SPEAKERS CONTENTS INSERTS
Page 1 TOP OF DOC
58–723 l
1999
LAND AND MONEY MITIGATION REQUIREMENTS IN ENDANGERED SPECIES ACT ENFORCEMENT
OVERSIGHT HEARING
before the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
MAY 26, 1999, WASHINGTON, DC
Serial No. 106–34
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/house
or
Page 2 PREV PAGE TOP OF DOC
Committee address: http://www.house.gov/resources
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana
JAMES V. HANSEN, Utah
JIM SAXTON, New Jersey
ELTON GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
JOHN T. DOOLITTLE, California
WAYNE T. GILCHREST, Maryland
KEN CALVERT, California
RICHARD W. POMBO, California
BARBARA CUBIN, Wyoming
HELEN CHENOWETH, Idaho
GEORGE P. RADANOVICH, California
WALTER B. JONES, Jr., North Carolina
WILLIAM M. (MAC) THORNBERRY, Texas
CHRIS CANNON, Utah
KEVIN BRADY, Texas
JOHN PETERSON, Pennsylvania
RICK HILL, Montana
Page 3 PREV PAGE TOP OF DOC
BOB SCHAFFER, Colorado
JIM GIBBONS, Nevada
MARK E. SOUDER, Indiana
GREG WALDEN, Oregon
DON SHERWOOD, Pennsylvania
ROBIN HAYES, North Carolina
MIKE SIMPSON, Idaho
THOMAS G. TANCREDO, Colorado
GEORGE MILLER, California
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
PETER A. DeFAZIO, Oregon
ENI F.H. FALEOMAVAEGA, American Samoa
NEIL ABERCROMBIE, Hawaii
SOLOMON P. ORTIZ, Texas
OWEN B. PICKETT, Virginia
FRANK PALLONE, Jr., New Jersey
CALVIN M. DOOLEY, California
CARLOS A. ROMERO-BARCELÓ, Puerto Rico
ROBERT A. UNDERWOOD, Guam
PATRICK J. KENNEDY, Rhode Island
ADAM SMITH, Washington
WILLIAM D. DELAHUNT, Massachusetts
Page 4 PREV PAGE TOP OF DOC
CHRIS JOHN, Louisiana
DONNA CHRISTIAN-CHRISTENSEN, Virgin Islands
RON KIND, Wisconsin
JAY INSLEE, Washington
GRACE F. NAPOLITANO, California
TOM UDALL, New Mexico
MARK UDALL, Colorado
JOSEPH CROWLEY, New York
RUSH D. HUNT, New Jersey
LLOYD A. JONES, Chief of Staff
ELIZABETH MEGGINSON, Chief Counsel
CHRISTINE KENNEDY, Chief Clerk/Administrator
JOHN LAWRENCE, Democratic Staff Director
C O N T E N T S
Hearing held Month Day, 1999
Statement of Members:
Miller, Hon. George, a Representative in Congress from the State of California
Pombo, Hon. Richard, a Representative in Congress from the State of California
Prepared statement of
Statement of Witnesses:
Page 5 PREV PAGE TOP OF DOC
Bean, Michael J., Senior Attorney, Environmental Defense Fund, Washington, DC
Prepared statement of
Bruton, Vinton Charles, North Carolina Department of Transportation, Raleigh, North Carolina
Prepared statement of
Clark, Jamie, Director, U.S. Fish and Wildlife Service, Washington, DC; accompanied by Mike Spear, Manager, California-Nevada Operations Office
Prepared statement of
Dalton, Penelope, Assistant Administrator for Fisheries, National Marine Fisheries Service, Silver Spring, Maryland; accompanied by Jim Lecky, Assistant Regional Administrator for Protected Resources, Southeast Region; Ted Eutler, Attorney, National Oceanic and Atmospheric Administration, Office of General Counsel
Prepared statement of
Questions for Penelope Dalton from the Committee
Johnston, James R., Counsel, Foundation for Habitat Conservation, Seattle, Washington
Prepared statement of
Schulz, Dave, Chair, Okanogan County, Okanogan, Washington
Prepared statement of
Additional material submitted by
Tsakopoulos, Angelo K., AKT Development Corporation, Sacramento, California
Prepared statement of
Weinberg, Edward R., National Association of Home Builders, Washington, DC
Prepared statement of
Weygandt, Robert M., Chairman, Board of Supervisors, Placer County, California
Prepared statement of
Worden, Dwight C., Brondi Development, Incorporated, Fair Oaks, California
Page 6 PREV PAGE TOP OF DOC
Prepared statement of
Workman, William P., City Manager, City of Corona, Corona, California
Prepared statement of
Additional material supplied:
Nielsen, J. Mark, Chairman, Board of Directors, El Dorado County Water Agency, prepared statement of
OVERSIGHT HEARING ON LAND AND MONEY MITIGATION REQUIREMENTS IN ENDANGERED SPECIES ACT ENFORCEMENT
WEDNESDAY, MAY 26, 1999
House of Representatives,
Committee on Resources,
Washington, D.C.
The Committee met, pursuant to notice, at 10:13 a.m., in Room 1324, Longworth House Office Building, Hon. Richard Pombo presiding.
STATEMENT OF HON. RICHARD POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. POMBO. [presiding] Good morning. I would like to welcome you all here today to this oversight hearing of the Committee on Resources on how mitigation is used in the enforcement of the Endangered Species Act. Chairman Don Young is not able to be here today and has asked that I Chair this hearing.
Today, we are going to hear testimony regarding the experience of a number of communities and private property owners regarding their efforts to work with the Fish and Wildlife Service and National Marine Fisheries Services to obtain permits and approvals to use either private property or provide public services at the local level.
Page 7 PREV PAGE TOP OF DOC
The Endangered Species Act prohibits the take of threatened or endangered species and also prohibits the take of the land on which they live. This means that a property owner whose land is found by the government to be habitat for a listed species cannot use his or her land without the risk of criminal and civil prosecution under the Endangered Species Act. In 1982, Congress amended the ESA to allow these property owners to obtain what we call an ''incidental take permit'' so that they can use their property as long as their take of species or its habitat is only incidental to an otherwise legal use of the property. Within the last four years, the Fish and Wildlife Service and the National Marine Fisheries Service has issued over 250 incidental take permits.
In addition, if the use of private land depends on a Federal permit of any type, the Fish and Wildlife Service and National Marine Fisheries Service also require a section 7 consultation. This is particularly prevalent where there are wetlands and the Corps of Engineers must issue a wetlands permit.
Landowners who find themselves needing a permit are being asked to mitigate for the loss of species habitat on their land by either setting aside a portion of the property they own or paying money for the purpose of buying land elsewhere. This is a growing industry, particularly in California where the great majority of mitigation is required.
The purpose of our hearing is to examine how this system is working. I am concerned about the potential for abuse of landowners who may not be in the position to bargain over the amount of mitigation being required. Do these demands for mitigation violate the Fifth Amendment of the Constitution? The Supreme Court has addressed this issue in the case of Florence Dolan v. City of Tigard and found that there are limits on the amount of mitigation or exactions that can be demanded from private property owners.
The Federal Government has required private property owners around the country to pay more than $62 million to various parties as a condition of obtaining section 10 permits. This does not include the value of the land they have required to be set aside and protected ''in perpetuity.'' This Committee will examine how these funds are spent and whether they are being spent wisely.
Page 8 PREV PAGE TOP OF DOC
Let me say to our witnesses that we appreciate your coming here today to testify regarding your experiences. I realize that there are many individuals who are truly afraid to make their concerns public or to share their experiences for fear of retribution and retaliation. Under the ESA, these Federal agencies exercise great power over the lives of the people who live in the areas where there are endangered species. They can literally destroy a small business just by refusing to process a permit or complete a consultation. So, I know the risks you are taking, and I want to thank you for living up to your responsibility as good citizens.
With that in mind, I ask Director Clark to listen closely to the testimony of the other witnesses. Director Clark and I have had several conversations about the future of the species protection and recovery in this country, and although we may not see eye to eye on the best way to improve our Federal laws on this issue, I respect and hold her views in high regard. Since she took the reign two years ago, I believe she has put forward a genuine effort to positively address concerns raised by this Committee. However, as today's testimony will echo, these exact concerns have been routinely disregarded by the Fish and Wildlife Service regional offices. Therefore, responsibility for failure to follow policy by agency staff and employees has to fall into the Director's lap.
[The prepared statement of Mr. Pombo follows:]
STATEMENT OF HON. RICHARD POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Good Morning. I would like to welcome all of you today to this oversight hearing of the Committee on Resources on how mitigation is used in the enforcement of the Endangered Species Act. Chairman Don Young is not able to be here today and has asked that I chair this hearing.
Today, we are going to hear testimony regarding the experience of a number of communities and private property owners regarding their efforts to work with the Fish and Wildlife Service and the National Marine Fisheries Service to obtain permits and approvals to use either private property or provide public services at the local level.
Page 9 PREV PAGE TOP OF DOC
The Endangered Species Act prohibits the take of threatened or endangered species and also prohibits the take of the land on which they live. This means that a property owner whose land is found by the government to be habitat for a listed species cannot use his or her land without the risk of criminal and civil prosecution under the ESA. In 1982, Congress amended the ESA to allow these property owners to obtain what we call an ''incidental take permit'' so that they can use their property as long as their take of the species or its habitat is only incidental to an otherwise legal use of the property. Within the last four years the Fish and Wildlife Service and the National Marine Fisheries Service has issued over 250 incidental take permits.
In addition, if the use of private land depends on a Federal permit of any type, the Fish and Wildlife Service and NMFS also require a section 7 consultation. This is particularly prevalent where there are wetlands and the Corps of Engineers must issue a wetlands permit.
Landowners who find themselves needing a permit are being asked to mitigate for the loss of species habitat on their land by either setting aside a portion of the property they own or paying money for the purpose of buying land elsewhere. This is a growing industry, particularly in California where the great majority of mitigation is required.
The purpose of our hearing is to examine how this system is working. I am concerned about the potential for abuse of landowners who may not be in a position to bargain over the amount of mitigation being required. Do these demands for mitigation violate the 5th Amendment of the Constitution. The Supreme Court has addressed this issue in the case of Florence Dolan v. City of Tigard and found that there are limits on the amount of mitigation or exactions that can be demanded from private property owners.
The Federal Government has required private property owners around the country to pay more than $62,354,875 to various third parties as a condition of obtaining section 10 permits. This does not include the value of land they have required to be set aside and protected ''in perpetuity.'' This Committee will examine how these funds are spent and whether they are being spent wisely.
Page 10 PREV PAGE TOP OF DOC
Let me say to our witnesses that we appreciate your coming here today to testify regarding your experiences. I realize that there are many individuals who are truly afraid to make their concerns public or to share their experiences for fear of retribution or retaliation. Under the ESA, these Federal agencies exercise great power over the lives of the people who live in areas where there are endangered species. They can literally destroy a small business just by refusing to process a permit or complete a consultation. So I know the risk you are taking and I want to thank you for living up to your responsibility as good citizens.
With that in mind, I ask Director Clark to listen closely to the testimony of the other witnesses. Director Clark and I have had several conversations about the future of species protection and recovery in this country, and, although we may not see eye to eye on the best way to improve our Federal laws on this issue, I respect and hold her views in high esteem. Since she took the reigns two years ago, I believe she has put forward a genuine effort to positively address concerns raised by this Committee. However, as today's testimony will echo, these exact concerns have been routinely disregarded by the FWS regional offices. Therefore, responsibility for failure to follow policy by agency staff and employees has to fall into the Director's lap.
