SPEAKERS CONTENTS INSERTS
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ENFORCEMENT OF THE ENDANGERED SPECIES ACT IN CALIFORNIA
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
JULY 9, 1999, HEMET, CALIFORNIA
Serial No. 10649
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/house
Page 2 PREV PAGE TOP OF DOCCommittee 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 DOCBOB 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
CHRIS JOHN, Louisiana
Page 4 PREV PAGE TOP OF DOCDONNA MC 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. HOLT, 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 July 9, 1999
Statement of Members:
Bono, Hon. Mary, a Representative in Congress from the State of California
Calvert, Hon. Kenneth, a Representative in Congress from the State of California
Chenoweth, Hon. Helen, a Representative in Congress from the State of Idaho
Hunter, Hon. Duncan, a Representative in Congress from the State of California
Prepared statement of
Pombo, Hon. Richard, a Representative in Congress from the State of California
Page 5 PREV PAGE TOP OF DOCThomas, Hon. Bill, a Representative in Congress from the State of California, prepared statement of
Young, Hon. Don, response to questions by Mr. Rogers, Acting Director, Fish & Wildlife Service
Young, Hon. Don, response to questions by Mr. Thomas O. Melius, Assistant Director, Fish & Wildlife Service
Statement of Witnesses:
Bragg, Mark, Palm Springs, California
Prepared statement of
Evans, Doug, City Manager, City of Palm Springs
Prepared statement of
Fife, Don, National Association of Mining Districts
Prepared statement of
Fuentes, Lorrae, Vice President of Education, California Native Plant Society
Prepared statement of
Hewitt, Hugh, Esq, Irvine, California
Prepared statement of
Hollingsworth, Dennis, Riverside County Farm Bureau
Prepared statement of
Kading, Randy, Field Superintendent, C&H Framing
Prepared statement of
Libeu, Lawrence M., Director of Legislative Affairs, Eastern Municipal Water District
Prepared statement of
Moore-Kochlacs, Reverend Peter, Director, Environmental Ministries of Southern California
Prepared statement of
Page 6 PREV PAGE TOP OF DOCMoser, Dennis M., Vice President, Kelwood Development Company
Prepared statement of
Rosen, Judith I., President, Murrieta Valley Unified School District
Prepared statement of
Sauls, Edwin G., The Sauls Company and Building Industry Association of Southern California
Prepared statement of
Silver, Dan, M.D., Coordinator, Endangered Habitats League
Prepared statement of
Spear, Michael, Manager, California/Nevada Operations Office, Fish and Wildlife Service, accompanied by Ken Berg, Field Supervisor, and Sean Skaggs, Counsel to the Assistant Secretary
Prepared statement of
Tavaglione, John, Supervisor, Riverside County
Prepared statement of
Turecek, Bruce, Jacumba Valley Ranch
Prepared statement of
Woolfolk, Virgal, JMAW Environmental Service Group
Prepared statement of
Zappe, David P., General Manager-Chief Engineering, Riverside County Flood Control and Water Conservation District
Prepared statement of
Additional material supplied:
Bear Valley Mining District, letter to Mr. Pombo
Big Bear Valley Preserve News, extract
Brown, Howard, Pluess-Staufer (California) Inc., ''Limestone Endemic''
Page 7 PREV PAGE TOP OF DOCCalifornia Legislature, letter to Mr. Babbitt
Kern County Water Agency, prepared statement of
Salt Water Contractors, letter to Mr. White from Steve Macaulay, General Manager
Shadowrock, Shadowrock Development Environmental History and Mitigation Proposal
State Water Contractors, San Luis & Delta-Mendota Water Authority, letter to Mr. Babbit etc.
ENFORCEMENT OF THE ENDANGERED SPECIES ACT IN CALIFORNIA
FRIDAY, JULY 9, 1999
House of Representatives,
Committee on Resources,
The Committee met, pursuant to call, at 9:39 a.m., in Room 305, East Devonshire, Simpson Center, Hemet, California, the Hon. Richard Pombo presiding.
Member present: Representative Pombo
Mr. POMBO. [presiding] Let's get started. I would like to ask everybody to please fill in the seats. There are several seats up here in the front, if I could have you come forward and fill in any of the empty seats, please. We need to have everybody take a seat to the extent possible. Even to the extent, take the witness seats up here in the front row if need be.
STATEMENT OF HON. RICHARD POMBO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. POMBO. Good morning. I want to welcome all of you to this hearing of the House of Representatives Committee on Resources. I am Congressman Richard Pombo from Tracy, California.
Page 8 PREV PAGE TOP OF DOC Chairman Don Young has asked me to chair this hearing today on his behalf and sends his regrets that he could not be here.
I represent California's Congressional District 11, and I am very happy to be here at the invitation of my Southern California colleagues, Congresswoman Mary Bono, Congressman Ken Calvert, Congressman Duncan Hunter, and Congressman Gary Miller.
Southern California is fortunate to have some of the most effective, hardest working Members of Congress.
We are also joined this morning by Congresswoman Helen Chenoweth of Idaho, my colleague on the Resources Committee.
I particularly want to thank the good people of Hemet, California for their hospitality in hosting this hearing and to the Simpson Center for allowing us to use this wonderful facility.
The Committee on Resources is here today to receive testimony from the citizens from Southern California who have experienced first hand how the Endangered Species Act is enforced and implemented.
I have become increasingly concerned that the ESA is no longer the national law that Congress intended it to be when it was originally enacted in 1973. Instead, it is increasingly used as a tool to stop growth and economic development in only certain areas of the country, particularly here in the West.
We are seeing increasing evidence that this law is used very selectively, not to truly save endangered species or threatened species, but as a means to allow Federal agencies to dictate Federal policies to local communities on everything from urban sprawl to land use policies.
In some areas of the country species are protected and recovery is achieved using cooperation and common sense. You just don't hear about conflict over the ESA in the Northeast or Midwest because Fish and Wildlife Service offices in those regions focus their efforts on helping people protect wildlife using cooperation rather than confrontation. They do not require the set-aside of thousands of acres of private land or the payment of millions of dollars in mitigation fees.
Page 9 PREV PAGE TOP OF DOC I believe that the ESA can achieve its goal without conflict and confrontation and without infringing on the rights of private property owners. I believe that we can have an ESA that does not destroy jobs in local economies. I believe that a common sense approach that appeals to our national desire for a more beautiful world can work.
However, as long as the real agenda is to stop growth, eliminate jobs, and take private property for public use without payment of just compensation, then both people and wildlife will continue to suffer.
Again, I thank you for allowing this Committee to come to your community and for your warm and courteous welcome.
I would like at this time to recognize my colleague from this district, Ms. Bono.
STATEMENT OF HON. MARY BONO, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Ms. BONO. Thank you, Mr. Chairman.
I would like to take this opportunity to welcome my colleagues to the beautiful City of Hemet in the 44th Congressional District in California. I really appreciate your giving up a part of your vacation time to be here.
One of our goals today is to come up with ideas on how to make the Endangered Species Act work for everyone. For several years Southern California has been at an impasse in terms of how to balance our growth and economic prosperity with saving the many unique species residing here. To sacrifice one for the other is not an option.
The Inland Empire is one of the fastest growing areas in the United States. People want to live here because they can make a good living and relish Southern California's unrivaled surroundings. Right now our standard of living is in jeopardy because we do not have a consistent method of applying the Endangered Species Act.
Page 10 PREV PAGE TOP OF DOC I believe there is a willingness to comply by most property owners. All they ask for is some certainty to the process.
I hope the hearing will provide our constituents with an understanding of how they can comply with the law as it applies equally to everyone.
Mr. Chairman, before I close, I would also like to thank the City of Hemet, the Hemet Police Department, and the Director of the Simpson Center for givi
ng us such a wonderful venue.
Thank you, and I yield back the balance of my time.
Mr. POMBO. Thank you.
I would like to recognize the gentleman who first approached me about holding this hearing, Mr. Calvert.
STATEMENT OF HON. KENNETH CALVERT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. CALVERT. Thank you, Mr. Chairman.
And I am happy to be here in Hemet. I have got to tell you a quick story. My mother met my father here in Hemet. She was a nurse at the Hemet Hospital, and my father had a rock and sand business up in Idyllwild and got hurt, and if it was not for that, I would not be here.
Mr. CALVERT. So some of you probably wish that never occurred, but it did.
As many of you who are here today are aware, as the Fish and Wildlife Service certainly is aware, I have recently become very concerned about the implementation of the Endangered Species Act, especially by the Fish and Wildlife Service's Carlsbad office.
Page 11 PREV PAGE TOP OF DOC The impetus for my actions is the accelerated rise in the number of complaints from my constituents. In the six years since I was first elected to represent western Riverside County, the number of complaints my office has received about the Carlsbad office and their implementation of ESA has literally skyrocketed, and keep in mind that is only counting the people who have been willing to come forward.
Fish and Wildlife has been accused of creating an atmosphere of intimidation in everyone, from landowners and developers to farmers and homeowners and public agencies.
In response to the rising number of complaints, I have requested a GAO audit of the service operations with my friend and colleague House Resources Chairman, Don Young, and I am happy to say that all of the California members on this panel today have signed that letter, along with a total of 26 members of the California delegation in support of this, both Republicans and Democrats.
The Carlsbad office frequently laments that they are under staffed and under budget. An independent audit will hopefully determine where the problems are located.
A shared theme in all of the complaints I have received is that the policies of the Carlsbad office lack common sense, and in my opinion, the office has made themselves an easy target due to some of the their demands.
For example, a hospital in San Bernardino moved 250 feet at a cost of $4.5 million to save eight flies. A Fish and Wildlife biologist recommended shutting down the I-10 freeway during August and September, at least slowing it to 10 to 15 miles an hour so that fewer flies got caught on windshields during the mating season.
Mr. CALVERT. I do not make this stuff up, folks.
Page 12 PREV PAGE TOP OF DOC Mr. CALVERT. Demanding retroactive mitigation for ongoing uses that have taken place for 30 years, including trimming trees at the end of the Corona airport runway, a safety measure that is mandated by the FAA. I think someone found out I used to be a pilot.
Originally demanding $32 million in mitigation for a $20 million interchange project because a biologist from the Carlsbad Fish and Wildlife office apparently believed that a fly was located nearby, but no one had ever seen one.
Producing a map that shows the Quino checkerspot butterfly habitat in all but the most industrial areas of Southern California.
Now, those are just a few examples. I am sure that we will hear many more, and if the ramifications were not so serious to property owners and the endangered species alike, the statements coming out of that office would almost seem laughable, and that is part of the problem. These are just statements, not even policy.
If endangered and threatened species are going to be truly protected for future generations, our Federal agencies must have credibility and deal in good faith with all citizens.
I am also extremely concerned about reprisals and intimidation. Whether directly or indirectly through consultants against our witnesses today and others with whom this Committee will speak in the future, this is something that will not be tolerated, and I will monitor this situation closely, as I am sure the Chairman will and the rest of this panel.
It is my hope and expectation that I do not hear any abuse of power in the future.
That said, I have several goals I hope this hearing can accomplish.
One, any person who applies for a Section 7 or 10(a) permit will have the trust and confidence that the Fish and Wildlife Service keeps its commitments.
Page 13 PREV PAGE TOP OF DOC Two, mitigation must be done with equal habitat value per acre as determined by the applicant survey biologist and the Fish and Wildlife Service.
Three, only sound and legally obtained science can be used to obtain habitat.
Four, that the policies are consistent.
Five, that the office advocate alternative ways in which economic development can go forward while going through the formal stages of the permitting process.
My colleagues and I are here today because the Federal Government must find a way to logically and fairly address the situation and reach a solution that does not put the rights of the species before the rights of people.
I want to emphasize I recognize Southern California is the most densely populated region in the United States and one of the fastest growing, which has resulted in growing pains that include additional stress on habitat. Riverside County's first encounter with ESA problems was the fringe toed lizard. This was followed by the Stephen's Kangaroo Rat, which took eight years to complete at a cost of $42 million.
But the Carlsbad employees have not consistently dealt with us in good faith. When a deal is made, as in the case of San Diego and the Fish and Wildlife office and its employees can no longer be relied upon, the problem becomes that the community loses trust in the agency and, in part, loses trust in the United States Government, and that is not a good thing.
Southern California, especially Riverside, San Bernardino, San Diego, and Orange Counties, have shown an enormous commitment, not only to protect endangered and threatened species, but also to establish a strong working relationship with Fish and Wildlife and other conservation agencies.
I am hopeful that we can one time again return to a strong working relationship, and I look forward to hearing the testimony of today's witnesses, Mr. Chairman.
Page 14 PREV PAGE TOP OF DOC And I thank you.
Mr. POMBO. Thank you.
Mr. POMBO. I would like to recognize the gentle woman from Idaho, Mrs. Chenoweth.
STATEMENT OF HON. HELEN CHENOWETH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO
Mrs. CHENOWETH. Thank you, Mr. Chairman.
I want to thank you and our hostess, Mary Bono, for this opportunity to delve into an issue, the Endangered Species Act, that obviously from the comments of Congressman Calvert and from our knowledge in working back there in the Congress, the Endangered Species Act has been totally misused.
It is an Act that has not succeeded in saving species, but has succeeded in dimming down the enthusiasm for a productive economy and a vibrant and growing society that is growing in the right way, not necessarily growing out as far as people are concerned, but the continued vibrancy that really has built this country.
So, again, thank you very much for inviting me to the hearing, and I look forward to hearing from the witnesses.
Mr. POMBO. Thank you.
I would like to recognize Mr. Hunter.
STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. HUNTER. Thank you, Mr. Chairman.
Page 15 PREV PAGE TOP OF DOC And I want to thank my colleagues, our host, Ken and Mary, for hosting this hearing, and you for coming such a long way to make it a reality, and Helen, of course, for her great contribution.
You know, Southern California used to be a place where you could dream, where a young couple could get married, and they could have children, and they could have a dream, and they could pursue that dream, and in many cases achieve it.
And a centerpiece of that dream was home ownership, and my reason, Mr. Chairman, for being here is because I think that that dream is disappearing rapidly, and I can see it very clearly in the facts and figures we're going to put up in a few minutes when we have testimony from some of our witnesses.
But, you know, the average home in San Diego County today is $265,000, and the estimates are that as a result partly of Fish and Wildlife in Carlsbad and other factorsthere are other agencies that are involvedthat 265, $270,000 median priced home in San Diego County is about 35 percent higher than it needs to be, and that money does not go to profit for developers. It does not go to the construction crews, the people that carry the lunch buckets and build the homes. Those are actually fairly low costs. They are basically in line with the rest of the country.
Plywood and two-by-fours cost the same across the country, but what makes our homes so expensive is the cost of regulation, and so that dream is becoming unachievable. Today you have to make about $70,000 a year to be able to qualify for the median priced home in San Diego County, and that means that our young couples are not able to buy homes.
And most of our growth now is coming from people who are having families in our districts. It is not coming from outside folks coming into San Diego and Riverside Counties. So we have a real problem. The American dream is slipping away.
And part of the answer is going to be brought about, I think, by this hearing because we are going to listen to some people who would have been able to have built those homes, and I think home building is a very honorable profession, Mr. Chairman. They would have been able to build those homes for a lot less money, sell them for a lot less money, and that young couple would not have been paying 7 or 7 1/2 percent interest on an additional 30 or $40,000 per home for the next 30 years if government had acted reasonably.
Page 16 PREV PAGE TOP OF DOC And I have said this before, Mr. Chairman. This may be a little strong, but I talked to one person who actually took a photograph of one of the bumper strips on one of the Federal employee's cars at the Carlsbad office that said essentially, ''Home Builders Can Go to Hell.'' Now, I thought about that.
What if you were a veteran and were going into the Veteran's Affairs Office to try to get your veterans check and you saw the car, happened to see the car of one of the people who was supposed to wait on you and serve you, and it said, ''Veterans Can Go to Hell. That's my attitude,'' or what if you were a senior citizen going to the Social Security Administration and you saw a bumper strip that said, ''Senior Citizens Can Go to Hell''? What kind of service would you expect when you walked in those doors?
Unfortunately, Mr. Chairman, I think that that attitude has largely been manifested in real action by some members of the Carlsbad Fish and Wildlife office. I've been admonished by Mary Bono, a very reasonable and good person, that we should be optimistic that we can solve these problems, and I hope we can solve them. I think some positive recommendations will come forth today.
But let's make this hearing contribute to that most important goal for Southern California, and that is, once again, making the dream of home ownership achievable.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Hunter follows:]
STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Chairman, I appreciate the opportunity to be here in Hemet, California today to participate with the House Resources Committee to discuss the operations of the Carlsbad office of the U.S. Fish and Wildlife Service (CFWS). In addition, I would like to commend our friend and colleague, Congresswoman Mary Bono, for convening this hearing to explore what I believe to be questionable behavior by CFWS.
Page 17 PREV PAGE TOP OF DOC Today, Mr. Chairman, this Committee will hear testimony by a wide array of witnesses, some of whom being just ordinary citizens, who will highlight a consistent pattern by CFWS of misusing the Endangered Species Act (ESA). We will hear from private developers, local officials and even a construction-site foreman, all of which will detail how the misapplication of the ESA has impeded growth and development in Southern California. I believe that it is important, however, to emphasize that most of our witnesses will not necessarily be advocating the rescinding or minimizing of the ESA, but will instead only call for the appropriate implementation of this law.
As all of us know, the ESA was passed to ensure that endangered or threatened animals, plants and fish are protected from human activity so as to avoid their ultimate extinction. While I believe that the goal of this law is commendable and certainly well-intentioned, the overly broad discretionary powers it gives to the enforcers of the ESA, specifically CFWS, have created an atmosphere in Southern California where our landowners and developers are routinely forced to meet redundant, time-consuming and very expensive ESA compliance requirements before any construction can begin. Mr. Chairman, it is my earnest hope that today's hearing will provide CFWS the insight and incentive to pursue a more compromise-oriented approach when administering the ESA.
Among other witnesses, this Committee will receive testimony from a number of individuals from my home area of San Diego County. These good people represent an even larger number of San Diegans who have absorbed the impacts associated with burdensome and costly environmental compliance. The impacts that I have referenced, speak to the built-in, artificial expense factored into housing costs for home buyers. In fact, in San Diego County, roughly 30 percent of the cost associated in purchasing a home is the direct result of the developer having to finance the environmental compliance efforts. I think that everyone here will readily agree that inordinately high home costs were not the intent of Congress when the ESA was enacted into law.
Page 18 PREV PAGE TOP OF DOC As many of us are aware, San Diego County is expected to realize an increase of 1.5 million new citizens within the next 10 years. Unfortunately, estimates show that new housing construction is woefully behind in meeting this expected influx, with many of our young, new families having to live in high density apartment and condominium complexes. While I cannot overemphasize the importance of protecting the environment for our future generations, this effort must be pursued in a reasonable and realistic fashion if we are to provide sufficient housing for the multitudes of expected new residents.
Mr. Chairman, one of our initial witnesses will be Mr. Bruce Turecek, who is currently seeking to develop part of his property in eastern San Diego County. After three years, thousands of dollars and numerous consultations, Mr. Turecek has conclusively determined that his property is devoid of any endangered species. Unfortunately, CFWS will not provide Mr. Turecek with a definitive plan to as to whether or not his efforts will suffice and allow for the development of his property. Instead, CFWS has repeatedly engaged in a practice of only providing critiques of his biological surveys and vague directions to Mr. Turecek. I would submit that this behavior legitimately can be interpreted as a conscious effort to delay and ultimately derail his project. Sadly, the circumstances surrounding Mr. Turecek's situation are too often the norm rather than the exception in our region of California. We must work to rectify the situation before Mr. Turecek and others like him can no longer build homes that average, working families can afford to buy.
Finally, I would remind the Committee and our audience that Southern California used to be a place where one could work hard and save their money and achieve the American dream of owning their own home. Unfortunately, because of the outrageous costs associated with exhaustive environmental compliance requirements, this dream is rapidly becoming a thing of the past in our area. Recognizing that this costly and burdensome practice has become the standard by which CFWS operates, I am hopeful this hearing will provide the insight and incentive necessary to rectify the problems that I have already referenced.
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Mr. POMBO. Thank you.
Mr. POMBO. I would like to call up our first panel, Mr. Lawrence Libeu, Mr. Mark Bragg, Ms. Judith Rosen, the Reverend Peter Moore-Kochlacs, and Mr. Virgal Woolfolk.
If you would join us up here at the witness stand, and if you could remain standing just momentarily. If I could have you raise your right hand.
Mr. POMBO. Let the record show that they all answered in the affirmative.
Please join us at the witness table.
Now, for those of you unfamiliar with the process, your entire written statements will be included in the record. We like to keep the oral testimony to five minutes. There is a light bar sitting at the table there, and it is green, start; yellow, hurry up; and red means stop, and just like a traffic light.
Mr. POMBO. We have a cop sitting in the back of the room. He's going to watch me drive out of here.
Mr. POMBO. But if you could try to keep your oral statements to the five minutes, we do have a very long hearing. It would be appreciate by the Committee.
Mr. Libeu, if you are ready, you can begin.
STATEMENT OF LAWRENCE M. LIBEU, DIRECTOR OF LEGISLATIVE AFFAIRS, EASTERN MUNICIPAL WATER DISTRICT
Page 20 PREV PAGE TOP OF DOC Mr. LIBEU. Thank you, Mr. Chairman and members of the Committee, for allowing us this opportunity to be heard.
My name is Larry Libeu. I am Director of Legislative Affairs for the Eastern Municipal Water District, known as EMWD, as well as the California Director on the Natural Water Resources Association, known as NWRA, and I am the President of the Western Coalition of Arid States, known as WESCAS.
EMWD is a water and waste water agency serving about 420,000 people in a 555 square mile area of Riverside County where this hearing is being held today. As you no doubt observed and probably already surmised, much of our district is open space and potential habitat.
As noted earlier, population is exploding in our region, and one way we are able to stretch our available fresh water supply to meet this burgeoning demand is through the extensive use of recycled water from our five waste water treatment facilities and the responsible management of our local groundwater basins.
Other efforts we undertake to stretch our water supply include aggressive and comprehensive conservation program, water harvesting, brackish desalination of groundwater basins, and rehabilitation of contaminated wells.
Despite all of these efforts, however, our success and the success of other water agencies within this region will depend on our abilities to comply with the often too subjective, locally interpreted, and increasingly complex and expensive environmental regulations at the state and Federal level. Let me just offer a few examples.
Over the past eight years, EMWD has developed a seasonal storage and recovery project to recharge a vast groundwater basin underlying the San Jacinto River, which is an ephemeral stream. To implement this project, we will utilize imported water, surplus imported water when it's available.
The project is good for the environment and will reduce the demand for imported water in the future for this area, but the Fish and Wildlife Service is insisting that we restore long disturbed portions of the river bed to their original condition, primarily for the benefit of a recently listed subspecies known as the San Bernardino kangaroo rat. The restoration requirement will require us to set aside at least three times the land area of the recharge project, and that land will have to be set aside for mitigation.
Page 21 PREV PAGE TOP OF DOC As a further price for the recharge project, we expect the Fish and Wildlife Service will require us either to abandon or set aside another large area of land upstream from the recharge project as mitigation for maintenance of an upstream diversion which we have had in operation for over 35 years.
Secondly, in order to reliably, even safely serve our customers, we must maintain our facilities, including those that are in outlying areas. Fish and Wildlife has now begun referring to these sites, many established for decades and devoid of endangered species, as degraded habitat, and we perceive their goal to be the requirement for further mitigation of lands.
Thirdly, the Santa Ana sucker is a fish that is about to be listed as threatened, and I say about to be. During excessively wet weather, EMWD must occasionally discharge recycled water into the Temescal wash, which is a tributary to the Santa Ana River. Past experience indicates that Fish and Wildlife Service may well require year round flows in order to support the Santa Ana sucker. Such a requirement would consume a huge portion of our recycled water, thus defeating the reason for putting that water to beneficial use within our district.
We believe the following changes need to be made to the Endangered Species Act in order to achieve its expressed goals without causing undue harm in other ways.
First, greater consistency and predictability are essential to administrating the Endangered Species Act. These values must be based on not only greater objectivity in the rules and guidelines, but on the regional economic impacts.
Second, a revolving loan fund should be established to help local governments cope with the increasingly expensive requirements of habit conservation plans.
Next, the no surprises policy must be codified to prevent imposition of additional mitigation after the fact.
Fourth, basic safety, maintenance, and repair work on existing utility facilities serving the public must be exempted from ESA requirements.
Page 22 PREV PAGE TOP OF DOC And finally, the administration's safe harbor policy should be expanded to include habitat created by either historical or prospective water discharges.
In conclusion, Mr. Chairman, it must be noted that water in the West is a valuable resource which is growing more scarce daily. Continued parochial interpretation and implementation of ESA further exacerbates this situation.
We in the water industry in the regulatory arena need to come together to foster working partnerships which will bring to closure the uncertainty of this interpretation, as well as create positive results for both sides as we move into the 21st century.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Libeu follows:]
STATEMENT OF LAWRENCE M. LIBEU, DIRECTOR OF LEGISLATIVE AFFAIRS, EASTERN MUNICIPAL WATER DISTRICT, DIRECTOR, NATIONAL WATER RESOURCES ASSOCIATION BOARD OF DIRECTORS, PRESIDENT, WESTERN COALITION OF ARID STATES
Good Morning. I am pleased to be here today on behalf of Eastern Municipal Water District (EMWD), to express its views with regard to implementation of the Endangered Species Act (ESA) and to present recommendations for changes. In addition to being the Director of Legislative Affairs at EMWD, I am a director on the National Water Resources Association Board of Directors, and president of the Western Coalition of Arid States.
EMWD is a water and wastewater agency serving a population of 420,000 in a 555 square mile area. The District is located in Southern California in the western part of Riverside County. Our service area includes the communities of Hemet, San Jacinto, Moreno Valley, Perris, Sun City, Murrieta, and Temecula, portions of four other cities, and unincorporated areas of Riverside County.
Page 23 PREV PAGE TOP OF DOC EMWD was formed during the 1950's with the primary mission of delivering a secure supply of supplemental water to this region. As time progressed, EMWD added sewage collection and treatment and water recycling to the services offered to its customers. EMWD is a member agency of the Metropolitan Water District of Southern California (MWD), which supplies Southern California with imported water from the Colorado River and from Northern California via the State Water Project. EMWD currently purchases approximately 75 percent of its water supply from MWD.
Development and population within EMWD's service are increasing at a rapid rate. Water demand by residents, businesses, agriculture, and other interests is growing and is straining available water supplies, and the threat of future water shortages is very real. Increased population and water use also bring along increased wastewater flows. EMWD's goal is to reuse 100 percent of its wastewater for agricultural, landscaping, and groundwater recharge uses.
EMWD will continue to depend upon imported water from MWD, but the availability of this water is dependent upon many factors. These factors include: environmental water demands at the point of origin, the structural adequacy of delivery systems, competing needs for water in Southern California, and drought. To deal with these challenges to the reliability of its imported water supply, EMWD is actively implementing programs to optimize the use of all available water resources within its service area. These programs include: extensive use of recycled water, comprehensive water conservation, water harvesting, brackish groundwater desalination, rehabilitation of contaminated wells, and proper management of local ground water basins. The success of these programs, as well as other innovative water management programs throughout California, depends upon the ability of water agencies to comply with increasingly complex, expensive, often subjective, and locally interpreted environmental regulations mandated by State and Federal agencies for the protection of threatened and endangered species. Unless modified, these regulations could have a crippling impact on the ability of water agencies to meet the future water supply needs of the citizens of this state. The result will be significantly restrictive growth rates for all urban communities of the state.
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EMWD believes species conservation, like other issues such as clean water and clean air, is necessary and vital for our lifestyles. However, meeting increased demands for water and finding ways to reuse the corresponding wastewater will challenge EMWD. First, by balancing future water demands, and second, by complying with the ESA in its current form. Clearly, the ability to address water supply and wastewater management problems in the future is hampered by the arbitrary interpretation and implementation of the ESA by the U.S. Fish and Wildlife Service (FWS).
EMWD is a member of the National Water Resources Association, also known as NWRA, a water industry association representing agricultural and urban water agencies seeking to promote water supply reliability through its activities with Federal agencies and regional and national legislators. The NWRA is the oldest and most active national association concerned with water resource policy and development. Its strength is a reflection of the tremendous ''grassroots'' participation it has generated on virtually every national issue affecting western water conservation, management, and development.
EMWD is also a member of the Western Coalition of Arid States (WESTCAS), an organization formed by a group of western water and wastewater agencies concerned about the manner in which water quality and water resource management issues are being addressed in states throughout the arid and semi-arid West. WESTCAS is dedicated to developing appropriate and practical water quality regulations, policies and laws that would be more responsive to the unique ecosystems found in the arid and semiarid regions of the western states.
The West is a region of the country where many federally listed threatened or endangered species call home. NWRA and WESTCAS members are intimately involved in multiple facets of species identification and conservation including habitat protection. It became clear, as NWRA and WESTCAS members shared species conservation experiences, that regulations and policies implementing the ESA are either restricting, or increasing the cost of water resource management strategies and wastewater treatment operations without any substantial benefit to the species those policies and regulations were designed to protect.
Page 25 PREV PAGE TOP OF DOC NWRA and WESTCAS members are experiencing substantial impacts as a result of the listing of several terrestrial species. These include delays to projects, unclear or unrealistic mitigation requirements, and significant additional costs borne by our ratepayers. Listings of aquatic species and the involvement of FWS in the establishment of water quality criteria will impact our future. Examples of recent and future impacts of the ESA on EMWD include:
San Jacinto Seasonal Storage and Recovery Project
EMWD has proposed a seasonal storage and recovery project to recharge the San Jacinto River aquifer with up to 3,000 acre-feet of surplus water annually. The San Jacinto River is an ephemeral stream that flows only in response to intense and prolonged rainfall. This project will benefit the environment by allowing storage of surplus water locally, thereby reducing demand on other sources of water from the Colorado River and the Bay Delta system in Northern California. The recharge site will be constructed on about five acres in the disturbed portion of the San Jacinto riverbed. The FWS is concerned because it perceives indirect adverse impacts on the habitat of the San Bernardino Kangaroo Rat (SBKR), a federally listed endangered species.
The FWS initially required EMWD to develop mitigation actions for this project. After submitting our recommendations, FWS has the discretionary power to accept or reject EMWD's proposals for arbitrary and capricious reasons. If they reject our suggestions, we must submit new mitigation recommendations for approval. The process of proposing and negotiating recommendations for mitigation may continue for years, delaying implementation of this environmentally beneficial project.
During consultations with FWS on this project, it became clear to EMWD staff that the goal of the FWS was to restore that portion of the San Jacinto River Basin inhabited by the SBKR to its natural condition. The impression received was that to get approval EMWD would have to allow another project, our groundwater recharge ponds located upstream, which has been operating for over 30 years, to revert to its natural state. We believe this is an unreasonable and unjustifiable request because of the significant loss of a local water supply to the San Jacinto Valley. It appears that this recommendation has little to do with whether the SBKR will be ultimately helped and more to do with a particular biologists view of what the San Jacinto River and its habitat should look like.
Page 26 PREV PAGE TOP OF DOC So far, this project has been delayed over a year resulting in a lost savings to our customers of at least $300,000. As this project continues to be delayed, our lost savings will increase. Without this project, we will not be able to meet the groundwater basin demands of the area and we will be forced to supplement our water supply with lower quality water. This will reduce the quality of our wastewater and will hinder our ability to meet our discharge limits mandated by the Regional Water Quality Control Board.
It was also apparent that the FWS is looking for EMWD to become the agency to take the lead in a Habitat Conservation Plan (HCP) for the entire San Jacinto River Basin. EMWD has agreed to addressing mitigation actions relating directly to its project and in our service area, in fact our Board of Directors 2 months ago authorized the purchase of 87 acres in the San Jacinto River at a cost of $88,000 to enhance EMWD's ability to provide future mitigation offsets in the river. However, for us to be held responsible for developing and managing habitat conservation over the entire 1,000 acre range of the SBKR in the San Jacinto River, where we do not have management responsibility, is clearly not appropriate for a public water district. Letting the existing groundwater recharge ponds revert to their natural state and taking the lead in HCP development is not equitable mitigation for this type of project.
