downstream, that was supposed to make everything better, and in reality it killed many, many fish because the temperature changed the wrong way. So the study was already done by the applicant to show that that would be the case, but it was disregarded in the final biological opinion and the rule that was set up.

Was the final biological opinion written by employees of the U.S. Fish and Wildlife Service?

That's my understanding, yes.

Thank you. Mr. Yablonski, any thoughts on this?

Yeah, and to the credit of the agency, sometimes they get the science completely right. I think in the case of the grizzly bear, the science is spot on in prior to delistings of the grizzly bear, of the Yellowstone grizzly in particular. Those have really been sort of bipartisan science-based delistings. You've had both administrations from both sides of the aisle moving that forward. But what happens is there's a distinction between biological recovery and political recovery. And biological recovery is when the science says it should come off the list, which is as in the case of the grizzly bear today. Political recovery is when special interest groups deem it acceptable to come off the list and we haven't gotten there yet. And oftentimes the agency will move forward with the states with a science-based decision, but then you have a judge replacing his or her own opinions with the actual science that the agency's concur on.

Great point. I wonder if it would be advisable once the science is set on a recovery goal, that as soon as that recovery goal is hit and then maintained for a period of a few years, that a species would automatically either drop from endangered to threatened or drop off the list entirely just as a ministerial function. Mr. Li, what do you think of that idea?

So I think the rulemaking process that's currently in place is still necessary, in particular to give states and the public an opportunity to comment. Because a lot of times the service gets the analysis right and sometimes, you know, it needs additional data from states and from others, right? So the rulemaking process is actually what allows members of the public to provide additional information that the service may not have. So I think it's really important to retain that rulemaking process.

Well, Mr. Chairman, would you indulge me?

Absolutely.

Thank you. So what are the highest priority changes that could be made to improve the credibility of the act? And I pose that to anyone who wishes to take it on. Yes, sir.

Thank you, Senator. I go back to something that actually Jake and PERC and Defenders probably agree on, which is, and you had mentioned this in your comments, can we, can we structure sort of metrics where as the states and landowners meet those metrics, flexibility and management slides more and more in their direction so that eventually as all the metrics are met, because recovery is the goal of the act. Like that's, it's not funding, it's not staffing, it's not ideology, it's recovery. Like that's what we should always look at. And administrations come and administrations go and budgets go up and budgets go down, but that recovery number's been stuck at 3 percent for an awful long time. So we have to change the incentives here. We have to do something different. We can't be doing the same thing we've been doing for 53 years. And I think taking the 4(d) rule that would manage species and having clear goals for states to meet and as those states meet those goals, more management shifts to them and at the end of the day, to your point, it would essentially be delisted because you would get there, you would hit all the checkmarks and be there over a period of time.

Thank you. Mr. Riley, any comment on this?

So, Senator Lummis, I appreciate your comment on maybe changing the Act's name. One of the successes for the Platte River Recovery Implementation Program is that it's just that. It's not a restoration program. We're not trying to restore. We are trying to recover, and we've seen great work in that direction through the collaboration and interest of stakeholders and the federal government and other folks involved, including NGOs. So I think focusing on that is really important. And when you get to that level and achieve it, your comments on checkmark, let's make it a maintenance program. This is exactly where PRRIP is very close, the Platte River Recovery Implementation Program, to being a maintenance program. And for your state, who participates in it, I think some of your stakeholders would agree that we're very close and we need to know that the goal line's not going to change on the program, that once we achieve that, we're there and we can maintain it and do the work that it takes to maintain the program and not change it.

Well, thank you. Well, thank you, Mr. Chairman. And I want to thank our witnesses for bringing your expertise to bear today. Thank you.

On that last question, Mr. Li, did you have any other comments about the credibility?

I'll just say this very briefly. I think about the next 10, 20 years of the Endangered Species Act and what types of issues may come up in hearings like this. And I think about how to get ahead of some of the challenges. I expect that we're going to need to really invest in how to get infrastructure development and endangered species conservation right. If I think about all of the energy, the transmission lines, the highway projects, the housing development that's going to happen over the next one to two decades, there will be tension with recovering endangered species. So I think if we can really invest now in figuring out how to get mitigation right, how to, for example, conservation banks, where we can have actually private companies invest in the recovery of endangered species as a way to offset unavoidable impacts from energy development. I think that's one of the low-conflict ways that Congress can actually help the Service, help the American public get infrastructure done faster and better. So there's a number of ideas around Endangered Species Act authorization and mitigation that I think really would help lower the temperature over the next decade.

Great. Thank you very much, Mr. Li. All right, with that, no further questions, I would like to thank our witnesses and all my colleagues for participating in today's hearing. Senators who wish to submit written questions for the record have until 5:00 PM on Wednesday, April 1st to do so. The witnesses' responses to those questions are due back to the committee no later than 5:00 PM on Wednesday, April 15th and will be submitted for the record. With that, this hearing is adjourned.