Before I introduce our witnesses, I would recognize our ranking minority member for his opening statement.
Mr. POMBO. Before I introduce our witnesses, I would recognize our Ranking Member for his opening statement. Mr. Miller.
STATEMENT OF HON. GEORGE MILLER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. MILLER. Thank you very much, Mr. Chairman, and I thank you for calling this hearing, and I welcome our witnesses today, and I look forward to their testimony on the ESA implementation.
Page 11 PREV PAGE TOP OF DOC
We are all naturally concerned about ongoing ESA disputes that pit development against species and their habitat. I, for one, would welcome the opportunity to legislate in a responsible way on this issue, because I think that all parties deserve a better ESA management and enforcement program than exists today.
It is clear that the major objectives to this law is not being currently met. More than 1,800 species are already listed, and the number is going to continue to grow as more and more habitat is lost. The United States has lost approximately 117 million acres of wetlands in the lower 48; 25 million acres of ancient forest in the Northwest; 22 million acres of native grasslands just in California. Our national forests contain nearly 360,000 miles of road, 8 times more than the interstate highway system. As States like California continue to grow, the conflicts will continue to mount. While some of the witnesses will tell us that the Fish and Wildlife Service has been making the law operate more effectively and fairly, others, I understand, will focus on the remaining delays and obstacles and question whether the costs of mitigation are authorized under law.
The Endangered Species Act requires the activities that will impact listed species must be minimized and mitigated. This is not new nor is it unique to the ESA. The Clean Water Act, the National Environmental Policy Act, and many other laws require that Federal agencies and private landowners mitigate their negative impacts on the environment just as many county and city planning commissions do in terms of the human environment. I hesitate to think of how unpleasant it would be if we lived in a U.S. where these laws did not exist and mitigation was not required.
We will also hear that the Fish and Wildlife Service is hopelessly slow in processing permits to allow development to move forward, particularly in the rapidly growing areas of the country, like California. These delays cost time and money, and, frankly, they concern me. The biggest cause of delays, some will tell us, is inadequate staffing yet, ironically, just a year ago, this Committee was holding hearings to criticize Fish and Wildlife Service for putting too many staff in Region 1 and neglecting other areas of the country. Well, you can't have it both ways. You can't criticize Fish and Wildlife for using its limited resources where the biggest demands are and then criticize them when they are not doing the job fast enough. If this Committee wants the Fish and Wildlife Service to be able to do its job in a timely manner, then we need to provide the financial and personnel resources that are required, and to stop wasting time with endless congressional inquiries and subpoenas for information that divert staff from the job the witnesses and the people here today want to see done.
Page 12 PREV PAGE TOP OF DOC
The bottom line is that the overwhelming majority of Americans support the recovery the endangered species just as they support the laws that ensure that we have clean water and clean air. The leadership of the Resources Committee should demonstrate its willingness to write comprehensive reform legislation to reauthorize the Endangered Species Act that will ensure that we recover the species and get them off the list. This is the real way to reduce the restrictions on landowners. Thank you.
Mr. POMBO. Thank you. I ask unanimous consent that all other opening statements be included in the record.
I would also like to ask unanimous consent that Mr. Hastings from Washington be allowed to sit on the dais and participate in the hearing.
I would like to welcome our first panel. The Honorable Jamie Clark, Director, U.S. Fish and Wildlife Service, Ms. Penelope Dalton, Mr. William P. Workman, Mr. Robert M. Weygandt, Mr. Dave Schulz, and Dr. Vinton Charles Bruton, join us at the witness table, please.
Before you all sit down, I would like you to stand and raise your right hand to take the oath.
——————
Oath: Do you solemnly swear or affirm under the penalty of perjury that the responses given and statements made will be the whole truth and nothing but the truth?
[Witnesses sworn.]
Let the record show they all answered in the affirmative. Thank you very much.
I would like to welcome you all here today, and, Ms. Clark, we will start with you.
Page 13 PREV PAGE TOP OF DOC
STATEMENT OF JAMIE CLARK, DIRECTOR, U.S. FISH AND WILDLIFE SERVICE, WASHINGTON, DC; ACCOMPANIED BY MIKE SPEAR, MANAGER, CALIFORNIA-NEVADA OPERATIONS OFFICE
Ms. CLARK. Thank you, Mr. Chairman. Good morning, Mr. Chairman and members of the Committee.
I really do appreciate this opportunity to discuss section 7 and section 10 implementation under the Endangered Species Act. I am accompanied by Mike Spear, the Manager of the California-Nevada Operations Office and other key folks in California.
The Fish and Wildlife Service is working with many partners to provide flexibility and certainty in the way we administer the Endangered Species Act. We have instituted many reforms during this administration to make the Act work better for both people and species, and our reforms are paying off. The United States economy has never been stronger; at the same time, more species are being protected and recovered than ever before. The American public has demonstrated that they want to preserve our national heritage while allowing economic development to continue. We are achieving that goal through the Endangered Species Act.
Consultation, habitat conservation planning, and recovery workloads have increased dramatically at the same time that the administration has been working to streamline implementation of the law. Fulfilling the President's Fiscal Year 2000 budget request for endangered species is essential to enable the Service to support the increasing technical assistance requests from private landowners and to expedite consultation and permitting actions throughout the Nation. I urge the Congress to adopt the President's budget request for the Endangered Species Program for Fiscal Year 2000.
I would like to explain to the Committee how the term ''mitigation'' is applied in the context of the Endangered Species Act since it is often misunderstood. Mitigation refers only to activities that may be done to offset or rectify the impact of an action. Avoiding or reducing the impact is referred to as minimization. Though the Service tries to distinguish among the many forms of the term ''mitigation,'' applicants, action agencies, and, as you stated before, even we sometimes use the term broadly. This leads to confusion over the difference between minimization and mitigation under the Endangered Species Act.
Page 14 PREV PAGE TOP OF DOC
Under section 10, the Service helps the applicant identify the minimization and mitigation actions required to reduce or offset potential adverse effects of a proposed activity on a species covered the Habitat Conservation Plan. The law requires that applicants minimize and mitigate the effects of their actions to the maximum extent practicable.
Minimization and mitigation requirements can take many forms depending on the habitat needs and the individual status of the species and the size and scope of the project. Because applicants come to us with many types of projects that vary in size, scope, and impact, we try to be flexible in meeting the needs of the applicants. We don't use a cookie cutter approach in developing HCPs.
During the section 7 consultation process, the Federal action agency and the Service may work together to identify what measures may be incorporated into a proposed project to avoid jeopardy and to minimize the effects on listed species. Because they are incorporated into the project before the Service completes a biological opinion, it is not mitigation in the same way that it is used under section 10.
I am mindful, Mr. Chairman, that the Committee believes that the Fish and Wildlife Service required mitigation through reasonable and prudent measures on some occasions. I have received Chairman Young's letter earlier this month that raises this concern in detail. I take this issue very seriously and will look into it closely in concert with the regional directors who are responsible for implementing the consultation program in the regions. Specifically, I will review the projects that were raised in the letter to determine if the guidance concerning the scope of reasonable and prudent measures is being adhered to consistently across the country.
In closing, I would like to address the demands facing the Fish and Wildlife Service nationwide that challenge our ability on an ongoing basis to make the Endangered Species Act work. For example, California—your home State—is facing rapid population growth and urbanization and has more federally listed species today than any other State except for Hawaii. The challenges in California are especially difficult in offices like Carlsbad where we have many entities seeking immediate assistance in project planning related to listed species, wetlands, and other natural resource issues. I have seen a copy of the letter sent to this Committee by 26 California members that asked Chairman Young to enlist the General Accounting Office to review the work of our Carlsbad office. We welcome this opportunity to have an objective third party look at and explain to the public the demands and expectations put on our Carlsbad office, very much representative of what is happening nationwide.
Page 15 PREV PAGE TOP OF DOC
I am proud of the hard work that our dedicated Fish and Wildlife Service employees do all over the country to further our mission, while addressing the needs of private landowners and species conservation.
Thank you, Mr. Chairman. I would be happy to answer any questions.
[The prepared statement of Ms. Clark follows:]
Mr. POMBO. Thank you.
Next, we have Ms. Dalton who is the Assistant Administrator for Fisheries, National Marine Fisheries Service.
STATEMENT OF PENELOPE DALTON, ASSISTANT ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE FISHERIES SERVICE, SILVER SPRING, MARYLAND; ACCOMPANIED BY JIM LECKIE, ASSISTANT REGIONAL ADMINISTRATOR FOR PROTECTED RESOURCES, SOUTHEAST REGION; TED EUTLER, ATTORNEY, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, OFFICE OF GENERAL COUNSEL
Ms. DALTON. Mr. Chairman and members of the Committee, I am pleased to be here today on behalf of the National Marine Fisheries Service. Accompanying me is Mr. Jim Lecky, Assistant Regional Administrator for Protected Resources for NMFS' Southeast Region, and Mr. Ted Eutler, Attorney in NOAA's Office of General Counsel. NOAA is a partner with the Fish and Wildlife Service in administering the ESA and works with other Federal agencies, States, counties, tribes, and private landowners to carry out its requirements.
Mr. POMBO. Ms. Dalton, could I have you just pull the mike just a little——
Ms. DALTON. Sure.
Mr. POMBO. Thank you.
Page 16 PREV PAGE TOP OF DOC
Ms. DALTON. Attached to my written testimony is a summary of all section 10 incidental take permits or Habitat Conservation Plans (HCPs) that currently are being monitored or negotiated by NMFS. To date, we have issued only one major permit and that was to PALCO this year in California. However, we are a party to four implementing agreements associated with section 10 permits issued by the Fish and Wildlife Service in the Pacific Northwest. In addition, we currently are negotiating about 35 additional HCPs. Most of these agreements involve management of large tracts of timber in the Pacific Northwest and northern California. None of the permits or agreements that we have issued to date require mitigation payments or mandatory set asides of property. While we have rarely used off-site mitigation, we believe it is appropriate where habitat losses are unavoidable, such as compensating for the mortality of juvenile salmon in the operation of specific hydro-electric dams.
One example which demonstrates our commitment to working with private landowners and carrying out our ESA responsibilities is the PALCO HCP. This plan is being implemented through a section 10 incidental take permit and consists of interrelated elements to minimize, mitigate, and monitor the effects of timber harvesting activities on aquatic species. Prescriptive measures for any permit activity can be modified based on watershed analysis, new scientific studies, and monitoring as long as the plan continues to meet the objective of maintaining or achieving necessary habitat functions for threatened or endangered aquatic species.
Although PALCO and other timber related permits require management of riparian buffers, this is not a permanent set aside of private land. At the end of the permit period or sooner, if new information indicates it is appropriate or the species recovers, these areas could become available for timber activity. In addition, some riparian buffers are not off limits to harvest, and they even require cutting for effective management.
One important point is that in exchange for agreeing to carry out certain measures to minimize or mitigate effects of actions on listed species, the landowner receives an ESA exception. In addition, the landowner receives assurances that the government will not come back for the lifetime of the permit and ask for more land, water, or money that was not provided for in the permit or its implementing agreement. This assurance is a key element of the Administration's ''No Surprises'' policy which the Services put into place last year.