EMWD has 78 water storage tanks in its service area. As the population increases, either additional tanks must be built or existing tanks must be expanded to provide adequate service to our customers. EMWD is currently expanding an existing tank site located in an area that is habitat for the California Gnatcatcher, a federally listed endangered species. This project is located on a parcel of land that is less than one acre in size. No gnatcatchers were actually detected onsite. EMWD was informed that appropriate mitigation would be the purchase of land or credits at a 3 to 1 ratio to mitigate our project. We do not argue with this requirement. What we do argue, however, is during informal consultation FWS also indicated EMWD would have to address the ''growth inducing impacts'' of the project. Such a request is not within the intent of the ESA or the charter of the FWS. EMWD's mandate as a water agency is to provide existing and future customers with safe and reliable water. EMWD has no control over land use development. That is the purview of cities and counties. EMWD must provide service when it is needed.
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Another problem we have with ESA implementation is the ongoing maintenance of our water and wastewater facilities. These activities may involve the upkeep of existing access roads to facilities, removal of encroaching vegetation, repairs, or safety modifications to our facilities. These routine activities are necessary to ensure smooth operation of our water and wastewater facilities, to provide safe drinking water that is sufficient to meet our customers needs, and provide water quality to meet the recycled water requirements within the service area. Because these facilities already exist, there are few, if any, impacts to species or their habitat. FWS has begun referring pejoratively to some of these areas as ''degraded habitat'' with a perceived goal of requiring mitigation for lands that have not been occupied by any endangered species for many years. EMWD maintains that we should not be mandated to mitigate on a retroactive basis or for routine maintenance activities.
Aquatic Species Impacts
The FWS is currently considering listing the Santa Ana Sucker, a small freshwater fish that feeds on algae, as a threatened species. This fish is native to several Southern California rivers, including the Santa Ana River. EMWID's goal is to recycle all of its treated wastewater, however there will be times during wet weather when discharges will occur into the Temescal Creek, an ephemeral stream tributary to the Santa Ana River. The listing of the Santa Ana Sucker will have significant implications for dischargers like us. Past experience demonstrates that additional water quality regulations could be required, but more importantly, water quantity could be regulated. The flow might be required year-round instead of seasonally, and at a higher level in order to support habitat for the Sucker. This could preclude us from sending recycled water to other points of use for other beneficial uses including wildlife habitat enhancement and agricultural water supplythus defeating the reclamation purpose of the recycled water program in the first place. Forcing the continued discharge of recycled water will create artificial habitat at the expense of native habitat. Recycled water use offsets the need to export water from native watersheds, leaving more water in the state's rivers and streams. In the arid southwest, water recycling is vital to reducing demand for imported water. Mandating wastewater flows removes much of the incentive for dischargers to contemplate environmentally beneficial recycled water projects while having far reaching regional impacts on existing communities of these states.
Page 28 PREV PAGE TOP OF DOC Looming in the future is the involvement of FWS in the development of the Environmental Protection Agency's (EPA) water quality criteria, state water quality standards and permits, and Total Maximum Daily Loads. This will affect all wastewater dischargers, not just EMWD. Very briefly, under the Clean Water Act, EPA has the authority to establish national water quality criteria, and it has done so for the past 27 years. However, under the ESA, the EPA must consult with the National Marine Fisheries Service and the FWS before approving water quality standards to determine whether they might impact listed species. The FWS has no experience in this area. The opinions of FWS biologists regarding various water quality constituents, including those on the national criteria list, are based on limited experience with a limited number of species under very limited circumstances. Consultation on the national criteria will provide FWS biologists with an opportunity to broadly apply their limited data in order to overturn the scientific process for establishing national criteria which EPA has refined over a period of many years.
FWS involvement in these areas provides the opportunity for economic impacts on wastewater discharge permit holders. These impacts may involve multi-year biological studies and research, bioassessments, requirements for provision of habitat, including water resources, etc. These measures are often very expensive.
ISSUES AND RECOMMENDATIONS
To remedy what we perceive as shortcomings to the current implementation of the ESA, we provide the following list of issues and recommendations for your consideration.
ISSUE 1: The FWS has too much discretionary power and requires mitigation based upon ill-defined or non-existent goals for habitat protection and species recovery.
Page 29 PREV PAGE TOP OF DOC RECOMMENDATION: In consultation with state and local governments, the FWS should develop scientifically based procedures, guidelines, and criteria subject to public review and comment to ensure consistency and predictability in the implementation of the ESA. This regulatory framework should include deadlines for FWS to provide information and decisions and require mitigation ratios to be defined in Habitat Conservation Plans (HCPs). Adequate funding must be provided to FWS to develop these needed elements.
ISSUE 2: ESA implementation places an unfair economic burden on local governments.
RECOMMENDATION: A revolving loan fund should be established to help local governments prepare regional HCPs that address both the habitat needs of species and human development needs.
ISSUE 3: There is no assurance when developing an HCP that additional mitigation will not be required at a later date.
RECOMMENDATION: Codify the ''No Surprises'' policy for HCPs and expand it to non-Federal parties participating in the implementation of recovery plans under ESA section 7 consultations.
ISSUE 4: The ESA makes preventive or emergency maintenance extremely arduous.
RECOMMENDATION: Exempt preventive or emergency maintenance, repairs, and safety modifications of existing water and wastewater projects from ESA requirements.
ISSUE 5: The ESA as currently implemented could remove the incentive for wastewater dischargers to consider environmentally beneficial water recycling projects.
RECOMMENDATION: Expand the ''Safe Harbor'' Policy that provides incentives for non-Federal property owners to restore, enhance, or maintain habitats for listed species to include habitat created by either historical or prospective discharges of water or wastewater to otherwise dry or ephemeral streams or washes.
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The implementation of the ESA must be based on scientifically derived data, that provides for protection and recovery of endangered and threatened species while fully recognizing the social and economic realities of implementation. Southern California and the and West are dynamic regions with vast and varied natural resources and a rich biological diversity. The consequences of implementing the ESA are serious and significant. The consequences of implementing the ESA arbitrarily and capriciously are devastating. If these fundamental issues associated with ESA implementation are not resolved, the associated regulatory burdens threaten to outstrip available financial resources and will impact public agencies' ability to serve their customers and severely impact the economic stability of Southern California. Thank you.
Mr. POMBO. Thank you.
STATEMENT OF MARK BRAGG, PALM SPRINGS, CALIFORNIA
Mr. BRAGG. Mr. Chairman, members, the Endangered Species Act is not about animals. The Endangered Species Act is about money and power. It has given the U.S. Fish and Wildlife Service unprecedented power to seize the private property of law abiding American citizens, while also giving them the authority to extort money from us.
Protecting endangered species is a laudable public goal, but if it's important to public policy, then it should be a public responsibility to preserve habitat. If a piece of private property is that important to the preservation of the species, then condemn it and buy it.
Page 31 PREV PAGE TOP OF DOC Instead the ESA has made this public imperative into a nightmare for private property owners who have had our land seized by power mad bureaucrats who also demand tribute to allow us to use the remaining property. Ours is the case of Shadowrock Resort in Palm Springs.
This project originally covered 1,100 acres. It is approved through the city entitlement process and the California Environmental Quality Act for the construction of a golf course and a club house, a hotel and adjoining town homes, and approximately 126 single family homes.
The project will create more than 600 construction period jobs, 300 permanent jobs, and approximately $10 million in annual state and local tax revenue.
Our original intent was to cooperate with the various levels of government in order to be responsible as developers. We voluntarily contributed all of our mountain land to permanent bighorn sheep habitat, in case they come back one day, which reduced the project from 1,100 acres to 358 acres.
Now comes the U.S. Fish and Wildlife Service in Carlsbad, along with the Army Corps of Engineers and other governmental agencies that often work in tandem with each other. They demanded that we reduce our project to 150 acres, and that we pay them $500,000 for the right to use our remaining land.
We have refused. We will not allow them to seize our land, and we have refused to pay their extortion demands. Unlike Slobodan Milosovic, who sent in his army to seize the land of the Kosovars, we believe this is America and the government cannot seize our land through regulation or any other unlawful taking.
They also cannot take our money in order to give it to their friends in the biological community who agree with them. By the way, they do not give funds to people who disagree with them.
Page 32 PREV PAGE TOP OF DOC In addition, we do not believe it was ever the intent of Congress to permit this kind of seizure and extortion. From the time of the Magna Carta it has been the right of free men and women to use their land productively without unreasonable interference from government bureaucrats.
However, we also know that the only freedoms we can continue to enjoy are those that we are willing to defend. We have, therefore, rejected the authority of the U.S. Fish and Wildlife Service to impose such demands on us. If they insist on trying to take our land and extort money, we will stand firm as the government agents come to take us away in chains, but we will never ever give up our rights to the power hungry bureaucrats.
I offer the attached letter. You will find it in the booklet that we provided yesterday under Section 1, which we entitled ''Demand for Payment, Notice of Intent to Seize Property.'' I offer the attached letter as evidence of the high handed tactics of the United States Government against its own taxpaying, law abiding citizens.
In the past, developers agreed to demands like this because it's simply too expensive to fight the U.S. Government. We have decided to fight.
[The prepared statement of Mr. Bragg follows:]
STATEMENT OF MARK BRAGG, PALM SPRINGS, CALIFORNIA
The Endangered Species Act is about money and power. It has given the U.S. Fish and Wildlife Service unprecedented power to seize the private property of law-abiding American citizens while also giving them the authority to extort money from us. Protecting endangered species is a laudable public goal. But if it is important to public policy, then it should be a public responsibility to preserve habitat. If a piece of private property is that important to the preservation of a species, then condemn it and buy it. Instead, the ESA has made this public imperative into a nightmare for private property owners who have had our land seized by power-mad bureaucrats who also demand tribute to ''allow'' us to use our own property. Ours is the case of Shadowrock Resort in Palm Springs. This project originally covered eleven hundred acres. It is approved through the city entitlement process and the California Environmental Quality Act for the construction of a golf course and club house, a hotel and adjoining townhomes and approximately 126 single family homes. The project will create more than 600 construction-period jobs, 300 permanent jobs and approximately $10 million in state and local tax revenue.
Page 33 PREV PAGE TOP OF DOC Our original intent was to cooperate with various levels of government in order to be a responsible developer. We voluntarily contributed all of our mountain land to permanent bighorn sheep habitat in case they come back one day, which reduced the project to 358 acres. Now comes the U.S. Fish & Wildlife Service Carlsbad office along with Army Corps of Engineers and other government agencies that often work in tandem with each other. They demand that we reduce the project to 150 acres and that we pay them five hundred thousand dollars for the right to use our remaining land.
We have refused to allow them to seize our land and we have refused to pay their extortion demands. Unlike Slobodan Milosovic who sent his Army to seize the land of the Kosovars, we believe this is America, and the government cannot seize our land through regulation or any other unlawful taking. They also cannot take our money in order to give to their friends in the biological community who agree with them. By the way, they don't give funds to people who disagree with them.
In addition, we do not believe it was ever the intent of Congress to permit this kind of seizure and extortion. From the time of the Magna Carta, it has been the right of free men and women to use their land productively without unreasonable interference from government bureaucrats. However, we also know that the only freedoms we can continue to enjoy are those that we are willing to defend. We have, therefore, rejected the authority of the U.S. Fish & Wildlife Service to impose such demands upon us. If they insist on trying to take our land and extort money, we will stand firm as the government agents come to take us away in chains. But we will never, ever give up our rights to the power hungry bureaucrats. I offer the attached letter as evidence of the highhanded tactics of the United States government against its own, taxpaying, law-abiding citizens. In the past developers agreed to demands like this because it is simply too expensive to fight the U.S. Government. We have decided to fight.
Page 34 PREV PAGE TOP OF DOC [Applause.]
Mr. POMBO. Thank you.
STATEMENT OF JUDITH I. ROSEN, PRESIDENT, MURRIETA VALLEY UNIFIED SCHOOL DISTRICT
Ms. ROSEN. I am here today as the President of the Murrieta Valley Unified School District.
School districts are unique among the participants here today because we do not create growth, but we are mandated to accommodate growth.
Our school district is a K-12 district. It is on 125 square miles. In 1989, we had 500 students in a single school. Today we have 11,280 students. We have grown at a rate of 6 to 15 percent per year since 1992, and our greatest growth is occurring at the high school, the single high school we have, and our two middle schools.
This year we have added 200 new students to our high school. It was built to accommodate 2,475 students. We have also added 16 portables, nine of them in the teachers' parking lot.
It takes three to five years to build a high school. So the earliest we can deliver the second high school is 2003. By that time we will have probably 3,300 to 3,400 students at that school.
This exacerbates safety issues, and it is a very grave concern for our community.
Our middle schools are also in very great need, and that is really why I am here today.
The property that we have, that we can build a high school on, that we have been looking at and working on within the community and was a key component to getting a GO bond passed in 1998 is owned by the City of Murrieta. It is part of a 250 acre site, and one of the really wonderful things about it is that in purchasing property, they were able to buy it for $15,000 an acre as opposed to the $100,000 an acre we get charged with, or have our sites appraised for, in the rest of the district.
Page 35 PREV PAGE TOP OF DOC We need about 50 to 55 acres for a school site and 20 acres for a middle school site.
In 1998 a survey was done on the site, and there were three areas where Gnatcatchers were found, none of them where the schools were proposed, and on three different occasions, ten butterflies, Quino checkerspot butterflies were seen. One butterfly was seen near the boundary of the high school site.
The city and school district worked hard and finally were able on March 25th of 1999 to meet with the Carlsbad office to talk to them about the 250 acres because they want to do sports complex, open space, et cetera; the service looked at it and said, even though the biology report says that the species are limited in habitat to 70 to 80 acres, that they deemed the entire 250 acres as habitat.
Since that time, we have determined that the middle school site is rendered almost unusable because of what we would have to go through in order to build a school. We perhaps can get 40 acres cleared for a high school site. We would have to go off site, buy an additional 17 acres at $100,000 an acre from an owner who has a commercial property next door, but that property hasn't been surveyed for butterflies yet. It cannot be until next spring.
So our dilemma really has several aspects. First of all, as a school district, we are not in a position to take risks with time and money. We are not in this for profit. The uncertainty of how long, if ever, it may take to obtain approvals to develop the site makes it extremely difficult for the district to proceed with planning and designing a high school.
If the district purchases a school site without a clearance on environmental issues, the state does not have to reimburse the district its 50 percent share through the state school building program. The high school will cost about $45 million without a pool or a stadium.
Page 36 PREV PAGE TOP OF DOC The district is not in the development business. Its focus is educating the children of Murrieta. This entire process is costly, filled with land use risk, and beyond our area of expertise. We are very good at working with the complex state school building program, and we are a neophyte in the Federal arena. None of our consultants can tell us definitively if you do this, you can have a school.
School sites cannot go just anywhere. We are constrained by airports, traffic, utility availability. We ask the following: that the U.S. Fish and Wildlife be mandated to recognize school projects as a public priority, and that these projects be fast tracked with specific time lines for processing; that clear, concise information be provided to school districts by the service to assist the districts in obtaining approval to build schools; require that the Federal agencies offer solutions, provide options, and seek resolutions of identified problems during this fast tracking.
The Murrieta district must be assisted in obtaining environmental clearances to build a school on the city site. We want to use 55 acres and pay $15,000 an acre. We want to do one-to-one mitigation ratios or create a bank or buy land somewhere else.
Our district at build-out will have about 300 acres. We need about 200 acres more. We would like to do a district-wide approach to mitigation and work with the service. We want the service to be mandated to work with us in a cost effective, timely fashion within a six month process, and we want the entire site to be looked at as a joint use land project for the city and the schools.
In closing, our values in our school district are learning, respect, community, communication, and accountability. We would like to think we could work with the Federal Government in the same way.
[The prepared statement of Ms. Rosen follows:]
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Mr. POMBO. Thank you.
Mr. POMBO. Reverend.
STATEMENT OF THE REVEREND PETER MOORE-KOCHLACS, DIRECTOR, ENVIRONMENTAL MINISTRIES OF SOUTHERN CALIFORNIA
Rev. MOORE-KOCHLACS. Hello. I am Peter Moore-Kochlacs, and I am the Director of Environmental Ministries.
To begin with, I want to share a story from the Talmud. Two men were fighting over a piece of land. Each claimed ownership and had papers to prove their claims. To resolve their differences, they agreed to put the case before the rabbi.
The rabbi listened, but could not come to a decision. Finally he said, ''Since I cannot decide to whom this land belongs, let us ask the land.'' He put his ear to the ground, and after a moment straightened up. ''Gentlemen, the land says it belongs to neither of you, but that you belong to it.''
We six billion humans, along with countless other species, belong to the land, to the habitat, to the web of creation, to God. The Psalmist is very clear. ''The Earth is the Lord's.'' [Psalm 24.]
In our human arrogance, greed, lust for power, and desire for ownership, we forget our divinely appointed role. This role is one of trusteeship and stewardship. It is a call of a parent to serve and protect the land, the garden, the planet we dwell upon and not oppress it.
Isaiah, the prophet, critiqued the oppressive ways of humans in his time. He said, ''Ah you, who join house to house, who add field to field, until there is room, for no one, but you, and you are left, to live alone, in the midst of the land.''
Page 38 PREV PAGE TOP OF DOC Ezekiel pronounced, ''Ah, you shepherds of Israel, who have been feeding yourselves! Should not, shepherds, feed the sheep? . . . Is it not enough for you to feed on the good pasture, but you must tread down with your feet the rest of your pasture? When you drink of clear water, must you foul the rest with your feet? And must my sheep eat what you have trodden with your feet and drink what you have fouled with your feet?''
The question for us is: does our human heritage today have to be so oppressive to other humans and to creation? My answer is no.
As irony, or God's great mystery of life would have it, next year is the great Christian celebration Jubilee 2000, the 2000th anniversary of Jesus' birth, as well as Earth Day 2000.
Recall Jesus' announcement of the new Jubilee of freedom in Luke 4:18. ''The Spirit of the Lord is upon me because he has anointed me to bring good news to the poor. He has sent me to proclaim release to the captives and recovery of sight to the blind, to let the oppressed go free, to proclaim the year of the Lord's favor.''
Doesn't this Jubilee remind you a little of our original 4th of July experience?
Both religious and secular organizations have taken up the ethical call of Jubilee 2000. It is a call to grant debt relief to impoverished nations that they might be freed from the oppressive burden of international debt.
These hearings that you are holding on the Endangered Species Act give us a unique opportunity to take this Jubilee 2000 vision a step further by incorporating it with the vision of the approaching Earth Day 2000, a vision to bring healing, wholeness, and greater harmony to our planet, to God's creation; a vision of freedom that calls a halt to and a Sabbath rest from the onslaught of human unsustainable actions.
With Earth Day 2000, the 30th anniversary of Earth Day, falling during Holy Week 2000, between Good Friday and Easter Sunday, I wonder if God is asking us this question about the future of our world. Do we want the earth to be a Good Friday world of crucifixion and death for our habitat, biosphere, endangered species, and humans? Or do we seek for our home planet Jubilee, freedom, resurrection, new life, restoration, and renewal?
Page 39 PREV PAGE TOP OF DOC The United Methodist Church in June of 1996, at Redlands, California, answered yes to the question of restoration of God's creation. The question now for you Congressmen and women is: do you have the faith and the moral courage to affirm the goodness of the whole of God's creation by truly focusing on species protection, or will you perpetuate a Good Friday world?
[The prepared statement of Rev. Moore-Kochlacs follows:]
STATEMENT OF REV. PETER MOORE-KOCHLACS, DIRECTORENVIRONMENTAL MINISTRIES
I want to thank you for the opportunity to participate in this hearing. I have been an ordained United Methodist minister for 25 years. Currently I am appointed to the position of Director of Environmental Ministries of Southern California. The network's goal is to encourage congregations of faith to see that earthkeeping, habitat and endangered species protection, and the public health threats caused by toxics and pollution are, for all of us, real scriptural and moral concerns, concerns so important to God that they need to be among the highest missional priorities, the church, and other religious communities have as we move into the new millennium.
A second priority we have is to educate, train, and advocate for public policies that serve and protect God's Good Creation. To begin, I want to share a story from the Talmud, the collection of Jewish law and tradition dating back 1600 years ago. ''Two men were fighting over a piece of land. Both claimed ownership and had papers to prove their claims. To resolve their differences, they agreed to put the case before the Rabbi. The Rabbi listened but could not come to a decision. Finally he said, 'Since I cannot decide to whom this land belongs, let us ask the land.' He put his ear to the ground and after a moment straightened up. 'Gentlemen, the land says it belongs to neither of youbut that you belong to it.' ''
Yes, we six billion humans, along with countless other species, belong to the land, to the habitat, to the web of life, to God. The Psalmist is very clear''The Earth is the Lord's'' (Psalm 24:1). In our human arrogance, greed, lust for power, and desire for ownership we forget our divinely appointed role. This role is one of trusteeship and stewardship. It is a call, a vocation to serve and protect the land, the garden, the planet we dwell upon (Genesis 2:15).
Page 40 PREV PAGE TOP OF DOC Instead of earthkeeping we press and oppress other people, the land, water, and air, and endanger all the other creatures who look to us for compassion and justice, because they are without human voice and standing. The Metropolitan of the world Christian Orthodox Churches recently labeled this unjust behavior sinful.
Isaiah the prophet critiqued our oppression in this way''Ah, you who join house to house, who add field to field, until there is room for no one but you and you are left to live alone in the midst of the land!'' Jeremiah echoed, ''I brought you into a plentiful land, to eat its fruits and its good things, but when you entered you defiled my land and made my heritage an abomination.'' (Jeremiah 2:7) And finally Ezekiel pronounced, ''Ah, you shepherds of Israel who have been feeding yourselves! Should not shepherds feed the sheep? You eat the fat, you clothe yourselves with the wool, you slaughter the fattlings, but you do not feed the sheep . . . . Is it not enough for you to feed on the good pasture, but you must tread down with your feet the rest of your pasture? When you drink of clear water, must you foul the rest with your feet? And must my sheep eat what you have trodden with your feet and drink what you have fouled with your feet?''
The question is, does our human heritage today have to be so oppressive to other humans and to creation? No!!!
As irony, or God's great mystery of life would have it, next year is the great Christian celebration, Jubilee 2000the 200th anniversary of Jesus' birthas well as Earth Day 2000! Recall Jesus' announcement of the new Jubilee of freedom in Luke 4-18 (based on Isaiah 61-2). ''The Spirit of the Lord is upon me because he has anointed me to bring good news to the poor. He has sent me to proclaim release to the captives and recovery of sight to the blind, to let the oppressed go free, to proclaim the year of the Lord's favor!'' Doesn't this Jubilee remind you a little of the original 4th of July experience?!
Both religious and secular organizations have taken up the ethical call of Jubilee 2000. In our time it is a call to grant debt relief for the impoverished nations that they might be freed from the oppressive burden of international debt and enabled to feed, educate, care for, employ their people, and hopefully care for their natural environment.
Page 41 PREV PAGE TOP OF DOC These hearings that you are holding on the E.S.A. give us a unique opportunity to take this Jubilee 2000 vision a step further, by incorporating with it the vision of the approaching Earth Day 2000. A vision to bring healing, wholeness and greater harmony to our planet, to God's Creation! A jubilee vision to call a halt to and a sabbath's rest from the onslaught of our human unsustainable activities and actions.
With Earth Day 2000, the 30th anniversary of Earth Day, falling during Holy Week 2000 between Good Friday and Easter Sunday, I wonder if God is asking us this question about the future of our world. Do we want the earth to be a Good Friday world of crucifixion and death for our habitat, biosphere, endangered species, and humans? Or do we seek for our home planet Jubileefreedom, resurrection, new life, renewal, and restoration?
The United Methodist Church in June of 1996 at Redlands, California, not far from here answered ''yes'' to the question of the restoration of God's Creation. They passed by a large majority vote a resolution asking you, the Congress, to reauthorize a stronger, not a weaker, endangered species act. The resolution follows on the next page.
CALIFORNIA-PACIFIC CONFERENCE 1996 UNITED METHODIST CHURCH RESOLUTION #95
SUBJECT: Reauthorization of the Endangered Species Act of 1973
SUBMITTED BY: Conference Board of Church and Society
WHEREAS Noah was directed by God to save every kind of animal in order to keep them alive (Genesis 6:19 and 20);
WHEREAS the Social Principles (Section 1 The Natural World) affirm the preservation of animals now threatened with extinction (par70C) and supports regulations designed to protect plant life (par70A);
Page 42 PREV PAGE TOP OF DOCWHEREAS the Endangered Species Act (E.S.A.) of 1973 is will come before Congress to be in 1996 1996/1997;
WHEREAS the E.S.A. has been a successful tool in saving several endangered species, including the American Bald Eagle and the California Condor;
WHEREAS human health and welfare depends upon the gene pool of all species, down to the single cell plankton, to preserve the balance of nature, so that it may continue to sustain life;
THEREFORE, BE IT, RESOLVED that the California-Pacific Annual Conference support the reauthorization of a strengthened version of the Endangered Species Act of 1973 by forwarding this resolution to congressional representatives within the bounds of the Annual Conference;
BE IT FURTHER RESOLVED that the churches of this Annual Conference continue their studies of the issues of biodiversity and the need to protect and steward all of God's Creation;
BE IT FURTHER RESOLVED that the California-Pacific Annual Conference inform our California State legislatures that we support a strong California Endangered Species Act.
Adopted by the Annual Conference as amendedPlenary 6-June 16, 1996
The question now for you Congressmen and Congresswomen is do you have the faith and the moral courage to affirm the goodness of the whole of God's Creation by focusing on species protection or will you perpetuate a Good Friday World?!
Mr. POMBO. Thank you.
Mr. POMBO. Mr. Woolfolk.
STATEMENT OF VIRGAL WOOLFOLK, JMAW ENVIRONMENTAL SERVICE GROUP
Page 43 PREV PAGE TOP OF DOC Mr. WOOLFOLK. Good morning. My name is Virgal Woolfolk, and I am the senior managing partner of JMAW Environmental Science Group. We are a disabled veteran minority business.
Rather than read something to you, I am going to tell you a story. A couple of months ago we were hired by a home builder called Pacific Community, itself a minority owned business, to come out and do an assessment on some property down in Murrieta to determine if, in fact, based on the greater permits requirement from the City of Murrieta, if they needed to do any additional work.
We began the process. We did an assessment, and we found that, in fact, there were three plants particularly an erected that was located in the southwest corner of the property. We reported this back to our client, and we made up a plan to go and speak to Fish and Wildlife Service to try to see what we needed to do to mitigate the situation.
Now, before I started my own company, I worked at Easton Water District. In fact, one of the projects that Mr. Libeu talked about with the San Bernardino kangaroo rat, we had worked out an agreement with Fish and Wildlife before I left. There was a solid agreement, and then, in fact, they have broke that promise now I find out as well.
So we went down; we talked to them; and we told them the assessment of the property; that, in fact, the habitat was of a low grade; that, in fact, we believed that because we had kind of missed the survey season because they had kind of kept the public off balance, they said that they might extend the survey period for the Quino because the weather was kind of cool, and then all of a sudden they decided at the last moment not to.
So we went down, and we spoke to one of their representatives. She met with us, said, ''We agree with you the habitat is such that we agree with your mitigations to kind of keep five acres around the plant until we can find out what happens next year.''
We thanked them. We left. We informed the city of the process. We informed our client of that. I then sent a letter back to the city seeing the Fish and Wildlife Service saying that all we agreed to.
Page 44 PREV PAGE TOP OF DOC Then about a week later I get a call from the City of Murrieta, and they are saying, ''Virg, we have got a problem, Fish and Wildlife Service saying everything you wrote here is not true.''
I said, ''Wait.''
So I called down and nobody would return my call. So I finally called
again, and I spoke to this lady named Ms. Cramer who, in fact, was the person who stopped it. She, in essence, told me that because she was not at the meeting and she felt that she should
have been at the meeting, she had stopped the project, but they never informed us of it.
I then began to ask her why she did this, and she said that, again, she controlled what happened in the Murrieta area, quote, unquote.
And so I said, ''Well, in essence, lady, you have told me that what I wrote was a lie here, and you put me in a bad position.''
And she said, ''Well, I do not have time to deal with you now,'' in essence, and she hung up the phone.
And at that point, I basically said it is on now, and so I sat down, and I started calling, and I started writing a letter, and I talked to my partner, and I said, ''If we do not fight these people and stand up and fix the problem, we cannot operate any further, and my business may be in jeopardy, but we need to do the right thing.''
So we took them on, and I went back down, and we began to talk to them, and basically they kind of let me know that they are the only game in town and that is just how it was going to be.
We even attempted to try to mitigate for the K. rat and pay a fee and say, ''Okay. We agree that it is on the property. Let's do that.''
And they said, ''No, there is just no way to mitigate it.''
Page 45 PREV PAGE TOP OF DOC And then what was most important was that they refused to come out to the site to help us make a decision. We wrote letters giving them a five-day turnaround, asking them for their help. Nobody responded.
So I called Portland. At Portland, I spoke to a lady there named Ms. Finn. She was very upset at what they did and basically said, ''I am of the opinion that if Fish and Wildlife Service makes an agreement, they should keep their word,'' but then no one did.
We called Mike Spear, never got a return call. Six weeks later, after I made some calls to Washington, DC, I got a call, and they decided to come out on site, and we visited the site, and we have it on video where one of the representatives said, ''We do not believe that the Quino butterfly is on the property, but you still have to do a study because we found a butterfly across the street. So because we found the butterfly across the street, you have to do this.''
The problem that we have is that when we try to find solutions to the problem and working with them, it just was not there, and I have worked with Fish and Wildlife Service for over 15 years, and what I have seen is a total degrading of their ability to work with the public.
In fact, I had a conversation just the other week with Cheryl Brown. She is the editor of Black Voice Newspaper. Many of you know her, and she is also on the Planning Commission of San Bernardino, and when I brought this issue up, she said, ''Those people are just rude to us no matter what we do.''
So then we met with them the other week, and they said, ''Well, we will let you mitigate this. You have to go buy credits at a mitigation bank.''
We tried to do that, and there is no program. So we are really
frustrated about this process and hope that this will kind of bring some attention to it.
Page 46 PREV PAGE TOP OF DOC Thank you very much.
[The prepared statement of Mr. Woolfolk follows:]
Mr. POMBO. Thank you.
I would like to recognize Mr. Calvert for his questions.
Mr. CALVERT. Thank you, Mr. Chairman.
Ms. Rosen, I am certainly very interested in your testimony. Let me get this straight. You acquired a 250 acre site in Murrieta to build a high school site and another school site. Your biologists looked over and found 70 to 80 acres of habitat, which you are apparently willing to give up, and Fish and Wildlife told you that they wanted the entire 250 acres.
Ms. ROSEN. Yes, sir. The site was actually acquired by the City of Murrieta. So it is a joint use project with the city and the school district, and, yes, that is correct.
Mr. CALVERT. Did they give any reason why they wanted the 250 acres other than the fact that they believed that it was all apparently important habitat?
Ms. ROSEN. No. Basically it was that they deemed it to be all habitat, and nothing else was forthcoming.
Mr. CALVERT. When you say ''they,'' when your biologists say 70 to 80 acres were suitable habitat, did they give you any scientific information to prove
Ms. ROSEN. The biologists?
Mr. CALVERT. I mean from their point of view, Fish and Wildlife's point of view. Did they give you any background information to show why they wanted the entire 250 acres of property?
Page 47 PREV PAGE TOP OF DOC Ms. ROSEN. No, sir.
Mr. CALVERT. They just said they wanted the entire 250 acres?
Ms. ROSEN. Yes, sir.
Mr. CALVERT. Mr. Woolfolk.
Mr. WOOLFOLK. Yes, sir.
Mr. CALVERT. You have been dealing with Fish and Wildlife, you say, for the last 15 years?
Mr. WOOLFOLK. I started out working with them when I was in the Navy, working some projects for them back then in the 1980s.
