July 23, 2024
Chairman Cliff Bentz
U.S. House of Representatives
Committee on Natural Resources Subcommittee on Water, Wildlife, and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Ranking Member Jared Huffman
U.S. House of Representatives
Committee on Natural Resources
Subcommittee on Water, Wildlife, and Fisheries
1324 Longworth House Office Building
Washington, DC 20515
Re: Legislative Hearing on H.R. 7544, H.R. 8308 & H.R. 8811
Dear Chairman Bentz and Ranking Member Huffman:
The American Fisheries Society (AFS) respectfully submits the following information in response to the July 9, 2024 legislative hearing of the U.S. House of Natural Resources Committee Subcommittee on Water, Wildlife and Fisheries on H.R. 7544, H.R. 8308 & H.R. 8811.
AFS is the world’s oldest and largest professional society of fishery and aquatic scientists and managers. AFS seeks to improve the conservation and sustainability of fishery resources and aquatic ecosystems by advancing fisheries and aquatic science, promoting the development of fisheries professionals, and promoting the use of best available science in policy-making efforts.
AFS supports the America’s Conservation Enhancement Act (ACE), particularly as it relates to re-authorization of the National Fish Habitat Partnerships. The society also supports dedicated funding for state fish and wildlife agencies, as provided for in the Recovering America’s Wildlife Act, S. 1149, to prevent Endangered Species Act (ESA) listings and to recover listed species. AFS has concerns with several proposed changes to the ESA as provided in the draft discussion bill that we explain more fully below.
America’s Conservation Enhancement Act
AFS supports the ACE Act, particularly as it relates to re-authorization of the National Fish Habitat Partnerships. NFHP is a voluntary, non-regulatory, and locally driven program that has funded more than 1,300 on-the-ground aquatic habitat improvement projects since 2016.
AFS urges swift, unanimous passage of the ACE Act and supports funding levels for the NFHP, as authorized in the Senate-passed S. 3791.
AFS Support Recovering America’s Wildlife Act
AFS supports dedicated funding for imperiled species conservation as called for in the bi-partisan Recovering America’s Wildlife Act (RAWA), S.1149, as introduced by Sen. Martin Heinrich and Sen. Tom Tillis. Populations of many species are in decline and at least 40 percent of the nation’s freshwater fish species are now rare or imperiled. Recovering America’s Wildlife Act would be the only federal conservation program that provides sustained funding to tribal nations and state fish and wildlife agencies for the proactive conservation of at-risk species and populations.
With increasing habitat loss and evolving threats as a result of a changing climate, state and federal agencies will need adequate funds to address the biodiversity crisis. Currently, funding only covers a fraction of the need. As a result, states must focus on very few species, with many more at-risk and heading towards endangerment.
The Recovering America’s Wildlife Act would provide funding to implement three-quarters of every State Wildlife Action Plan, state-led, congressionally mandated, science based blueprints for imperiled species conservation. Through actions such as reintroduction of imperiled species, conserving and restoring important habitat, and fighting invasive species and disease, states would have the ability to significantly reduce the number of species in decline and prevent these species from needing protections afforded under the ESA. Without significant funding to address these declines, many more species will qualify for protection under federal and state endangered species laws, vulnerable species are more likely to progress to more dire conditions where regulatory actions are required, time is short, and litigation and community resistance impede recovery.
AFS Supports a Science-Based, Collaborative ESA
The ESA is a powerful science-based tool for recovering America’s fish and wildlife. The law has been the catalyst for successful delisting or down listing of many endangered fish, which took decades of planning and commitment by interdisciplinary teams of individuals. Under the current structure of the ESA and its regulations, including high levels of private, state, and federal collaboration, several species of fish have recovered sufficiently to be delisted (Okaloosa Darter, Snail Darter, Borax Lake Chub, Foskett Speckled Dace, Modoc Sucker, Oregon Chub). Four of these six species have ranges in Oregon, a state that has invested revenue in watershed conservation and restoration through matching grants. Thus, delisting takes investment of collaborative teams, resources, and most importantly, time for imperiled populations to recover once threats are reduced and habitat is restored as illustrated in the following examples.
The Borax Lake Chub is endemic to Borax Lake in southeastern Oregon and was listed in 1982 and delisted in 2020. Geothermal energy development, water withdrawals, livestock grazing, and recreational vehicles threatened its habitat. After listing, habitat was protected by land leases and purchases by The Nature Conservancy from willing private landholders, cessation of irrigation diversions and livestock grazing, fencing, and passage of the Steens Mountain Cooperative Management & Protection Act, which limited private lands development in the basin (Bangs et al. 2020).