Page 17 PREV PAGE TOP OF DOC
With respect to section 7, NMFS works with Federal agencies and applicants to minimize the impacts of taking listed species incidental to projects authorized, funded, or permitted by those agencies. NMFS does not require payments into any kind of fund or mitigation bank as a reasonable or prudent measure in an incidental take statement. Measures which we have proposed have ranged from habitat restoration, inner-bank stabilization projects, to permitting an activity at a time of year when it will have the least impact on a species. For example, time-of-year restrictions are used for such activities as fishing, dredging, and general construction.
NMFS has made significant progress over the past five years in making the ESA more workable for the American people. First, we partnered with the Fish and Wildlife Service to issue joint guidance on conducting section 7 consultations and developing HCPs. The HCP handbook includes guidance for evaluating whether plans will be effective and accomplish minimization and mitigation goals. The section 7 handbook is extremely useful to Federal agencies and their applicants, because it tells them what to expect when they enter into the consultation process.
Second, we have worked within NMFS to make sure that our regions receive the guidance needed to implement the ESA fairly and consistently. The policies and regulations that are now in place should provide economic assurances and greater certainties to landowners. In addition, they have strengthened cooperation among Federal, State, and local officials and non-governmental groups and private citizens.
In addition to its ESA program, NMFS has initiated habitat restoration projects in many parts of the country. These projects contribute to the recovery of listed species and encourage local community involvement. One example is the Haskell Slough in Washington State where NMFS supplied initial funding and worked with State and local partners to implement a plan for restoring habitat. Participants included Northwest Chinook Recovery, private landowners, Trout Unlimited, the Upper Skagit Indian Tribe, People for Salmon, Washington Department of Fish and Wildlife, and others. Volunteers dug ditches and moved earth to reconnect the Slough to the Skionmish River, providing salmon with 3.5 miles of critical habitat they need to spawn, feed, and grow. Adult salmon returned to these streams within 24 hours of its opening last November. This is habitat salmon once had access to and now have access to again.
Page 18 PREV PAGE TOP OF DOC
Finally, the Administration has requested substantial increases in the Fiscal Year 2000 budget for recovery of protected species, conserving ocean biodiversity, and enforcement and monitoring. The salmon initiative is an ambitious approach that challenges State, local, and tribal authorities to take the lead in developing recovery plans with Federal guidance and assistance. The request will establish a Pacific Coastal Salmon Conservation Fund to be matched dollar for dollar with non-Federal contributions and made available for agreements with the Pacific States.
In summary, recovering threatened and endangered species is an enormous challenge with profound social, economic, and ecological implications. With budgetary investments and a commitment to making it work, we believe the ESA can be implemented without unnecessary economic burden on any sector of the economy.
Mr. Chairman, this concludes my testimony. I would be pleased to respond to any questions.
[The prepared statement of Ms. Dalton follows:]
Mr. POMBO. Thank you.
At this time, I would like to recognized Mr. Calvert.
Mr. CALVERT. Thank you, Mr. Chairman. I am happy to recognize my good friend and the city manager of the city of Corona, Bill Workman, who is with us today and his able assistant Laura Manchester who is in the audience. The city of Corona is a growing city right next to Orange County. It is right in the heart of southern California. It is probably, if not the fastest-growing city in the United States right now, it is probably in the top 10, and it is difficult to balance the needs of a city—crime, fire protection, parks, open space, water, a multitude of problems that face any community—and, certainly, we have our fair share of problems regarding ESA and mitigating for ESA, and I think Mr. Workman will point out that it is not mitigation that we are concerned about, it is reasonable mitigation, and I look forward to his testimony, and I appreciate you giving me the opportunity to introduce Bill Workman.
Page 19 PREV PAGE TOP OF DOC
Mr. POMBO. Mr. Workman?
STATEMENT OF WILLIAM P. WORKMAN, CITY MANAGER, CITY OF CORONA, CORONA, CALIFORNIA
Mr. WORKMAN. Thank you, Mr. Chair and members of the Committee. As Mr. Calvert indicated, I am Bill Workman, the city manager of Corona, California, and I am appreciative of your invitation to speak today on the effectiveness of the Fish and Wildlife Service and its administration of its regulatory duties as well as improving its service to clients, such as the city of Corona. I have submitted a written statement which I will briefly summarize.
Let my message to you begin by saying that changes are needed in the operation of the Fish and Wildlife Service's Carlsbad office. Based on our experience in Corona, changes are specifically needed in two areas. First, the timely processing of environmental clearances under Federal regulations and, second, the acceptance of mitigation plans that reasonably compensate for justifiable environmental impacts. I speak to you on this subject from a base of 20 years experience serving communities both as an administrator and a planner. My experience includes resolving difficult environmental issues in communities located in Los Angeles, Orange, San Diego, and Riverside County. I am personally and professionally committed to ensuring that critical environmental habitat be protected in balance with the land use needs of our human population.
It is with this background that I will relate to you our frustrated efforts to reach closure on a project known as Corona's Operations and Maintenance Manual. This project is illustrative of the problems that need to be addressed in the Carlsbad office of the Fish and Wildlife Service. In short form, the city of Corona conducts municipal operations and maintenance activities for a variety of public facilities within the Prado Basin in southern California. These activities occur on land that is owned by the city as well as leased from the Army Corps of Engineers.
Page 20 PREV PAGE TOP OF DOC
At the urging of the Army Corps of Engineers and the Fish and Wildlife Service, the city of Corona, five year ago, began development of a Prado Basin Operations and Maintenance Manual. The manual's intent is twofold: one, protect critical habitat, and, secondly, permit the city to conduct its routine maintenance and operations activities.
After hundreds of hours of work, hundreds of thousands of dollars of investment and multiple agency reviews, we submitted the Operations and Maintenance Manual through the Army Corps of Engineers to the Fish and Wildlife Service for a section 7 consultation on March 17, 1998. The Corps formally requested of Fish and Wildlife a section 7 consultation on May 20, 1998. More than a year later, I sit before you with the United States Fish and Wildlife Service refusing to initiate a formal section 7 consultation, a clear disregard for the processing deadlines detailed in Federal regulations. I sit before you with a crazy quilt of oral and written explanations why the Fish and Wildlife Service cannot do its prescribed duties.
Most distressing in this process was the outrageous demands for mitigation that are both physically and financially punitive. I direct your attention to the Fish and Wildlife Agency's letter of August 4, 1998. It is listed as exhibit 3 in our documents. Here is where in writing they seek 3 to 1 mitigation and also 10 to 1 mitigation—threaten 10 to 1 mitigation for routine city operations and maintenance. We are not talking about new construction but just the routine operations and maintenance. They have additionally told us that they have to have mitigation for maintenance activities that have occurred in past years but which has not been mitigated to their satisfaction. To translate that, what that means is that the Fish and Wildlife Service wants retroactive mitigation for the city's 30 years of doing day-to-day things, such as mowing the ballfields in our parks, and this mitigation is on top of mitigation the city has already provided in nine mitigation sites through the Prado Basin.
Let me say that I thank you for calling this hearing today. We believe that it is important to gain a better understanding of the procedures and mitigation requirements employed by the Fish and Wildlife Service, particularly in Carlsbad, in their implementation of the Endangered Species Act. We urge the Committee to seek timely section 7 consultations from the Carlsbad office as well as adhere to reasonable mitigations for maintenance of public facilities.
Page 21 PREV PAGE TOP OF DOC
That concludes my remarks. Thank you.
[The prepared statement of Mr. Workman follows:]
Mr. POMBO. Thank you.
Mr. Weygandt.
STATEMENT OF ROBERT M. WEYGANDT, CHAIRMAN, BOARD OF SUPERVISORS, PLACER COUNTY, CALIFORNIA
Mr. WEYGANDT. Thank you, Mr. Chair and members of the Committee. I appreciate the opportunity to speak before you today.
My name is Robert Weygandt. I am chairman of the Placer Country Board of Supervisors. I have submitted my written testimony, and, today, I would like to, I think, emphasize, summarize three key points.
First, we believe that the Endangered Species Act needs to be implemented in a way that preserves and emphasizes local land use planning controls. We think that this can actually be done in a very effective way that integrates the mission of Fish and Wildlife and other agencies.
Second, I would like to support a notion that a market-based approach to supporting these missions is probably the best way to bridge the challenges that face the Service as well as those of us at a local level and especially the private sector players.
Third, Fish and Wildlife recently, in our jurisdiction, have been dealing with what they refer to as service area impacts or, according to California Environmental Quality Act law, we refer to it as cumulative impacts on a project, and I would like to develop some discussion about that.
A little bit of background about Placer County. It starts at the Valley floor of Sacramento at an elevation that is almost zero and extends all the way up to Lake Tahoe. So, it includes a very diverse and complicated habitat; also provides for our residents a tremendous quality of life, but it reflects a complex set of circumstances by which to deal with these issues before us today. It also, in that it has that quality of life, has been one of the fastest growing counties in the State of California. Our population has grown from about 170,000 people to 220,000 people over the last 10 years; that is a growth rate of 30 percent. And by the year 2010, we are expected to house about 350,000 residents. That is a doubling of our population in 20 years, and it will require an additional 50,000 dwelling units.
Page 22 PREV PAGE TOP OF DOC
With regards to preserving local control over the decision-making process, the county adopted its most recent general plan in 1994, and it includes, in that general plan, a huge set of items that are the concerns of the Federal regulatory agencies. In addition to that, recently, in April of 1998, the board of supervisors implemented what we call Placer Legacy Open Space Conservation Project. That is a huge undertaking that is an effort to essentially implement the open space policies of the 1994 general plan. A component of that we will hope will be the successful completion of Natural Communities Conservation Plan, or an NCCP. And, again, one of the key goals of doing that is to create a much more clear set of rules and regulations and permitting processes and emphasize that permitting down at the local level but in fact with compliance of the mission of especially Fish and Wildlife.
We believe that this is the most effective way to deal with these issues, because, in fact, we believe that at the local level our constituents have a better voice in this effort, and, in fact, it is not in conflict with the mission of Fish and Wildlife or other Federal regulatory agencies but in fact is in concert with them. We think, in fact, that if you consider our review processes at the local level that in fact it would be simple for the Service to focus in and integrate their efforts with ours, and in fact the county—we have a culture of actually requesting that to happen up-front, and we have experienced good success on that basis.
With regards to the market-based approach to trying to achieve these goals, the county in its general plan does not focus on attempting to be confrontational with private property rights, market economics, or, in fact, individual freedoms, but, in fact, to embrace those. And we have some good examples that reflect the results of that in the county. We have a privately—perhaps the first permitted privately owned mitigation bank. It provides a streamlined process for developers to buy inexpensive credit. It has created some great habitat. We have some premium priced lots that are open space lots adjacent to nice habitat. The enforcement of the protection of those is done through the county's planning department as well as homeowners associations, so the cost is low, and our business community enjoys a much higher level of predictability as to their operations, because they are protected from incompatible uses by our general plan.
Page 23 PREV PAGE TOP OF DOC
We also think, though, that in our recent experiences, the Service especially needs to focus on what they call service area impacts in their review. Recently, we have seen some letters and memorandums that basically reflect the notion that if you have, let us say, 5 projects that require disturbance of 2 acres each, that if you approve one of those, it has an impact of disturbing 2 acres, but taken all 5 together, it would have more than a cumulative impact of the 10 acres. We actually think that this concept has merit, but, in fact, according to CEQA and our planning review process, we already consider that, and the key problem we have had recently is that there have been recent public infrastructure projects that are required to support existing entitlements that in fact are basically having to go through that cumulative impact review process twice. So, we think that there is a great role there for review and streamlining and probably renovation of that policy.