Mr. CALVERT. Have you dealt primarily with the Carlsbad office or did you deal with other offices?
Mr. WOOLFOLK. Well, back in those days when we first started, their office was in Laguna Miguel.
Mr. CALVERT. Right, right.
Mr. WOOLFOLK. And then over the last couple of years, they are now in Carlsbad.
Mr. CALVERT. But basically the same people.
Mr. WOOLFOLK. The same group.
Mr. CALVERT. So would you say that the operation has changed over the last 10 years?
Mr. WOOLFOLK. Yes, sir. What I see is the folks that originally used to be there, they looked at for hunting and fishing and kind of looked at the whole environment overall.
Now we have a group of folks that are just these biologists that want to protect these species, but what really concerns me most of all is that it appears that environmental groups have manipulated the system so that these people cannot make decisions, and their relationships with them are so tight here that they are not open minded and balanced about making these decisions for overall people.
Page 48 PREV PAGE TOP OF DOC I thought that when they picked the people who were on the committee for this Quino butterfly, it was only picked by one guy up in Sacramento. He picked basically all of these scientists that they know.
My concern with that is as a business who is specializing in this area, we as a disabled veteran business cannot bid on these jobs because they pick folks who they want to do the contract. So if you start looking at who do they give business to, you never see any other people besides these certain people always getting the contracts.
Mr. CALVERT. You indicated, too, the attitude of the employees that you are talking to.
Mr. WOOLFOLK. That is correct.
Mr. CALVERT. They are not treating you with any courtesy at the desk or when you are on telephone calls.
Mr. WOOLFOLK. Their attitude is, ''We will get to you when we get to you.'' You walk in there, and it is like, ''Well, we will call you later,'' or they do not return phone calls. That is the biggest issue. They just do not return phone calls.
And we are the American public. We pay their salaries. I think that must be very, very, very clear, and right now we have the President kind of walking around the country talking about that we need to invest in minority communities and do things and that aspect, but when we have this agency who is out there that can basically stop you from doing that, then how are we going to get this turn-around? It is really important that be address this issue because it has great economic impacts.
I sit on the Work Force Development Board for Riverside County. I was the assistant board on that, and one of the issues that we tried to address was that issue. We cannot get a development here in this area and new economic enterprises if they are going to be stopped every time they start a project.
Page 49 PREV PAGE TOP OF DOC Mr. CALVERT. Thank you.
Thank you, Mr. Chairman.
Mr. POMBO. Ms. Chenoweth.
Mrs. CHENOWETH. Thank you very much.
I wanted to address some of my questions to the pastor or to the Reverend.
Reverend, I was looking over your disclosure statement. Have you pastored a church?
Rev. MOORE-KOCHLACS. Yes. In fact, I pastored the Redlands United Methodist Church, and a couple of the water people here were members of my congregation.
Mrs. CHENOWETH. And are you still pastoring that church?
Rev. MOORE-KOCHLACS. No. My wife is a district superintendent for the San Diego district of the United Methodist Church. She oversees about 50 churches in San Diego County and Imperial County, and when she got the promotion, her husband followed her.
Mrs. CHENOWETH. You are a real '90s man, aren't you? But I can imagine you have a lot to talk about in your relationship. That is commendable.
You are head of the Environmental Ministries of Southern California or Director?
Rev. MOORE-KOCHLACS. Yes, I am the Director, yes.
Mrs. CHENOWETH. And does the Methodist Church pay you for that position or are you paid by someone else?
Rev. MOORE-KOCHLACS. No, the bishop appoints me without a stipend, and so I have to raise my own funds for that position, and I manage to come up with about $5,000 per year.
Mrs. CHENOWETH. And those funds usually come from?
Rev. MOORE-KOCHLACS. Individuals.
Page 50 PREV PAGE TOP OF DOC Mrs. CHENOWETH. From individuals?
Rev. MOORE-KOCHLACS. Right.
Mrs. CHENOWETH. I notice that they were not on your disclosure statement, the funds.
Rev. MOORE-KOCHLACS. Well, when you get 50I did not know that for each 50 and $100 contribution I needed to put down who those persons were who had contributed.
Mrs. CHENOWETH. You know, as a man of the cloth, you said some pretty startling things, and one thing is that in our human arrogance, greed, lust for power, and desire for ownership we forget our divinely appointed role.
Rev. MOORE-KOCHLACS. Yes.
Mrs. CHENOWETH. And I wonder if you can help me understand what you mean, our greed and lust and desire for power. Can you give us more specifics?
Rev. MOORE-KOCHLACS. Sure. I think that as we focus on both the development of the land and as we have become so focused on our corporate development, those that lose out are those without a voice, and the church has always been for those without a voice. It seeks to speak for those.
And that part of our neighborhood, those neighbors of ours who are without voice right now in the majority are the endangered species, and so it is our sense of overlooking them; it is our sense of being so anthropocentrically focused that we lose sight of the biocentric world that God has created and called good.
And so that is where the arrogance comes in. We become so species focused, so human focused that we lose our regard for those species about us who are without voice.
Mrs. CHENOWETH. And did I hear you say that one of the purposes of the church is to speak for the species? Did I understand that?
Page 51 PREV PAGE TOP OF DOC Rev. MOORE-KOCHLACS. Yes. Yes, you did.
Mrs. CHENOWETH. I see. Hum.
Rev. MOORE-KOCHLACS. If you would look at Genesis 2:15 you would read that we are called to be stewards and protectors of the garden, to till and to tend, which is the first commandment in a sense that we find, and that call of to till and to tend means to protect and serve in Hebrew, and what are we called to protect and serve? The bounty.
If you read Genesis, you find that at each point, each stage of creation God looks out and calls it good, calls it blessed, calls us to stewardship.
Mrs. CHENOWETH. I think he does call us to stewardship, and I find it interesting, and in all due respect, if you look at Genesis 2:5, it concludes God's peopling of the earth and putting all of the animals and plants together and the herbs and so forth, and then the last part of that verse says, ''And there was no man to till the soil, and then God created Adam from the dust of the earth.''
I think that God did create us to be productive and that His creation is very orderly and that humans are part of that order, and, Reverend Kochlacs, I would just love to invite you to come to Idaho or the northwestern states and look at the forests that have become utter natural disorder because of the management of the endangered species and management of our natural resources under the Endangered Species.
The chaotic and catastrophic fires that occur I do not believe are in God's plan for order and productivity in this earth, and in all due respect, I would love to be able to sit down and talk to you, learn from you, and be able to share with you some of my concerns.
Thank you very much.
Rev. MOORE-KOCHLACS. I would be glad to do that.
Page 52 PREV PAGE TOP OF DOC [Applause.]
Mr. POMBO. Mr. Miller.
Mr. MILLER. Thank you.
Jesus said something interesting that is really refreshing to me right now, that no prophet is a private interpretation of the Scriptures, and based on what you had presented in your comments there actually baffles me because the Scriptures I read deals with man's relationship to God and how God created the earth, and basically man is in charge and oversight of that.
And when man moved away from God, it is amazing what God did. He spoke to a man named Noah because of his anger, and he told him to build an ark, and he told him to take two of each kind of animals and more of others that they would eat and place them on that ark. Then he caused rain to fall and killed everything, except he put man with some animals and moved them somewhere else.
Now, if we had to go through that today, it would be a nightmare. I would like to read you a little cute story.
Mr. MILLER. And I would like you to listen to this, and if Noah was alive today, just think of this.
And the Lord spoke to Noah and said, ''In six months I am going to make it rain until the whole earth is covered with water and all of the evil people are destroyed, but I want to save a few good people and two of every kind of living thing on the planet. I am ordering you to build me an ark.''
And in a flash of lightning, he delivered the specifications for the ark. ''Okay,'' Noah said, trembling in fear and fumbling with the blueprints.
Six months later and it starts to rain. Thundered the Lord, ''You had better have my ark completed or learn to swim for a very long time.'' And six months passed. The skies begin to cloud up. Rain began to fall. The Lord saw that Noah was sitting in the front yard weeping, and there was no ark.
Page 53 PREV PAGE TOP OF DOC ''Noah,'' shouted the Lord, ''where is my ark?'' A lightning bolt crashed to the ground next to Noah.
''Lord, please forgive me,'' begged Noah. ''I did my best, but there were big problems. First I had to get a building permit for the ark's construction project, and your plans did not meet code. So I had to hire an engineer to redraw the plans. Then I got into a big fight over whether or not the ark needed a fire sprinkler system.''
Mr. MILLER. ''My neighbors objected claiming I was violating zoning by building the ark in my front yard. So I had to get a variance from the City Planning Commission. Then I had a big problem getting enough wood for the ark because there was a ban on cutting trees because of the spotted owl. I had to convince U.S. Fish and Wildlife that I needed the wood to save the owl, but they would not let me catch any owls. So no owls.''
Mr. MILLER. ''Then the carpenters formed a union and went out on strike. I had to negotiate a settlement with the National Labor Relations Board before anyone could pick up a saw or hammer. Now I have 16 carpenters going on the boat and still no owl.
''Then I started gathering up animals and got sued by an animals rights group. They objected to me taking only two of each kind. Just when I got the lawsuit dismissed, EPA notified me that I could not complete the ark without filing an environmental impact statement on the proposed flood. They did not take kindly to the idea that you had jurisdiction over your conduct and you were the supreme being.
''Then the Army Corps of Engineers wanted a map of the proposed new flood plain.''
Mr. MILLER. ''Right now I am still trying to resolve a complaint from the Equal Employment Opportunity Commission over how many Croatians I am supposed to hire, and the IRS has seized all of my assets claiming I am trying to avoid paying taxes by leaving the country, and I just got a notice from the state about owing some kind of use tax. I really do not think I can finish your ark for at least another five years,'' Noah wailed.
Page 54 PREV PAGE TOP OF DOC Then the skies began to clear. The sun began to shine. The rainbow arched across the sky, and Noah looked up with a smile. ''You mean you are not going to destroy the earth?'' Noah asked hopefully.
''No,'' said the Lord sadly. ''The government already has.''
[Laughter and applause.]
Mr. MILLER. You know, the individual to the right of me
Rev. MOORE-KOCHLACS. Do I have a chance to respond?
Mr. MILLER. No, you do not. I heard enough of your hypocrisy on the use of the Scriptures.
Rev. MOORE-KOCHLACS. Well, that is not true because the endangered
Mr. MILLER. I believe I have the floor.
Rev. MOORE-KOCHACS. Because the Noah story is the first
Mr. MILLER. This individual to your rightMr. Chairman, I
Rev. MOORE-KOCHLACS. [continuing] Endangered Species Act, and every creature was protected by that rainbow.
Mr. MILLER. I do not believe anybody
Rev. MOORE-KOCHLACS. And so your presentation of the story
Mr. MILLER. Sir.
Rev. MOORE-KOCHLACS. [continuing] is a distortion of the biblical story.
Page 55 PREV PAGE TOP OF DOC Mr. MILLER. I do not believe anybody interrupted you when you were making your presentation. Please be a gentleman and allow me the same courtesy.
This individual to your right, or you left, my right, is the one who is impacted because of your desires. In fact, I am submitting a bill, and I hope my colleagues will support me, that says if the Federal Government desires to list an endangered species on the list, that the government should buy the property of those that are impacted because they want to set aside habitat for endangered species, not put the burden on the property ownership or somebody who inherited the property just because a species decided to move there.
If government wants to preserve habitat, I think that is good, but government should bear the burden, and agencies of the government should not
Mr. MILLER. [continuing] lose sight of what the intent is, and that is to represent the people of the United States who vote us into office and to hire them to serve for their betterment.
And it is a shame that government has got so far out of control. The original Constitution in its draft said ''live, liberty and property.'' Now, because of slavery, it was changed to ''live, liberty and the pursuit of happiness,'' because the Founding Fathers in their wisdom realized that they did not want the southern states to start thinking of the concept that black people were property and they had a constitutional right to own them. That was a wise move on their part.
However, in the process, the concept of property rights and the rights of individuals owning property and the kind of government now placing his will and his wants on those property owners was lost and has been lost over the years, and it is really sad.
It is a worthwhile endeavor to say we need to preserve those that are endangered, but I was reading an article yesterday, and it talks about some dinosaur bones they are still digging up, and I do not believe humans had anything to do with their extinction. In fact, we know very little about them.
Page 56 PREV PAGE TOP OF DOC But we need to do what we can to protect endangered species. I do not argue that, but in our effort, we should not create an unfunded mandate that is placed on property owners and private citizens that they should bear the cost of that preservation.
God, in His wisdom, had the intelligence to pick those animals up and move them, and when we talk about doing that, people think we are mean and mean spirited.
The burden should never fall on the individual who cannot defend himself from government. Government is supposed to create an environment where the individual is defended, and I think that is what we are trying to do, and some government agencies are out of control, placing an intent on individual property owners as a burden and a mandate, and they have gone far beyond, far beyond what we consider reasonable.
And I believe many of us are here today to discuss that and to talk about issues that are important, and I hear this constant saying of separation of church and state when it comes to prayer, but then you want to beat property owners over the head with the Bible when it comes to saving endangered species, and you should be ashamed of yourself.
[Applause and boos.]
Mr. POMBO. I am going to have to ask the audience to please refrain from responding to the statements, if possible.
Mr. HUNTER. Thank you, Mr. Chairman.
Mr. Chairman, one point that has come out that I would like to pursue is the ratio of taking, and I do not know, Mr. Bragg or Mr. Woolfolk, if you have comments on this, but one thing that bothered me is that we have a mixture, obviously, as all counties do in San Diego County of public and private property, and we have got huge national forests. The Cleveland comes down almost to the Mexican border in my district and also state reserves, state parks, tens of thousands of acres of military land that will never be developed, and it for practical purposes amounts to a refuge for species.
Page 57 PREV PAGE TOP OF DOC And then mixed in among that we have private property, and every time I talk to somebody who wants to use their property and they will say, ''I finally got permission from Fish and Wildlife to use three acres, but in return for that, I had to go out and buy nine acres,'' a ratio of three to one, or, ''I had to buy 50 acres,'' and the ratio is always skewed in favor of government. If government lets private people use one acre of their own land, they always get a multiple of that for government use.
And one thing that I am concerned about is the amount of money or the amount of land that is being acquired by government, taken over by government as a result of this mitigation.
So I would like to ask Mr. Bragg and Mr. Woolfolk could you comment on that, on the ratios of taking or of exchange.
Mr. BRAGG. I will defer to Mr. Woolfolk.
Mr. WOOLFOLK. Yes, sir, if I may. There have been at least five different projects that I have worked on, but this particular project, we met with Fish and Wildlife this week to try to come up with some mitigation for this, and they referred us to this mitigation banking, those three options that they gave us.
One of them was BLM land that they have that is being operated through the county of Riverside. So I went up and spoke to Brian Low yesterday, and he is the Director of the Multi-species Plan, and Brian has 40 acres on BLM land that we might be able to purchase and then be able to degrade our 40 acres here, but it is one to one.
But during my time working at Easton, I have worked on some projects where Fish and Wildlife wanted eight to one, 12 to one in one case for the Senihoy Spotted Flower. So really when you start trying to equate the species and get some information, it is kind of hard.
One of the things that always concerned me is when we look at governmental land that is available, they never want to look at that land. No studies, to my knowledge, have been done like we do on private property to go out and see if there is the same species or habitat on these government lands and these parts in the BLM land that can be used to kind of offset this. So that is one of the issues that I have with it.
Page 58 PREV PAGE TOP OF DOC Mr. HUNTER. Okay. Mr. Libeu, you may have a comment on that or Mr. Bragg also with respect to the ratios. So you have seen ratios as high as eight to one.
Mr. WOOLFOLK. And 12 to one.
Mr. HUNTER. Eight to one and 12 to one. Mr. Libeu and Mr. Bragg, do you have any comments on that?
Mr. LIBEU. Earlier in this decade in the '90s we had projects that Mr. Woolfolk could talk about where the ratio was between 11 and 12 to one for vernal pool and this spotted horn flower that he's talking about.
The project that I identified today in my testimony, we do not know the exact set-aside, but we know the minimum is going to be at least three to one. Our project encompasses about 50 acres. That means Fish and Wildlife, the U.S. Government, will need at least 150 acres to mitigate the project, and again, that is just an open door right now. We do not know the exact answer, and that is one of the problems that all of us here at this table face, is that there is an open ended uncertainty to the actual finality of whatever the Fish and Wildlife is going to decide.
Mr. HUNTER. Is there any relationshipgo ahead, Mr. Bragg, and then I will ask a follow-up question.
Mr. BRAGG. Well, in our instance, we started out with 1,100 acres, and we voluntarily contributed close to 600 of those acres to permanent open space habitat, and the authority of the Fish and Wildlife Service here, by the way, you should recognize comes from the identification of this property as waters of the United States.
Mr. HUNTER. Maybe a staff member could hold that where everybody can see that, including the panel and the audience, Mr. Chairman.
Mr. BRAGG. Waters of the United States, as defined in the Clean Water Act, is what triggered the Section 7 consultation around endangered species. Now, unfortunately it is not highlighted very well there, but the area in blue, and by the way, it is in Section 5 of the book that we provided to everybody; in that map, you can see the area outlined in blue was our original property, and the area outlined in yellow on this map is what the Fish and Wildlife Service has designated as the reasonable and prudent alternative.
Page 59 PREV PAGE TOP OF DOC The problem is about 50 acres of that does not even belong to us. So it has got to be eliminated. It reduces us down to about 150 acres, and that
Mr. HUNTER. So you started with 1,100 acres, and when they are finished paring you down, you will have 150 usable acres?
Mr. BRAGG. Well, we cannot build the project on 150 acres. It is not reasonable or prudent, but the multiple is correct. We have got about maybe 12 percent of our original land remaining in the project.
Now, the ReverendI would like to refer to part of what was said there. My father used to always tell me that broad generalizations are always bad, including this one. However, the broad generalization that was presumed here is that all corporate development is bad somehow, and I just do not agree with that.
We are attempting to do a responsible, reasonable development that benefits humans and in the process benefits the bighorn sheep that were federally listed in the middle of our project, and as a consequence, we are not out there being motivated by greed and corruption. We are being motivated by producing a positive result for everybody concerned.
Mr. HUNTER. I agree with that totally. In fact, there was a gentleman who is a fairly central character in the Bible who did a little home building himself. He is referred to on occasion.
You know, I think the Reverend would agree with this. You know, I do not think anybody agrees with the idea that you do not return phone calls. I do not think anybody agrees with the idea that you tell people that you are the boss, and if you were not in a meeting even though your office issued a particular position, that position is revoked because you were not there.
And to go back to the multiple, the fact that to get to be able to use an acre of your own land you have to give either in fee and give a deed in this mitigation or you have to perpetuate it as open space, which for practical purposes is giving it to the government, although you get the right to pay taxes on it for the rest of your life; the idea that that is always a multiple that accrues to the benefit of the government bothers me. It is always three to one, four to one, ten to one.
Page 60 PREV PAGE TOP OF DOC You cannot go on doing that forever. I have seen a lot of the private land now in San Diego county that is now owned by Uncle Sugar, even though Uncle Sam has 25,000 acres in Miramar. He has got millions of acres in the national forest that extend from the Mexican border north. They are taking that private property, and it is always in a large multiple.
So I wanted to ask you one other question, Mr. Woolfolk, Mr. Bragg, and Mr. Libeu, and then I will move on, but simply when the determination is given that you have to give a ten to one or a 12 to one or a three to one, do you get to appeal that? How does that work?
Mr. WOOLFOLK. Sir, that is one of the things that I wrote in my letter, that there is no appeal, and here is an example of how this works. If we can accept Mr. Chen, who is back there, if you can stand for a second, we attempted to get some biologists to come out and say that the mitigation that we had established, which was basically five acres around these plants, were adequate.
So then I went up, and I spoke to professors at UCR that I have known ten years, biologists that I have worked with for ten years, and nobody would come out and do this survey because they were afraid that if they did, Fish and Wildlife would not give them their certification next year, and they would not be able to work.
So, therefore, there is no way to appeal this. Even if we went out and tried to get experts to come and say this mitigation is out of line of three to one, eight to one, 12 to one, but for the Quino butterfly, particularly, then everybody is afraid to do it because they may not get their certification next year.
So there is no way to appeal this system. It is really, in my view, a very corrupt and this process is very corrupt, and it is thievery. This is thievery, and though I am not a minister, but I guess I hand around Jesse Jackson enough to be one. There is a Scripture that says the birds have their nest, right? You know, the sinner man has nowhere to lay his head.
Clearly, this property is to build homes for people who can afford them, and also I want the pastor here to know that I work on church development projects. We have a project in San Diego in your area where a church bought property. We are talking about $2 million, and went out and was getting ready to build, and the Fish and Wildlife came in and said they could not. Now the church is in holyeverybody has left, they cannot build, and they have got a $2 million bill.
Page 61 PREV PAGE TOP OF DOC So this is how this is happening in church communities. I want him to know that as well. I do that. So we really have a problem here.
Mr. HUNTER. Okay.
Mr. BRAGG. There is no rationale in the demand made of us for $500,000 to use our land. It was going someplace where we knew not. We do not have a clue where they are going to take $500,000, what they are going to do with it. So the accountability for the, quote, mitigation, unquote, needs to be addressed.
We have asked the Inspector General of the Department of the Interior to audit where that mitigation, so-called, goes and to whom it is paid and probably more importantly, to whom it is not paid because selective benefactoring of biologists who agree with the Fish and Wildlife Service we think is rampant.
Mr. POMBO. Thank you.
I would like to recognize Ms. Bono.
Ms. BONO. Thank you, Mr. Chairman.
Before I start, I would first like to thank all of the witnesses who are here before us and remind us all that each and every one of them is here because they are respected by their peers. I think they have something to add to this, and I just want to say I appreciate your being here.
But with that my first three or four questions are for the Reverend, and if I could ask for a simple yes or no in the sake of brevity, I would appreciate it.
In the third paragraph of your statement, you say, ''In our human arrogance, greed, lust for power, and desire for ownership, we forget out divinely appointed role.''
So in reference to that, a simple yes or no, please. Again, do you own a home?
Page 62 PREV PAGE TOP OF DOC Rev. MOORE-KOCHLACS. No.
Ms. BONO. You do not own a home.
Rev. MOORE-KOCHLACS. No.
Ms. BONO. So you rent a home?
Rev. MOORE-KOCHLACS. Yes. In a sense, yes.
Ms. BONO. Does your wife own a home?
Rev. MOORE-KOCHLACS. No. It comes with the job.
Ms. BONO. It comes with the job. Okay. Do you use public utilities?
Rev. MOORE-KOCHLACS. Oh, yes.
Ms. BONO. And you use public transportation, public roads to get here?
Rev. MOORE-KOCHLACS. Yes.
Ms. BONO. Thank you. I know it's a simple question, but big to me.
Moving on to Mark Bragg, I have to be truthful with the audience. I know this developer quite well. He is in my district. I have driven by this project for 15 years now, and it is something that when Sonny ran for mayor in 1988, he believed wholeheartedly was going to be the salvation of Palm Springs. Realizing that tourism is the number one economic base in the City of Palm Springs, this gateway to Palm Springs was of vital importance to the continued growth and, if you would, even rebirth of Palm Springs.
So this is something that I have been interested in watching for a number of years, and I want to let you all know that beforehand. This is something that I believe in.
I want to ask Mr. Bragg: excluding the land, how much has this process cost you?
Page 63 PREV PAGE TOP OF DOC Mr. BRAGG. Excluding the cost of the land, about six and a half million dollars.
Ms. BONO. Six and a half million dollars on what?
Mr. BRAGG. Well, we have been dealing with the Fish and Wildlife Service since 1992. We approached them early on in the process to try and find out what it was that would make sense in our relationship because it was our interest, and it was in our interest, we thought, to be cooperative with government agencies.
Of course my opinion of that and my advice to other developers has changed dramatically in the last seven years, but between legal fees, carrying costs, the cost of continuing our operation, the cost of redesigning this project four times to satisfy the Fish and Wildlife Service is a significant cost.
We were told in 1996 that if we would eliminate some of the upper holes on the project that the service would then allow us to go forward. We went back and spent three months and about $170,000 redesigning the project and came back to the next meeting with the Fish and Wildlife Service, and they said they had changed their minds.
So the waste of our resources and the indifference to what the costs, we have approximately 2,000 small, small investors, many of whom have their life savings involved in this project, and to have them treated with such disdain has just been difficult, but that is the cost to this group of people.
Ms. BONO. Thank you.
Just a simple question. In Palm Springs, throughout the Coachella Valley, I think we use the symbol, the statue of the bighorn sheep throughout. I think we use it to promote tourism. We know that it is something that only enhances our area.
Do you believe that if actually there were a proliferation of the bighorn sheep near your project that it would actually help your project?
Page 64 PREV PAGE TOP OF DOC Mr. BRAGG. Sure. We have done everything we can think of to do to try and encourage the rebirth, the reemergence of bighorn sheep as a viable population.
Unfortunately there are so many factors working against them that have nothing to do with us that we have not done anything. So it does not have anything to do with us that the population has declined.
It probably has declined to the point where it may not be salvageable, but that really is not for us. I think that is probably for the Lord to decide.
Ms. BONO. Thank you.
Mr. POMBO. Mr. Bragg, I reviewed with some interest your letter that you presented as part of your testimony from Fish and Wildlife Service. We had testimony I believe it was about two months ago at a hearing in Washington, DC, where Fish and Wildlife Service testified and Department of Interior testified that HCPs and mitigation were voluntary and that it was the official position of Fish and Wildlife Service that
Mr. BRAGG. Is this the U.S. Fish and Wildlife?
Mr. POMBO. Yes.
Mr. POMBO. I was somewhat surprised at the time during the hearing when they testified to that, but it is their official position that these agreements are voluntary and that individual property owners, school districts, cities, water districts that enter into these, voluntarily entering into that, that it is not an extortion, but it is a voluntary payment.
And in reviewing this particular letter, it appears that they outline how much land you will have to give up, and it also appears that they give you a range of between a half a million and three quarters of a million dollars that you will have to pay to them in order to use your property.
Page 65 PREV PAGE TOP OF DOC You began to answer this earlier, and I would just like for clarification. Do you know what they were going to do with the half a million dollars that you would pay them?
Mr. BRAGG. Nothing that I would approve of.
Mr. POMBO. What would they do? Do you have any idea?
Mr. BRAGG. I have no idea, sir. This was an arbitrary number that was arrived at through a mysterious process, and I have no clue where they were going to send that money.
But if it was voluntary, I respectfully decline.
Mr. POMBO. Are you aware of other developments within your area that have paid similar fees?
Mr. BRAGG. Yes, I am.
Mr. POMBO. Do you know what they have done with that money?
Mr. BRAGG. I have no idea.
Mr. POMBO. Is there anything apparent in terms of activity that is occurring in your area that would bring the bighorn sheep back or you have seen them putting in a lot of guzzlers or doing propagation?
Mr. BRAGG. No, absolutely not.
Mr. POMBO. Or doing anything that is bringing the sheep back?
Mr. BRAGG. Nothing at all.
Mr. POMBO. I am somewhat familiar with the area. I have not seen your project specifically. I am somewhat familiar with that area. I do know that a very large percentage of the land in that surrounding area is government owned currently.
In fact, for the record, over 50 percent of the State of California is owned by the government, and most of that land is set aside with a conservation easement of some type under Federal law, whether that be wilderness, national park, conservation areas. The vast majority of that land is set aside in some kind of conservation status, as is most of the land within this entire region.
Page 66 PREV PAGE TOP OF DOC And it is somewhat troubling that we are here discussing endangered species and you are testifying that you have seen very little, if any, activity to bring back endangered species.
Mr. BRAGG. There is activity. I do not mean to say that there is no activity at all. There just is no activity on the part of the U.S. Fish and Wildlife Service that I am aware of.
Mr. POMBO. Well, that is specifically what I am talking about, is on the part of Fish and Wildlife.
Mr. BRAGG. From Palm Springs to the Mexican border there is approximately 10,000 square miles of bighorn sheep habitat that is largely unpopulated by anyone, including bighorn sheep. There are only 280 animals remaining of the herd.
Our science says that there is no genetic difference between this allegedly endangered species that has caused all of this difficulty now. There is no difference between them and the species that thrives in other areas of the Southwest.
So this particular herd has been designated as an endangered herd. It is not an entirely endangered species.
Mr. POMBO. It is a subspecies?
Mr. BRAGG. Well, according to our information and the science that we have seen, which I think the Fish and Wildlife Service has chosen not to look at, it is basically the same species, genetically identical to the rest of the species in the Southwest, perhaps not all of the Southwest, and there are other species of bighorn sheep in the Southwest, but this particular one is not literally an endangered species. It is an endangered herd.
Mr. POMBO. That is the word I was looking for, distinct population safety.
Has that information been provided to Fish and Wildlife Service?
Page 67 PREV PAGE TOP OF DOC Mr. BRAGG. Many times, yes.
Mr. POMBO. Well, thank you.
My time has expired. I want to thank this panel for your testimony, all of you for your testimony. Particularly I would like to thank those of you that have projects before Fish and Wildlife Service for your courage of coming forward. I know that it was a difficult decision for many of you and many of our witnesses that we will have today whether or not to make the effort to come forward, and I do appreciate you having the courage to come forward and share your experiences with us.
I am going to dismiss this panel and call up the second page. Thank you very much.
Our second panel, Mr. Bruce Turecek, Dr. Dan Silver, Mr. Hugh Hewitt, and Mr. Michael Spear.
Thank you for joining us. If I could have you all stand and take the oath. For those of you who are testifying, if you could raise your right hand.
Mr. POMBO. Let the record show they all answered in the affirmative.
Thank you for joining us today. I think you all heard the explanation of timing and process. Your entire statements will be included in the record.
Mr. Turecek, we will begin with you. Pull the mike right up to you there. Thank you.
STATEMENT OF BRUCE TURECEK, JACUMBA VALLEY RANCH
Mr. TURECEK. Thank you, Mr. Chairman and members of the Committee.
Page 68 PREV PAGE TOP OF DOC I appreciate this opportunity to
Mr. POMBO. You need to pull it a little bit closer.
Mr. TURECEK. A little closer, yes, sir.
Anyway, thank you for having me here today.
I hope all of you have a copy of the statement that I prepared.
Mr. POMBO. We do.
Mr. TURECEK. First, I did want to mention that it was very difficult for me to be here today because I have been in fear of reprisals and repercussions because my project is still pending, and it was a choice that I had to make because there are problems, and I want to see something made right, and that is the reason I am here, because there are difficulties that do need to be corrected.
I am going to dive right on into a couple of statements that were made in the documentation of the Fish and Wildlife Service letters that they have done in response to the environmental impact report that we have prepared, and I want to try to get a point of clarification.
Number one of those statements, in a letter from 1997 is the proposed Jacumbaoh, by the way, I represent the Jacumba Valley Ranch. I am not a consultant. I am not an attorney. Basically I am a business manager. Straightforwardly and directly, I am a rancher. I have a 1,250 acre ranch out in the southeast corner of San Diego County.
One of the first comment letters from Fish and Wildlife Service is the proposed Jacumba Valley Ranch project will result in the direct loss of native wildlife and their habitats on nearly all of the 1,250 acre site, with likely significant indirect and cumulative adverse impacts to the surrounding area. That was the letter from 1997.
The more recent letter from 1999, the statement is included. The proposed Jacumba Valley Ranch project will directly impact and eliminate all of the habitat on site except for the 229.9 acres proposed of natural open space.
Page 69 PREV PAGE TOP OF DOC In rebuttal to that particular statement, I want to explain exactly what this habitat that they are talking about is, and I did bring an aerial photograph that I would like to have you have a look at. I have got a better copy of it here. I did include a short, small one in the portfolio that I put together for the members of the panel.
This is the habitat that they are discussing, and if you will notice, those are plowed agricultural fields.
Mr. TURECEK. Okay. Similarly, these are the same fields, 1940.
This is a photograph of the entire ranch, again, era about 1940. This particular was originally put together as a dairy and constructed in 1927.