Historically widespread in off-channel habitats along the main stem Willamette River, the Oregon Chub was listed in 1993 and delisted in 2015. Population declines were caused by habitat losses from channelization, dams, wetland drainage, and non-native fishes. The Oregon Department of Fish and Wildlife guided recovery along with the Oregon Chub Conservation Agreement and Oregon Chub Recovery Plan while safe-harbor agreements with private landowners and land purchases by tribal governments enabled success. Today, chub occur in 59 previously undocumented populations and 19 introduced populations; half the latter are on private property (Hughes et al. 2019).
The Foskett Speckled Dace was listed in 1985 and delisted in 2019. Livestock grazing and groundwater pumping threatened this fish found in a single eastern Oregon spring/wetland system. The Bureau of Land Management obtained the spring and its riparian zone via a land exchange with private landholders and livestock were excluded from most of the habitat thanks to private, state, academic, and federal participants and a Cooperative Management Plan (USFWS 2019).
The Modoc Sucker is endemic to the upper Pit River basin of northeastern California and southeastern Oregon. It resides in small streams that traverse nearly equal amounts of public and private lands. It was listed in 1985 because of habitat losses from livestock grazing and delisted in 2016 following riparian fencing and private/state/federal cooperative land management agreements.
Best Available Science
Decisions regarding species recovery and delisting should be based largely on science. However, the proposed bill creates a new definition for what can be deemed scientific information. This change would prevent the best available science from guiding species management. Many peer-reviewed papers are published in journals that require a subscription to access. Limiting information for listing decisions only to information available online would potentially prevent peer-reviewed literature that is not open access from being used to substantiate decisions. In addition, industry’s commercial data is not always available online and may be proprietary. Finally, commercial data on fisheries catch may not be accessible outside of fisheries commission records for conservation reasons. The proposed changes in the draft discussion bill may result in best available science being used for decisions and could include data that may not have been vetted through peer review or internal quality control from the state, tribal, or county governments.
Definition of Habitat
Habitat loss is one of the leading factors in species population declines in the U.S. In fact, habitat loss is estimated to impact more than 80% of known species and is the greatest single threat to species existence (Hogue and Breon 2022). Conservation experts urge lawmakers and the public to match the magnitude of habitat destruction with resources and policies great enough to reverse these trends (Hogue and Breon 2022). In passing the ESA, Congress recognized that listed species depend upon entire ecosystems. Indeed, many ESA petitions and listings have identified the loss of useable habitat or access to habitat as the reasons for the decline in species (e.g., increases in water temperature, lack of water in streams and rivers, poor water quality, and non-native invasive species have imperiled forty percent of all freshwater species) (Su et al. 2021).
Under the draft discussion bill a new definition of “habitat” applicable for purposes of designating critical habitat would exclude currently unoccupied habitat. This new definition would be counterproductive to delisting. Increasing healthy habitat would be more likely to lead to delistings, a shared goal amongst conservationists, developers, and the general public. The breadth of the definition of critical habitat is of particular importance for fisheries management because successful conservation efforts for species protection and recovery require holistic watershed approaches (e.g., Native Fish Conservation Areas like the Little Tennessee River; Willamette River for Oregon Chub) and partnerships across state, federal, and non-profit groups and landowners. A narrower definition of habitat which excludes originally occupied areas would limit funding and opportunities to expand populations into those unoccupied areas and work towards recovery.
Therefore, based on the knowledge of imperiled species experts within our membership, we believe that any definition of habitat within the ESA needs to be broad and flexible enough to account for a wide variety of situations to ensure that the ecosystems upon which listed and vulnerable species depend are conserved. Such situations may include a species expansion into habitats not currently occupied, through processes such as, but not limited to, colonization from source populations, response to climate change, habitat restoration, and species reintroductions. A broader definition allows for more tools in the conservation ‘tool box’ as well as meeting the needs of recreation and healthy economic growth.
The draft discussion bill would redefine the term “foreseeable future,” which is important because threatened species are defined under the ESA as species likely to become endangered within the foreseeable future. The exact length of this timeframe can be mathematically predicted given enough information; however, these predictions will be variable by species largely due to vast differences in generation times and life cycles. Sturgeon, for example, are one of the most imperiled vertebrate groups on the planet with more than a dozen of these species currently ESA listed. Some sturgeon species can live more than 100 years and may not reproduce for decades. Other species such as darters, a group only found in North America, may only live several years. Any effective definition of “foreseeable future” must therefore encompass biological differences between species for us to gain a greater species specific sense of population viability and achieve delisting. A narrow definition of foreseeable future might have the unintended consequences of not allowing species with shorter generation times to be delisted when enough population information projects sustainable levels.