In conclusion, our goal as a county is to up-front try to deal with these issues so that we are consistent with not only the goals of our constituents but the mission of protection of endangered species as well as ''no net loss'' policy, and in that effort we think there are great opportunities. Thank you.
[The prepared statement of Mr. Weygandt follows:]
STATEMENT OF ROBERT WEYGANDT, CHAIR, BOARD OF SUPERVISORS, PLACER COUNTY, CALIFORNIA
Mr. Chairman and Members of the Committee:
Thank you for this opportunity to share with the Committee the experiences of Placer County in working with the U.S. Fish and Wildlife Service to satisfy the mandates of the Federal Endangered Species Act. As I will describe in more detail below, by seeking to anticipate and address endangered species issues rather than react to crises once they emerge, Placer County is looking to approach endangered species regulatory requirements in a way that harmonizes property rights with natural resources imperatives by relying on local land use planning.
Page 24 PREV PAGE TOP OF DOC
I. INTRODUCTION
Placer County rises from the expansive grasslands of the Sacramento Valley to the spectacular shores of Lake Tahoe high in the Sierra Nevada mountain range. This geologic and climatic diversity makes Placer County home to a rich variety of plant and animal species and contributes to the County's reputation as one of the scenic treasures of California.
Over the last 150 years, much of the County's once vast grasslands, woodlands, and riparian areas has been dedicated to urban, rural, suburban, industrial, and agricultural uses. Today, Placer County is one of the fastest growing counties in California. Since 1990, the County's population has grown from 170,000 to about 220,000, an increase of nearly 30 percent. By 2010, nearly 350,000 people are projected to live in the County, representing a doubling of the population in 20 years and requiring the addition of nearly 50,000 units to the present housing stock. Looking even further into the future, the California Department of Finance projects a population of 522,214 persons at the year 2040.
Residents and businesses continue to be attracted to Placer County by the opportunity to live, work and recreate in a place of such remarkable natural beauty. As more and more people are lured to Placer County, the region risks losing the natural and scenic qualities which distinguish it from other places in the country—unless it engages in thoughtful planning for its future.
General Plan. To begin to address this need, in August of 1994, Placer County adopted a new General Plan containing a number of goals and policies to ensure that there is a balance between growth, economic development and the health of the environment. For example, the General Plan provides that fish and wildlife habitat is to be protected, restored and enhanced to support fish and wildlife species so as to maintain populations at viable levels. It specifies that open space and natural areas are to be of sufficient size to protect biodiversity, to accommodate wildlife movement and to maintain self-sustaining ecosystems. It also prescribes that wetland impacts are to be reduced to a point of no net loss of habitat area, function and values. To implement these and other policies and goals, the General Plan requires the development of comprehensive implementation programs to preserve a sufficient quantity of Placer County's natural inheritance to maintain a high quality of life and an abundance of diverse natural communities, while supporting the economic viability of the County and enhancing property values.
Page 25 PREV PAGE TOP OF DOC
Placer Legacy Open Space Conservation Project. To this end, in April, 1998 the Placer County Board of Supervisors authorized planning staff to proceed with the Placer Legacy Open Space Conservation Project to further the various open space and natural resource goals of the Placer County General Plan and associated General Plans of the six cities in Placer County. The Board, reflecting community consensus, has voted unanimously to proceed with this project on every policy issue. The Board directed staff to develop a program that will protect a wide range of open spaces in Placer County including:
• agricultural lands;
• natural features for outdoor recreation;
• scenic and historic areas;
• areas to ensure public safety;
• areas that create a separation of urban communities; and
• areas that provide for plant and animal diversity and the protection of special status species.
The last objective, in particular, is to be addressed through the preparation of a Natural Communities Conservation Plan (NCCP) for Placer County. A Natural Communities Conservation Plan is a regional habitat conservation plan that is based upon California State Fish and Game statutes. It can provide regulatory relief from California endangered species and
related laws and it can satisfy the requirements of the Federal Endangered Species Act under Section 10 for a range of species. The County's NCCP will also be designed to obtain regulatory relief from Section 404 of the Federal Clean Water Act for wetland impacts. The County envisions this effort to be a unique collaboration between local, state and Federal agencies, private sector interests and other members of the community. We have already established a collaborative team of public and private sector interests who are working together on the sucessful implementation of this or some similar program that affords us the opportunity to achieve the aforementioned comprehensive and long range goals.
Page 26 PREV PAGE TOP OF DOC
The County, in beginning to undertake regional conservation planning, has engaged in constructive discussions with the Fish & Wildlife Service. The County, because it has taken a leadership role in promoting responsible conservation and development through its General Plan, is developing a cooperative effort with the Service to help it fulfill its statutory mandates in a manner sensitive to local land use decision making. We are very early in this process, but are encouraged about the prospects of collaborating with the Service on a multi-species conservation plan that will address species issues on a long-term basis, provided that adequate provisions are made for permitting key public infrastructure projects in ways that respect and retain local government land use decision making prerogatives.
II. THE REASONS FOR THE PLACER COUNTY APPROACH
Conservation planning of the sort being pursued by the Placer Legacy Project promises benefits for the environment, the development community, and local governments.
Conserving Resources for the Long-Term. In authorizing habitat conservation plans, Congress anticipated that such plans would, at their best, be comprehensive in that they would address the conservation of not only listed, but also unlisted species and the ecosystems upon which they depend. Regional conservation planning is also comprehensive in another way. Because of the project-by-project nature of traditional Federal and state species permitting, conservation plans have often been developed in isolation, with judgments about the rules of development made in a piecemeal, ad hoc manner. As a result, mitigation requirements have sometimes lacked consistency from one project to another and mitigation areas have at times been unconnected and have failed to maximize conservation opportunities. Needed public infrastructure and other economic development projects have at times not been integrated by the Service into local land use decision making. Because of its broader scope, regional conservation planning enables habitat preservation areas to be designed in ways that maximize their capacity to maintain the workings of natural systems and sustain biodiversity across ecosystems. The conservation plan can focus on the long-term stability of natural communities and habitats, and not just on the unique habitat needs of a few sensitive species. With this in mind, we believe our opportunity is unique in that we are acting long before other jurisdictions that have undertaken similar efforts but did so in a more crisis situation.
Page 27 PREV PAGE TOP OF DOC
Respecting Private Property and Minimizing Economic Impacts. Conservation planning is voluntary. Neither land owners nor jurisdictions are required to participate. And land for habitat conservation areas will only be acquired from willing sellers. Federal and state resource agencies do not have their jurisdiction or authority over private property augmented by conservation planning efforts. To the contrary, their roles in development permitting of specific projects are diminished by it, as is discussed below. In a word, conservation planning efforts can be structured to fully respect and maintain private property and local decision making.
While voluntary, conservation planning offers numerous benefits that encourage local governments and landowners to participate. Regional conservation planning moderates the impact of regulatory requirements on the economic concerns of an area, thereby reducing the potential for conflict between environmental and developmental interests. The broader scope of regional conservation planning provides greater opportunity for accommodation of interests and appropriate balancing of land uses. The comprehensive nature of regional conservation planning further provides land developers with the prospect of far greater certainty and predictability in their planning and land acquisition decisions. If species covered by a plan are later listed under Federal or state law, landowners are relieved of any additional conservation requirements and are assured the development plans can proceed unimpeded. This is the important ''No Surprises'' Policy, which says, ''a deal is a deal.''
Furthermore, regional conservation planning offers landowners the opportunity to resolve local, state, and Federal endangered species issues once and for all and, more generally, can streamline the array of local, state, and Federal regulatory processes by collapsing complicated layers of regulatory requirements and procedures into a single, unified process at the local government level. Appropriate mitigation for impacts on biological resources are established through a single plan, rather than through a series of disjointed processes independently derived by the different levels of government to achieve similar objectives.
Page 28 PREV PAGE TOP OF DOC
Strengthening Local Land Use Decision Making. Through regional conservation planning, primary responsibility is placed in the hands of local governments to implement Federal and state wildlife, habitat, and wetlands conservation objectives, while the Federal and state governments play a role more limited to setting standards, monitoring performance, and providing technical and financial assistance. This approach recognizes that decisions about the use of the land are best left to local government, and that the tools of local land use planning, unavailable to the Federal and state governments, are ideally suited to protecting natural resources. In the process of integrating wildlife protection objectives into the regulatory processes of local government, opportunities are enhanced for citizens to participate in the shaping of plans that will affect the long-term environmental and economic character of their communities.
The Placer Legacy Project is being developed to deliver all of these benefits. The conservation needs of all of the plants and animals which are currently, or may in the future, be protected by the state and Federal Endangered Species Acts will be addressed. Through the adoption of a NCCP which will satisfy the requirements of the Federal Endangered Species Act, the County will be in a position to provide immediate solutions and options to the development community related to compliance with state and Federal regulations. With such a program, the County can become the permit issuing authority for compliance with state and Federal rules, thus retaining maximum local control over land development activities. This will add certainty to the development process and will reduce the amount of time normally required to address these issues, while at the same time providing a state-of-the-art conservation plan with the greatest potential to maintain the function and values of preserved natural communities. It will help spread the costs of implementation more broadly and equitably to all beneficiaries, rather than imposing undue costs on one principal sector, such as new development. It is our hope that, the preparation of a NCCP may lead to the availability of substantial financial assistance for the acquisition and preservation of open space areas.
Page 29 PREV PAGE TOP OF DOC
III. NEED FOR POLICY GUIDANCE ON SERVICE AREA IMPACTS
While Placer County is excited about the regional conservation planning efforts underway, there is concern about the need for a more consistent and uniform treatment of mitigation for what the Service is calling ''service area impacts,'' especially regarding public infrastructure projects and their potential impacts within the areas they are servicing. Broader conservation planning will not succeed if projects to service existing and anticipated development cannot be effectively integrated into the planning effort, and if the mitigation required for them, cannot be determined on the basis of clearly articulated policy delivered in a timely manner.
It must be remembered that habitat conservation planning programs are voluntary. Ideally, they involve the collaboration of local governments, land owners, and other community interests with Federal and state agencies. Removing impediments to local government participation in such efforts, therefore, is critical to the success of such programs.
Specifically, one impediment has been the lack of a clear Service policy with respect to mitigation associated with permitting public infrastructure projects. Currently, the Service requires mitigation for public infrastructure development based on service area-wide impacts, in addition to the direct on-site impacts caused by construction of the public facility itself. Thus, when a local government builds a road or a wastewater treatment plant to better service already existing development and anticipate realistic, future needs, the Service will require mitigation for both the direct impacts caused to endangered species by that particular development as well as for the impacts being caused by the activity it is servicing throughout the region. Sometimes the Service will require mitigation for so-called ''indirect effects'' that have tenuous connection to the infrastructure project. In such cases, it is unclear upon what basis the Service has determined that an infrastructure project is the direct cause of a future development impact.
Page 30 PREV PAGE TOP OF DOC
The Service has some legitimate concerns on this issue, but it has failed to articulate criteria by which potential service area impacts can be identified and evaluated. How broad is the reasonable scope? Does it apply equally to both existing, entitled development and to anticipated future development?