Once again, a photograph of 1940. This property has been in ranching or agriculture. I have been able to date it all the way back to about 1927, with what crops were grown on which fields all that period of time.
That is basically what I wanted to point out, back to the statement of we are going to eliminate 1,250 acres of natural habitat.
Mr. HUNTER. Was the entire acreage under farming?
Mr. TURECEK. No, part of it was under grazing. It is probably 600, 650 acres that can be tilled and raise crops. The rest of it is pasture land. In that it originally was a dairy, there were 500 cows being milked continuously. Traditionally or historically it was known as the Mountain Meadows Dairy.
Congressman Hunter kind of beat me to the punch a little bit earlier, but I did want to point out one other important aspect of this, and this is the generalized ownership map that was prepared by SANDAG, San Diego Association of Governments, and what is reflected is if it has got a color on it, it already belongs to the government or is already controlled by the government.
Page 70 PREV PAGE TOP OF DOC And what you are seeing here is essentially two thirds of the eastern half of San Diego County is already controlled by the government.
Now, if you will turn it back around for me one second, I wanted to point out to the panel my ranch is this little part right here. I have got the Anzo Borego Desert here. I have got the national forest over here. I have got government lands all around me.
Finally, there is a map or an aerial photograph that I have got that was actually taken by the Mexican government, and it is an excellent aerial photograph, and it shows how much natural habitat actually surrounds. All of this is natural habitat. There is my ranch.
So that is the first problem I have got, is the Fish and Wildlife Service has mislabeled what my project is. If you are to read their letter, it sounds like I am going to go out and cut down the Redlands or something like that. I am going to eliminate habitat.
The letters, the way they have put them together, are basically designed to confuse the issue and weaken the text of the documents that I have submitted, and by weakening it, it makes it more subject to legal challenge, and I do want to address that aspect of it.
Specifically, and I have included it in my notes, the word that they have used in their letters of comment, and I have got to find it myself, is often the word ''inadequate,'' but they never say what is inadequate. How many hundreds of hours does it take surveying this property before it has been adequately done?
''Likely.'' They say it likely contains species. However, and this is a very important point, to date with all of the biological surveys that have been done on our property, we have no endangered species on our property whatsoever. Therefore, the Fish and Wildlife Service, if I am not mistaken, has no authority to control us, but they do not ever acknowledge that. It is keep working; do another survey. All right. You did a survey for a toad. Well, we have got new information. They have actually said that: well, there is new information. We want you to do another survey for a frog or for the toad. I almost got to the frog. I will get to the frog.
Page 71 PREV PAGE TOP OF DOC The endangered California red legged frog species was taken from the vicinity of the ranch back in 1928.
Mr. POMBO. Sir, your time has expired, if you could wrap it up, please.
Mr. TURECEK. Sure. From the Federal Register, it appears that the frog is not there. The same thing with other species, yet they still have not acknowledged that, and they have not acknowledged that any of the what I feel a qualified biologist who has done this work is acceptable; yet these biologists are experts in their field.
[The prepared statement of Mr. Turecek follows:]
Mr. POMBO. Thank you.
STATEMENT OF DAN SILVER, M.D., COORDINATOR, ENDANGERED HABITATS LEAGUE
Dr. SILVER. Thank you. Good morning, honorable members.
Since 1991, the Endangered Habitats League has been a stakeholder in efforts to protect endangered species and resolve economic conflicts in Los Angeles, Riverside, San Bernardino, San Diego, and Orange Counties.
Early on, it became clear to us that project by project application of the Endangered Species Act, like you have been hearing today in all of these examples, was ineffective for species conservation and costly and inefficient for landowners.
We saw this with the California gantcatcher in San Diego, and we see it today, for example, with the Delhi Sands fly in San Bernardino. Given the number of threatened species in Southern California, there has to be a better way, and indeed, there is.
Page 72 PREV PAGE TOP OF DOC Large scale, multiple species plans, comprehensive habitat plans are in place today in Orange and San Diego Counties. They are working reasonably well. Riverside County is moving forward with theirs.
The benefits to wildlife is obvious. With local government as a partner, implementation comes much easier. Furthermore, and this is crucial, these programs allow the public at large to contribute its fair share to the process.
The benefits to landowners are summed up by the concept of streamlining. There is one stop shopping for local ordinances, California laws, and the Endangered Species Act. Certainty is an important byproduct.
From the local government perspective, based on the San Diego experience, the effects of such planning on the overall supply of housing, commercial, and industrial land is not significant.
Planning is not easy though. Scientific credibility is difficult to obtain, and negotiation on an individual project basis is unfortunately still necessary for those projects which are well advanced.
Please do not underestimate the difficult of the job the U.S. Fish and Wildlife Service faces in these instances. Because local governments often have neglected the mandates of the California Environmental Quality Act, the need to avoid or mitigate impacts to habitat often does come up very late in the process, regrettably so. And in the absence of ready acquisition funds, the service from our point of view often tries too hard to strike a balance and errs against the species and gives away too much.
Environmentalists have been highly critical of the results of many projects. San Joaquin Hills tollroad, Dana Point Headlands, Las Montanas, Carmel Mountain, Forster Ranch. I could go on, but we have found the agency steadfast in these outcomes, despite the results.
Page 73 PREV PAGE TOP OF DOC Nevertheless, we recognize the commitment the service has made to the success of multiple species planning, and my organization shares that commitment. This is, indeed, the best hope for endangered species, and it also achieves other community goals.
Consider Riverside County where we are today. If natural open space can be maintained between communities, what makes Riverside County beautiful and unique and attractive to residents and businesses alike will be maintained as future growth occurs. Thus, from the long term perspective, if we can get over these initial hurdles, there really is no conflict between the Endangered Species Act, human communities, and economic competitiveness, but indeed, there is a symbiosis.
How can we do better? My first recommendation is for all parties to emphasize accurate and unambiguous communication. I am struck by the frequency and seriousness of misunderstandings.
Secondly, the Federal Government, and indeed, it is Congress that holds the purse strings, the Federal Government needs to step forward with funding for both agency, staff, and for land acquisition. Substantial acquisition funding early in the process is essential, and leverage is state and local contributions, as well as reasonable private mitigation.
This funding is the single most important thing that you can do to make preserve creation equitable and successful.
I would like to close by thanking many members of the Committee for your past record of support for habitat planning, for making these programs in Southern California work. It not only solves problems, but it is part of the foundation for a high quality of life in the future.
Thank you very much.
[The prepared statement of Dr. Silver follows:]
Page 74 PREV PAGE TOP OF DOCSTATEMENT OF DAN SILVER, M.D., COORDINATOR, ENDANGERED HABITATS LEAGUE
Honorable Chair and Committee Members: The Endangered Habitats League is dedicated to ecosystem protection, improved land use planning, and collaborative conflict resolution. Since 1991, we have been stakeholders in efforts to protect endangered species and resolve economic conflicts in Los Angeles, Riverside, San Bernardino, San Diego, and Orange Counties.
Early on, it became clear to us that project-by-project application of the Endangered Species Act was ineffective for species conservation and costly and inefficient for landowners. If one's goal is to create win-win solutions, such solutions are often impossible one parcel at a time. We saw this with the California gnatcatcher in San Diego, and we see it today with the Delhi Sands flower-loving fly in San Bernardino and Riverside Counties. Given the number of threatened species in Southern California, there has to be a better way.
Large scale multiple species plans, often called Natural Community Conservation Plans, are in place in Orange and San Diego Counties. Riverside County is moving forward on theirs. The benefits to wildlife are obvious, as the larger scale of planning allows consolidation of large blocks of habitat and the maintenance of connectivity. With local government as a partner, implementation becomes far easier. Furthermore, and this is crucial, these programs allow the public at large to contribute its fair share to the process.
The benefits to landowners are summed up by the concept of streamlining. ''One stop shopping'' is produced for local ordinances, the California Environmental Quality Act, and state and Federal Endangered Species Acts. Certainty is an important by-product. From the local government perspective, if the San Diego experience continues, the effects of such planning on the overall supply of housing, commercial, and industrial land is not significant.
Planning is not easy, though. Not only is scientific credibility challenging to attain, but negotiation on an individual project basis is still necessary for those projects which are already well-advanced. Do not underestimate the difficulty of the job the U.S. Fish and Wildlife Service faces in these instances. Because local governments may have neglected the mandates of the California Environmental Quality Act, the need to avoid or mitigate impacts to habitat comes up late in the process. In the absence of ready acquisition funds, the Service often tries too hard to strike a balance, erring against the species. Environmentalists have been highly critical of the results of many projects. To name a few: San Joaquin Hills tollroad, Foothill-Eastern tollroad, Dana Point Headlands, Fanita Ranch, Las Montaflas, Carillo Ranch, Carmel Mountain, Forster Ranch. We have found the agencies steadfast in these outcomes, despite the results.
Page 75 PREV PAGE TOP OF DOC Nevertheless, we recognize the commitment of the Service to the success of multiple species planning in Southern California, a commitment my organization shares. Not only is this the best hope for endangered species, but it achieves other community goals. Consider Riverside County, where we are today. If natural open space can be maintained between communities, then what makes Riverside County beautiful and unique, and attractive to residents and business alike, will be maintained as growth occurs. Thus, from the long-term perspective, there is no conflict between the ESA, human communities, and economic competitiveness, but a symbiosis.
How to do better! My first recommendation is for all partiesbusiness interests, agency staff, local officialsto emphasize accurate and unambiguous communication. I am struck by frequency and seriousness of misunderstandings. Second, the Federal Government needs to step forward with funding for adequate agency staff and for land acquisition. Substantial acquisition funding early in the process is essential, and leverages local and state contributions. This is the single most important thing you can do to make preserve creation equitable and successful.
I would like to close by expressing my appreciation for your record of support for Southern California habitat planning. It not only solves problems but it is part of the foundation a high quality future for this region. Thank you.
Mr. POMBO. Thank you.
STATEMENT OF HUGH HEWITT, ESQ, IRVINE, CALIFORNIA
Mr. HEWITT. Thank you, Mr. Chairman and members of the Committee.
Page 76 PREV PAGE TOP OF DOC My name is Hugh Hewitt. I am a partner in the law firm of Hewitt & McGuire, with offices in Irvine, California, and Portland, Oregon.
At the outset I would like to thank you for your interest in this issue. I would also like to recognize and thank you for the efforts of your staff, which have been professional and thorough, especially Congressman Calvert's staff, Linda and Dave, both here in the district and back in Washington. Ms. Meginson, as well, Chief Counsel to the Committee, has been an extraordinary help to landowners who are buffeted by the Carlsbad office.
For the past ten years I have practiced in the area of endangered species law in California, Nevada, and Hawaii. Prior to that time, I served for nearly six years in the Reagan Administration in a variety of posts, including Assistant Counsel in the White House; Deputy Director and General Counsel of the National Office of Personnel Management; and General Counsel of the National Endowment for the Humanities.
I have served as a member of the Administrative Conference of the United States, and I teach at Chapman Law School in the area of constitutional law and Federal administrative law.
I reference this experience to assure the Committee that I am not inexperienced in the operation of Federal agencies and the requirements of Federal administrative law. In fact, my frustration with the Carlsbad office of the U.S. Fish and Wildlife Service grows out of my understanding of the Federal Administrative Procedures Act and my belief that Federal agencies are obliged to always act in accord with its guarantees of openness and procedural fair play.
I appear today to urge the Committee to press ahead with its request on the General Accounting Office to understand a systematic and thorough review of the services of the Carlsbad office. If GAO undertakes the audit that you have requested, I believe that the record it compiles will prompt the Congress to address systemic problems in the administration of the Endangered Species Act.
Page 77 PREV PAGE TOP OF DOC I would specifically urge you to ask the GAO to consider four things, among many.
First, the refusal of the Carlsbad office to conduct Section 7 consultation in accord with the ESA regulations promulgated pursuant to the ESA. The Carlsbad office routinely refuses to initiate Section 7 consultation citing incomplete information. This novel interpretation of law allows the service to deny landowners rapid consideration of the merits of their proposed land uses, while at the same time placing them in a legal limbo that courts will be hesitant to review due to the doctrine of the failure to exhaust administrative remedies.
Second, the promulgation of species, survey guidelines, and protocols without any notice and comment rulemaking. The most recent example of such illegal, and it is illegal, rulemaking is the promulgation of the Quino checkerspot butterfly survey protocols.
Number three, the increasing tendency of the Carlsbad office to require biologists surveying for listed species in noninvasive ways, that is, naturally harming, harassing, or touching the species, first obtain a Section 10(a)(1) permit from the Carlsbad office. These permits are written so as to require that all survey data generated on private property be turned over to the service, and they are also written so as to enable the Carlsbad office to revoke or not renew the permits of biologists without appropriate judicial safeguards or checks upon this power. It is the equivalent of an administrative star chamber, for those of you who are familiar with legal history.
Finally, and just for emphasis purposesthis list could go on for quite some timethe refusal to process Section 10(a) permit applications in a timely fashion. Lockheed Martin Corporation, for example, a client of mine, filed such an application on May 8th, 1996. More than three years later, the service has taken no action on this permit application. It has not responded to repeated phone calls and letters requesting that it simply process it to a finality even if that were to be denial. That would perfect our administrative record.
Page 78 PREV PAGE TOP OF DOC Now, we all know congressional hearings are useful in generating interest. I have spent some uncomfortable hours in front of you in various capacities when I was in the Federal Government. Congressman Sikorsky looms in my mind from the old days, but genuine reform requires painstaking work of data collection, review, and analysis.
I can recall quite clearly the seriousness and the efficiency with which the GAO went about its work at OPM when I was its Deputy Director. I can only hope that the Congress will consider the Southern California region of the service as sufficiently important to warrant the allocation of major GAO resources here.
As Samuel Johnson said, it concentrates the mind wonderfully when the prospect of hanging is in front of you.
I have some additional materials to submit for your review, and I have provided copies to the Committee. I am providing only one specific file, one that my colleague Andrew Hartzell has been handling for a number of years, but that is very illustrative of the many, many, and I underscore ''many,'' horror stories concerning operation of the Carlsbad office.
We believe that it is vital that the GAO be allowed to investigate carefully such accounts. This one concerns Lauren Development. The details will shock you.
There are many other similar stories. I compliment you for your interest, and I thank you for your time.
[The prepared statement of Mr. Hewitt follows:]
Mr. POMBO. Thank you.
STATEMENT OF MICHAEL SPEAR, MANAGER, CALIFORNIA/NEVADA OPERATIONS OFFICE, FISH AND WILDLIFE SERVICE, ACCOMPANIED BY KEN BERG, FIELD SUPERVISOR, AND SEAN SKAGGS, COUNSEL TO THE ASSISTANT SECRETARY
Page 79 PREV PAGE TOP OF DOC Mr. SPEAR. Mr. Chairman, members of the Committee, I appreciate this opportunity to discuss how the Fish and Wildlife Service implements the Endangered Species Act across the country and specifically in Southern California.
I am joined by Sean Skaggs, Special Counsel to Secretary Don Berry, and Ken Berg, supervisor of the Carlsbad office.
Let me first reiterate the major point Director Jamie Clark stated at the May 26th hearing in Washington on this issue. The service is working aggressively to improve the efficiency and effectiveness of ESA. The bold reforms we instituted in recent years can serve the species and provide flexibility and certainty to business and private landowners.
The service is committed to streamlining and improving the consultation and habitat conservation planning components of the Federal endangered species program throughout the country. We are working with many partners to develop recovery plans for listed species.
In addition, we have instituted 256 incidental take permits to habitat conservation plans and more than 200 HCPs are in some stage of development. Of these, 55 HCPs are in California ranging from San Diego, MSCP in Southern California to Pacific Lumber or Headwaters HCP in Northern California.
Just as we are providing certainty for species and landowners, we are also insuring that development does not stop because of endangered species. The U.S. economy has never been stronger, and this is particularly true in Southern California. The American public has demonstrated they want to preserve our natural heritage while allowing economic development to continue. We are achieving that goal through the ESA.
To continue making progress in implementation of the ESA, an increase in funding for an endangered species program is necessary. As of June 30th, 1999, there are 1,186 domestic species on the list of endangered and threatened species. This represents a 30 percent increase in just five years.
Page 80 PREV PAGE TOP OF DOC For California, the listed species numbers have doubled in five years. Consultations, HCPs, recovery work loads increased tremendously as a result of these new listings, and that is specifically true in California.
The service anticipates that approximately 500 HCPs will be in some stage of development or implementation by fiscal year 2000. More than 40,000 Federal projects will be reviewed under Section 7 in fiscal year 2000.
The service's capability to meet the demand is critical to completing reviews in a timely manner.
The President's fiscal 2000 budget request for endangered species is essential to allow the service to provide greater technical assistance to private landowners and to expedite consultation and permitting actions throughout the nation.
In California, the need for more resources to provide a timely response to landowners is great. One of the biggest complaints we hear from constituents, and we have heard it this morning, when we serve is that the time it takes to get an approved permit is too long. Time is money for applicants.
We appreciate their needs and try our best to fulfill the growing demand for technical assistance, permit approval, and information. However, without increased funding in California and across the country, people will continue to be frustrated by our inability to respond quickly to their needs.
I urge Congress to adopt the President's budget request for endangered species for fiscal 2000. The House and Senate Appropriations Committees last week passed Fish and Wildlife Service's budget and included some increase for endangered species program above 1999 levels, but did not provide the increases we requested in the President's budget to fully address increased work load demands and the land acquisition needs that are essential for HCPs.
In our May 26th testimony, Director Clark gave a detailed explanation of how the service implements sections 7 and 10 of the ESA throughout the country. I would like to refer you to my written statement for a summary of these remarks and examples from around the country of how we are implementing the law.
Page 81 PREV PAGE TOP OF DOC I would like to focus the remainder of my time on the Committee's concerns about California. As of June 30th, 1999, California is currently home to 260 listed, 18 proposed, and 11 candidate species, many of which are narrow endemics restricted to small remnants of their former range.
The needs of the rapidly expanding human population in California created many resource conflicts. These conflicts are magnified by the booming economy and resulting development pressures.
The service does not believe that conservation of imperiled species and a healthy economy are mutually exclusive. However, the successful meshing of these two objectives will require the service to continue working with the business community to develop solutions.
Our hard working service staff in California, particularly Carlsbad, works also closely with the California Fish and Game to provide one stop shopping to the extent possible.
The nature and extent of resource conflict in California challenge our ability to make the ESA work. It is especially difficult in offices like Carlsbad where we do not have the staff to meet the demands. There are many entities seeking immediate assistance in project planning related to listed species, wetlands, and other resource issues.
The demands for information and assistance in Carlsbad are high and likely to increase. We believe that in Carlsbad, as well as in the rest of California, the only hope is for county-wide type landscape level multiple species plans. Working with local land use authorities, we can do the most for species while local entities deal with project by project development under a multiple species framework.
In addition to this, the Carlsbad staff is responsible for overseeing the implementation of 20 already approved HCPs covering 1.4 billion acres. In other words, our work has not stopped just in signing that habitat conservation plan. This involves dedicated staff working with local jurisdictions to insure timely implementation.
Page 82 PREV PAGE TOP OF DOC Despite this challenging task, we administer the ESA to the best of our ability, focusing conservation of the species, but providing for development.
The Director and I have spoken many times about the concerns raised by the Committee that we in California administer the ESA differently than other parts of the country. We have provided testimony and answered questions about this issue many times in the past and will continue to work with the Committee to clarify and address your concerns.
I want to reiterate what the Director testified to on May 26th. The service is intent on administering ESA fairly and consistently throughout the country. Different needs dictate different solutions. However, we have a nationwide program, and we intend to implement it in that fashion.
Mr. Chairman, that concludes my prepared testimony. I will be pleased to respond to any questions.
[The prepared statement of Mr. Spear follows:]
STATEMENT OF MIKE SPEAR, MANAGER OF THE CALIFORNIA AND NEVADA OPERATIONS OFFICE, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR
Mr. Chairman and members of the Committee, I appreciate this opportunity to discuss how the U.S. Fish and Wildlife Service implements the Endangered Species Act (ESA) across the country and to address the Committee's concerns that we implement the law differently in California than in other parts of the country.
Let me first reiterate the major points Director Jamie Clark stated at the May 26 hearing in Washington, DC on this issue. The Service is working aggressively to improve the efficiency and effectiveness of the ESA. The bold reforms we instituted in recent years conserve species and provide flexibility and certainty to businesses and private landowners. The Service is committed to streamlining and improving the consultation and permitting components of the Federal endangered species program throughout the country. We are working harder than ever to achieve species conservation and recovery. We are also improving our efforts to promote and achieve cooperation, rather than confrontation, when working with the many entities that have a vital role in species recovery.
Page 83 PREV PAGE TOP OF DOC Over the past 7 years, we have developed partnerships with the States, tribal governments, local communities and individual landowners to provide flexibility and certainty in the way we administer the ESA. Our reforms are paying off. We are working with many partners to develop recovery plans for listed species. In addition, we have issued 256 incidental take permits through 246 Habitat Conservation Plans (HCPs) and more than 200 HCPs are in some stage of development. Of these, 55 HCPs (65 permits) are in California ranging from the San Diego MSCP in southern California to the Pacific Lumber HCP in northern California. HCPs are a tool under the law to provide certainty to landowners while managing species conservation for the long term. We provided a list of all the approved HCPs to the Committee when Director Clark testified on May 26.
Just as we are providing certainty for species and landowners, we are also ensuring that development does not stop because of endangered species. The U.S. 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 natural heritage while allowing economic development to continue. We are achieving that goal through the ESA.
FY 2000 Budget Request
To continue making progress on implementation of the ESA, an increase in funding for our endangered species program is necessary. As of June 30, 1999, there are 1,186 domestic species on the List of Endangered and Threatened Species; this represents a 30 percent increase in just 5 years. Consultations, HCPs and recovery workloads have increased tremendously at the same time that the Administration has been working to streamline and expedite the consultation and HCP processes. The Service anticipates that approximately 500 HCPs will be in some stage of development or implementation by fiscal year 2000. More than 40,500 Federal projects will be reviewed in fiscal year 2000. The Service's capability to meet the demand is critical to completing reviews in a timely manner. Furthermore, the interest among private landowners in two new conservation tools, Safe Harbor Agreements and Candidate Conservation Agreements with Assurances, is already great and is expected to grow. The demand for these new types of voluntary conservation agreements and the tremendous growth in the number of HCPs has combined to generate a significant increase in workload pressures.
Page 84 PREV PAGE TOP OF DOC While trying to deliver all of the Administration's reforms and to respond to this increased workload, the Endangered Species Program's budget experienced a decrease in fiscal year 1996 and only modest increases in fiscal years 1997, 1998 and 1999. The Administration recognizes that increased funding support is essential to continue our successful record of reform. The President's fiscal year 2000 budget request for endangered species is essential to allow the Service to provide greater technical assistance to private landowners and to expedite consultation and permitting actions throughout the nation.
In California, the need for more resources to provide a timely response to individual landowners is great. One of the biggest complaints we hear from the constituents whom we serve is that the time it takes to get an approved permit from us is too long. Time is money for many applicants. We appreciate their needs and try our best to fulfill the growing demand for technical assistance, permit approval and information. However, without increased funding in California and across the country, people will continue to be frustrated by our inability to respond quickly to their needs. At the May 26 hearing, a common theme from a number of the witnesses who testified was the need for the Service to have more money to provide better service.
I urge the Committee to address the needs of your constituents and urge Congress to adopt the President's budget request for the Endangered Species program for fiscal year 2000. The House and Senate Appropriations Committees last week passed the Fish and Wildlife Service's budget and included general increases for the Endangered Species program above 1999 levels but did not provide the increases we requested in the President's budget to fully address increased workload demands.
In her May 26 testimony, Director Clark gave a detailed explanation of how the Service implements Section 7 and 10 of the ESA throughout the country. Let me summarize her remarks and provide examples.
Page 85 PREV PAGE TOP OF DOCSection 10
Section 10(a)(2)(A) of the ESA requires an applicant for an incidental take permit to submit a Habitat Conservation Plan (HCP) that specifies, among other things, the impacts that are likely to result from the project and the measures the permit applicant will undertake to minimize and mitigate such impacts. One of the statutory requirements for obtaining an incidental take permit is that applicants minimize and mitigate the effects of their actions to the maximum extent practicable. Section 10(a)(1)(B) of the ESA outlines the other criteria and process for issuance of incidental take permits to non-Federal parties.
Minimization and mitigation requirements can take many forms depending on the habitat needs and 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, and because we try to be flexible in meeting the needs of applicants, we don't use a cookie cutter approach in developing HCPs. The law does not specify HCP minimization or mitigation standards but gives the Service the flexibility to work with applicants to develop the best plan appropriate to the project. Minimization and mitigation can include restoration and creation of habitat, preservation of habitat, research, and/or public education programs.
For example, part of the mitigation associated with the Washington County, Utah HCP includes fees to acquire and manage land and implement an education program regarding desert tortoise conservation. The Service uses the best scientific information available during the development, review, and monitoring of HCPs and ensures that the minimization and mitigation strategies of a plan are as effective as possible. This is reflected in the Service's new 5-point policy proposal for HCPs that improves the process even further. Our purpose is to help the applicants comply with the law and conserve listed species while allowing development to occur. We've done that successfully throughout the country.
Page 86 PREV PAGE TOP OF DOC There are a number of tools or strategies that landowners may use to minimize and mitigate the impacts of their actions. In the southeast, International Paper is establishing a mitigation bank as part of their red-cockaded woodpecker HCP. International Paper will actively manage approximately 5,300 acres of habitat for the red-cockaded woodpecker and has established a target population of 2530 red-cockaded woodpecker family clusters. If the number of family clusters exceeds the number necessary for implementation of the HCP, International Paper will use those family clusters to support a private mitigation bank.
Individual HCPs for the Florida scrub jay in Brevard County, Florida typically contribute to a larger preserve strategy and a management endowment based on the scope of the proposed project area. By providing applicants with this type of option of contributing to a large preserve strategy, the effort into developing and implementing their HCP is greatly simplified, without on-going responsibility for habitat maintenance.
The Service provides assistance and support to applicants who are seeking an incidental take permit under the ESA. In many instances, the Service helps the applicant identify the actions that the applicant needs to undertake to reduce or offset adverse effects of a proposed activity on the species covered by the HCP. The Service encourages applicants to discuss their applications at the earliest time possible, so that we can help them design an HCP that will meet the permit issuance criteria and advise them on the permitting process. However, regardless of the extent to which an application incorporates Service input, if the application meets the issuance criteria, we will issue a permit.
Section 7(a)(2) requires Federal agencies to consult with the Service to ensure proposed Federal activities are not likely to jeopardize the continued existence of listed species or result in destruction or adverse modification of critical habitat. The Service encourages Federal action agencies to work with us early in the project development phase to ensure that discussions about the potential impacts of a Federal project or permit on listed species are addressed. In this way, we are able to identify potential problems and solutions without delaying projects unnecessarily. The action agency is responsible for determining the effects of a proposed action. If they determine that the action is not likely to adversely affect threatened and endangered species and the Service concurs in that determination, the section 7 obligation is fulfilled. In fact, during fiscal year 1998, 97.2 percent of the consultations across the country were completed at the informal stage (i.e., the proposed project was determined to have no effect or not likely to adversely affect).
Page 87 PREV PAGE TOP OF DOC When a proposed project is likely to adversely affect listed species or critical habitat, the Service and an action agency enter formal consultation. During formal consultation, the action agency and the Service may work together to identify what steps may be incorporated into a proposed project or into the biological opinion to minimize effects on listed species or critical habitat. These steps are often minor adaptations to the project that the action agency and the applicant are willing to undertake in order to reduce the harmful effects, and in some cases provide benefits, to listed species. Action agencies and applicants often refer to these modifications as ''mitigation.'' This is especially true when agencies and applicants are also complying with other statutes, such as the Clean Water Act and the National Environmental Policy Act, where mitigation is a key requirement. In this context, the term ''mitigation'' is broadly applied to include avoidance and minimization of adverse effects to listed species or critical habitat. Unfortunately, this has led to confusion over the difference between minimization and mitigation under section 7 of the ESA.
Mr. Chairman, let me clarify for the Committee that when working through the formal consultation process with the action agency and the applicant it may appear that the project will jeopardize a listed species early in the talks. When this occurs, we work with the action agency and applicant to identify changes to the proposed project that would avoid jeopardy. Alternatively, the action agency or applicant may develop their own measures to avoid jeopardy. If these or other appropriate changes are incorporated into the project, we then issue a non-jeopardy opinion. In most cases this process works well and is the best approach to ensure that the project proceeds in a timely manner and without significant adverse effects on the species. For example, the Prairie Du Chien consultation in Region 3 analyzed the proposed maintenance and on-going operation of the east channel of the Mississippi River (a side channel used for commercial barge traffic). Due to those impacts, we determined that the indirect effect of commercial barge-traffic would result in jeopardy. The Army Corps of Engineers and their applicant were involved with developing project changes, and as a result, the project was modified such that jeopardy was avoided. The Army Corps of Engineers and applicant were supportive of the results.
Page 88 PREV PAGE TOP OF DOC When preparing a biological opinion, the Service is required by the ESA and its implementing regulations to include an incidental take statement that specifies reasonable and prudent measures and implementing terms and conditions to minimize the impacts of incidental take. Our Interagency Consultation Handbook clarifies that reasonable and prudent measures and implementing terms and conditions must minimize effects to the specific individuals that we anticipate will be incidentally taken and must not involve mitigation for the impacts of any anticipated take. The Service is committed to ensuring that we follow the policy direction in our handbook.
Demands in California
Already the most populous state with over 36 million residents, or one out of every eight people in the United States, California continues to grow at an unprecedented rate. Reasonable estimates expect an additional 18 million residents by 2025. Much of the growth is expected to occur in southern California, which now has five of the six most populous counties in the nation, four of which are also the fastest growing. As one of the most ecologically diverse areas in the country, California is also home to a high number of unique species. Twenty percent of all federally listed species are found in California, more than any other state except Hawaii. Conserving California's natural resources, while accommodating the projected population growth, will require planning and cooperation.
As of June 30, 1999, California is currently home to 260 listed, 18 proposed, and 11 candidate species, many of which are narrow endemics restricted to small remnants of their former range. The needs of the rapidly expanding human population in California have created many resource conflicts. These conflicts are magnified by the booming economy and resulting development pressures. The Service does not believe that conservation of imperiled species and a healthy economy are mutually exclusive. However, the successful meshing of these two objectives will require the Service to continue working with the business community to develop creative solutions. Our hardworking Service staff in California work closely with California Fish and Game to expedite the permitting process to the extent possible and have approved an assortment of conservation programs and banking agreements that ensure conservation of listed species while allowing development projects to proceed.
Page 89 PREV PAGE TOP OF DOC The nature and extent of resource conflicts in California challenge the Service's ability to make the ESA work. This challenge is especially difficult in offices like Carlsbad where we do not have the staff to address the demands from the many entities seeking immediate assistance in project planning related to listed species, wetlands and other resource issues. The demands for information and assistance in the Carlsbad office are high and continue to increase. For example, in 1998, the Carlsbad office worked on 57 formal consultations; provided 205 informal consultations/technical assistance responses; prepared documents for the listing of 7 species (6 plants and 1 mammal); issued 3 incidental take permits; finalized 6 candidate conservation agreements; and prepared draft recovery plans for southern maritime chaparral species, peninsular bighorn sheep, carbonate endemic plants, Stephen's kangaroo rat, and alluvial fan scrub species. In addition, Carlsbad staff are responsible for overseeing the implementation of 20 approved HCPs covering 1,367,946 acres. This involves dedicating staff to work with local jurisdictions to ensure timely implementation of the HCP. Despite this challenging task, we administer the ESA to the best of our ability, focusing on conservation of species but providing for development to go forward.
The Director and I have spoken many times about the concerns raised by the Committee that we in California administer the ESA differently than in other parts of the country. We have provided testimony and answered questions about this issue many times in the past and will continue to work with the Committee to clarify and address your concerns. I want to reiterate what the Director testified to at the May 26 hearing; the Service is intent on administering the ESA fairly and consistently throughout the country. Different needs dictate different solutions; however, we have nationwide ESA implementation policies and we intend to implement them fairly nationwide.