Similarly, AFS recommends that the definition of habitat consider areas that may not ‘house’ the species but are critically important for energy and resource flows that maintain ecosystem integrity. Examples of this include the karst topography that is critically important for species like the Alabama Cavefish and Ozark Cavefish, the upstream inputs that are important to species like Pygmy Sculpin, springfish, and pupfish, or the headwater habitats necessary for imperiled species downstream like the Truckee River flows for the Cui-ui and Lahontan Cutthroat Trout in Pyramid Lake, NV. Those basin-extent habitats are particularly important for species migrating great distances between spawning and rearing habitats, such as commercially important salmonid stocks, over half of which are at risk of extinction (Nehlsen et al., 1991; Frissell, 1993).
For example, the pupfish, killifish, and dace endemic to the Ash Meadows National Wildlife Refuge rely on spring seeps in a small geographic area. Prior to restoration, the drained and altered springs could no longer support those species. Yet, those springs needed to be restored to allow these species to be self-sustaining. Under the proposed change to the law, since those areas would not have been suitable for the fish to thrive, they could not have counted as critical habitat for those species. Listed species whose habitat has been altered by dams such as salmon, sturgeon, minnows, and darters and for wetland-dependent, species would be negatively impacted by the proposed change to the law for this same reason.
In the face of the climate crisis and land use change, fish and wildlife managers must consider how species will move outside of known historic ranges. Many species are listed because the necessary attributes to support the species do not exist in, or cannot access in habitat that was suitable in the past and in parts of their historic distributions. For example, bull trout spend time in larger rivers in more downstream locations, but their distributions are shifting as some sections of large rivers warm. In some portions of the Clark Fork River, warmer waters create thermal barriers that prevent bull trout from getting to the cold tributaries when it is time to spawn. Identifying areas where bull trout could thrive, but may be absent due to these thermal barriers can help managers translocate populations to areas where they can thrive, whether the streams previously held bull trout or not. Likewise, to delist the Rio Grande Silvery Minnow, populations are required in the Pecos River and the Big Bend National Park reach of the Rio Grande, which are part of its historic range. However, these reaches do not presently have appropriate environmental conditions to support the species. Though these reaches are not designated critical habitat for this species, failing to consider them habitat in a broader context does not make sense if the management goal is to delist the species, which will need rehabilitated habitat to allow self-sustaining populations.
AFS supports Candidate Conservation Agreements (CCA), but they should not be mandatory.
This draft discussion bill would make the CCA program weaker. The threat of listing builds support for addressing declining species with Candidate Conservation Agreements. The additional exemptions proposed in the draft for a listed species with a CCA would ultimately remove the very protections that reduce the probability of extinction.
By the time a species declines to the point of listing, a CCA is too late to be effective. The CCA program can be summarized as a carrot and stick model. The ability to avoid listing a candidate species with habitat restoration to improve population status is the carrot. The threat of listing is the stick. If a species moves from candidate status to listing, then the proposed changes would decrease the probability that a species would be adequately protected. The bill also weakens the required Section 7 consultation for federal agencies.
The threat of regulatory restrictions imposed by potential federal listing of the Virgin Spinedace led to a CCA in 1996 to mitigate threats after the species was proposed for federal listing in 1994 (Williams and Deacon 1998). Since the agreement, the species has benefited from procurement of instream flows, purchases of riverside property, reintroductions into historical habitat, removal of invasive fishes and plants, reduced impacts from grazing, and restoration of habitat after the breach of a dam due to a flood (Wiley et al. 2008). However, whether this CCA will be successful is still uncertain. In reviewing the conservation status, the parties responsible for the CCA noted that vigilance was required due to increased urbanization within the watershed which may result in the increase of bank stabilization projects that use hard structures (rip-rap and rock levees) that would damage fish habitat for native species (Wiley et al. 2008). If habitat destruction is not restricted at the local level and the Virgin Spinedace population declines, listing the species may be necessary. Once listing any species with a CCA is necessary, it is clear that the CCA failed its intended goal to prevent listing and additional protections provided to listed species are warranted.
We urge you to pass the ACE, support dedicated funding for state fish and wildlife agencies, as provided for in the Recovering America’s Wildlife Act, S. 1149, and support a science-based ESA. Thank you for your consideration. AFS stands ready to provide you with additional information should you have any questions.
Sincerely,
Douglas J. Austen, Ph.D.
Executive Director
REFERENCES
Bangs, B.L., P.D. Scheerer, J.T. Peterson, and A.S. Harrison. 2020. 2017-2019 Borax Lake Chub Investigations. ODFW Progress Reports.