To prevent any real or perceived unfair treatment of local governments, therefore, Placer County recommends consideration be given to a policy reflecting a thoughtful and restrained approach to mitigation required by the Service for public infrastructure projects—specifically, a policy that would clarify the scope of legitimate public infrastructure service area impacts and would exclude impacts for which mitigation has already been provided. It is essential that the Service remember the cumulative impacts of all major planning projects are already an integral part of our local planning efforts as dictated under the California Environmental Quality Act.
IV. CONCLUSION
Placer County is committed to responsible development and conservation of the natural resources that make the County such a special place to live. The Legacy Project promises to achieve both. For the NCCP component of Legacy to fully fulfill the mission of both the Counties' General Plan and policies of the Service, several conditions must be met. The County can provide local planning, implementation, and enhanced enforcement of our mutual goals. The Service will need to honor the ''No Surprises'' Policy, acknowledge local land use planning, and clarify or reform the ''service area impact'' issue especially on public infrastructure projects necessary to support existing entitlements. The result from both parties must be a more clearly defined and streamlined permitting process. Placer County looks forward to having the Fish and Wildlife Service as a constructive resource in protecting the County's natural inheritance while facilitating permitting for projects to meet the County's growing needs.
Page 31 PREV PAGE TOP OF DOC
In conclusion, the County's policies are based on the notion that the most effective path to achieving environmental quality is not to compromise private property rights, market economics, or individual freedoms, but in fact to embrace them. Already we have witnessed several examples. We have a local privately owned mitigation bank that sells credits. The result is newly developed and spectacular habitat, less expensive and more timely creation of small acreage credits available to the development community, and profit opportunity for entrepreneurs. We have seen subdivision lots adjacent to protected open space sell for premium prices and their maintenance secured by partnerships between the County's code enforcement and homeowner's associations. Our local business community enjoys a more long term and predictable operating environment because strict zoning protects their facilities from the encroachment by incompatible uses and the quality of life of their employees.
Towards these multiple goals, there is a role for all the existing players; Federal, state, and local governments, property and business owners, and community interests. Certainly, there is room for reform that scrutinizes and thereby reorganizes the appropriate roles and relationships among these players. If our policies provide value to our constituents, adhere to private property rights, market economics, and good science, environmental enhancement will certainly be forthcoming.
Mr. POMBO. Thank you.
Mr. Schulz.
STATEMENT OF DAVE SCHULZ, CHAIR, OKANOGAN COUNTY, OKANOGAN, WASHINGTON
Mr. SCHULZ. Thank you, and good morning. For the record, my name is Dave Schulz, and I am chairman of the Okanogan County Commission, the general executive and legislative authority for the government of Okanogan County in the State of Washington. I appear on behalf of the Okanogan County to provide the Members of Congress with an example of the pitfalls of the implementation of the Endangered Species Act and to propose a more constructive approach to implementation that will promote the recovery of the protected species and broad scale compliance with ESA. It is our hope that the National Marine Fisheries Service and U.S. Fish and Wildlife, collectively called the Services, share our views on a preferable model for ESA implementation and that the Services will use practical, flexible, and incentive-based approaches that hold more promise for long-term species recovery while minimizing the disruption to the life and economy of communities affected by the ESA listings.
Page 32 PREV PAGE TOP OF DOC
Ninety-one percent of the lands in the Methow are public lands owned by the United States Forest Service or by the State of Washington. The natural resources of timber, mineral waters, and agriculture are the economy. The exceptional scenic value of the Methow Valley has placed the County at the heart of several controversial issues concerning Federal and State natural resource policies, including a landmark decision by the U.S. Supreme Court on the procedural nature of NEPA. That designation ski resort was never built. The spotted owl, the grizzly bear recovery zones, and now in August 1997, we added steelhead as endangered; June 1998, bull trout were added, and on March 1 of this year, the chinook were added. The Methow Valley is intensely impacted because of the extensive use of irrigational water diverted to more than 50 ditches serving hundreds of small farms and landowners. The ESA listing in Okanogan County places the exercise of private water rights by small farms and businesses on a potential collision course from the ESA.
Okanogan County, once again, is a test-case for Federal environmental policy, and the outcome is certain to be a setting precedent for the future implementation of ESA and other watersheds in Washington and throughout the West. Okanogan County, therefore, urges Congress and the Services to promote ESA implementation in a way that emphasizes creative and cooperative programmic compliance rather than a case-by-case enforcement and controversy.
Section 7 talks about special use permits issued by the United States Forest Service. In March 1998, the Forest Service prepared and submitted to the Services the biological assessment for the renewal or continued use of special use permits held by irrigation ditch companies in the Methow. Under the most generous interpretations of ESA, formal consultation on ditch permits should have been completed by the fall of 1998. As of this date of this hearing, however, consultation remains incomplete and effected irrigation ditches in the Methow are not permitted to divert water even though the irrigation season began back in April. I looked at a letter today from Mr. Stow and it says, ''Staffing limitations have hampered our ability to process the workload.'' Simply, they need money and people to help in this process.
Page 33 PREV PAGE TOP OF DOC
Under section 9, the county exercises no authority over the use of water rights, and the authority of the State is very limited in that regard. There simply is no authority by which the State or the county may immediately impose regulatory restrictions that curtail the use of private water rights, and there is certainly no appropriations to provide compensation that would necessarily accompany the regulatory taking of private property interests.
Under an agreement between the State and the county, a waterbank will be established in State rules and county ordinances. A waterbank, or HCP, is a programmic solution that minimizes legal conflict while providing the correct incentives to provide interest to take volunteer actions to efficiently use water, conserve, and restore ESA listed fish and comply with ESA.
What are the barriers and recommended solutions? In your packet, I have give you a number of those. There are four of them. I think it would be well worth the time to look at those. Most of the water that is required to satisfy NMFS fundamental condition is the property of numerous third parties. Neither the county nor the State can make the commitments required by National Marine Fisheries Service. The requested action that I am asking is a commitment for the Services to work cooperatively on a waterbank HCP with the county and the State of Washington. Mitigation credit for immediate action is there so the HCP development and approval through increments, and, thirdly, financial support, unfunded mandates. We simply need money as well as NMFS and others. Fourth, interim action and relief, and we have House bill 2514, 2496; we are trying to implement that.
Thank you for listening from our 38,400 residents from Okanogan County.
[The prepared statement of Mr. Schulz follows:]
STATEMENT OF DAVE SCHULZ, CHAIR, OKANOGAN COUNTY COMMISSION, OKANOGAN COUNTY, WASHINGTON
For the record, my name is Dave Schulz, and I am chairman of the Okanogan County Commission, the general executive and legislative authority for the government of Okanogan County, Washington. I appear on behalf of Okanogan County to provide Members of Congress with an example of the pitfalls for implementation of the Endangered Species Act (''ESA''), and to propose a more constructive approach to implementation that will promote the recovery of protected species and broad-scale compliance with the ESA. It is our hope that the National Marine Fisheries Service (''NMFS'') and the U.S. Fish and Wildlife Service (''FWS'') (collectively the ''Services'') share our views on a preferable model for ESA implementation, and that the Services will use practical, flexible, and incentive-based approaches that hold more promise for long-term species recovery while minimizing disruption to the life and economy of communities affected by ESA listings.
Page 34 PREV PAGE TOP OF DOC
I. Okanogan County's Methow Valley:
A Report from the Frontline of ESA Implementation
Washington State's Okanogan County is a vast county covering 5,268 square miles along the Canadian border and extending east from the crest of the Cascade Mountains to the Columbia River. See Attachment 1 (Maps of Okanogan County and Methow Valley). The Methow River flows southeast from its headwaters in the North Cascades National Park through the semi-arid and irrigated Methow Valley and into the mainstem Columbia River. Okanogan County and the Methow Valley are exceptionally scenic areas, generously endowed with natural resources and populated with communities who enjoy and depend on outdoor recreation and natural resources for their livelihoods.
The United States and the State of Washington own and manage a majority of the land in Okanogan County, and those public lands are the source of timber, mineral, water, and range resources upon which much of the regional economy is established. Like many rural and natural resource-dependent counties, Okanogan County has suffered a long-term decline in the vitality of its timber, mining, ranching, and agricultural sectors. Growth in rural tourism has been beneficial to the County, but is not expected to fully replace the employment and income lost through the decline of resource industries. The Okanogan County Commission does not seek to stop change or turn back the clock, but the Commissioners do feel that it is essential that Federal, state, and local governments assist private interests to make adjustments and transitions in the face of change, especially when change is wrought by policies and laws imposed by government.
Not surprisingly, Okanogan County's abundance of natural resources and the exceptional scenic value of the Methow Valley have placed the County at the heart of several controversies concerning Federal and state natural resource policy. In the 1980's, a destination ski resort proposed for the Methow Valley was the subject of special land exchange legislation enacted by Congress and litigation that led to a landmark decision by the U.S. Supreme Court on the procedural nature of the National Environmental Policy Act. The resort was never built. In 1982, the North Cascades Grizzly Bear Recovery Zone was established to promote land management for the conservation of grizzly bears listed as threatened under the ESA. The zone includes much of Okanogan County, including the Methow Valley and cities such as Twisp and Winthrop. In the 1990's the northern spotted owl was listed as a threatened species, and national forest lands in Okanogan County are now subject to added management restrictions under the Northwest Forest Plan Also in the 1990's, the State of Washington formulated a special management plan designed to conserve lynx habitat in the 130,000-acre Loomis State Forest. Lynx are now proposed for listing as a threatened species under the ESA. Ironically, completion of the Loomis plan spawned a citizen suit in 1997 alleging that the state management plan would take grizzly bears in violation of the ESA. In 1998, Omak Wood Products, one of the County's largest private employers and a major purchaser of timber from the Loomis Forest, declared bankruptcy and closed its doors. And, in 1999, after years of permit processing and environmental analysis, the Crown Jewel Mine proposed for Okanogan County was denied final approval in a Federal record of decision based on an unprecedented interpretation of Federal mining law with consequences for the mining industry nationwide.
Page 35 PREV PAGE TOP OF DOC
Okanogan County clearly is no stranger to natural resource controversy, but now faces a new crisis in the implementation of the ESA that may affect the County more profoundly than all of the litany of natural resource controversies that have visited the County over the past three decades. Beginning in 1997, NMFS and FWS listed three fish species found in Okanogan County for protection under the ESA. In August of 1997, NMFS listed the Upper Columbia Steelhead Evolutionary Significant Unit (''ESU'') as endangered under the ESA, and NMFS added the Upper Columbia Chinook ESU as an endangered species in March 1999. In June 1998, FWS listed Columbia Basin bull trout as a threatened species. Because the habitat of these fish depends on water quality, the use of water resources, the quality of riparian habitat,
and land use in general, fish listings pose what is probably the greatest natural resource challenge to the economic and social stability and health of Okanogan County.
While there have been several ESA listings of anadromous fish throughout the Pacific Northwest, Okanogan County has been more immediately and severely impacted by ESA listings for salmonids because it is among the few places where the fish are classified as endangered. The Methow Valley is intensely impacted because of the extensive use of irrigation water diverted through more than 50 ditches serving hundreds of small farms and landowners. In short, the ESA listings in Okanogan County place the exercise of private water rights by small farms and businesses on a potential collision course with the mandates and prohibitions of the ESA.
Okanogan County is once again a test-case for Federal environmental policy, and the outcome is certain to be a precedent for future implementation of the ESA in other watersheds in Washington and throughout the West. Implementation of the ESA in the County provides an opportunity to build a model for ESA compliance and species recovery that can be used elsewhere, but it also presents a risk that adversarial implementation will work against the long-term prospects for species recovery and cooperative compliance by landowners and water users in Okanogan County and elsewhere. Okanogan County therefore urges the Congress and the Services to promote ESA implementation in a way that emphasizes creative and cooperative programmatic compliance rather than case-by-case enforcement and controversy.