We regret that we may have inadvertently and inappropriately confused members of the Committee or the public by using terms like ''mitigation'' in the context of ESA when we should have used the narrower definition of minimization which is required under Section 7 of the law. Again, this confusion may be the result of the Service working closely with the State of California and other Federal agencies to provide a streamlined process for applicants to receive Federal and State permits where other Federal and State laws requiring different standards and actions apply. These various Federal laws, such as the Clean Water Act and the National Environmental Policy Act (NEPA), often use the word ''mitigation'' and involve review and coordination from the Service. We appreciate that addressing the various requirements of the Clean Water Act, NEPA, and ESA can be complicated and be a source of misunderstanding between applicants and the Service. For example, wetland mitigation under section 404 of the Clean Water Act may also provide conservation benefits for listed species that occupy wetlands. Regardless of the reasons for our use of the wrong term, let me assure the Committee that we will redouble our efforts to be more accurate in our use of the correct terminology and to ensure that we do our part to provide the fair and consistent implementation of the ESA that the Director has promised.
Page 90 PREV PAGE TOP OF DOC In closing, Mr. Chairman, the Service is making great efforts, with limited resources, to ensure that implementation of the ESA is scientifically sound, flexibly applied, and consistently enforced throughout the country. The Service, under this Administration, has endeavored to fairly protect landowners' interests in their land, while providing incentives to manage their lands in ways that benefit endangered species. The Service is fully committed to finding this balance between economic development and endangered species protection. Finding that balance requires early, open discussions between all parties involved in order to mesh the two needs, either through section 7 or section 10. I am confident that with full implementation of the Administration's reforms, the Endangered Species Act will continue to protect the most vulnerable biological resources of the Nation without imposing undue burdens on individual citizens.
Mr. Chairman, this concludes my prepared testimony. I would be pleased to respond to any questions you might have.
Mr. POMBO. Thank you.
Mr. CALVERT. Thank you, Mr. Chairman.
Mr. Spear, we have heard from a lot of witnesses today, and we are going to hear from a few more, and I think you can tell from the diverse nature of these folks, public agencies, school boards, developers, elected officials, it seems they all have a problem with the Carlsbad office.
Do you believe there is a problem there? Do you think there is a pervasive problem with the policies and practices of that office?
Mr. SPEAR. No, I do not believe there is a pervasive problem with the policies and practice of the office.
Mr. CALVERT. So it would be your opinion that the witnesses that are here today, both public and private, and the scores of others who are not here, are just exceptions to the rule?
Page 91 PREV PAGE TOP OF DOC Mr. SPEAR. No, I think they have raised concerns that I think we must be attentive to, but what I am saying is that it does not represent some sort of pervasive problem. The Carlsbad office works hard to deal with the issues with the resources it has, and there is no doubt that within all it is difficult to administer the Endangered Species Act, that it affects private property; that these kinds of issues are going to surface. There is going to be disagreements over science. There are differences over terms of process.
Mr. CALVERT. Just regaining my time, let's talk about science. If you notice in the panel we have here today, we do not have any biologists. We could not get one biologist to agree to testify today. We asked a number of biologists. I do not know. The Chairman may have a number in mind, seven, eight, nine. I don't know. A number which would have liked to testify. They claimed that they had a fear of retaliation as one of the main reasons why they would not testify at today's hearing.
Do you think there is a retaliation problem in the Carlsbad office?
Mr. SPEAR. Absolutely not, and frankly
Mr. SPEAR. [continuing] one of the comments that concerns me the most, and I, frankly, welcome the Committee in their comment this morning that said they would continue to be observant in this fashion, and so will I, and if it is ever detected, it will be dealt with.
Mr. CALVERT. And I am an old employer, in business most of my life. I like to think any phone call I get I return it the same day. It is just something my father taught me when I was in business. If I did not do it, he would probably fire me, even though he is my own father, and I would like to think that with my own employees. You know, if somebody calls, you return the phone call, even if you are going to get back to them the next day and you do not have a lot of time, but you return the phone call.
Page 92 PREV PAGE TOP OF DOC And you treat people courteously, especially if we are a Federal agency. This is something that really bothers me. If that is a problem in that office, that ought to get fixed because when I heard that from one of the witnesses today, and I have heard that before, Mr. Spear, so I think you ought to look into that and make sure that the taxpayers and constituents of all of us are not being treated unfairly or without all due courtesy.
Mr. SPEAR. That is a very fair comment, Mr. Calvert, and I am guilty of that I know at times, and I take that as very appropriate and something we will work on.
Mr. CALVERT. Now, you heard the testimony of the previous witness here today, Ms. Rosen, about the school site there in Murrieta, and Murrieta is a city that I represent, and obviously I am very concerned about Murrieta, about 250 acres of land. They get a biologist. They say 70, 80 acres is habitat, and Fish and Wildlife wants the entire 250 acres of property. Do you think that is reasonable?
Mr. SPEAR. I do not think it is reasonable, and I do not think that is what we said. I got a briefing on this yesterday. There is no doubt that this school site is in an area which is an important, as far as a corridor, but I
Mr. CALVERT. Okay. Are you sayingMs. Rosen is here today, made a comment, and I asked her. She made her testimony, and I asked the question again. Is 250 acres required? And she said yes. Are you saying that Ms. Rosen is not being truthful to this Committee?
Mr. SPEAR. I do not understand exactly what happened or the context.
Mr. CALVERT. I would say at the very least we have a communication problem here.
Mr. SPEAR. I would say that is true. This is under negotiation now. My people were telling me yesterday how they are trying to work out. Clearly, the original plan that was presented was one that our people thought contained too much development on that site, but it is not my impression now from discussions I had yesterday that our people are seeking the whole 250 acres.
Page 93 PREV PAGE TOP OF DOC Mr. CALVERT. Well, how much do you want? Do you want 200 acres?
Mr. SPEAR. I do not know the exact number. They are trying to work out so we can have the school site. I am not here to have that level of detail to know exactly what that number is. I mean, my staff is dedicated
Mr. CALVERT. Just between you and I
Mr. CALVERT. [continuing] do you think 200 acres is unreasonable?
Mr. SPEAR. I do not think this is a good place to negotiate numbers.
Mr. CALVERT. Thank you, Mr. Chairman.
Mr. POMBO. Ms. Chenoweth.
Mrs. CHENOWETH. Thank you.
Mr. Spear, by law Fish and Wildlife Service has 90 days to respond to petitions to list or de-list a species; isn't that correct?
Mr. SPEAR. Yes, it is.
Mrs. CHENOWETH. Well, Riverside County Farm Bureau filed a petition to de-list the kangaroo rat in 1995. They received absolutely no response on that, and you are sitting here telling this body of Congressmen there is no problem, and this is just one example.
What do you have to say for yourself?
Mr. SPEAR. We have a listing priority guidance which we follow.
Mrs. CHENOWETH. I thought the law said 90 days.
Mr. SPEAR. Well, we have established the listed priority guidance.
Page 94 PREV PAGE TOP OF DOC Mrs. CHENOWETH. So your listing priority guidance overrules the law?
Mr. SPEAR. I will let the people in Washington who deal with the regulatory process determine exactly how that worked out, but there is a listing priority guidance that we have established through the regulatory process that sets the standards. We work with the courts as to how when we have limited funds we will work through the listing process.
Mrs. CHENOWETH. Limited funds? Comes on now. I mean, there is a major disconnect here, Mr. Spear, and you have heard startling testimony just as we have. I came into this hearing feeling fairly sanguine that this would be like any other of the number of hearings Mr. Pombo has held on the Endangered Species Act.
As I sat here and listened to the testimony, I became utterly frustrated and shocked at what I am hearing. You heard the same thing.
Mrs. CHENOWETH. Do not give this body an answer that you need more money. What about the 43 biologists, some of whom may be having bumper stickers on their cars that say, ''Developers Can Go to Hell''? What do you have to say about that kind of activity on government property? Mr. Spear?
Mr. SPEAR. I do not know that the allegation indicated that that was on a government vehicle, but
Mrs. CHENOWETH. Then you did not hear Congressman Hunter then.
Mr. SPEAR. I did not hear him say it was on a government vehicle. I do not.
Mr. HUNTER. Would the gentle lady yield?
Mrs. CHENOWETH. Yes, I will yield.
Mr. HUNTER. The photo that was taken of that bumper strip, that was on one of the government employees who works in the Carlsbad office on their car that they drive to work. So my point was if you are a veteran and you are going into the Veterans' Administration and you see Joe Smith's car and he is going to be your case worker and he has got a bumper strip that says ''Veterans Can Go to Hell,'' you probably cannot expect great service from that particular individual.
Page 95 PREV PAGE TOP OF DOC And so if the gentle lady would yield, do you think that is a proper attitude for a government employee whose job is to process these permits?
Mr. SPEAR. I will answer the question. I just wanted to clarify that I did not think that was on a government vehicle, but
Mr. HUNTER. No, it was on a private car of a government worker.
Mr. SPEAR. I will get to the specific question and answer your question. No, I do not think it is proper in terms of the image it sends and for exactly the reasons you have outlined.
I am not sure what I can do about it other than pass on to the fact that it is inappropriate because of people's, you know, private rights.
Mr. HUNTER. Well, we did not offer it for the purpose of getting rid of the bumper strip. They took it off when they saw that somebody had photographed it and was taking a record of it.
The point is the attitude that it represents is something that I think, Mr. Spear, you do not acknowledge exists, and you might look a little deeper.
Mr. SPEAR. I think it is improper, and I willI agree with you on that.
Mrs. CHENOWETH. Reclaiming my time, Mr. Spear, you asked us for more dollars, but let me say it does not take more dollars to return a telephone call, and I think you have a major mess on your hands in this Carlsbad office. It is peopled by people
Mrs. CHENOWETH. [continuing] like the 43 biologists who have no respect for not only the rule of law, but the people that they are entrusted to work with, no respect, no common sense, and what we are seeing come out of this office is chaotic.
I do want to say, Mr. Chairman, if I might just ask for a couple of minutes, unanimous consent for an additional two minutes.
Page 96 PREV PAGE TOP OF DOC Mr. POMBO. Without objection, the gentle lady requests two additional minutes.
Mrs. CHENOWETH. In some correspondence from Jamie Clark, April 10th, 1998, out of concern that we have had all along for the mitigation that the Fish and Wildlife Service has been involved in, that letter from your Director states, ''While it has been the policy of the Service that it is not appropriate to require mitigation to offset incidental take, it was not explicitly stated in the 1994 Section 7 consultation handbook. Because the Service is aware that there occasionally has been an inconsistent application of this policy, it clarified the policy in its recently approved endangered species consultant handbook. The Service's new handbook clearly states that it is not appropriate to require mitigation for the impacts of incidental take.''
And incidental take takes many forms, setting aside lands or restricting activities, and so forth, but also in a Supreme Court decision that came out of Oregon, Dolen v. Tiger, the Supreme Court held that governmental authority to exact such a condition as taking from developers was circumscribed by the Fifth and 14th Amendment.
Under the well settled doctrine of unconstitutional conditions the government may not require a person to give up a constitutional right, here the right to receive just compensation when property is taken for a public use in exchange for a discretionary benefit conferred by the government, where the property sought has little or no relationship in its benefit.
And now we have moved from 1998 to 1999, where in this office alone, they are imposing 31 regional HCPs, and one of the reasons that they are imposing the HCPs is to serve as a mechanism to address over arching social concerns, such as urban sprawl, transportation congestion, and open space planning, while enabling jurisdictions to keep their ESA obligations.
It seems to me that this agency has suddenly taken upon itself to become the nation's land use planners, and this authority was never conferred on this agency by Congress.
Page 97 PREV PAGE TOP OF DOC Yes, there is a major disconnect, and my major concern is that in spite of what the Constitution says, in spite of what even your handbook says, your agency continues to impact good, sound development with unreasonable requirements and requiring them to give up land in exchange, in mitigation.
Henry Hyde said in his closing debate in the impeachment debate on the floor of the House that when we disregard the rule of law, it is a national tragedy, and it is up to us to catch that falling flag in time before we have utter tyranny and chaos.
And, Mr. Spear, these agencies are running this country without a rule of law, and we are going to be running in to tyranny and chaos, and I do not think you want to end your long and distinguished career with that kind of legacy.
We would ask that you get connected to what is happening in your Carlsbad office and make the necessary corrections in spite of what may be the politically correct thing of the day. The Fish and Wildlife Service and the relationship of agencies to the people need to go on in a manner that is productive and not destructive.
Mr. POMBO. Mr. Miller.
Mr. MILLER. No questions.
Mr. POMBO. Mr. Hunter.
Mr. HUNTER. Thank you, Mr. Chairman.
Mr. Spear, thank you for being with us, and I think it is good that you are appearing on the panel with some of our folks that have had some of the problems because it allows for a real connection.
First, when we last had a meeting in Washington, DC, you told me that this butterfly breeding season for the Quino checkerspot butterfly would serve as a model for that particular survey protocol. Has that direction been given to the local folks?
Page 98 PREV PAGE TOP OF DOC Mr. SPEAR. I am not sure I quite understand the question.
Mr. HUNTER. Well, remember you explained to you and you said there was concern in the field that at that time there had not been enough rain up by the March or April time, for this to serve as a model for the breeding season for the checkerspot butterfly, but that your determination was that it was.
In fact, we had had some rain recently when we were meeting here, and that was that this would be the model. They would not have to wait for another year before they could do a survey.
Mr. SPEAR. When we spoke back then, it was at the beginning of the season. The question back then was not whether or not it was going to be the only year, but whether or not you would count this year, and, yes, we did.
Mr. HUNTER. Yes.
Mr. SPEAR. We were able to get a year in this year. We did have the appropriate seasonal conditions and were able to do the surveys this year, yes.
Mr. HUNTER. Okay. Let me ask you a couple of questions with respect to Mr. Turecek's project because I think it is representative.
The information I have here is that he, and, Bruce, break in if I am wrong here, but you have done three separate biological surveys now that were required by the Fish and Wildlife Service. Do I take it you did those with people who were well credentialed and qualified biologists to do the surveys?
Mr. TURECEK. All of them permitted biologists.
Mr. HUNTER. How much did you spend on those surveys?
Mr. TURECEK. Up until 1996, the surveying took about $50,000 specifically just for the biologists.
Mr. HUNTER. Okay. Now, when you did those surveys, the last survey you did was the result of an eight page critique of the survey before that by Fish and Wildlife. So they did a critique of the survey and said, ''Here are the additional things we want you to look at''; is that right?
Page 99 PREV PAGE TOP OF DOC Mr. TURECEK. Unfortunately they did not do a critique. We requested a critique. All they gave was another three page complaint letter.
Mr. HUNTER. Okay.
Mr. TURECEK. However, I did have another biology firm that went out for approximately another $13,000 to resurvey the property. Following that, it required also an additional survey for the Quino checkerspot butterfly. That was an additional $18,000 on top of all the rest of that.
Mr. HUNTER. Okay. Have they ever found any endangered species on that property?
Mr. TURECEK. Never. I do have the butterfly adjacent to the property next door, and I do have a food source for the larvae on the property that I have dedicated off into open space. We planned for that to be an open space from the beginning.
But as far as endangered species on the property, no.
Mr. HUNTER. Okay. Mr. Spear, I think this is one of our problems. Here you have got a landowner. He is a rancher. He has got, I presume, a limited amount of capital. He has put out a lot of cash, $50,000, to do three surveys, each of which is rejected by Fish and Wildlife even though they are done by credentialed biologists. They have never found any endangered species, and you tell us you need more money.
Well, they have apparently spent a lot of staff time figuring out reasons to reject Mr. Turecek's request, and don't you feel that we are not bringing these cases to closure in a reasonable way? I mean that would be my instinctive reaction to listening to this chronology of surveys.
And, Mr. Berg, if you can enlighten us, please jump in, too. We are not restricting it to Mr. Spear to answer the questions, but do you see what we are talking about here?
Page 100 PREV PAGE TOP OF DOC Mr. SPEAR. Mr. Hunter, I think this is a good example we need to spend a couple of minutes on because whether or not this is a failure of communications as brought out earlier, there is a real misunderstanding of exactly what has happened so far in this project.
First of all, there have been no Federal permits applied for at this stage. What has happened is the state and Federal resource agencies, Fish and Game and Fish and Wildlife Service, provided joint comments like we try to do so that we get up front a comment about what it is we believe needs to be stated in the documents to provide us the information to make the decisions. Okay? So that is where we are.
Nobody has said that this waslet me read something in here that talks to something that was brought up by Mr. Turecek.
Mr. HUNTER. But first on that point, let's get this straight. Mr. Turecek wants to develop his land. So if he is doing these things gratuitously and he could just start building homes, I am sure he would love to do it.
Mr. SPEAR. Oh, he is doing the right thing.
Mr. HUNTER. All right.
Mr. SPEAR. But this islet me just go
Mr. HUNTER. But let me hold you up here because this is an important point. People being able to in an affordable way develop their property is an important factor here. You are saying he has spent 50 grand so far doing three surveys, and he has to do it before he can make the applications. I presume this guy is not made out of money, and my instincts are he probably will not have the legs or the financial endurance to get through this process, and I think part of your job is to make this process a reasonable one where average people with some moneyI mean he has gone out and borrowed 50 grand and gotten it from someplace just to start the projectwhere average Americans can get through this process without being bankrupted.
Page 101 PREV PAGE TOP OF DOC We never intended, we never said in the Endangered Species Act we want you to set up a regulatory process that will bankrupt the average citizen before he can get through. You agree with that. That is not part of the law.
Mr. SPEAR. I agree.
Mr. HUNTER. And I think that part of the problem that we have here is that we have not made this thing user friendly where average folks can get through it. Don't you agree with that?
Mr. SPEAR. Well, we have to have the information to be able to make a determination about the species that are listed.
Mr. HUNTER. But he has made three surveys.
Mr. SPEAR. Yes.
Mr. HUNTER. And each one has been rejected.
Mr. SPEAR. I do not think that is the case that we have rejected them.
Mr. HUNTER. But why has he
Mr. SPEAR. I guess I will let Mr. Berg speak at this stage about the details of that. I would like to get back to a couple of other points.
Mr. HUNTER. Okay.
Mr. BERG. My name is Ken Berg. I am the field supervisor for the Carlsbad Fish and Wildlife office.
It is my understanding that Mr. Turecek is applying through the county for a development permit that requires that he also prepare an environmental impact report under the California Environmental Quality Act. Our comments and the comments of the California Department of Fish and Game have been provided to the county so they can do the environmental disclosure through the California Environmental Quality Act.
Page 102 PREV PAGE TOP OF DOC One of the issues that needs to be addressed under the California Environmental Quality Act is the presence of endangered species habitat. So our technical assistance has been trying to assist Mr. Turecek and the county in assuring that the environmental documentation is adequate to disclose the potential environmental effect of his proposed development on endangered species.
And one of the things that is necessary to do a thorough job so that Mr. Turecek and the county is not vulnerable to citizen lawsuits about failure to comply with the California Environmental Quality Act is that he does adequate surveys for endangered species to determine whether or not they are present.
Mr. HUNTER. Mr. Chairman, I know we are going over our time, but this is the only case I am going to want to direct my comments to. Could I ask for a couple more minutes here just to follow this up and get to the bottom line here?
Mr. POMBO. Without objection.
Mr. HUNTER. Thank you.
Mr. Berg, as I understand it, he has got to get a basically clean bill of health, if you will, from Fish and Wildlife, and, Bruce, jump in if you want to here, in order to get permission to build from the state subdivision, which is the county; is that right? In other words, he is not doing this for fun. He is
Mr. BERG. We give advice to the county. The county does not have to follow our advice.
Mr. HUNTER. But they do.
Mr. HUNTER. But my point is as a practical thing, he has to get a clean bill of health from you guys before the countythe counties will put as a condition you have got to pass the environmental or Endangered Species Act requirements before they are going to give him a permit.
Page 103 PREV PAGE TOP OF DOC He is not spending this 50 grand because he wants to. He is doing it because he has to, right?
Mr. BERG. He is doing it because the county is requiring that provide
Mr. HUNTER. I understand.
Mr. BERG. [continuing] further documents.
Mr. POMBO. If the gentleman would yield, that is not exactly accurate. According to a Supreme Court case, the county can be held liable if they do not follow the advice of Fish and Wildlife Service. So for you to say that they are not
Mr. POMBO. And furthermore, if this gentleman has no endangered species present on his property, he does not need a Section 10 permit. What he needs to do is do the biological survey to determine whether or not he has endangered species on that. It is your responsibility to review those biological assessments, determine whether or not they are adequate. If they are adequate, then you give him a clean bill of health and say he does not have endangered species on his property, and he does not need a Section 10 permit.
So you cannot use the law and use the county and use everything that is put in front of you to delay a project and put this gentleman in the position where he spends millions of dollars in order to meet your criteria and then stand back and put your hands up and tell this Committee that you had nothing to do with it.
Mr. HUNTER. Well, now, Bruce, where are you right now on this thing?
Mr. TURECEK. By the way, I wanted to clarify. The first survey was $50,000, and there is at least another $25,000 beyond that.
Page 104 PREV PAGE TOP OF DOC The problem I have is that the letters and the communication I get back always uses words ''inadequate,'' and never tells me why it is inadequate. If it is inadequate because of minimum number of hours or qualifications of my biologist, whatever makes it inadequate, my question is I want to find out why. I want to get to a completion. They never allow me to get to that completion.
Mr. HUNTER. Okay. Now, Mr. Spear, because I want this to be a constructive session, and I know you do, too, here is the problem. We have got an average citizen of the United States. He is not a big corporation which a lot of the environmental folks talk about. He is just a guy that has got some land out there in his county, and he has got a right to use his land. Presumably he has paid taxes on it. He has paid his mortgages. He has gone through rough economic times. He has got a piece of property in America, and he wants to use it.
We have a structure that is built up so that he has not even gotten into the initial permitting process yet, and he has already spent $75,000. So what you are saying is we have built a structure that the average person cannot afford. That is not right.
And what is not right, I think there is some fault here, Mr. Berg. If you have a system where an average guy cannot walk in and say, ''Tell me what I need. Tell me what I need. Sit down with me. Show me what I have got to do,'' and you cannot show him in a streamlined fashion, and this obviously is not an endangered species rich piece of property because you have never found a single one out there, but if you cannot show him for less than 75 grand what he needs to know, then the system is broken.
If that was your aunt and she had willed this property to you or her resources to you and she only had $75,000 in her pocket and you walked out and said, ''Aunt, how is my inheritance going?'' and she said, ''Mr. Berg, I just gave it all to the biologists and yet we are not even a third of the way through the reports,'' you would be as mad as heck.
And so I think, Mr. Spear, we have to develop a system that is user friendly for average Americans who own property to go down and learn in common language what they have to do and have the system a reasonable enough system so that you can get through it without having to make multiple reports, especially when you do not have the first endangered species found.
Page 105 PREV PAGE TOP OF DOC Don't you agree with that?
Mr. SPEAR. Mr. Chairman, we
Mr. SPEAR. Mr. Hunter, we do need to make it, and we certainly owe applicants not only the issue of what is needed in a survey, but also when something is provided and we have a problem, to be able to explain to him how to fix it. That technical assistance function is clearly ours, and we need to do it.
There is a cost to being able to go through the survey processes in an endangered species rich area like Southern California. There is a cost to get this kind of information. I do not want to indicate to you today that we can figure out how to eliminate those costs. We need to make them as efficient as possible, et cetera, but in the environment we have down here, there is a certain amount of information that we need to get, and we need to figure out how to help people get that as easy as possible.
Mr. HUNTER. Well, I understand. I agree, but in this case, we have not found a single one of those species on his property. So it is not
Mr. SPEAR. Well, a survey is to determine that.
Mr. HUNTER. Well, Mr. Berg, can we make another stab at this Mr. Turecek's operation here? I would like to
Mr. BERG. It is my understanding that we had explained to him the kind of surveys that would be adequate, but if heif we have not done that adequately, we will get back.
Mr. HUNTER. I would just ask that you engage with my constituent and give him the time and the attention so that he as an average citizen can learn how to walk through this process without bankrupting his family. If you could do that, I would appreciate it.
Page 106 PREV PAGE TOP OF DOC Thank you, Mr. Chairman.
Mr. LIBEU. Mr. Chairman, may I have just one minute? Just one minute.
Mr. POMBO. I will give you a minute of my time. Go ahead.
Mr. LIBEU. The problem that I have with the way that they have responded to my letters is now their letters have been used by others to generate comments letters to put me literally at suit, to sue me. In other words, now others are taking their letters as a basis and attempting to setting up the preliminary steps to put me at legal challenge. That is the problem I have with their letters.
Mr. POMBO. Mr. Spear, would you respond to that, please?
Mr. SPEAR. Yes, Mr. Chairman. This is a real Catch-22.
Mr. SPEAR. If we provide clear technical assistance and letters in response, try to give the information and provide them the assistance with the kind of detail and support, then you get the kind of problem perhaps that he is talking about.
If you make them fuzzy so that they are unusable, then they are not helpful to him, et cetera. So I think this is a letter early on in the process, not a Federal process, under a state process, where we join with the state to provide the information as early as possible so that we are not coming around later and doing it at a later time.
I mean, how to communicate clearly, officially, here is what we see, here is what we think is needed, without others being able to say, ''All right. I will use it one way or the other,'' I am not sure how we do that. I understand the dilemma, but I think we are also calling for clear communication.
Mr. POMBO. I would like to recognize Mr. Miller.
Mr. MILLER. I mean this in a positive way, but I am listening to what you say, and it is like an individual going to court, putting themselves in the proper position, and you are assumed guilty until you can in some way prove you are innocent.
Page 107 PREV PAGE TOP OF DOC I mean you used the words of ''endangered species rich environment'' of the entire State of California, and Mr. Turecek, I know exactly what he is saying. I have been involved in real estate for about 30 years now, and I have done a lot of the EIRs, and I have read many of your responses, and I have read many of your responses to EIRs that I know that have just been proposed, and you use words like ''it appears,'' the study, ''to be inadequate,'' ''it appears that this was not taken into consideration,'' even when a full EIR has been prepared and circulated, and you are to come back with comments. Your comments do not relate to what the study said that was generated in the EIR. You come back with words like ''it appears,'' which the individual here is correct. Then an individual will take that letter to court and say, ''Obviously something was not done because the letter clearly says it appears.''
And your responses in many cases, and I would like you to think about this because I think it is only fair, are based on your assumption that something is there even though there is no evidence before you that that exists, and that is the problem I have.
And it angers people, and when you see individuals, and Congressman Hunter is exactly right. I have witnessed a lot of people lose property because they could not afford to carry it any longer because the lender would not extend the loan because it had been too long. It had taken too long for the process to occur for the individual to get entitlements on their piece of property, and they could no longer afford the process. They had indebted themselves trying to perform the process that we believe they are supposed to go through to insure that we are protecting the environment.
And I believe this applicant here has done that. He has tried to insure that he has protected the environment. He has done what we require him to do based on what we believed should have been done when laws are passed. The problem is it is taken to a different degree when it is being applied, and we use words like ''appears.''
And when you say ''appears,'' you have no basis for that because if there was an inadequacy in the EIR, you should say the EIR did not address these given areas, and they should address them.
Page 108 PREV PAGE TOP OF DOC Now, you do that occasionally, yes. When you see an EIR has not adequately addressed an issue, you will state that, but then the response goes on with other language like ''the study appears to not address,'' and you have no evidence that it did not address it. It was not taken into consideration by the biologist, but that type of vague, ambiguous language creates a Catch-22 you spoke of earlier, and it puts that property owner in the situation where if he does finally get an entitlement, then he could end up in court because of your letter saying ''it appears.''
Now, if the county decides, well, you say ''appears,'' but we see no evidence that that is the situation and they go ahead with the entitlement, he is stuck in the situation where any individual or group that can afford an attorney can tie that individual property owner up in court for years, and that is the problem I have.
When I built my house, I bought a lot and I graded it, and there was not a tree on my lot, and I planted 250 of them because I like the environment. I like trees. I like living with nature, but if I want to go out and cut some of those trees down on my hillsides and use them in my fireplace, I also want a right to do that, and I do not want to have to get a permit to do it.
But I think we need to start looking at property owners and saying that is the person we work for, not them working for us, and if there is some inadequacy in an EIR, then address it and ask that they respond to it.
But when we continue to use words like ''appears'' and ''it might be'' and ''could be,'' those are vague and ambiguous, and it puts the property owner in a situation where it could be very litigious in the long run, and I do not think we are serving anybody by doing that.
Mr. POMBO. Ms. Bono.
Page 109 PREV PAGE TOP OF DOC Ms. BONO. Thank you, Mr. Chairman.
Boy, what a mess. I do not know where else to begin. Mr. Spear, you spoke about the necessity for clear communication, I think, being paramount here. You and I discussed this in Washington personally. Are you aware of one of your employees saying to one of my developers after I spent an entire morning with Mr. Berg in the Carlsbad office going over projects, discussing projects with you; are you aware that my developer was told, ''Going to your Congresswoman will not help you''?
Mr. SPEAR. I have heard that allegation. I have not been able to confirm it.
Ms. BONO. Mr. Berg, are you aware of that comment?
Mr. BERG. No, I am not.
Ms. BONO. I think that it has been pretty widely substantiated. You would have to agree with me you heard it; I heard it. I mean, everybody heard it.
Ken, how much did Bighorn Golf Development give for mitigation efforts, $500,000, $750,000?
Mr. BERG. I am not sure which project you are referring to.
Ms. BONO. The Bighorn golf course, not the development.
Mr. BERG. I think it was 500.
Ms. BONO. Five hundred thousand dollars. So when they work with you and they get to the point of total frustration, throwing up there hands, having nowhere to go other than to their Congresswoman, and then they are told going to your Congresswoman will not help $500,000 later, is that not an extremely sad state of affairs here?
Mr. BERG. Ms. Bono, I believe the $500,000 is part of the state process, not the Federal permit. I do not think that was a result of our
Ms. BONO. Okay. So the Federal bighorn sheep and the state bighorn sheep, I guess they know, I mean?
Page 110 PREV PAGE TOP OF DOC Mr. BERG. No, but I am just saying
Ms. BONO. I mean, you know, that has been part of my frustration, that project. We have talked about it and talked about it, you know, again, the state requiring Bighorn Golf Development to put up a five foot fence, and then we were told a five foot fence was inadequate. They need to remove it and put up an eight foot fence. Yes, the state did not talk to the Federal Government. There is no question there. The developer was the one who was stuck with the bill.
But when they are that frustrated, when they come to me and then they are told in my view they are threatened, going to me will not help them, that is a very, very sad state, and I want to know. You are hearing it. You are hearing it behind you. We have heard it. We have talked about it. In my one year of tenure, you and I have talked about this before.
What have you done to make changes so far in your office with personnel? And I think this goes back to the question. It is not the bumper sticker itself. It is obviously the personality of the bumper sticker. What have you done in that Carlsbad office over the course of time to make these changes, to know that these people are actually serving the people in their best interest?
Mr. SPEAR. Well, I have spent more time working withperhaps the word ''on'' is appropriatethe Carlsbad office since 1995 when I got a call from Molly Bater, then Director, who had just talked to the Secretary, and he said something like Mike Spear needs to get to Southern California quick.
Okay. Since 1995, I have been working with the Carlsbad office. We have made major changes in structure. Specifically we have aligned our staffs geographically oriented. We used to have one part of a staff that would do the endangered species part. Then in that same area another group would look at the wetlands, and then the two might not have talked well enough together or somebody else was doing listing.
Page 111 PREV PAGE TOP OF DOC Now, they are all aligned geographically so that when we have an issue in Riverside County or Coachella Valley, one set of people who work on all aspects of that issue. We have brought in new staff, changed the structure, brought in leadership like Ken, whom I'm very proud of, and there has been a major effort.
And also we have brought resources. I have allocated lots of additional resources within what I have received to the office.