Page 36 PREV PAGE TOP OF DOC
II. Case-by-Case Enforcement:
A Formula for Conflict and High Costs Without Recovery
Okanogan County recognizes that the Services are required to implement and enforce the ESA, and must do so with limited resources. It is this combination of limited resources and a host of compliance requirements for innumerable Federal and nonfederal actions that begs for programmatic solutions that avoid individual review and enforcement for every single activity and litigation that will consume limited agency resources and provoke additional errors and delays. At this time, however, it appears that implementation of the ESA in the Methow Valley is at risk of slipping into a mode of adversarial enforcement that will do more to harm the objectives of the ESA than it will to recover salmon.
The risk of adversarial enforcement of the ESA is centered on two issues: (1) Section 7 consultation on special use permits issued by the United States Forest Service (''Forest Service'') to ditch companies for the conveyance of water on rights-of-way across Federal land, and (2) threatened enforcement actions by the United States or citizens alleging violation of the ESA's ''take'' prohibition.
Under the ESA and both rules and guidelines implementing the ESA, Section consultation is subject to certain procedural requirements and time limitations. In March 1998, the Forest Service prepared and submitted to the Services the biological assessments for the renewal or continued use of special use permits held by irrigation ditch companies in the Methow. Under the most generous interpretation of the ESA, formal consultation on the ditch permits should have been completed by the Fall of 1998. As of the date of this hearing, however, consultation remains incomplete and affected irrigation ditches in the Methow Valley are not permitted to divert water even though the irrigation season began in April. See Attachment 2 (April 22, 1999 Letter from U.S. Forest Service to NMFS concerning consultation issues in Methow Valley). There is no apparent excuse for this delay, and the delay imposes a severe hardship on Methow Valley landowners. Id. The Services are now engaged in an effort to conclude consultation with haste, but consultation is not expected to be complete for another month or two, during which affected ditches are forbidden to divert water. The situation appears to be ripe for litigation that will drain the resources of the Services and will be destructive for the affected landowners and water users.
Page 37 PREV PAGE TOP OF DOC
There is a substantial risk that the Services, in their recent haste to complete consultation, may render an ill-considered biological opinion that imposes unduly harsh targeted stream flow conditions through an incidental take statement. Under such a statement, affected ditches would be required to curtail diversions when affected stream reaches drop below a flow level set by the incidental take statement. Because watersheds are shared resources with multiple users, an incidental take statement with terms and conditions based on targeted stream flows threatens to impose on a single permittee an unfair condition that may be beyond the control of that permittee. Establishing terms and conditions for targeted flows is also a threat to water rights that are not subject to consultation because the terms and conditions may promote citizen suits to enforce the targeted flow as a standard for take. Water resource users who may be affected by such a precedent have no opportunity to evaluate and comment on the scientific basis or economic impact of target flows. The County and the State are currently engaged in an active public planning process to address instream flows as part of a comprehensive water resource planning effort for the Methow Valley, but that process requires time and scientific evidence. Okanogan County is concerned that flawed Federal biological opinions could become a stumbling block for long-term water resource planning, ESA compliance, and salmon recovery by establishing an unrealistic precedent for targeted stream flows deemed necessary to avoid jeopardy or prevent take of listed salmonids.
Coupled with the mired consultation process in the Methow Valley are threats of enforcement based on allegations of take prohibited by Section 9 of the ESA. In a recent letter, NMFS asserts that the County and the State of Washington should take emergency action under state law to restore instream flows or risk liability for take. See Attachment 3 (Undated Letter from NMFS to Tom Fitzsimmons, Director, Washington Department of Ecology). The interpretation of the ESA set forth in the NMFS letter is inconsistent with the legal obligations and authorities of both the County and the State. The County exercises no regulatory authority over the use of water rights, and the authority of the State is very limited in that regard. There simply is no authority by which the State or the County may immediately impose regulatory restrictions that curtail the use of existing private water rights, and there certainly is no appropriation to provide compensation that would necessarily accompany the regulatory taking of private property interests in water rights. At most, the State may adjust instream flows established by rule, but any adjustments will not and cannot curtail existing water rights to achieve those flows. Implementation of the ESA must be consistent with the authority and realistic resources of the State and County if it is to be successful. Threats of liability will not change the law or the resources under which the County and State must operate.
Page 38 PREV PAGE TOP OF DOC
The Services should look to the County and State as cooperators who must work within their own constraints. Okanogan County appears before the Congress today to declare that it is prepared to cooperate with the Services in developing constructive long-term ESA compliance and conservation solutions that avoid the difficulties that currently afflict the Methow Valley. Toward that end, Okanogan County offers with this testimony its recommendations and requests for implementation of the ESA.
III. Programmatic Compliance and Recovery:
Building Cooperative, Flexible, and Incentive-Based Habitat Conservation Plans
In response to ESA listings for anadromous fish, the State of Washington has provided funding and authority for counties and other interested stakeholders to formulate and implement watershed-based plans for water resource management, protection of water quality, and conservation of protected species and their habitat. In 1998, Okanogan County was awarded a substantial grant to commence this planning process and the County also agreed to work with the Washington Department of Ecology to create a waterbank that will be used to implement water resource objectives.
Under an August 4, 1998 Memorandum of Agreement (''MOA'') between Okanogan County and the State, a waterbank for the Methow Valley will be established in State rules and County ordinances. See Attachment 4 (MOA and Notice of Proposed Rulemaking). The MOA guiding the creation of the waterbank was concluded before the current controversy involving the Services and consultation on irrigation ditches in the Methow Valley. The waterbank will facilitate the transfers of water rights, changes in use or point of diversion of water resources, and use of water saved through efficiency, conservation, and reuse. As part of the process for conducting a transaction permitted by the waterbank, the holder of a water right will relinquish an established fraction of the water right for deposit in the State's instream flow trust account. In this way, the State and the County will provide incentives for holders of private water rights to rebuild instream flows through efficiencies and changes in use that are voluntarily implemented by private interests. This method of rebuilding instream flows serves the desired biological objective without regulatory ''cat and mouse'' or other means beyond the authority and financial resources of the State and County. The waterbank promises to deliver biological results more promptly and with less controversy and cost than general adjudication of water rights, enforcement actions, or regulatory mandates.
Page 39 PREV PAGE TOP OF DOC
The County strongly believes that the waterbank jointly developed by the County and the State should serve as the basis for a Habitat Conservation Plan (''HCP'') and programmatic incidental take permit issued by the Services under Section 10 of the ESA. In principle, when a holder of a private water right relinquishes part of that right to assist in the restoration of instream flows beneficial to ESA-listed salmon, he or she should receive the benefit of assurance that the exercise of the remaining water right is lawful under the ESA for the duration of the incidental take permit. By granting such an assurance, the United States is able to create a strong incentive to restore instream flows that does not require an appropriation of funds or compensation to the holder of the water right.
A waterbank HCP is a programmatic solution that minimizes litigation and legal conflict while providing the correct incentives for private interests to take voluntary action to efficiently use water, conserve and restore ESA-listed fish, and comply with the ESA. Such an HCP makes more effective use of the Services' resources by promoting broadscale voluntary compliance and conservation efforts instead of case-by-case enforcement. In addition, participating landowners and irrigation ditches covered by the incidental take permit will no longer require separate review and conditioning under Section 7 consultation where a Federal authorization is involved. This will add efficiency and savings for other Federal agencies such as the Forest Service, which is currently embroiled in consultation issues involving special use permits in the Methow Valley. Finally, a successful waterbank HCP will provide a model that may be replicated in other watersheds throughout the range of West Coast salmonids listed under the ESA, and throughout the United States where water rights are in conflict with instream flows and ESA-listed fish.
IV. Barriers and Recommended Solutions:
Changing ESA Implementation Without Changing the Law
Page 40 PREV PAGE TOP OF DOC
Early discussions indicate that NMFS is highly skeptical concerning the conservation benefits of the proposed Methow Valley waterbank. Specifically, NMFS demands that any conservation plan guarantee that specific instream flows will be achieved within a specific time frame. See Exhibit 5 (April 27, 1999 Letter from NMFS to Okanogan County Commission). It is the County's view that the guaranteed increase of instream flows within a guaranteed period of time is not possible under state law. Most of the water that is required to satisfy NMFS's fundamental condition is the property of numerous third parties. Neither the County nor the State can make the commitments required by NMFS. To bridge this gap, NMFS will have to exercise its discretion to exchange regulatory assurances under an incidental take permit for voluntary commitments that restore instream flows in an incremental fashion. The County appreciates that NMFS has expressed its willingness to work cooperatively with the community, but a realistic recognition of the limitations on mitigation that can be guaranteed by the County or State is essential to progress. Otherwise, the opportunity to build instream flows through voluntary, incentive-based action will be lost. To prevent such a result, we recommend the following:
1. Accept that Immediate Regulatory Action to Build Instream Flows and Guaranteed Biological Outcomes are Legally and Biologically Impracticable: The Services, and particularly NMFS, appear to insist that any programmatic solution for ESA compliance offered by the County and State must provide immediate and certain assurances that specified levels of mitigation such as higher instream flows will be achieved. If there is to be any hope of a cooperative relationship between the Services, the State, and the County, the Services must realize that the ESA does not command immediate regulatory action by the State or County. The ESA must be implemented through cooperation, recognizing the legal and financial limitations that the County and the State must abide, just as the Services are limited in their legal authority and fiscal resources. Moreover, as biologists, the Services must accept that biological certainties are impossible and, at best, biological probabilities are the target. The ESA, itself, uses standards based on biological probabilities. The Services should feel comfortable in proceeding with cooperative efforts that improve the probabilities that fish habitat will be improved over time. Programmatic HCPs that provide incentives for voluntary participation should not be ignored only because they do not guarantee participation or biological outcomes.
Page 41 PREV PAGE TOP OF DOC
2. Accept Voluntary Incentive-Based Programs That Achieve Mitigation Objectives in Increments: The Services should recognize the benefit of providing incidental take coverage for voluntary actions that are sure to benefit listed fish, even in the absence of a regulatory framework that commands action beneficial to listed fish. While, in theory, a regulatory approach to ESA compliance seems more certain to achieve ESA conservation objectives, it requires overwhelming resources to establish and enforce regulatory oversight and it often requires a change in law. A voluntary approach is more likely to be immediately accepted, and it is consistent with the basic structure of the ESA, which requires voluntary compliance by nonFederal entities. Indeed, the FWS has, in the past, approved incidental take permits that are extended to third parties who voluntarily commit to implementing the terms of a programmatic HCP. Through a waterbank HCP, the County brokers ESA compliance and mitigation for individual property owners that NMFS would otherwise have to approach separately to obtain the same commitments. The Services should embrace and build upon the programmatic and voluntary approach rather than abandon it based on unrealistic expectations.
3. Target Federal Funds for Salmon Restoration and Columbia River Federal Power System Mitigation to Programmatic Efforts Such as Waterbank HCPs: Okanogan County is aware of the fish and wildlife mitigation program overseen by the Northwest Power Planning Council in connection with the operation of the Federal power system and dams in the Columbia Basin. Okanogan County has also learned of Federal appropriations that have been made or are under consideration for salmon recovery in Washington State and along the West Coast. Okanogan County urges that these substantial Federal funds for salmon recovery be used, in part, to support programmatic long term solutions such as the waterbank HCP proposed by Okanogan County.