What I want to indicate to you is I have personally spent more time trying to get the Carlsbad office to a point where it can deal with the issues, the tremendous pressures of Southern California than I have in any other office either when I was Regional Director or now that I am just in California and Nevada. I am very proud of where they have arrived. I am very proud of the individuals, the organization, and the direction that they are taking, their ability to try to work on the solutions, try to get away from the project by project, look at the big picture.
So we will continue to work on it. I will; Ken will, and to respond to the kind of concerns that you are bringing out at this hearing.
I understand it is there. The pressures are enormous on everyone.
Ms. BONO. All right. Let me reclaim my time here. First of all, I want to give you a little credit here, and Mr. Berg as well. I do know that the process can work. But I think you guys ask for an awful lot of blood to be drawn in the process to get there. I think the success of the Ritz Carls and I think we found a reasonable, I guess, agreement there, and I am excited. I am happy it is going to go forward. So I know it can be done.
So I do not want to beat up on you guys because I think, yes, I know it can happen. Maybe I am the only believer maybe in this room, but I know you are capable of doing it, but what you are hearing here is people are really begging you, please, you know. It is time now to get it together.
Page 112 PREV PAGE TOP OF DOC And my last thing, if I could indulge the Chairman just for a minute, back to the bumper sticker, and it is not, again, the bumper sticker. It is the messenger. Director Jamie Rappaport Clark, again in her statement that Mrs. Chenoweth referred to, said they are currently 31 regional HCPs, and then goes on to say they serve as a mechanism to address over arching social concerns, such as urban sprawl, transportation congestion, and open space planning, while enabling jurisdictions to meet their ESA obligations.
Is that not meaning that all of these people are subjected to the guy with the bumper sticker on his car?
Mr. SPEAR. I think what was being referred to in that statement is that this mechanism is a local mechanism. It is not a Fish and Wildlife Service mechanism.
Ms. BONO. That is your interpretation of that?
Mr. SPEAR. It is our ability to work with local communities within the HCP context to provide the biological context for larger planning purposes.
What we have here in Riverside County, and western Riverside County is a good example, is close cooperation with the supervisors. They have just put out a brochure, questions and answers about the Riverside County integrated plan where they have put together a land use plan, multiple species plan, a transportation plan to be done over the next two to three years.
Ms. BONO. And on that plan, and I will give back my time, but on that plan how in the world do you expect us to have any good faith in you or the Carlsbad office, knowing that we go through this plan, we give you what you want, and the next day you guys come around and say, you know, a mile down the road here is the latest species and this is what we have to do now rather than put up a sign ''Your habitat is that way. Go find it''?
Mr. SPEAR. I think that that allegation concerns me greatly, this notion of there is no deal is a deal. As we have been saying and the Secretary has been saying all the way along, a deal is a deal.
Page 113 PREV PAGE TOP OF DOC The deal is as written. The Quino example in San Diego County is a good example. It gets thrown back at us. You changed the deal.
We did not change the deal. The Quino was not a covered species, and people knew that. Mayor Golding made that statement. We knew it was not a covered species. We provided money to San Diego County to go in and add that to the covered species list, but we have not changed the deal that was signed.
And that same commitment goes to western Riverside County. People will know what they get. That deal will be lived up to. On both sides it must be lived up to.
Ms. BONO. But I believe, and then I will yield back, that if a deal were a deal, we would not be here today.
So with that, I yield back.
Mr. POMBO. Mr. Calvert.
Mr. CALVERT. I want to give the other witnesses an opportunity real quickly, and the subject of HCP has been brought up. As you know, Mr. Spear, I have been trying to work out some of these things over the years.
Dr. Silver made a comment about HCPs as potentially the only reasonable way to work out some of these problems, and, Mr. Hewitt, I know you have been involved in negotiating with development companies over the years. You made a comment that a deal is a deal and that Fish and Wildlife keeps their commitments.
I would question, for instance, on the Agua Mansa industrial area where they had a letter stating they were clear of species and then you had a new species come up, and then they had, in essence, an in jeopardy property, and that property was not able to be developed.
I would also say that it is impossible, and I would think you would agree with this, to know what species may come down the line when you are negotiating these HCPs. I would like to hear from Dr. Silver especially on this.
Page 114 PREV PAGE TOP OF DOC Don't you think that when landowners in good faith or counties in good faith, whether it is Orange County or San Diego County, sit down and negotiate an HCP and they put up the money and they put up the land, with the implied agreement that they will be able to go ahead and use what land is left to develop, don't you think that is the implication of that agreement or do you think it is something different than that?
Dr. SILVER. I would agree with you.
Mr. CALVERT. You would agree. Now, I will tell you, to be very candid, and I think you know this. I really got energized when the Quino listing, as you well know.
Mr. SPEAR. I know.
Mr. CALVERT. As you well know, Mr. Spear, and we chatted that very day, I think.
Mr. SPEAR. Yes.
Mr. CALVERT. Because I felt that mapwhen I saw that map for the first time, I was in Riverside, and I was, as a matter of fact, sitting with a bunch of folks that were really concerned about that map. You know, how on the earth did somebody come up with that map that basically shows the entire area of Southern California with the exception of downtown Los Angeles and a few other exceptions?
That, in my opinion, and I think a lot of biologists would have been here today if they did not feel threatened, I guess, to comment, but that was not a very scientifically derived map. Wouldn't you agree with that?
Mr. SPEAR. I would not agree that it is not scientifically derived. What I will certainly agree with, if I ever have a chance to do it over again, is that we will do a lot better job of explaining what our intentions are. I will not call that one of our great public relations successes.
Page 115 PREV PAGE TOP OF DOC Mr. CALVERT. But this is an important point here. We are attempting to potentially enter into an HCP here in Riverside County, and what happened to San Diego County is a big concern to this area, and it is a big concern to other areas in the state.
I know I have heard testimony from other counties throughout the state, both from the north and the south and other areas of this country. Why should they enter into an HCP if there is no agreement in effect?
I mean, you say a deal is a deal, but you will admit that if a species is not initially agreed to and on this list of species that are in that HCP, that there is nothing you can do. Isn't that correct that that is exactly what has happened with the Quino Checkerspot Butterfly?
Mr. SPEAR. In the way you explained it, that is correct, but what is on the deal is a list of species that are covered.
Mr. CALVERT. But how about if something comes up? If a biologist somewhere out there wants to find a species and get it listed, what is to stop them?
Mr. SPEAR. Well, if the biology is there and the science is there, it would get listed.
Mr. CALVERT. That is correct.
Any other comments? And I know my time has expired. Mr. Hewitt, do you have a comment? Doctor?
Dr. SILVER. I was just going to say that the way the San Diego plan works is that there are procedures in the plan so that if a species that was not initially covered becomes listed in the future, there are procedures in the plan so that each of the parties knows what their responsibilities will be, kind of trying to divide up the responsibilities in the event that happens.
So the plan makes an effort to deal with that problem.
Page 116 PREV PAGE TOP OF DOC Mr. CALVERT. Well, do you think they dealt with it in San Diego very well?
Dr. SILVER. I think that there aremy understanding is that there are procedures now being worked on to add the Quino to the list. I cannot tell you what those are in detail, but I think that that is simply part of what was anticipated, that if a species was not on the list, then people would go back to the document and
Mr. CALVERT. My time has expired, but don't you agree that there is a problem here in communication between Fish and Wildlife, the counties, all of the participants; that this could have an effect on negotiating future HCPs?
Dr. SILVER. I think there has to be this level of trust. I just have to say I have not seen a case where there has been a commitment in an HCP that the service has not kept, and from our point of view, there have been a lot of commitments that we have not liked, but again, you know, I just have not seen a case where they have not kept them.
Mr. CALVERT. Thank you, Mr. Chairman.
Mr. POMBO. Dr. Silver, I appreciate your testimony, and from what I have been able to learn about you and your organization, I really do believe that your effort is to protect endangered species and that that is what you are trying to do, and I appreciate that because I believe that there are many others that have a different agenda, and they have been able to use the Endangered Species Act to achieve that agenda, and it has very little, if anything, to do with protecting endangered species.
When we look at a case like Mr. Turecek or one of the others that testified earlier today and those, in fact, that we are going to hear from, I think that we begin to see what is really wrong with the implementation of the Endangered Species Act and not the Act itself, but the implementation of that Act.
As has been said, I have held these hearings all over the country, and I have had the opportunity to hear people in every region of our country and what their problems are with the Endangered Species Act. It has always struck me that in some regions of the country they do not seem to have these problems, and it is not because they do not have endangered species. It is not because they do not have destruction of habitat.
Page 117 PREV PAGE TOP OF DOC It is because there is a very different attitude when it comes to the implementation of the Act, and when I talk to Congressmen from different parts of the country and they say, ''Well, what is the problem? Why don't you sit down with Fish and Wildlife and work this out?'' we do not have that option out here. We do not sit down with Fish and Wildlife and work things out.
And if you want to know why, it is because you are unreasonable. It is because
Mr. POMBO. Please, please. Mr. Turecek, can you hold up that picture from 1940 or whatever you had? That one with the corn.
Mr. TURECEK. Yes, sir.
Mr. POMBO. Now, this is not natural habitat. It may have been at some point in time that this was natural habitat for species. It has become habitat for other species now, and I can guarantee you that if you go through this place, you'll find species. Some may be endangered, may not be endangered. I do not know because I am not familiar with this, but this is not natural habitat.
And when your biologists or your people go to this guy and say this is natural habitat, what is he supposed to do? How is he supposed to get out of that?
Now, what we have ended up with, at least in the implementation of endangered species here in California, and this is probably the most frustrating thing for me, is we do almost nothing to protect endangered species. There is almost zero being done to protect endangered species. We are doing a hell of a lot to control water, to control growth, to control, timber, to control mining, to control grazing. We are doing a lot on that, and we are using the Endangered Species Act to achieve that goal.
But when it comes to protecting endangered species, there is almost nothing you guys can hold up and say, ''This is our success. These are the increased numbers that we have had. This is what we have done.''
Page 118 PREV PAGE TOP OF DOC Now, you talk about money. Now, Fish and Wildlife Service requested almost $111 million in the President's budget for endangered species, and there is one very interesting thing about this, is that you requested a cut$114 million; excuse meyou requested a cut in your recovery budget.
Now, the reason that you do that is because this guy is going to pay for it. That is who is going to pay for it. Now, this $114 million that you requested does not include all of the other Federal agencies. It includes Fish and Wildlife Service. The money that our Defense Department puts up for recovery, the money that Ag. Department, the money that all the other Federal agencies put up for endangered species is not included in this, and that is just a minuscule amount of the money that is spent on endangered species in this country.
The bulk of the money is coming out of guys like this that are writing 50, 100. We had testimony earlier of several million dollars to recover endangered species, and we are not doing anything with it.
Now, the people that are here that consider themselves environmentalists, who consider themselves conservationists, who care about endangered species, if they had any idea how much money we spend on endangered species recovery in this country and how dismal a record we have of recovery, how dismal a record we have of actually doing anything about endangered species at the same time that we have gentlemen like this who are about to lose their property, who are spending everything they have got to hang onto it, who are disrupting their lives; when I have got people in my district who are out of work because of the actions that your department takes and the suicides and the poverty and everything that is attached to that because of the actions that your department takes, I would say this has been a complete failure.
We are doing nothing to protect endangered species or almost nothing to protect endangered species and recover those species. At the same time, the social and economic dislocation that has occurred in the State of California because of the actions of your agencies is immense, and we can do a better job.
Page 119 PREV PAGE TOP OF DOC And I will agree with Mary on this. We can do a better job, and a lot of that comes down to communication, but the first thing you have got to decide is that your job is to protect endangered species. It is not to stop him from building, and there is a huge difference.
Figure out a way to protect endangered species so that economic activity can go on.
Now, I know that you have had a long and distinguished career, Mr. Spear, and I respect you, and on a personal level, I think you are a pretty decent guy, but you have got to get a hold of the people that are working in these different agencies and these different departments, these different offices that are under your control, and I will tell you: use Mr. Hunter's example. If somebody showed up at Veteran's Affairs with a bumper sticker that said ''Veterans Can Go to Hell,'' they would be fired that day. There is no question.
Mr. POMBO. Society would demand it.
And whether somebody is a developer or a realtor, they are no less an American than anybody else, and they should not be allowed to be treated differently by the agency.
I appreciate the testimony of this panel. Mr. Spear, I appreciate you being here and answering the questions. I know that myself and the other members of the Resources Committee, the other Members of Congress look forward to working with you and hope that we can get a lot of these problems straightened out in a timely manner.
And, Mr. Berg, to you I will tell you that not only will the representatives of this area be watching closely as to how the people that had the courage to come forward and testify are treated in the future. I will closely be watching how those people are treated because I had several people that I requested testify at this hearing that at the last minute told me no because they were terrified of the reprisals that may occur because of their testifying here today.
Page 120 PREV PAGE TOP OF DOC Now, I know that you would never allow that to happen within your agency, but I will be looking closely to make sure that it does not, and I thank you for being here.
I will dismiss this panel.
Mr. POMBO. Our third panel will be made up of Mr. David Zappe, Mr. Dennis Moser, Mr. Dennis Hollingsworth, Mr. John Tavaglione, and Mr. Doug Evans. If you could join us at the witness table, please.
I would like to ask the audience we do have a very long hearing today and we are trying to stay on time if possible. If the gentlemen will join me up front at the witness table.
Do we have all of the witnesses present? Gentlemen, if I could have you raise your right hands.
Mr. POMBO. Let the record show they all answered in the affirmative.
You can join us at the witness table.
Is it Zappe?
Mr. ZAPPE. Correct.
Mr. POMBO. Mr. Zappe, you may begin.
STATEMENT OF DAVID P. ZAPPE, GENERAL MANAGER-CHIEF ENGINEERING, RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT
Mr. ZAPPE. Mr. Chairman, members of the Committee, we appreciate you being here in our county.
Page 121 PREV PAGE TOP OF DOC Mr. POMBO. Go ahead and pull that mike right up close.
Mr. ZAPPE. Okay.
Mr. POMBO. Thank you.
Mr. ZAPPE. We appreciate you being here and allowing us this opportunity to relate to you some of our district's more recent experiences with Fish and Wildlife Service and their enforcement of the Endangered Species Act.
Development practices in the early days of this county were such that today we find many areas subject to extreme flood hazards and the public's health and safety put at risk every time it rains. While much of the need for drainage facilities is brought about by new development, the construction program administered by our district focuses mainly on the need to protect existing development.
Accordingly, our mission is very simple and very straightforward: to protect life and property from flooding through responsible and efficient storm water management. Over the past 50 years the district has developed an extensive flood control system that requires timely maintenance to insure the continued protection of our residents.
However, over the past several years, our efforts have been hampered through the regulatory activities of the U.S. Fish and Wildlife Service, the Army Corps of Engineers, and the Environmental Protection Agency. These agencies have veto power over local flood control construction and maintenance activities by virtue of regulations promulgated under the Endangered Species Act and the Clean Water Act.
Although these laws have been on the books for many years, their impacts have become more burdensome as Federal agencies have issued new and more stringent regulations, often without the authority of new law and sometimes as a means to negotiate settlement of environmental lawsuits of questionable merit.
Specifically, recent dealings with the Fish and Wildlife Service have proven to be particularly frustrating. In some cases, negotiations with the service drag on for no apparent reason other than for the sole purpose of delaying a project. Other cases involve the attempt to impose unwarranted and illegal requirements on a project.
Page 122 PREV PAGE TOP OF DOC I would like to relate two specific cases which I believe illustrate my points. In the first example, the district performed a general biological assessment of the area that would be impacted by a proposed project. An independent biologist concluded that the proposed project had no potential of impacting the recently listed Quino checkerspot butterfly. This determination was based on the highly disturbed nature of the project area and the extremely low potential for the presence of any of the butterfly's host plants.
Forty days after receiving a copy of the biological assessment, the service decided that the assessment had not been performed at the appropriate time of year and, therefore, a focused habitat assessment was required. This was in direct contradiction to the service's own survey protocol of January 1999, which states, in part, that general biological assessments may occur throughout the year.
Only if the potential for the host plant exists should focused habitat assessments be conducted. The district questioned this finding in a second letter and asked the service to justify its position in writing. This time the service did determine that focused surveys were not required after all.
I should point out that the district's second letter was copied to Congressmen Calvert and Pombo and Senators Boxer and Feinstein.
I believe that the notification of these congressional members caused the service to more honestly consider the district's position and its own protocol and to arrive at an appropriate conclusion, a conclusion that should have been properly reached earlier without hesitation by the service, a conclusion which I fully believe would not have been reached without vigilant oversight of our district and the notification of the congressional delegation.
The second example I would like to cite involves the flooding of the City of Temecula from overflow in 1993 from Murrieta Creek. Over $10 million in damages to businesses and residences resulted from the refusal of Federal officials to allow mechanical clearing of the vegetation and removal of accumulated sediment from the creek partially due to alleged concerns for the endangered least Bell's vireo, though none had been found in the creek.
Page 123 PREV PAGE TOP OF DOC To avoid repetition of this tragic event in 1997, the District requested the Corps of Engineers to prepare a flood plain maintenance plan for Murrieta Creek. Several coordination meetings involving the Corps, the service, and other Federal and state agencies were held. As a result, a baseline which struck a delicate balance between proper maintenance and environmental concerns was established and agreed to by all parties, including the service.
Upon finalization of the plan last April, the district commenced a considerable effort to obtain the required Section 404 permit. A month later in May, the service suddenly decided that they were not in agreement with the baseline and wanted it redone.
When confronted with the fact that they did not express this displeasure during the many coordination meetings and, in fact, had agreed to the baseline, they simply stated they did not recall agreeing to the baseline.
The district and the Corps in good faith have each expended over $100,000 toward the implementation of this plan, and now the service tells us they would like to start over because they do not recall any commitment, and even if they did, they have now changed their mind.
Survival of endangered or threatened species was not at stake in either of the cases that I have cited, but rather inflexibility built into the Endangered Species Act.
Our citizens rely on existing flood control systems and upon their timely maintenance to protect them and their homes and businesses. It is the responsibility of all of us to insure that their safety is not compromised.
[The prepared statement of Mr. Zappe follows:]
Mr. POMBO. Thank you.
Page 124 PREV PAGE TOP OF DOCSTATEMENT OF DENNIS M. MOSER, VICE PRESIDENT, KELWOOD DEVELOPMENT COMPANY
Mr. MOSER. Good afternoon, Mr. Chairman, members, and guests. My name is Dennis Moser. I am Vice President of Kelwood Development Company, managers of the 4S Kelwood General Partnership.
4S Kelwood is the owner and developer of the 4S Ranch property in north central San Diego County. The 4S Ranch is a 3,500 acre master plan community which has generally been recognized as a model for smart growth through its transit oriented bikable community design with emphasis on habitat conservation, parks, and public facilities, and its commitment to regional transportation.
We have also been at the forefront of multiple species conservation planning in Southern California over the last decade. Indeed, former California Secretary of Resources, Douglas Wheeler, wrote that the 4S Ranch ''offers tangible, on-the-ground proof that the NCCP program goal of creating a network of wildlife corridor spanning five counties can succeed.''
Along with Dr. Silver and many other distinguished people, I personally served on the MSCP city advisory board, the country advisory board, the MHCP advisory board, and am the co-author of a document called ''Habitat Transaction Method,'' which is a market based financing program for HCPs.
Our leadership was recognized in a certificate of appreciation from Secretary of the Interior, Bruce Babbitt and also from Congressman Brian Bilbray and State Senator David Kelly.
Now, I give you all of this only to establish our credentials as a participant and a facilitator on the regional conservation planning efforts over the last 10 years. I believe it is a fair statement to say that the 4S Ranch and our personal involvement, you know, is generally recognized as a poster child for how the process is supposed to work, and we are probably one of the success stories; we may be the only success story that you are going to hear today simply because we have been through the process and have been permitted.
Page 125 PREV PAGE TOP OF DOC We support multiple species conservation planning. We support HCPs. We have in the past, and we will continue to do so in the future.
Now, having said all of that, the issues of implementation credibility, in my view, seriously threaten to destroy what amounts to a decade of thousands of hours of intense efforts and negotiations by a cast of hundreds that have resulted in MSCP.
You know, I wrote sort of a marginal note. To me the HCPs, the whole multiple species process was always intended to be a very democratic process, and I use the term ''democratic'' because to me it was based on three fundamentals: those of representation, those of compromise, and those of trust.
Clearly, everyone had a seat at the table. Clearly, nobody got everything they wanted in the MSCP, not anyone. But, fundamentally, it was based on trust that at the end of the day, as was said earlier, a deal was a deal, and that was it. And whatever the decision was, we would move forward on that basis.
Now, I have two cases or two examples where I think this concept is being jeopardized, and the first one is failure to issue a take authorization, a Section 10(a) permit for the complete list of covered species subject to incidental take.
This document is the implementing agreement which was signed by the jurisdictions and the wildlife agencies and represents, if you will, the contract where all of these assurances were set forward of how the process was to be implemented.
The implementing agreement is unambiguous. It is clear. It is obvious. Its language is unambiguous. It is a legal, binding kind of document, and relative to the issuance of the permits, the implementing agreement says, ''Concurrent with the effective date, the U.S. Fish and Wildlife Service will issue Section 10(a) permits to the county for authorizing take of the complete list of covered species subject to incidental take,'' some 82 species.
This is the actual permit that was issued to the county, and in the permit that was issued, a total of 29 species were not covered. They were removed from the permit itself. These are wetland dependent species, if you will. There was no qualification in the implementing agreement that dealt with not issuing coverage for all of them, but coverage has not been issued to all of them, and the actual permit says that coverage for those 29 will be subject to a further process.
Page 126 PREV PAGE TOP OF DOC Now, I see that as a breach in the trust of a deal is a deal and that the coverage would be as stated.
There was also some testimony that you heard relative to the listing of the Quino checkerspot, and Dr. Silver referenced a process by which new species were to be considered in the MSCP, and I would like to quote a number of passages from the implementing agreement of what was supposed to occur.
Prior to the listing of any noncovered species Fish and Wildlife was to, first, ''use their best efforts to identify the conservation measures within six months of a proposed listing which would be necessary to adequately protect the species.''
And then, two, to ''determine whether those measures were already contained in the MSCP document.''
The species has been now listed for two and a half years. As far as I am aware, I have not seen, nor do I know of anyone who has seen any documentation that that assessment was actually completed.
Now, if the determination was that the conservation measures were not adequate, then there was a priority established of what Fish and Wildlife Service was supposed to do, and those priorities went or additional conservation measures went as follows.
First, habitat management practices and enhancement opportunities were to be assessed using existing management resources.
If that was not enough, habitat acquisition through reallocation of Federal, state, and/or regional funds was to be examined.
And then, only after all of those things had been analyzed and determined there were still inadequate measures to consider the species, only at that point were additional conservation measures to be looked at, and then with this qualification, that preference would be given by U.S. Fish and Wildlife Service and the California Department of Fish and Game to additional conservation measures that do not require additional mitigation or dedication of land.
Page 127 PREV PAGE TOP OF DOC So additional mitigation or dedication of land would come as the absolute last resort. I think what we have seen over the last two years, two and a half years is actually quite the opposite. The individual projects are being required to dedicate, to mitigate and to dedicate, in land and in money to mitigate for the Quino checkerspot.
Let me just, I guess, offer one other thing. I see my time has run out. We do have in our groups that I am a part of numbers of recommendations on some management activities that we believe would help in solving some of the issues that you have heard raised today, and I would be happy to go into those at the end of today, or however you would like to address them.
[The prepared statement of Mr. Moser follows:]
Mr. POMBO. Thank you.
STATEMENT OF DENNIS HOLLINGSWORTH, RIVERSIDE COUNTY FARM BUREAU
Mr. HOLLINGSWORTH. Thank you, Mr. Chairman, for the opportunity to speak with your Committee today.
I also want to thank Congressman Calvert and Congressman Bono for bringing the Committee to Riverside county so all of you can hear from the people who are living every day under the laws that Congress passes and the regulations the Federal agencies implement.
I am the Legislative Director of Riverside County Farm Bureau, and the Farm Bureau represents over 1,700 member families throughout Riverside County. My testimony today will tell you about the Farm Bureau's experiences with the Carlsbad office of the Fish and Wildlife Service and the Endangered Species Act. I will highlight several experiences that expose the decade long history of abuses and systematic misrepresentations of fact by the Fish and Wildlife Service in Southern California.
Page 128 PREV PAGE TOP OF DOC Finally, I will discuss the inability of the public to invest any amount of trust in the Fish and Wildlife Service due to their blatant disregard for their written commitments.
As you know, the endangered listings of the Stephen's kangaroo rat caused severe problems in our county. Since its listing in 1988, farm families suffered economic loss, restrictions on the normal use of their properties, and diminution in their land values.
You are well aware of the injustices that were done to the Domenigoni family and the destruction of 29 homes caused by a wildfire, the damage exacerbated by Stephen's kangaroo rat restrictions in the Winchester area in 1993.
In 1992, I was hired by the Farm Bureau to investigate and prepare a de-listing petition asking for the Fish and Wildlife Service to remove the species from the list, and this is where we come in with the issue that the Fish and Wildlife Service impedes the public's right to know and openly violates the Freedom of Information Act.
The first item of business in preparing a de-listing petition is to find out what was known about the species and why it was listed. Well, to find this out, we had to file a Freedom of Information Act request.
Well, the service heavily censored those reports, and they were essentially useless. The service did not want the public to have the right to judge the adequacy and the accuracy of the science backing up their assertion that the K. rat was endangered. So they withheld this information, even though there are only two allowed exemptions from disclosure found in the Freedom of Information Act. One is for national security reasons, and the other is protect the privacy of personnel files.
Their response to our pointing out the inconsistency of their actions with the law? They told us to sue them.
One stated reason for not releasing the exact location of the K. rats was their fear that we might go out and destroy the kangaroo rats if we learned of their locations. Well, this is carrying national security concerns to new heights. It also points out that the inherent problem with the ESA itself is that people do not want to have species on their property.
Page 129 PREV PAGE TOP OF DOC Two, the listing of the Stephen's kangaroo rat is based on fraudulent misrepresentation of scientific facts. The service sought to prevent the public from knowing the information in their files because the public would rightly judge that the listing of the Stephen's kangaroo rat as endangered is a fraud. The Fish and Wildlife Service blatantly disregarded important facts and misrepresented others.
Among many other things, they even went so far as to claim the species was extinct in areas that are now preserves for the species that contain thousands of acres of occupied habitat.
Third, the Fish and Wildlife Service abuses the discretion Congress gives the agency. As you know, Congress has given the Fish and Wildlife Service the discretion to decide whether a species is threatened or endangered. Would you like for me to read for you the entire analysis that the Fish and Wildlife Service completed in determining to list the species as endangered rather than threatened? It will not take long.
''Ron called and asked some questions about the kangaroo rat package. He said that in general, I had presented a good case. He wanted the acreage figures clarified and some place names clarified as well. He wanted to know how much habitat is left as best as I could come up with some acreages. We then discussed whether threatened or endangered status would be more appropriate. We decided upon endangered.''
That is the record of a phone conversation that we found through the Freedom of Information Act.
The Fish and Wildlife Service ignores our de-listing petition despite the legal requirement to respond within 90 days.
You are well aware of the impact of the Endangered Species Act on the Domenigoni family and their loss of over $400,000 in income and expenditures in order to try and get their 800 acres, which was shut down by the Fish and Wildlife Service after they were illegally trespassed on by a biologist.
Page 130 PREV PAGE TOP OF DOC Then the U.S. Fish and Wildlife Service smears Endangered Species Act victims who speak out. In 1995, the Domenigonis found out that they had been targeted in a smear campaign waged by the Fish and Wildlife Service against individuals who had spoken about the injury they had suffered from the implementation of the Act. They received a document entitled ''Facts about the Endangered Species Act.'' One whole chapter in it is devoted to casting the Domenigonis and other ESA victims as liars.
Yet nowhere in that portion of that story is there anything attributing it to any contact people, any telephone numbers, no authors or attribution anywhere, and it is not published on government letterhead.
The Fish and Wildlife Service fails to adhere to their written commitments to Riverside County. This, I am sure, has been discussed with you as Congress members, and I am sure it will be discussed more with subsequent witnesses today, but let me just point out that there was a planning agreement signed in 1997 where the Fish and Wildlife Service agreed to provide rough conservation requirements so that we would know what we were getting into if we were to get into a multi-species plan.
However, after signing that agreement, they blatantly failed to comply with that agreement.
Well, how do we rein in the Fish and Wildlife Service's abuses? I have to tell you that at this point in the controversy, this is a point we have been at several times before, and it is very predictable. The service does something that is egregious, and the Board of Supervisors objects, and the Regional Director comes down from Portland to smooth things over.
I have even been to these parties back when it was Marv Leonard who was coming down, and today it is Mike Spear.
When the service does something a little more outrageous, Washington, DC gets involved, and we get to meet Assistant Secretary John Garamendi, who then smooth out the ruffled feathers, and today this job has been handed to David Hayes.
Page 131 PREV PAGE TOP OF DOC But when they really, really do something bad, well, all of you are here. Well, they are really, really doing something bad, and I hope that this hearing and the legislative process subsequent to this will break this cycle.
Well, how do we change this? First, we need to change the burden of proof requirement.
Second, only to the unconstitutional takings of private property that occur with the ESA is the travesty that private citizens have to prove to the government that they will not violate the ESA. As you mentioned, Congressman Hunter, it is as though you are proving that you are not guilty. You are proving that you are not.
Legislatively change the judicial deference given to agency regulations to a de novo review.
Require that the judicial branch looks at regulations from the agencies fresh without the deference that has been given to them.
Limit standing in the courts in ESA challenges to persons who are actually impacted by the Act.
Legislate a Federal version of California's permit streamlining Act. They get one chance to bite at the apple, and that is it, and if they do not tell you how they are going to bite at the apple completely, they do not get to come back for more.
Legislate that there are definite consequences to the agency for not acting.
Prohibit the use of information obtained by trespass.
All of these things, if successful, might help to curtail many of the abuses we have seen in Southern California. Yet even the passage of all of these reforms would only be half measures. That is because none of them remove the disincentives for property owners to have species on their land.
Page 132 PREV PAGE TOP OF DOC In fact, what is needed is an Endangered Species Act that can serve species by allowing and encouraging landowners, farmers, and ranchers to be good stewards of the land. It should be an Act that is so simple as to be immune from the bureaucratic evils that so often do not become apparent until years after the bill has left Congress and become law.
In order to have a law in which the agencies can no longer twist, ignore, subvert, and use both the scientific evidence and the statutory process to further a political or ideological agenda, it must be a law that is simple, incentive based, and unregulatory. Our experience has shown that given the regulatory power and the historically wide latitude of discretion given by the courts, agencies will be sure to misconstrue and ignore the intent of Congress. I see your challenge is to make a law that is both successful for conservation of wildlife and upholds the rights and freedoms of the people it affects.
[The prepared statement of Mr. Hollingsworth follows:]
Mr. POMBO. Thank you.
Mr. POMBO. Mr. Tavaglione.
STATEMENT OF JOHN TAVAGLIONE, SUPERVISOR, RIVERSIDE COUNTY
Mr. TAVAGLIONE. Thank you, Mr. Chair.
I want to thank you all for allowing us to be here today. You have taken on a great task, as we all know.
My colleague, Supervisor Jim Venable, who represents this area, also wants to welcome you to the beautiful Town of Hemet, and I also want to thank our good friends, Congressman Bono and Congressman Calvert for their leadership in dealing with this very, very difficult Act.
Page 133 PREV PAGE TOP OF DOC I first became aware of the problems, the severe problems, with the Endangered Species Act sitting as a city council member on the City of Riverside reading a biological report for a property owner who held a family property for a number of years, 20 acres. They wanted to develop it into eight lots, yet he was told he could not do it because he may have a lizard, an endangered lizard on that property, and since they do not know, they wanted him to put radio controlled collars around lizards that were found and monitor them for five years.
Mr. TAVAGLIONE. It was at that point I realized that something was very wrong, and this is eight years ago.