4. Encourage the Environmental Protection Agency to Integrate Clean Water Act Compliance Objectives and Assurances with Waterbank/Watershed HCPs that Address Water Quality Issues Such as Low Flows and Temperature: Many of the issues addressed in water resource planning are also issues of water quality. Where a water resource planning mechanism, such as a waterbank HCP, addresses water quality issues such as low flows and high temperatures, regulatory assurances from the Environmental Protection Agency and state-delegated Clean Water Act program should also be extended to the permittees. Although many agree with this principle, the Federal family of agencies has yet to work out a means by which the ESA and Clean Water Act can be integrated through the same mitigation and compliance efforts. Integrated compliance under the ESA and Clean Water Act should be a top priority in Federal regulatory innovations.
Page 42 PREV PAGE TOP OF DOC
V. Requested Action
1.-A Commitment from the Services to Work Cooperatively on a Waterbank HCP: The County will soon prepare a waterbank HCP conceptual proposal that it will share with the Services and the State of Washington. The County hopes that the Services will be encouraged to treat the waterbank HCP as a serious proposal, and will commit through a memorandum of understanding to provide the resources and attention necessary to work together with the County and the State to build a model waterbank HCP.
2. Mitigation Credit for Immediate Action In Advance of HCP Development and Approval: The County will move forward with the State in conducting watershed planning and establishing a waterbank. The County hopes that the Services will give the County full mitigation credit for these early efforts and will confirm that position in a memorandum of understanding with the County for proceeding with an HCP.
3. Financial Support: The County requests that Federal funding be made available through the Federal Columbia River mitigation program or other federally-funded salmon restoration initiatives to assist rural counties such as Okanogan County with the development and implementation of programmatic HCPs for the benefit of the broader public and ESA-listed fish.
4. Interim Action and Relief: While the County and State of Washington work to complete watershed planning and establish a waterbank, the legal requirements of the ESA continue to impact and threaten the stability of Okanogan County. The County recognizes that the Services must enforce the ESA, but several interim measures should be considered to minimize ESA impacts on the community.
First, it appears that 1999 will be an exceptionally high water year in the Methow Valley. As such, it would be appropriate for the Services to permit irrigation diversions affected by consultation to proceed pending the completion of biological opinions because the diversions will not be irreversible or irretrievable commitments of resources. The Services have provided some relief to a few irrigators under Section 7(d) of the ESA, but many Methow Valley water users remain hamstrung by incomplete consultation.
Page 43 PREV PAGE TOP OF DOC
Second, it is essential that the Services expressly disclose in biological opinions issued for the Methow Valley in 1999 that those opinions are based on incomplete information that is likely to be revised in the future in accordance with better data that will be forthcoming through the State-County watershed planning process. To discourage unfounded citizen suits, it would also be helpful if 1999 biological opinions explained that reasonable and prudent alternatives or terms and conditions set forth in an incidental take statement should not be used as a presumptive standard for take in connection with the use of water resources by other parties who are not subject to the consultation.
Third, it is recommended that the Services consider working cooperatively with irrigation ditches to research the effects of ditch operations on stream flows and fish and provide the irrigators with incidental take permits for cooperative scientific research under Section 10(a)(1)(A) of the ESA. Information collected in this fashion would be helpful to the County's watershed planning process and to the development of a waterbank HCP.
Mr. POMBO. Thank you.
Mr. Bruton.
STATEMENT OF VINTON CHARLES BRUTON, NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, RALEIGH, NORTH CAROLINA
Mr. BRUTON. Yes, sir. Mr. Chairman, Committee members, my name is Charles Bruton, and I am the assistant manager for the Project Development and Environmental Analysis Branch for the North Carolina Department of Transportation.
Today, I take great pride in telling you about the most recent effort we have undertaken to protect the habitat of an endangered species, the red-cockaded woodpecker, in North Carolina. The most recent endangered species mitigation project funded by the North Carolina Department of Transportation is the acquisition of a tract of about 10,000 acres in rural Tyrrell County on the Albermarle Sound in eastern North Carolina. This $16.3 million real estate transaction took place on April 28, 1999 with funds provided by the North Carolina DOT to the Conservation Fund, a Maryland non-profit corporation. The Conservation Fund, which conveyed a conservation easement to NCDOT, used the proceeds to purchase the tract from the Prudential Insurance Company of America operating as Pru-Timber.
Page 44 PREV PAGE TOP OF DOC
The idea for this acquisition was conceived back in October 1997 when the U.S. Fish and Wildlife Service expressed in writing their intent in NCDOT purchasing the Pru-Timber tract. The Service's letter stated that the tract is rich in biological diversity containing federally listed species. The letter further stated that there is excellent potential for NCDOT to receive mitigation credits for wetlands as well as red-cockaded woodpeckers.
In February 1998, the Environmental Defense Fund sent a letter to North Carolina secretary of Transportation, Norris Tulson, urging his department to increase its efforts to avoid, protect, and mitigate habitat for endangered red-cockaded woodpeckers in its highway construction program. The tract, which borders the Alligator River, is to be known as the Palmetto-Peartree Wildlife Management Area and is now under protection. The site also has some potential for wetland restoration and preservation.
The voluntary partnership forged between NCDOT, the Conservation Fund, and the U.S. Fish and Wildlife Service will protect one of North Carolina's largest populations of red-cockaded woodpeckers, containing 18 active clusters. A memorandum of agreement dated April 22, 1999 was executed by U.S. Fish and Wildlife Service, the Conservation Fund, and NCDOT to allow for the tract to be managed as a red-cockaded woodpecker sanctuary. The parties to the agreement anticipate that good management of the sanctuary will actually increase the number of active clusters over the existing 18.
The NCDOT intends to use mitigation credits generated from the management and development of the preserve as a means of red-cockaded woodpecker mitigation for future highway construction projects throughout the coastal plain of North Carolina. NCDOT has estimated that over the next seven years, five highway construction projects in the coastal plain, which potentially impact the red-cockaded woodpecker, will have a combined cost of $450 million. The management area will be utilized in the future as needed when NCDOT can demonstrate to the satisfaction of U.S. Fish and Wildlife Service that there are no available or potential red-cockaded woodpecker avoidance and minimization alternatives.
Page 45 PREV PAGE TOP OF DOC
In addition to its mitigation value, the management area is planned to be a primary destination on the North Carolina Bird Trail which is modeled after the successful Texas Bird Trail. Managed by the Conservation Fund in cooperation with Duke University's Nicholas School of the Environment, the sanctuary is expected to increase year-round, nature-based tourism in eastern North Carolina and generate valuable year-round economic benefits to the area. The Conservation Fund will manage the sanctuary for an agreed period of time, after which, it will be turned over to the U.S. Fish and Wildlife Service or if the Service is unwilling to accept the land, to the State of North Carolina or an agency thereof.
Furthermore, the sanctuary will compliment the soon to be constructed Walter B. Jones Center for the Sounds in Tyrrell County which will include an environmental education center and the U.S. Fish and Wildlife headquarters for Pocosin Lakes National Wildlife Refuge.
Mr. Chairman, in closing, the NCDOT is pleased to work cooperatively with the U.S. Fish and Wildlife Service toward enhancing and protecting the environment through initiatives like the one just presented for Tyrrell County. We urge all individuals and agencies in this process to facilitate the means and methods to allow similar environmental initiatives in a manner that allows flexibility in infrastructure development as well as mitigation. We believe that the best method of providing sustainable development and an enhanced environment is through partnership with multiple agencies, and we would appreciate legislative support that fosters this inter-agency corporation.
Thank you.
[The prepared statement of Mr. Bruton follows:]
STATEMENT OF VINTON CHARLES BRUTON, PH.D., NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, RALEIGH, NORTH CAROLINA
Mr. Chairman, Members of the Committee, and Guests: Over the past 25 years, Federal Legislation, Executive Orders and related regulations have produced major changes in environmental protection. As a result, the protection of natural resources such as endangered and threatened species, as well as wetlands, have become high priorities in North Carolina.
Page 46 PREV PAGE TOP OF DOC
The North Carolina DOT and the Federal Highway Administration frequently encounter endangered species during the process of locating and designing highway projects. In North Carolina, one such species is the red-cockaded woodpecker (Picoides borealis). Whenever impacts to this species' habitat cannot be avoided, as is frequently the case with widening and major new location highway construction projects in the coastal plain of North Carolina, the use of mitigation measures is required by the U.S. Fish and Wildlife Service.
Such measures are designed to enhance or preserve the remaining habitat as a means of eliminating ecological damage and preserving the species. Without such mitigation measures, state highway construction projects such as the Fayetteville Outer Loop (serving a major city and military base Fort Bragg), the Wilmington Bypass (serving a major city port) and U.S. 64 in Tyrrell and Dare Counties (serving national and international tourism to the Outer Banks and emergency evacuation purposes) would not be authorized by Federal environmental resource agencies to proceed to construction. Thus, in order to avoid potential future project delays, the North Carolina Department of Transportation believes that it is important to acquire and manage valuable red-cockaded woodpecker sites in advance of highway construction.
The most recent endangered species mitigation project funded by the North Carolina DOT is the acquisition of a tract of about ten thousand acres in rural Tyrrell County (see Attachment 1), on the Albemarle Sound in eastern North Carolina. This $16.3 million real estate transaction took place on April 28, 1999 with funds provided by the North Carolina DOT to The Conservation Fund, a Maryland non-profit corporation. The Conservation Fund, which conveyed a conservation easement to North Carolina DOT, used the proceeds to purchase the tract from The Prudential Insurance Company of America, operating as ''Pru-Timber.''
The idea for this acquisition was conceived back in October 1997, when the U.S. Fish and Wildlife Service expressed in writing their intent in North Carolina DOT purchasing the Pru-Timber tract. The Service's letter, included as Attachment 2, stated that the tract ''is rich in biological diversity- containing federally-listed species, migratory birds, estuarine and freshwater fisheries, diverse natural communities, and various types of wetlands.'' The letter further stated that there is ''excellent potential for North Carolina DOT to receive mitigation credits for wetlands as well as red-cockaded woodpecker (RCW's).'' In February 1998, the Environmental Defense Fund sent a letter (Attachment 3) to North Carolina Secretary of Transportation Norris Tolson, urging his Department ''to increase its efforts to avoid, protect and mitigate habitat for endangered red-cockaded woodpeckers in its highway construction program.'' The U.S. Fish and Wildlife Service again acknowledged its support in a letter dated August 7, 1998 (Attachment 4).
Page 47 PREV PAGE TOP OF DOC
The tract, which borders the Alligator River, is to be known as ''The Palmetto-Peartree Wildlife Management Area'' and is now under protection. The site also has some potential wetland restoration and preservation. A letter of support from Tyrrell County is included as Attachment 5.
The voluntary partnership forged between the North Carolina DOT, The Conservation Fund and the U.S. Fish and Wildlife Service, will protect one of North Carolina's largest populations of red-cockaded woodpeckers, containing eighteen (18) active clusters. A Memorandum of Agreement number 1448-40181-99-KK-005, dated April 22, 1999 (Attachment 6) was executed between The U.S. Fish and Wildlife Service, The Conservation Fund, and the North Carolina DOT to allow for the tract to be managed as a red-cockaded woodpecker sanctuary. The parties to the agreement anticipate that good management of the sanctuary will actually increase the number of active clusters over the existing eighteen. The North Carolin DOT intends to use mitigation credits generated from the management and development of the preserve as a means of red-cockaded woodpecker mitigation for future highway construction projects throughout the coastal plain area of North Carolina. The North Carolina DOT has estimated that, over the next seven years, five highway construction projects in the coastal plain which potentially impact the red-cockaded woodpecker will have a combined cost of about $450 million dollars. The Palmetto-Peartree Wildlife Management Area will be utilized in the future as needed whenever North Carolina DOT can demonstrate to the satisfaction of U.S. Fish and Wildlife Service that there are no available or potential red cockaded woodpecker avoidance and minimization alternatives.
In addition to its mitigation value, the Palmetto-Peartree Wildlife Management Area is planned to be a primary destination on the ''North Carolina Bird Trail,'' which is modeled after the successful Texas Bird Trail. Managed by The Conservation Fund in cooperation with Duke University's Nicholas School of the Environment, the sanctuary is expected to increase year-round, nature-based tourism in Eastern North Carolina and generate valuable year-round economic benefits to the area. The Conservation Fund will manage the sanctuary for an agreed period of time, after which it will be turned over to the U.S. Fish and Wildlife Service or, if the Service is unwilling or unable to do so, to the State of North Carolina or an agency thereof furthermore, the sanctuary will complement the soon-to-be constructed Walter B. Jones Center for the Sounds in Tyrrell County, which will include an environmental education center, and the U.S. Fish and Wildlife headquarters for Pocosin Lakes National Wildlife Refuge.
Page 48 PREV PAGE TOP OF DOC
Mr. Chairman, in closing, the North Carolina DOT is pleased to work cooperatively with the U.S. Fish and Wildlife Service toward enhancing and protecting the environment through initiatives like the one just presented for Tyrrell County. We urge all individuals and agencies involved in this process to facilitate means and methods to allow similar environmental initiatives in a manner that allows flexibility in infrastructure development as well as mitigation. We believe that the best method of providing sustainable development and an enhanced environment is through partnership with multiple agencies and we would appreciate legislative support that fosters this interagency cooperation.
Mr. POMBO. Thank you. Thank all the panel for their testimony.
Ms. Clark, just to start off with, I would like to ask you just more of a process question. After the witness list was formalized and made public, a number of the witnesses received phone calls from Fish and Wildlife Service inquiring as to what the nature of the testimony that the witnesses would be giving here today. Were you aware that that was going on?
Ms. CLARK. Well, Mr. Chairman, I actually saw the final witness list at about quarter to nine this morning. So, I was still trying to figure out where I sequenced in on the panels. I don't know specifically that there were conversations, but I don't think it is unusual for conversations to occur among folks that are going to testify, but I didn't—or people voluntarily told me that they were testifying. I did hear from some of the witnesses that either left me messages or with my secretary suggesting that they were testifying at this hearing today.
Mr. POMBO. In your testimony, you state that you do not require mitigation as part of the section 7 consultation, and yet the story that we hear is that it is required. How do you square that?
Ms. CLARK. Very carefully, Mr. Chairman. I actually had significant conversations over the last few days about the word ''mitigation'' and what is meant by mitigation, and, as I tried to summarize in my oral statement, it is very clear to me that the term ''mitigation'' in the technical sense is used much more loosely than is probably efficient, and we do take responsibility for that. When we are dealing with a kind of merging of the Clean Water Act, Endangered Species Act, all the kind of planning responsibilities and trying to be most efficient in addressing the needs of species and the needs of economic growth, I believe sometimes the word ''mitigation'' is used much more loosely than the technical or statutory term would allow. Mitigation in the legal sense, the policy sense, is truly only allowable in section 7 when it is part of a reasonable and prudent alternative; that alternative that is necessary to offset or avoid the jeopardy to a listed species. But the term ''mitigation,'' the term ''minimization,'' the term ''offset'' are used very loosely among all the parties negotiating what is needed.
Page 49 PREV PAGE TOP OF DOC
Mr. POMBO. What term would you use if someone was developing a piece of property and they were told they had to set aside a third of their property as habitat that would be under control of either Fish and Wildlife Service or an NGO that would be named, or if they had off-site mitigation and they had to buy three acres of land for every acre they were developing, what term would you use to describe that?
Ms. CLARK. It would depend on the project, and it would depend on the species, and to answer you directly, many of the species that we are dealing with—let us just use California as an example, since it is high on people's minds—many of the species that are listed today in California are in dire shape. They are highly endangered and some approaching blinking out or extinction. And, so the notion of the status of the species, many of them are very close to a jeopardy baseline. So, if in fact we were dealing with a project that encompassed a large part of those species' remaining range and it were through section 10, we would be minimizing and mitigating. If it were through a Corps of Engineers or an EPA or some other Federal connection and the species would receive a jeopardy biological opinion, a reasonable and prudent alternative would be some form of mitigation. Otherwise——
Mr. POMBO. I don't know why we are going back and forth on this. We can use whatever term you want to use. The Fish and Wildlife Service routinely requires an exaction out of the people that they are dealing with, whether it is development—I mean, when we dealt with the floods in California two years ago, there was a 5 to 1 mitigation, 5 to 1 exaction. I mean, you required them to mitigate—you don't want to use the word ''mitigation''—you required an exaction out of them in order to do that, and there has been a series of these exactions that have been required, and in looking through the records and the testimony that has been presented here today, it appears that California, for some reason, is almost all the exactions that are being required are being done in California. Very few are being done outside of California proportionately. Even if you are talking about similar species and similar topography, we do not see the same kind of exactions that are being required in California being required elsewhere, and that is one of the reasons why a lot people begin to question the activity of Fish and Wildlife Service in California, because they don't see it in other places.
Page 50 PREV PAGE TOP OF DOC
We had testimony about irrigation ditches and what the exaction would be for them to be able to use their irrigation ditches, and I am sure that—well, Mr. Gilchrest stepped out—but I am sure Mr. Gilchrest his farmers don't have the same kind of exactions in order to use their irrigation ditches. So, that question is out there.
I have more questions, but I will pick them up on the second round.
Would you like to respond to that?
Ms. CLARK. Well, again, I can respond to it in summary, but we will end up getting into a specifics discussion very quickly. The longstanding work that has been done in California has really set up some processes that blend all of the environmental statutes, and it blends all of the involved parties. So, the condition of the species, the projects that are involved often dictate the terms and an attempt to be equitable and an attempt to be efficient and an attempt to streamline processes, oftentimes, these kind of negotiated offset, mitigations, minimizations are arrive at. But what we try very hard to do is not have a cookie cutter approach. So, what may happen on the Eastern Shore of Maryland would not be what is happening in Sacramento, California. It is species-specific; it is project-specific, and it is negotiation-specific.
Mr. POMBO. I am not necessarily asking for a cookie cutter approach; in fact, you and I have had these discussions before.
Ms. CLARK. Right.
Mr. POMBO. But with the elderberry beetle, there was not a jeopardy decision that was issued. With the fairy shrimp, there was not. It seems like you are just requiring exactions in California every time that you come in on a section 7 or a section 10, and that is one of the concerns.
Mr. Miller?
Mr. MILLER. Thank you, very much, and thank you to the panel. Ms. Clark, just so you don't feel like you were alone in talking to members of the panel or prospective members of the panel, many members of this Committee talked to members of the panel and people who didn't want to testify and people who wanted to testify and weren't allowed to testify, so it all kind of washes out here.
Page 51 PREV PAGE TOP OF DOC
Let me follow up—you know, obviously—and we will hear from cities and developers and others—it is not easy to be a city and not easy to be a developer, whether you are commercial or residential or whether you are a city trying to expand its infrastructure, and it seems to me that if you look at the process in this country, at all levels of government, if you are a developer, the school board goes to the city council and says, ''We need new schools. This is going to be new development. This development is going to have to take 100 percent responsibility for the capital costs, and they have to develop a school.'' Somebody else says ''They are going to have to pay for the increased capacity in the sewer plant, in the waterworks.'' Somebody else says, ''Well, we need the roads widened,'' so they are going to have to widen the roads, and if you want to build a tall structure in an urban area, they say, ''We want setbacks'' from the property line so you don't block viewsheds. I mean, this is a constant, constant practice of extractions from people who want to develop their property, whether it is under zoning or whether it is under neighborhood mitigation or wildlife mitigation, in this particular case, the client are species. But if the client is the school district or the client is the community that says, ''Fine, we will accept 100 homes, but we want them to be transportation sensitive; we want them to be mass transit-friendly; we want running trails and hiking trails, and we want open spaces and parks, people say, ''Yes, that is the way you create a community,'' and that generally has the support of the people who are there. And then somebody has to come in a advocate on behalf of endangered species because we have made a national decision about protecting and recovery of endangered species. So, I don't know that this all terribly foreign to the people involved in it.
I think when we get to the species, however, there is more ambiguity, if you will, or questions of whether it is listed or whether there are jeopardy opinions that starts to drift over. One of the witnesses later will testify about the effort to try to protect soil, and soil is not part of that. After long negotiations, finally, the admission was made, yes, really, they didn't have the legal authority to protect the soil in this case, and the entire nature of the mitigation was changed.
Page 52 PREV PAGE TOP OF DOC
I think what I find as I deal with these from various communities and developers and others is that you don't want a cookie cutter approach; you want to customize to the needs and the species and the nature of the property and the habitat, but by the same token there really aren't very bright lines about how to proceed, and I think that is why a lot of people hold out hope for HCPs in the sense that you would then know on a larger landscape area how you can proceed and on a timely basis. But by the same token, we don't appear to have the resources to develop the HCPs within the Service.
I mean, time and again, the witnesses here this morning and the people who have come to my office and other Members of Congress, there is a long timeframe of trying to process these, and I just wondered if you could sort of tell us where you are in intensive areas like the southeast or certainly in the State of California in terms of matching up the demand and the resources? Maybe we will learn this from the GAO report too.
Ms. CLARK. And I do hope we do, because I think there is an amazing story to tell.
The notion of advocating for species certainly is the responsibility of the Fish and Wildlife Service and National Marine Fisheries Service, and I will tell you, to add to your list, it is not easy being a Fish and Wildlife Service employee these days either. But the idea of trying to respond to an increasing demand for economic growth and economic expansion—which is a good thing—and the need to try to balance it with species conservation needs—which is a good thing—is elevating and increasing exponentially, and I have seen it in my career in the Fish and Wildlife Service pretty dramatically.
We have had previous hearings where we discussed the deployment of resources in the Fish and Wildlife Service, but I am happy to have that discussion over and over again, because I think it is instructive. We try to deploy our resources where the biological hotspots, where the biological diversity, merges particularly with elevated and increasing economic growth, so it is not a surprise to see resources on the west coast, resources in the Southeast, resources being sent to the Southwest. That is where the biological hotspots are, and that is where the fastest growing parts of our country are.
Page 53 PREV PAGE TOP OF DOC
We continue to juggle workload ourselves, as do our colleagues in the National Marine Fisheries Service, to address technical assistance demands and technical assistance needs, and when thing are going well, I don't tend to hear about them here in Washington, but when somebody is not getting a permit fast enough or negotiations are slowed down because we have moved onto something else, you can best believe I hear about it, and then we start sequencing and rearranging deck chairs. But the workloads are increasing dramatically, which is why I continue to go back to the President's budget request.
Over the past few years, our number one budget