As you all know, Riverside County has been one of the first throughout the nation to embark upon dealing with this Endangered Species Act in a very positive way. We first started with the fringe toed lizard back in 1984, the habitat conservation plan; the short term Stephen's kangaroo rat plan in 1992, followed by the long term kangaroo rat plan in 1997. It only took eight and a half years to get through a kangaroo rat habitat conservation plan, and they say things are done in a timely manner. Only eight and a half years and $125 million to deal with the Stephen's kangaroo rat.
As we speak today, we have engineers, consultants, private property owners, state resource agencies, Federal resource agencies and the country working on a very commendable process called the integrated planning process. Some of you have already heard of that. That is where we are embarking upon a program here in Riverside County to deal with a three tiered program: land use planning, general plan, multi-species planning, and corridor planning to deal with our congested corridors, recognizing that all three or at least the land use and the general plan corridors orexcuse methe transportation corridors will require some mitigation efforts for endangered species.
We have already set aside $22 million to deal just with the initial planning of that. I as one colleague on board have reluctantly supported that, recognizing that if we get three years down the road, the chances of having an agreement by Fish and Wildlife Service or the chances of having agreement change during that three-year process are extremely high.
Page 134 PREV PAGE TOP OF DOC Landowners, farmers, building organizations, public/private enterprises have given you comments today on the frustrations they have had. You have heard from our flood control Chief Engineer and General Manager, Mr. Zappe, about the problems in the Murrieta Creek and the inability to clear the way of that creek so that the water could flow. Tens of millions of dollars of property that were lost back in 1993.
What Mr. Zappe did not tell you is that because of that flood, a family, an entire family was lost trying to cross a creek. So we are not just talking about property damage. We are talking about lives.
Today we have in Congressman Calvert's district a river that is at risk and has been at risk for well over six years because of the lack of or the inability to clear the sediment. We have a plan in place to deal with that. We have the funds to deal with that. Yet Fish and Wildlife Service wants to increase the mitigation, double the mitigation which is going to double the cost from $8 million to at least $16 million and possibly $20 million.
We have back in 1993 orexcuse me1995 a fly. Now, this is not the Delhi Sands fly that I am going to talk about in a second. We had a Mediterranean fruitfly in the City of Corona, western Riverside County. It was very much endangering our citrus orchards.
As you probably know, we have a $1 billion industry in Riverside County with regard to our orchards, agriculture.
The State Agriculture Commissioner decided that it was the time to do the aerial spraying on most of western Riverside County in a series of evenings over about three weeks. They were going to spray the insecticide over homes, backyards, school grounds, playground equipment, and it was okay to do that.
Yet Fish and Wildlife Service representatives from Carlsbad said, ''No, you cannot do that over endangered species area because we are in fear that the least Bell's vireo or we are in fear that the Stephen's kangaroo rat might die because the spraying may occur on their endangered habitat.''
Page 135 PREV PAGE TOP OF DOC It seemed awfully odd that we could spray over school grounds but not over endangered species area. It makes you wonder if our kids are endangered in the eyes of many of these biologists.
In my district, I happen to have the Delhi Sands flower-loving fly, and this is an endangered species. Myself and Supervisor Jerry East from San Bernardino County are known as the parents of the Delhi Sands flower-loving fly, and we are very proud of that I want you to know.
You have heard the story of San Bernardino County's regional medical center that was soon to get under construction about four years ago. They were put to a complete stop because Fish and Wildlife biologists determined that there may be flies on a particular site, on a portion of the site where this hospital is going to go.
Not a problem, they said. Move the hospital over to the tune of about $2 million, and we will let you have your hospital.
Well, they did that because they needed to get their hospital built to serve the indigent who need the care, the medical care, but they also have a multi-million dollar hospital, a $150 million hospital and a $3 million fly park now sitting next to it, something for the patients to observe and get well with.
In my county, in Riverside County, about 10 miles to the west of this particular hospital we had a developer. This is the most active economic development area in the State of California as we speak. It is in an area called Harupa Valley, Maraloma. Most of you are aware of it. A tremendous amount of business growth occurring, job production, people being put off of welfare because of the new jobs that are being incurred here.
One developer wanted to build a 750,000 warehouse distribution facility for one of the country's leading computer manufacturers. This is a former dairy land where manure was very prevalent, and there had been no real farming on this site for many, many years. Yet Fish and Wildlife biologists felt it might be a good site for the Delhi Sands flower-loving fly, and they felt that it could have been there at one point in time.
Page 136 PREV PAGE TOP OF DOC They required us to do a study. We did a study for the habitat, found that there was marginal habitat, if any at all, the Delhi Sands sand, and we also did a study to determine whether the fly was there.
No, there was no fly there. You could only do the study during September and August, August and September of each year because the rest of the time the flies burrow under the sand.
There wasn't a fly, but an intern biologist from UCLA thought that he heard the fly.
Mr. TAVAGLIONE. Now, when the fly was heard, and that letter was provided to the representatives of the Carlsbad office of the Fish and Wildlife Service, and the subsequent hearing came before my board to decide whether this project should be built, the comments by Fish and Wildlife Service, ''We believe that the fly is there because we have letters that the fly was heard.''
Well, board approved that project, did not listen. It is still in litigation, continues to be in litigation by environmentalists who work hand in hand with the Fish and Wildlife Service. If anyone tells you they are not, that is not true. But yet the project is still under delay and will continue to be under delay while environmentalists continue to challenge it because of a fly being heard.
One that is closest to me is the interchange because of all of the industrial and business activity, and Congressman Calvert is well aware of this. We have needed to build a new interchange on the 15 corridor to deal with traffic congestion, but also to deal with all of the trucks that are coming from the new industry. We are trying to be proactive in doing so. We tried to move the project along as quickly as possible to eliminate the congestion.
We sat down with Fish and Wildlife. This was two years ago, to work out a plan that we could move forward and assume that the project was inhabited. We had to do that because it was the Federal nexus that is being provided here because it is a Federal highways project.
Page 137 PREV PAGE TOP OF DOC And because we did not want to go through the two years of study and delay it two years further or a total of four years, we had to assume habitation or occupation of the property.
In the end it was determined that we could probably get by, even though there was no occupation by flies, very little soil if any; we determined that we could get by with either to 10 acres of mitigation.
I attended personally this meeting when we were ready to move forward and hopefully strike a deal when members of the Fish and Wildlife Service looked me straight in the face and said, ''Well, we have changed our mind. The eight to ten acres is not sufficient. We want 200 acres.''
Now, that is when I blew my stack. I have to be honest with you. That is when I realized that something was wrong. That is when I called my Congressman, Congressman Calvert, and said, ''We need your help again, Ken,'' and he was very helpful.
We have, to the credit of many and to the credit of Fish and Wildlife Service, we have reached an agreement. It is not eight to ten acres. It is 40 acres. It is about 10, 15 miles away from the site where the interchange will occur, and the agreement is tentative at this point.
And I have to tell you as others have today; I tell you this story knowing the risk that could occur, that this is a tentative deal, and that things may not transpire because of certain testimony that occurs today. But I have to put the faith in Mr. Spear and Mr. Berg that they are going to take the bull by the horns and make some change.
We have a few suggestions for you in terms of how you can change.
Mr. POMBO. I have to ask you to wrap it up.
Mr. TAVAGLIONE. I am going to wrap it up. I was just going to say we have four suggestions here, Mr. Pombo, and they are in my written testimony. We ask that you take those very seriously.
Page 138 PREV PAGE TOP OF DOC After working very closely with the Fish and Wildlife Service, as county staff has done, we feel that this is the only way that some sense is going to come into this law.
Thank you very much.
[The prepared statement of Mr. Tavaglione follows:]
STATEMENT OF JOHN F. TAVAGLIONE, SUPERVISOR, RIVERSIDE COUNTY BOARD OF SUPERVISORS
Honorable Chairman and members of the Committee, my name is John Tavaglione, member of the Riverside County Board of Supervisors, and on behalf of my colleagues and all the citizens of our fine county, I want to welcome you here today. I've been asked by my colleague, Supervisor Jim Venable to especially welcome you to his beautiful hometown of Hemet.
First, I would like to personally thank all of you for providing the leadership which is so desperately needed to bring some sensibility and reasonableness to the Federal Endangered Species Act (ESA). I especially want to thank my good friend Congressman Calvert, who has spent countless hours listening to the concerns of local government agencies, private property owners, and professional organizations; and for his leadership in introducing new legislation in hope of establishing some ''common sense'' reform to the Endangered Species Act (ESA).
As you may know, Riverside County was one of the first in the U.S., to take the lead in formulating a Habitat Conservation Plan (HCP)first with the Fringe-Toed Lizard HCP in 1984, followed by the ''Short-Term'' Stephens' Kangaroo Rat (SKR) HCP in 1992, and subsequent ''Long-Term'' SKR in 1997. As well, since the early 90's, our County has put into place two (2) Multi-Species Habitat Conservation Plans (MSHCP) in cooperation with the Metropolitan Water District. And, as we speak, County agencies, along with professional engineers, consultants, and both the State & Federal resource agencies are working closely together to establish the country's first multi-tiered approach to habitat conservation, growth management/land-use planning, and the planning & designation of major transportation corridors. This extremely aggressive but worthwhile program is known as the Integrated Planning Process, which was given the nod of approval by our board a little less than a year ago, with the charge of adopting, within a 3 year period a countywide multi-species plan, a new general land-use plan, and the identification of new, major transportation corridors. All of you, I'm sure, know, that Riverside County (along with our neighboring San Bernardino County) is one of the fastest growing regions in the country; has some of the most congested freeways in the U.S.; and, as many of us believe and feel, we are looked at by Federal Resource Agencies and environmental groups as the prime target (because of our growth) for insuring that a very worthy, but extremely flawed Federal Act is adhered to.
Page 139 PREV PAGE TOP OF DOC As you can see, our County has not just sat back and tried to push the envelope with the regulatory agencies in dealing with the ESAquite the oppositewe are one of the few local jurisdictions in the U.S. to take the lead, and are quite proud of our ''attempt'' to be a strong team player with the U.S. Fish & Wildlife Service in conforming with the ESA. Unfortunately, many will believe as I do, that such attempts at working cooperatively have, in too many cases, only worked against us, causing very costly delays in important and critical public and private projects throughout the region.
Today you will hear (or have already heard) testimony from private landowners, farmers, professional building organizations, and other public and private entities, who will share with you the frustrations each have encountered while dealing with the ESA and the local Carlsbad Field Office. Later today, you will hear from the General Manager and Chief Engineer of our County Flood Control and Water Conservation District, who will share with you the difficulties his agency has had in dealing with the permitting of local flood ''safety'' projectsprojects, that because of delays in permitting, resulted in severe damage to property, and the loss of life. And I too, would like to share with you some examples that we, as a local government organization have been challenged with.
Let me start by saying that we in Riverside County and the Inland Empire Region have nearly 200 species that have been identified as ''endangered'' or ''threatened.'' While not all of these species have caused us heartache yet, a few of the more notable ones (which you have already, or likely heard of) havesuch as the kangaroo rat, the Fairy Shrimp, the Quino Checkeredspot Butterfly, and my favoritethe one that I'm most familiar withthe Delhi Sands Flower-Loving Fly. First, I would like to share with you a couple of stories that truly give the meaning and original nature of the Endangered Species Act a bad name, and ones that border on the area of being ridiculous, sometimes funny, and unfortunately very tragic. I'll start with the tragic and end with the funny. In 1993, heavy rains were experienced throughout the region. Specifically, in the southwestern part of the county, in the city of Temecula, the banks of the Murrieta Creek overflowed causing much of the lower-lying areas of the city to flood, causing severe damages (in the millions of dollars) to businesses and residential neighborhoods. One entire family was lost when they attempted to cross a flood road in their family vehicle. Should they have attempted to cross? Probably not! Could all of this been avoided? Yes, simply by being given the proper emergency permits to maintain and clear sediment from the creekyet this was not possible due to concerns for the endangered least Bell's vireo. The same bird has prevented us from clearing accumulated sediment in the Santa Ana River which runs through San Bernardino, Riverside, and Orange Counties. Extensive damage has been caused to one specific bridge crossing this river, which, with some reasonable cooperation from the local Carlsbad office, could be replaced the with funds already allocated. Yet because of the personal agendas and indecisive nature of some in that office, coupled with the bureaucratic maze, costs have tripled, and the replacement bridge may never get built.
Page 140 PREV PAGE TOP OF DOC I'm sure you have also heard about the Mediterranean Fruit Fly. No, thankfully it is not endangered. In fact, it poses quite a threat to our abundance of fruit orchards here in Riverside County. In 1994, the fruit fly posed such a severe threat that the State Agriculture Commissioner ordered the aerial spraying of insecticides over a major portion of the inhabited cities of our western county. School yards and their play equipment along with the residential neighborhoods were sprayed on a series of evenings over a month-long period. While it was o.k. for children and their play areas to be subjected to this spraying, representatives of the U.S. Fish & Wildlife Service ordered no spraying to occur over areas that were inhabited by the least Bell's vireo and the Stephens' Kangaroo Rat.
I've saved what I consider to be the best for lastthe Delhi Sands Flower-Loving Fly (DSF). This is the same species that prompted members of the Carlsbad office to determine that a specific area in southern San Bernardino County, was heavily inhabited by the fly and needed to be preserved. Unfortunately, it happened to be (partially) the site which was soon to be the new home of their county's new regional medical center. Not a problem, according to U.S. Fish & Wildlife Service representatives, ''move the hospital a few hundred feet and we'll be o.k.''o.k. to the tune of over 2 million ''taxpayer'' dollars! Down the road about 10 miles West of this location, in the regions most active economic development area, which also happens to be my direct responsibility, a developer desired to build a 750,000 square foot warehouse/distribution facility for one of our country's leading computer manufacturers. U.S. Fish & Wildlife Service representatives contacted the developer and my office, indicating the need to do a survey on the property to determine the presence of the fly, since, in their opinion, the property had the prime Delhi Sands soil by which the fly tended to inhabit. We instructed the developer to do those surveysone to determine the quality of the soil and vegetation, which can be done at any time of the year, and which was found in this case, to be marginal at best. The second survey was to determine the presence of the fly, and could only be done during the actual ''fly'' seasonas the Delhi Sands Fly only shows it's wings during the months of August & Septemberburrowing in the sand the remaining 10 months of the year. Biologists permitted by the Carlsbad office spent approximately 8 weeks (at times sitting in chairs on the site for 8 hoursobserving) surveying and watching for the fly. While none were ever observed by the biologists conducting the actual study, a biologist ''intern'' from the University of California, Los Angeles (UCLA), just happened to be observing the same site during a field observation trip. The intern claimed that, he too, did not see any flies on the site, but heard one as it flew by. This second hand information, brought forward by the intern's professor in biology (and fly expert) caused representatives of the local Carlsbad office to make an appearance before me and my colleagues, urging us to deny the approval of the project, and delay the economic progress of the region. Despite the unsubstantiated concerns raised by the Carlsbad office, our Board approved the project. However, a regional environmental group subsequently sued the county and the developer, and has delayed the project and continues to delay the project for nearly a year and a half. To date, the courts found absolutely no flaw in the surveys conducted. Not less than a mile directly to the south of this particular area, and due to the active industrial development of the region, a new freeway interchange, along Interstate 15, was deemed necessary in order to address the corresponding existing, and increased truck traffic to the area. Congressman Calvert gave us great assistance by securing partial Federal funding for the project, and with this in hand we began to expedite the design and construction in order to stay ahead of the congestion curve. Since there was a Federal nexus with the project, we were required to consult with the U.S. Fish & Wildlife Service on this project. Recognizing that the particular area of the new interchange was not prime for habitat, or a known ''flight'' area for the Delhi Sands Fly, County staff sat down with members of the Carlsbad office, where they all agreed that in order to expedite the project, they would ''assume'' some amount of occupation by the fly (even though none have ever been observed there) and provide for a reasonable level of mitigation. This process would allow us to keep the project moving without having to conduct the normal 2 year protocol observation (during August and September) for the fly. The process moves along in a fairly decent time frame, with Federal requirements adhered to, and a reasonable level of fly mitigation providedsetting the stage for consultation (prior to Federal Highway approval) with the local Carlsbad office of U.S. Federal Fish & Wildlife Service. After 2 years of discusssions, representatives from Carlsbad indicated that the 810 acres of low-value, non-occupied mitigation for the fly ''is not sufficient, as due to the abundance of industrial development occurring in the area, the interchange project causes cumulative impacts, and will likely require approximately 200 acres of mitigation.'' Quite frankly, Mr. Chairman and members of the Committee, it was at this point in time, in my 6 years in dealing with the Endangered Species Act, and the local Carlsbad office, that I, personally, blew my stack!
Page 141 PREV PAGE TOP OF DOC It was at this meeting, where I realized that agreementshand shakes, verbal, written, or otherwise, meant nothing to certain members of the Carlsbad office. Too often, decisions are arbitrary in nature, with little or no thought, basis, or real science behind them. At times it appears as if decisions are made strictly by ones own personal beliefs or agendas, and often times, only for the purpose of delaying a project, with the ultimate hope of stopping growth and economic productivity. Now, to the credit of certain members of the Carlsbad office, we have recently reached a tentative agreement on this particular interchange which will require not the 8-10 acres of mitigation, but 40 acres with a substantial buffer area for protection of the habitat. The project should have and could have been under construction by now. Instead, we will be fortunate to see its construction commence in under 12 months.
While I know I've been somewhat lengthy in expressing some examples and the concerns we in Riverside County have with the ESA and the Carlsbad office, I thought it would help you in your review.
Mr. Chairman, I'd like to close by offering some recommendations for reform to the Carlsbad Field Office, and the Endangered Species Act:
(1) Standardized mitigation and survey requirements should be developed and adhered to. The U.S. Federal Fish & Wildlife Service, should immediately establish reasonable, uniform, and standard mitigation and survey requirements for all currently listed species. It does not appear reasonable that when certain species can only be observed seasonally, or during 2 months out of the year, that a 2 year survey should be required, potentially delaying economic productivity. Such mitigation and survey requirements should also be developed prior to the listing of the species in order to limit further delays after listing, and only upon adequate and detailed science to back-up the protocol.
(2) Consultations conducted pursuant to Section 7 of the ESA should be completed within the time period mandated by Federal regulations. Section 7 now requires the consultation to be completed within 150 days of the submittal to the local field office. In the case of Riverside County's Stephens' Kangaroo Rat ''Short-Term'' Habitat Plan (HCP), the U.S. Fish & Wildlife Service took well over 18 months to consult, and there are other similar examples.
Page 142 PREV PAGE TOP OF DOC(3) A time period for processing an application for an incidental take permit issued pursuant to Section 10(a) of the ESA and approval of a Habitat Conservation Plan should be established by Federal regulation and complied with.
(4) The lack of consistency with respect to commitments and agreements, both verbal and written, must be addressed. The U.S. Fish & Wildlife Service representatives must honor all of its obligations under the ESA and must fulfill all commitments made in agreements with local governments. Senior management of the service must hold their personnel accountable for failure to adhere to requirements of law and interagency agreements. Clear and concise policy direction concerning goals and objections must be provided to field staff by management and policymakers. It is the perception of the regulated community that there continues to be a lack of management and oversight of field staff.
Honorable Chairman and Committee members, thank you for giving us the opportunity to address youwe in Riverside County very much appreciate the leadership you are all providing to bring a level of reasonableness to this important Act of protecting certain species.
Mr. POMBO. Thank you.
STATEMENT OF DOUG EVANS, CITY MANAGER, CITY OF PALM SPRINGS
Mr. EVANS. Thank you very much.
My name is Doug Evans. I am Director of Planning and Building for the City of Palm Springs, and I would like to thank the Chair, members of the Resources Committee, and also Congresswoman Bono for having this opportunity to address you.
Page 143 PREV PAGE TOP OF DOC The City of Palm Springs has had a long term commitment to resources. We feel we have a lot of success stories to talk about, and I am going to talk about what we think is a success story that has not been acknowledged.
Now, the City of Palm Springs and many property owners have been frustrated by the service and how they have implemented the Endangered Species Act. Since 1993, the city council has approved three major projects, and currently all three are being delayed by the Fish and Wildlife Service. In all three instances, the service has required significant modifications, revisions, or other mitigation measures which make the projects economically unfeasible and have contributed to the city's financial challenges.
In order to augment city resources or revenues, the city council has had to cut programs and has had to impose a local utility tax to maintain essential public services.
The delays caused by Fish and Wildlife Service have kept the city from expanding its primary industry, tourism, while neighboring jurisdictions in the Coachella Valley have expanded and developed resorts in similar terrain and with similar biological resources.
For the past 25 years, the City of Palm Springs has been a leader in environmental protection and acquisition of sensitive habitats. The city's general plan designates 33,000 acres for conservation, open space, parks, recreation and water course. That is 66 percent of the land in the City of Palm Springs.
Our general plan and zoning ordinance requirements are very restrictive. We have never been complimented as a city that is easy to develop in, although I have been charged with trying to change that. To show its commitment, the city council has acquired through purchases, trades, dedications 3,400 acres of prime bighorn sheep habitat. These lands form an almost continuous no development boundary along the base of the San Jacinto Mountains.
The exhibit to my left with the bright green on it shows all of the city owned lands, and in the areas outlined in blueit does not show up very wellshow two of the three development projects I am going to speak about today. The area in purple shows the areas that were disputed with the agency or the service.
Page 144 PREV PAGE TOP OF DOC The city council has offered to place additional deed restrictions on these lands or possibly even dedicate these lands to the state or Federal Government if these properties can be developed that I am going to speak about.
Let me put it in context as far as acreage. There is over 33,000 acres of bighorn sheep habitat in the San Jacinto Mountains on that map. We are asking if we can develop the last 500 acres to fill out the western edge of our city. The rest of the area available is either owned by the city or undevelopable because of the size of the mountain, the steepness of the mountain, and the other environmental factors.
You have heard a lot about the Shadowrock development. Mr. Bragg has worked very hard. I have worked personally with him 15 years on that project.
He did not tell you the first position from Fish and Wildlife Service, and this position was stated in initial meetings. It was also stated in a settlement agreement meeting with California Fish and Game over a lawsuit.
Fish and Wildlife staff's initial position was for the owner to call the Nature Conservancy because he would never be able to develop his land. Mr. Bragg outlined what is left, 150 acres from 1,100.
Mountain Falls Golf Resort, a very similar story. Fish and Wildlife Service reduced the area from development from 120 acres to 60 acres, enough land to develop a seven to nine hole golf course. This is just a golf course project with 20 condominiums. It is not a big project. There is no other land to move the golf course to around the property.
Every time the Mountain Falls developer has met with Fish and Game or Fish and Wildlife Service, they have been asked to move the golf course down the mountain. They did. They moved the line, and we submitted in our information where they put the line.
They have taken 120 acres, made it 60. You can barely do nine holes of golf. That is not a project.
Page 145 PREV PAGE TOP OF DOC Canyon Hotel and Resort, this project was approved by the city back in 1993 and was a direct result of the vision from former Mayor and Congressmen Bono. This is a project that Fish and Wildlife Service scared a development team, a very notable development team, in a hotel operation that we would love to have in our community by claiming that an existing golf course, an existing street, an existing bridge, and an existing flood control channel formed a significant bighorn sheep corridor, this in spite of the fact that there is a tribal park a half mile away that cost the state $17 million, and the county just added several million dollars to that, that has a wonderful corridor through it. It is about five to eight miles wide.
After three or four subsequent meetings, Fish and Game and Fish and Wildlife Service changed their mind. That area is not a corridor.
Well, the developer is gone. The project still is undeveloped, and the tribal council which owns the land is struggling with how do you make the project work with all of these restrictions.
One of the things that we have run into is the availability of information from the service when we look at projects. I am going to give you an example.
The city asked for detailed information for approximately two years to prepare an EIR. Fish and Wildlife Service, and now working in conjunction with Fish and Game, did not provide any on site data. In fact, today on another project they tell me they do not need field surveys because they know where the habitat is.
Then at the eleventh hour, the Sierra Club or the Bighorn Institute submits data, sometimes with Fish and Wildlife Service titles on it, into the record with the intent of trying to disrupt the project at the last public hearing.
In our experience, we found the staff to be accessible. We tend to be able to have meetings, but we do not feel that they consider all of the available information. We do not believe that they participate effectively in consultations and public meetings. We also believe that they clearly extend beyond their legal authority to discourage development at the very, very beginning.
Page 146 PREV PAGE TOP OF DOC We have listed some questions. I note my time is up. They are suggestions. One of the items we would like you to try to push is the release of the recovery plan. We have been asking for the bighorn sheep recovery plan for a long time. We are told that this will help resolve problems, and it is probably over a year late.
Thank you very much. We need your help, and I appreciate the opportunity to address you today.
[The prepared statement of Mr. Evans follows:]
Mr. POMBO. Thank you very much.
Mr. CALVERT. Thank you, Mr. Chairman.
Supervisor Tavaglione, obviously we have a common interest with the Galena Exchange, and I would just like you to get into potentially more detail to the Committee on how the 40 acre mitigation agreement was reached when the Fish and Wildlife Service initially wanted 200 acres.
Mr. TAVAGLIONE. Mr. Calvert, there are three recovery areas for the fly, one in the Algomanza Colton area that has been mentioned earlier, one in the Herupa area, and the one in Ontario, the Ontario recovery area. This particular interchange is in the Ontario recovery area, though it is in Riverside county, and very little habitat remains in that recovery area.
Yet because this is a Federal project and there is little habitat remaining or at least anything to really force certain properties to be brought into habitat, it was mentioned that the 200 acres could provide mitigation for the entire recovery area, Ontario recovery area.
Page 147 PREV PAGE TOP OF DOC Mr. CALVERT. Just for the Committee's information, 200 acres in that area would cost per acre how much would you estimate?
Mr. TAVAGLIONE. Two hundred acres today would cost $100,000 an acre minimum.
Mr. CALVERT. Hundred thousand dollars an acre for 200 acres, and what was the cost of the entire Galena project?
Mr. TAVAGLIONE. The cost of the entire Galena project is $15 million.
Mr. CALVERT. So the cost of the initial mitigation exceeded the cost of the entire project?
Mr. TAVAGLIONE. That is correct. That is correct.
Now, the 40 acres, since there is little land remaining or little recovery area remaining for this fly in the recovery area, yet we have a need to keep this project moving. I volunteered the ability to, if they would give us the ability to, mitigate outside the recovery area, which they agreed to do, 40 acres of prime habitat which is going to be well beyond 40 acres after we include some buffer area for protection of the fly. This is above the Stringfellow acid pits, which I think many of you are aware of, which is a state infrastructure or a superstructure fund property.
Forty acres is being provided. To date I have not seen any real science that leads to either the 200 acres, the eight to ten acres that we originally wanted to provide for mitigation, nor has there been any real science for the 40 acres other than that the fly has been observed in abundance.
Mr. CALVERT. Thank you.
Mr. TAVAGLIONE. Yes, sir.
Mr. CALVERT. Mr. Zappe, what would you consider to be the most frustrating issue when you deal with the Carlsbad office, in your opinion?
Page 148 PREV PAGE TOP OF DOC Mr. ZAPPE. Well, I guess I would have to say that at least on the part of some of the staff, the lack of integrity and our inability to trust what we hear very often.
Mr. CALVERT. That is a pretty powerful statement. You head up one of the largest agencies in Riverside County. Obviously you, I guess, would be considered a bureaucrat, work for the government, and you believe that there is a lack of integrity, that you question in fact whether or not a deal is a deal per se in that office?
Mr. ZAPPE. I think our experience tells us that a deal is not a deal. Unfortunately very often it is difficult to get a commitment out of staff. It is even rarer that you can get a written commitment from staff, and when we do, we pursue that particular course of action only to find later a change of heart, a change of mind, and someone saying on staff, ''Let's do it a different way.''
So we invest a lot of time and money going down a particular path only to be told we do not think that is going to work. Let's go another direction.
Mr. CALVERT. Now, you deal with issues that obviously are involving public health and safety. Your requirement and your job is to make sure that the public's health and safety is protected. Do you think that the Fish and Wildlife Service puts any consideration in the health and safety of the people that you are mandated to help?
Mr. ZAPPE. I have not seen much evidence of that. I think that the service seems to have a fairly myopic, environmentally biased view, we feel, our experience with them. I think that as Mr. Woolfolk mentioned much earlier today, I think there is tremendous influence from the environmental community upon the staff at Carlsbad.
The bumper sticker example has been cited. We have heard that. We fully believe that. I think we know who that is from our own experience in working with some of the field staff.
Page 149 PREV PAGE TOP OF DOC We see the purpose of the staff to be, one, to fairly and dispassionately administer the law with, you know, a neutral bias, with no bias, being neutral with regard to projects that are brought forward. We do not feel that that is the case.
Their mission certainly appears to be at cross-purposes with our own which you mentioned, and that is to provide public health and safety. Our purpose is certainly to keep humans off the endangered species list.
Mr. CALVERT. I appreciate your testimony.
Thank you, Mr. Chairman.
Mr. POMBO. Mr. Hunter.
Mr. HUNTER. Thank you, Mr. Chairman.
Mr. Chairman, I am sure my colleagues feel the same way. We want to really thank you as this hearing goes on for the great direction you have given us and leadership.
Mr. Moser, one of the rewards for being one of the few in the bold who are willing to take the witness table here is that you get to make recommendations, as a number of our people have. You have put together, along with a number of other folks in San Diego County, some recommendations, constructive recommendations to make this relationship between Fish and Wildlife and the consumer a better relationship, and could you tell us about some of your major proposals here?
Mr. MOSER. Well, let me just touch on a few. There are also some boards, I think, over to the side perhaps somebody can put up.
I think one is simply to promote success, and the one way of doing that is to actually budget the de-listing process. I think, Congressman Pombo, you noted that the success rate has not been what Congress had intended. Perhaps as part of your appropriations, you should look at a specific budget that goes strictly and solely to de-listing species which would provide an incentive to actually make the program work.
Page 150 PREV PAGE TOP OF DOC On more of perhaps an administrative level, one of the things that is, I think, unique in these multi-species conversation programs is that they are not just about biology. They are an attempt to balance biology, economics, development, a whole host of things. They are, indeed, a compromise solution.
So what we would recommend is that they be staffed with people that come from a varied background, not just biologists. You know, you could have an economist who works at Fish and Wildlife Service. Even a builder might be nice, you know, maybe one.
But beyond that, the establishment of performance goals, and by performance I do not mean performance in the sense of how many projects can be delayed or how many species can be listed, but really performance in the sense of how quickly you can respond to the varied administrative tasks that one has, and certainly we do that in business all the time.
You are given an assignment. You have a time period in which to respond, and you are evaluated on whether you respond within that time frame, and perhaps one of the ways of tracking that is really an application tracking system. I know the County of San Diego has initiated that. They can tell you on any given instant that you call them by pulling it up on the computer where your application is or where your letter is or whatever it is, where it is in the process.
You cannot get that from Fish and Wildlife Service today. So those are a few. We are happy to provide you with additional ones.
Mr. HUNTER. Okay, and, Mr. Chairman, with your permission, if we could ask Mr. Moser's recommendations to be made a part of the record, and, Mike, maybe you folks could review them and take a look at them and maybe make a comment on them for Mr. Speak, if you would do that.
Mr. POMBO. Without objection, they will be included.
Mr. HUNTER. Let me just throw a couple of things out that I think would expedite the process and make it more fair. You have obviously got a lot of entities and obviously several Federal entities that are interested in the same issues, the Fish and Wildlife, the environment, the Corps of Engineers, and then you have got your state subdivisions, the counties, cities, et cetera.
Page 151 PREV PAGE TOP OF DOC As I understand, one of the frustrations that I have heard about, and, Dennis, maybe you could speak to this, is that we seem to have a consecutive situation here you will first have where the agencies will sometimes string out their participation. So you do not have a coming together of all of the affected entities who sit down and say, ''Let's have the environmental planning meeting, and let's figure out what we are going to do with this particular stream that goes through the affected property.''
And then you could get Fish and Wildlife to comment on it. You could get Corps of Engineers to comment on it. You could get the local government and, if applicable, the state government to comment and to put together a plan with respect to that aspect of that particular piece of property.
Instead, and tell me if I am wrong, what I understand is one agency will make their scrub, and they will say, ''We want so many acres in mitigation, and here is out plan,'' and when that gets finished, the next agency will say, ''Now, we will take a look at it after the other guy is finished, and we will make our scrub.''
Is that an accurate description of what happens?
Mr. MOSER. Well, it is accurate, but in fairness to the agencies, I would say that, you know, the bringing together of everybody at the table is a difficult process because Army Corps is working under one set of legislative mandates and so forth, and Fish and Wildlife and EPA under others.
So I do not think that there is a lack of desire to do that, but there is a lot of hindrances to the process, and certainly there is a need to bring everybody to the table at one time.
Mr. HUNTER. Okay. I just had a meeting with the Corps on this. They said they would be happy to sit down. You know, Mike, you were talking about lack of resources. Being able to sit down at the same meeting with all of the agencies and review the aspects that you are all going to look over so that you do not have to reinvent the wheel for each individual agency I think has an efficiency aspect.
Page 152 PREV PAGE TOP OF DOC So I would like to make a recommendation, Mr. Chairman, and maybe put it into writing at some point here that we have a memorandum of understanding between Federal and state subdivisions and the Fish and Wildlife and the Corps that provides for some joint meetings early on in the process.
And, Dennis, maybe you could give us some input there.
And so thank you, Mr. Chairman. Just the last thing I would ask, Mr. Berg, if you can, I know my constituent who drove up here from Jacumba, Mr. Turecek, is going to be around for a while, and I ask if you could re-engage with him and try to help him walk through this process, and if you could take a minute with him before the meeting is over, I would sure appreciate it. Thank you.
Thank you, Mr. Chairman. I appreciate it.
Mr. POMBO. Ms. Bono.
Ms. BONO. Thank you, Mr. Chairman.
It is a pleasure to have Doug Evans here before me. It is kind of ironic that he is here. Just on a personal note, he is one of the reasons Sonny got into politics in the beginning, working at City Hall, and Sonny ran into you and bureaucracy and decided to run for mayor and became your boss.
Mr. EVANS. Because he wouldn't give him the permit?
Ms. BONO. No, he is the guy who replaced the guy who would not give him his permit.
Mr. EVANS. Thank you very much for that clarification.
Ms. BONO. There is hope. My question is for you, Doug.
Do you believe that the agencies, among them the U.S. Fish and Wildlife Service, California Department of Fish and Game, Bighorn Institute, and the Sierra Club, or local employees of the agencies have worked together against the City of Palm Springs or project proponents to stop development?
Page 153 PREV PAGE TOP OF DOC Mr. EVANS. Well, there is very, very little doubt there. I mean we have sat down with the agencies, asked for information, very specifically for information, told we would receive it. We would not receive it.
And then on the Shadowrock project, the Sierra Club walked in with a document with Fish and Wildlife Service letterhead on it showing location of sheep sightings. It is actually a part of the information on this exhibit.
On another project more recently, Mountain Falls, we have been trying to get sheep information, actually where do they exist in the mountains, and at the last public hearing, probably after midnight, the Bighorn Institute walked up and handed the information to us. It was GIS coordinate level information. So it looked like a scientific formula. You couldn't read it that night and make a decision.
We waited. The council continued the hearing so we could plot the information, and the ironic thing is it was confirming every bit of the information we had in our environmental impact report, and yet the agencies were standing there telling us that the information was not accurate. They had better information.
Once we got that information, it confirmed that we had good information and that council acted with good information.
Ms. BONO. You deal with an awful lot of, I think, different governmental agencies obviously with your job. Can I ask for your unbiased opinion with the Carlsbad office here, and your frustrations with it?
Mr. EVANS. I think, you know, one of the things that they need to do and something that we have worked with our staff on is to encourage them to be less afraid of making a decision and then having the supervisors accept the decisions of the staff and empower the staff to work with people.
What we run into is you work with a field biologist and you get right up to where you think you're going somewhere, and then they say, ''Well, the decision is really my supervisor. Well, it is really the assistant field supervisor,'' and I think what you have heard today, it is really Mr. Spear.
Page 154 PREV PAGE TOP OF DOC And it is a very cumbersome process to work up the chain that far to deal with issues that really are business decision. They are business for Fish and Wildlife Service. They are business for the city. They are business for property owners, and it is very frustrating to never be able to meet with a decision maker that will sit at the table and say, ''I can make a decision on this.''
Ms. BONO. Thank you.
Is there any scientific data that the City of Palm Springs has been provided by the U.S. Fish and Wildlife Service that supports the conclusion that the Mountain Falls Golf Preserve project will cause a take of the peninsular bighorn sheep?
Mr. EVANS. We have received very lengthy letters basically criticizing the information in the public record, but the service has not provided any site specific information. That information came on that particular project either through the Sierra Club or the Bighorn Institute, a nonprofit organization in the Coachella Valley.
Agencies tend to say when you ask, ''Well, where is data?'' Fish and Wildlife and Fish and Game tend to respond, ''The data is collected by the Bighorn Institute. They are a nonprofit corporation. We cannot share their data.''
Well, we believe most of their data is collected with public money, and if the agencies are using it for a decision, we should be able to look at the same information, have it analyzed, present it to our decision makers who have to make tough decisions.
And we submitted the mitigation outlines for two of the projects to you in your materials. Our council is tough. It required off site mitigation. They have required relocation projects. So the council has tried to work in a balanced situation and has taken some tough positions.
I know Mr. Bragg and the Mountain Falls people have not been happy with all of those decisions. It would help us if we had the information up front as opposed to after midnight the last night city council is going to consider a project.
Page 155 PREV PAGE TOP OF DOC Ms. BONO. Thank you.
My time has expired, Mr. Chairman. Thank you.
Mr. POMBO. Mr. Evans, I would like to just follow up with something you were just saying. I am a little curious. You are saying that you believe that the biological data is gathered by a private organization.
Mr. EVANS. The data that we typically receive, and what we're typically looking for is we can go out and evaluate the quality of habitat by the technical surveys and have professionals do that. What we always need is where are the sheep. Where do they spend most of their time? What are the lambing areas, you know? What are the corridors? Where are the water sources, things of that nature?
And where we have trouble is the entity that seems to collect that information is the nonprofit, but they share the information with the agencies, and then the agencies consider it confidential and will not share it with the city, and we have to kind of wait until the last
Mr. POMBO. Do they base their decision on that information?
Mr. EVANS. Fish and Wildlife Service?
Mr. POMBO. Yes.
Mr. EVANS. It is my belief that they do. That is the only data that is available. The data represented on that map, the sheep sighting information is the best information the city council could get after two years of working with the agencies, and we did not get it from Fish and Wildlife Service. We got it from either the Sierra Club or the Bighorn Institute, and almost always at the last possible minute.
And the agencies know the information is there. They know what it is, and all they have to do is probably make a phone call and say, ''I think it is time to share the information.''
Page 156 PREV PAGE TOP OF DOC You as decision makers know that if you have good information, if you have time to consider it, you make better decisions. Evidently the service, Cal. Fish and Game do not believe in that at the local level. That is my experience.
Mr. POMBO. All right. I may want to follow up with you on this. I have some questions I need to go over with staff on exactly the way this should work, but I may want to follow up, and I may provide questions in writing for you after the hearing.
Mr. Hollingsworth, you are here representing the Farm Bureau. I know my experience typically. The farmers and ranchers are not the best friends with the developers. They are not typically on the same side of most issues, and yet your testimony brings out many of the complaints, many of the concerns that we have heard from those in the development community.
In your experience, has the agency been that difficult to deal with in terms of the farmers that are out there? They are not developing. It is the guys who are out there farming. Have they had the same kind of difficulties?
Mr. HOLLINGSWORTH. Well, you have to, and I am sure you do, understand the unique situation that agriculture is in in dealing with the Endangered Species Act. Agriculture does not have the ability to say you are going to go out and farm some grain or you are going to put in a new orchard. They do not have the ability to take their property and put half of it aside and hand it over to the government as mitigation in order to get an endangered species permit.
So what usually happens, if somebody is planning an agricultural activity on the property and the Fish and Wildlife Service stops them because there is a species there, it just does not happen. The agriculture does not happen. That is exactly what has happened with the Stephen's kangaroo rat in most instances in the county, and I am afraid that is what is going to happen with a number of species elsewhere in the country.
And you are right. We have been able to work very closely with the builders in this county. We have formed what I think is a very valuable coalition with the builders and the property owners association, along with the Farm Bureau, in dealing with these issues, and we have put forth what we think is a workable solution under the existing Endangered Species Act that protects what we all have in common, and that is protection of our private property rights, but deals with the ESA in the situation that we have today.
Page 157 PREV PAGE TOP OF DOC Mr. POMBO. Let me ask you a question about mitigation lands. I know in my area, typically when it is decided that we are going to set aside land for habitat conservation plans, that it is typically farmland that ends up, whether it is grazing land or land that is being farmed.
And I know that a lot of farmers in my area are not real comfortable with them ending up being permanent habitat and in compensation levels that are talking about are not necessarily in line with what it means being permanent habitat.
How do the farmers and ranchers in this area feel about becoming permanent open space?
Mr. HOLLINGSWORTH. Well, again, I think it goes back to their private property rights. If they are not forced to, I think they have a right to do that with their property if that is their own individual decision without pressure from government regulatory agencies.
Mr. POMBO. So as long as it is their choice and if they are choosing to sell part of their property right, part of their bundle of property rights, you think they are okay with that?
Mr. HOLLINGSWORTH. I think if the individual wants to do that and he is not pressured unduly by a regulatory situation or by, you know, a neighboring government ownership of property that keeps harassing him in his activities and where he just gives up and has to sell or sell a conservation easement, but I think there is a larger issue there.
Where does that stop? You know, there is a difference between agricultural preservation and continuing agricultural viability. Agricultural preservation is what you end up with with most green belts, is a museum piece that is not productive. It is not producing food for the country or anybody else, and it is not producing income for the person who owns that property.
What we need are ideas that make agriculture viable and able to change to the marketplace and able to stay in places like Southern California that are rapidly growing, with a change in agricultural marketplace.
Page 158 PREV PAGE TOP OF DOC I mean, people think that Riverside County is just an urbanizing county, and as Supervisor Tavaglione correctly pointed out, we are still one of the top agricultural counties in the state and in the country with over $1.2 billion in agricultural receipts last year, and that went up $100 million from the year before.
So agriculture just has to have that ability to remain viable. In order to have that ability, it needs to be able to change and adapt.
Mr. POMBO. Well, thank you.
I thank the panel for your testimony. I am going to excuse this panel and call up our fourth panel.
Mr. Edwin Sauls, Mr. Don Fife, Ms. Lorrae Fuentes, and Mr. Randy Kading.
Thank you. Now that you sat down, if I could have you stand up for just a second and raise your right hand.
Mr. POMBO. Let the record show they all answered in the affirmative.
Thank you very much for joining us.
Mr. Sauls, you can begin.
STATEMENT OF EDWIN G. SAULS, THE SAULS COMPANY AND BUILDING INDUSTRY ASSOCIATION OF SOUTHERN CALIFORNIA
Mr. SAULS. Thank you, Mr. Chairman, members of the Committee.
Good afternoon. My name is Ed Sauls. I am speaking here to share with you my experiences as Chairman of the Endangered Species Task Force for Building Industry Association of Southern California, also as a land developer, and as a consultant in resolving conflicts between endangered species and development.
Page 159 PREV PAGE TOP OF DOC Let me give an overview here. From the development perspective, the purpose, the purpose of the Endangered Species Act is a very good one. As an industry, we value species protection. We also value good planning. In fact, Building Industry Association has joined with many others and taken a leadership role in advocating good planning for western Riverside County and other areas of Southern California, good planning that includes the production and conservation of sensitive habitat and species.
Such planning can create a balance between development and conservation. It can create highly desirable communities. However, effective conservation requires a cooperative effort with U.S. Fish and Wildlife Service and those whom they regulate. It requires trust, communication, and close cooperation.
Now, let me step back a moment and share with you that two years ago I was particularly frustrated in my dealings with the Carlsbad office of Fish and Wildlife Service, and I thought, well, maybe this is something that is personal. Maybe I am the wrong guy to be doing this, and so I conducted an informal survey.
Now, this was a survey, as I said, that was informal. It was mainly with other people in the development industry, but it was with people that had a continuing experience, an ongoing experience with U.S. Fish and Wildlife Service.
And the results of that concluded that there is substantial frustration among most applicants that deal with Fish and Wildlife Service. Now, the findings of this survey were reviewed with upper management of the Carlsbad office and Mr. Spear. They were reviewed in 1997 and again in 1998 when Mr. Berg took over management of that office.
Some things have changed since then, but I tell you the trust, communication, and close cooperation needed to accomplish effective wildlife conservation is not adequate. Implementing the Endangered Species Act in Southern California is in sore need of improvement.
Page 160 PREV PAGE TOP OF DOC Today there continues to be a lack of trust between the Carlsbad office and many of the landowners they regulate. Projects continue to be stalled because conflicts are not resolved. There are no predefined time frames for actions regarding Section 10 permits. In fact, many people have been told habitat conservation plans are not going to be processed.
And if you are operating under a Section 7 consultation where there are time frames established, you have heard today that there are delays in getting the process started.
The authority and limits of authority of Fish and Wildlife Service under the ESA is not consistently applied and can vary depending on the individual that you work with.
Incentives to conserve sensitive habitat, such as conservation banking, are ineffectively implemented.
You know, landowners who are experienced in working with the Endangered Species Act are not motivated in these circumstances to conserve habitat. In their dealings with the service, their incentive is not to be proactive in conservation.
To offer a more complete perspective, let me say that I have worked closely with the Carlsbad office since 1991. The staff is hard working and committed to the protection of endangered species. Together we have solved problems on more than a dozen incidental take permits, adopted new Federal policies, created three conservation banks, and addressed many other landowners' issues.
So as Congresswoman Bono told us earlier, there are some successes, and I confirm those successes. I have seen Mike Spear work to improve the HCP process and restructure the Carlsbad organization. Ken Berg, Jim Bartell and Sherry Barrett are senior managers that regularly meet with the building industry to facilitate communication. These are good things.
But I tell you problems do persist, and there is much room for improvement.
Page 161 PREV PAGE TOP OF DOC Now, let me share with you something, an action that has been taken this year that I think epitomizes the problem. You have heard about theI will make it briefyou have heard about the multiple species plan for western Riverside County. Mr. Spear referred to it as a good example. This is supposed to be the solution for all the conflict that we face. This is what occurred.
We have a planning agreement that sets forth obligations of the Fish and Wildlife Service. That planning agreement said that Fish and Wildlife Service will provide some information to us and be cooperative in the process.
The reality is Fish and Wildlife Service reneged on their commitment. They refused to provide and refused to provide without apology the information they were supposed to provide. I do not think this is a good example, as Mr. Spear indicated, of how we solve these problems.
In my testimony I offered further clarification of the problems. I think this describes it. I have offered further clarification of the solutions. Mr. Moser has a pretty comprehensive list, and mine would only complement his.
Let me conclude by saying that Southern California is a hotbed of conflict between population growth and endangered species conservation. More than 13 million people live here. In areas such as western Riverside County, the population is expected to double by the year 2010. A housing shortage exists, and it is a major struggle to produce affordable housing.
This is also one of the most biologically diverse areas. We must do a better job of resolving these conflicts. We must constantly seek to improve the working relationship between the service and the regulated community.
I believe we are at a turning point. We must either take an affirmative action now and take action. I believe words are no longer adequate. Action must be taken to rebuild the trust, and trust would be accomplished by doing some of the things presented here and presented in my testimony.
Page 162 PREV PAGE TOP OF DOC If we do not, we will fail to accomplish the quality of communities we desire to build. We will fail to accomplish meaningful wildlife conservation. Improve or fail, this is our choice.
[The prepared statement of Mr. Sauls follows:]
STATEMENT OF EDWIN G. SAULS, CHAIRMAN, ENDANGERED SPECIES TASK FORCE, BUILDING INDUSTRY ASSOCIATION OF SOUTHERN CALIFORNIA
Mr. Chairman and Members of the Committee:
Good morning, my name is Ed Sauls. I am pleased to have the opportunity to share with you some of my experience in implementing the Endangered Species Act in Southern California as Chairman of the Endangered Species Task Force for the Building Industry Association of Southern California, and as a developer and consultant to landowners specializing in resolving endangered species issues.
The purpose of the Endangered Species Act is very good. As an industry, we value protection of species and their habitat. We value good planning. In fact, the Building Industry Association has taken a leadership role in advocating multispecies planning to promote wildlife conservation and balance it with housing demand. Such planning can create highly desirable communities. However, effective conservation requires a cooperative effort between the U.S Fish and Wildlife Service (FWS) and those whom they regulate. It requires trust, communication and close cooperation.
Two years ago, I was particularly concerned about my personal frustrations in working with the FWS Carlsbad Field Office. I was interested to know if my experience was unique and I wanted to learn how we might improve the relationship between FWS and the people they regulate. Accordingly, I conducted an informal survey of people who were experienced in working with the Carlsbad Field Office. The results of this survey concluded that there is substantial frustration among most applicants interviewed. The findings of this survey and resulting recommendations to improve industry and agency relations were presented to FWS management in 1997 and again in September 1998 after Ken Berg became Field Office Supervisor.
Page 163 PREV PAGE TOP OF DOC Since then, some improvements have taken place. For example, the office has reorganized and the current chain of command is much more clearly defined. However, frustrations remain very high and many improvements are needed. The trust, communication and close cooperation needed to accomplish effective wildlife conservation in Southern California is not adequate. Implementing the Endangered Species Act (ESA) in Southern California is sorely in need of improvement.
There continues to exist a lack of trust between the Carlsbad Field Office and many of the landowners that they regulate.
Survey protocols vary yearly as to how and when landowners are required to survey for listed species.
Projects continue to be stalled because conflicts are not resolved.
Scientific information, used as the basis of permit decisions, is limited and often inadequate. Better information is needed and FWS should openly encourage the exchange of information from outside sources, including consulting biologists.
The cost of complying with the ESA is difficult to predict. Mitigation requirements can vary dramatically between neighboring properties. In many instances, mitigation demands by FWS are excessive.
The authority, and limits of authority, of FWS under the ESA is not consistently applied and can vary depending upon the individual staff member assigned to a project.
Landowners who require Endangered Species Take permits can be delayed one, two, three years or more.
There are no predefined timeframes for actions regarding Section 10 permits. Section 7 consultations, that are supposed to have timeframes, are continually delayed.
Page 164 PREV PAGE TOP OF DOC Enforcement of ESA violations are confusing, limited and ineffective.
Incentives to conserve sensitive habitat such as Conservation Banking are ineffectively implemented.
Landowners who are experienced in working with the Endangered Species Act are not motivated to proactively conserve habitat. Instead, current policy encourages compliance with only the minimum requirements of the law. Sometimes landowners are encouraged to destroy habitat when the gray areas of the law allow them to do so.
To offer a more complete perspective, let me say that I have worked closely with the Carlsbad office since May 1991. Without exception, the staff is very hard working and strongly committed to the protection of endangered species. Together, we have solved problems on more than a dozen incidental take permits, adopted new Federal policies, created three conservation banks and addressed many other landowner issues. For example, I have seen Mike Spear work to improve the HCP process and restructure the Carlsbad organization. Ken Berg, Jim Bartel and Sherry Barrett meet regularly with the Building Industry Association to facilitate communication. Many other examples of good working relationships exist with individual employees of FWS. During the last eight years, we have had successes and there are a lot of very good people at the Carlsbad Field Office. But problems do persist, and there is much room for improvement.
Some recent actions of FWS will help articulate the current relationship with FWS. On March 4, 1999, approximately 40 people participated in a meeting to plan the Multiple Species Habitat Conservation Plan (MSHCP) for Western Riverside County. If successful, this plan will change the future of Western Riverside County. This plan has the expectation of solving the inherent problems between population growth and wildlife conservation. It presents the single best opportunity to reconcile the conflicts over an individual's right to the use of their property on one hand and a community goal of assuring wildlife conservation on the other. This plan can also be the solution to solving the individual permit problems and horror stories we hear about. Through the plan, we also expect to protect more than one hundred species when (or if) this plan is implemented.
Page 165 PREV PAGE TOP OF DOC Equally important, it is possible this plan can serve as a new prototype for other parts of our nation looking to solve their endangered species problems. To say that a lot is riding on this plan is an understatement.
A Planning Agreement, executed on August 28, 1997 by Michael Spear, Regional Director, sets forth the ground rules of the planning process for the MSHCP including the obligations of FWS. This document took more than 2 years to carefully negotiate with FWS and representatives of various stakeholder interests. The executed agreement called for FWS to provide a ''rough cut'' of the requirements necessary to obtain approval of the MSHCP. It also called for a cooperative process among the participants including stakeholders and the U.S. Fish and Wildlife Service.
Delivery of this information was promised more than a year earlier, but was finally scheduled for March 4, of this year. FWS did present considerable, impressive information at the meeting, but the ''rough cut'' information was not delivered!
More than five representatives from a broad spectrum of interests including biologists, environmental groups, farming and landowner interests agreed and clearly stated that the FWS had failed to provide the long awaited information.
Many of the attendees felt insulted that FWS tried to pass off the other information they presented as fulfilling their commitment to provide the ''rough cut.'' FWS was challenged to provide the promised information. Without apology, FWS unilaterally decided to renege on their promise as set forth in the Planning Agreement and signed by the Regional Director.
At a subsequent MSHCP planning meeting, the issue was raised again. It was agreed that FWS clearly reneged on their promise. Many participants responses were, ''So what else is new from FWS? They do this type of thing all the time.'' (See attachments).
Page 166 PREV PAGE TOP OF DOCPROBLEMS:
This conduct and other ongoing actions on the part of FWS create major problems in implementing the ESA in Southern California. It leads landowners and local government agencies to conclude that:
FWS does not live up to its commitments even when they are in writing.
Their prior decisions cannot be relied on.
Information known to FWS, and which is critical to permit decisions, is withheld.
FWS' commitment to cooperatively participate in a stakeholder process is not reliable.
Trust has clearly been broken by FWS.
Landowners are not benefited by meeting with FWS early in development approvals.
Decisions and formal processing of projects are often delayed unnecessarily.
Meetings with FWS staff members occur without resolution of project conflicts.
Interpretations regarding the limits and authorities of the FWS vary with individual staff members.
No clearly delineated understanding exists regarding the authority or lack of authority of FWS.
Staff members do not regularly present reasonable and prudent solutions to address endangered species impacts.
Page 167 PREV PAGE TOP OF DOC Mitigation varies with each project and it is extremely expensive.
When disagreements occur, project proponents are concerned that elevating the problem will result in retributions in getting permits processed.
Is there room for improved management of the FWS? Absolutely yes! This is why we are here today. This is not a witch-hunt. We are not here to burn anyone. We are here to recognize a problem and provide our collective best efforts to resolve it. We are looking for better ways to facilitate communication, to resolve conflicts, reestablish an overall trust relationship and to provide that the process maintains mutual respect.
Major changes are urgently needed now to correct the degraded relationship between FWS and those they regulate. Accordingly, FWS should:
Provide improved management including closer supervision, more active participation by senior managers and better accessibility of management to resolve conflicts.
Establish the position of an ombudsman who reports to an authority other than FWS. This position should be created to actively facilitate communication, processing, interagency communication and problem solving.
Conduct substantive, pre-project processing meetings with senior management in attendance.
Assign staff members to projects according to their experience level.
Set standards for conflict resolution and milestones associated with project processing including reasonable time lines. Track and report performance according to these standards.
Page 168 PREV PAGE TOP OF DOC Clearly articulate the authority and limits of staff authority as provided in the ESA.
Stress the importance that needless delays do not benefit species protection and present unacceptable costs to private landowners.
Require staff members to respect stakeholders and understand the importance of their role in multispecies plans as team members working to a common goal.
More proactively provide applicants the information they need.
Encourage staff to provide applicants reasonable and prudent measures consistent with the goals and purposes of the proposed project. (similar to that which is required in Section 7 jeopardy opinions, but provided early in the consultation process)
Create positive incentives for personnel to improve relations with those they regulate.
Provide a climate that encourages landowners to consult early with the FWS.
Most importantly, FWS should take action now that rebuilds trust. If it is rebuilt, particularly through implementation of recommendations such as described above, we can accomplish a lot.
Southern California is a hotbed of conflict between population growth and endangered species conservation. More than 13 million people live here. In areas such as Western Riverside County, the population is expected to double by the year 2010. A housing shortage exists and it is a major struggle to produce housing affordable to this growing population. Concurrently, Southern California is one of the most biologically diverse regions in the world. We must do a better job of resolving conflicts between endangered species and growth. We must constantly seek to improve the working relationship between the U.S. Fish and Wildlife Service and those they regulate.
Page 169 PREV PAGE TOP OF DOC We are at a turning point in implementing the ESA in Southern California. We must either make an affirmative commitment and take immediate action to improve relations between the Southern California office of FWS and those they regulate, or we will fail. We will fail to accomplish the quality of communities we desire to build. We will fail to accomplish meaningful wildlife conservation. Improve, or fail. This is our choice.
Mr. POMBO. Thank you.
STATEMENT OF DON FIFE, NATIONAL ASSOCIATION OF MINING DISTRICTS
Mr. FIFE. Mr. Chairman, members of the task force, I am Donald Fife. I am a professional scientist specializing in environmental mining and engineering geology for more than 20 years in both government and private industry. My experience deals with environmental aspects of land use planning, natural resources planning at both the state and Federal levels.
I have worked with the state clearing house as a reviewer for EISes and EIRs. I am a former Government Employees Union Local president for the Antelope Valley region. I belong to numerous professional societies, Geological Society, and even Sierra Club and the Native Plant Society.
My education includes a Bachelor's degree in paleontology, stratigraphy, and geology from San Diego State University and additional studies at University of California, Riverside; University of Dayton; and University of the Philippines in the Republic of the Philippines.
I currently serve as Chairman of the Nonrenewable Resources Committee of the American Land Rights Association. I chair the National Association of Mining Districts, and as a Director of Holcomb Valley Mining District, I work with prospectors and small miners and with large mining corporations. Our largest member is the Cushenbury Mine Trust, which is the trustee for the employees that lost their jobs at the Kaiser steel mill and mine in Fontana and Eagle Mountain in the early 1980s.
Page 170 PREV PAGE TOP OF DOC In the bankruptcy of Kaiser Steel, there was a trust created by agreement with the former Kaiser company, Kaiser Steel, and the United Steelworkers of America, AFLCIO. Royalties from their interest go to pay for vision insurance, dental insurance, and death benefits; they would expand these benefits if they were allowed to to mine their other reserves. They sell high-grade limestone to more major mining companies than probably any other group: Mitsubishi, Omya, Specialty Minerals, and several cement plants in the Lucerne Valley-Victorville area.
This district is an extremely important resource in California. The yearly production is $200 million FOB mine. This generates more than $1 billion per year and probably closer to $2 billion per year to the local economy, and creates thousands of jobs in Southern California.
It is all now at risk because we have listed endangered weeds. The U.S. Fish and Wildlife Service has listed five allegedly carbonate or limestone endemic weeds have put thousands of jobs at risk. The plants have been used by the Forest Service to propose a withdrawal of 30,000 acres of the highest mineral potential in the San Bernardino Mountains.
The State of California has zoned the minerals to protect them from incompatible land uses. This proven mineral resource is currently proposed and may be listed as an emergency closure to mineral entry by the Bureau of Land Management. The Forest Service supervisor, Gene Zimmerman, has made that request. It could be published in the Federal Register at any time.
It is our concern that there has been virtually no real science or justification for the listing of these plants by the U.S. Fish and Wildlife. We try to get reports through the Freedom of Information process. We get reports that come back censored with black felt pen marks.
I am currently co-owner with the trust of one of the large mines there, and we have great concern that we are going to be put out of business. This 30,000 acres includes properties that are about to be permitted as well. In this area, the Parton Mine was put completely out of business, destroying that asset to the community, the jobs, and the tax base. This was done with so-called endangered plants, such as the Cushenbury buckwheat, which the literature actually shows is not restricted to the San Bernardino Mountains and is not endangered. The exact same variety is used all over the western United States, according to University of British Columbia, Professor Brooks, as a geochemical indicator for prospecting for base metals.
Page 171 PREV PAGE TOP OF DOC We submitted factual information on the listing when the process was going on. Talking to the U.S. Fish and Wildlife Service is like talking to a brick wall. These plants are dependent on disturbance, such as mining, fire breaks, and wildland fire for habitat expansion. They totally ignored this. This is non-science. They will not even let us use the plants for mitigation when we are reclaiming quarries, even though they will naturally revegetate there.
The Forest Service blew up a road in 1991 and started a wildland fire to re-wild the area for Senator Feinstein's Desert to Wilderness Bill. The next year in an area where there were virtually no endangered plants, two such weeds, Parish's daisy and a locoweed, (incidentally, a toxic, noxious weed that is against the law to knowingly grow on your property) came back in the rebuilt road thriving there and in the wildland fire areaabsolute proof that these weeds are dependent on fire and disturbance for habitat expansion.
In Lone Valley, the Forest Service's own quarry has filled naturally in the abandoned portions with this Cushenbury buckwheat. In fact, in November 16th, 1997, the Forest Service parked 20 vehicles from the State Off Road Commissioner's field trip right on top of the endangered weeds. These are inadvertent species that go into open areas. They need open, disturbed spaces.
We are totally disappointed with their kind of ''science,'' if you want to call it that. There is nothing that I have seen published in a scientific journal that says or proves these plants are actually limestone endemic and/or threatened or endangered. Yet we have $1 billion of our economy threatened with these allegedly limestone endemic weeds. We know they grow in granite and sandstone and other mixtures.
So anyway, I will end there and entertain any questions that the Committee might have.
[The prepared statement of Mr. Fife follows:]
Page 172 PREV PAGE TOP OF DOCSTATEMENT OF DONALD L. FIFE, DIRECTOR, HOLCOMB VALLEY MINING DISTRICT, & CHAIRMAN, NATIONAL ASSOCIATION OF MINING DISTRICTS, TUSTIN, CALIFORNIA
Chairman Pombo and Members of the Committee:
I am a professional scientist, specializing in Environmental, Mining, and Engineering Geology for more than 20 years. My experience includes geotechnical, surface-ground water, and environmental aspects of land-use planning and natural resource planning at local, state and Federal levels. While with the state of California I was technical reviewer for the Department of Real Estate and Office of Architecture and Construction and also for the State Clearinghouse for EIR/EIS documents. While a government employee, I served as the President of the State Employees Union (CSEA) for the Antelope Valley Region. During the past decade I have belonged to numerous scientific or professional societies, such as the Geologic Society of America, Society of Mining Engineers, South Coast Geologic Society, Association of Engineering Geologists, American Institute of Professional Geologists, and also the Sierra Club and California Native Plant Society.
My education includes San Diego State University, Bachelor and Masters Degrees in Paleontology-Stratigraphy and Geology with additional studies in Pharmacy at the U.S. Air Force, School of Aviation, Gunter AFB, Alabama, University of California at Los Angeles and Riverside, and University of Dayton, Dayton, Ohio and University of the Philippines, Republic of the Philippines. My state professional licenses include Certified Engineering Geologist, Registered Geologist, and a Lifetime Earth Science Teaching Credential. From 1981 to 1989 I served four Secretaries of the Interior as their appointee/advisor on geology, energy and minerals for the 25 million-acre California Desert Conservation Area.
Currently I serve as Chairman of the Non-Renewal Resource Committee of the American Land Rights Association and Chairman of the National Association of Mining Districts. As a Director of the Holcomb Valley Mining District I work with mom and pop miners and prospectors as well as large corporate miners. Our largest member is the Cushenbury Mine Trust, Vision Insurance Fund for the United Steel Workers of America (AFLCIO). These are the union workers who lost their jobs when the Kaiser Steel Mill in Fontana and the Eagle Mountain Iron Mine were closed by overzealous environmental regulations and Japanese dumping of steel in the late 1970's and early 1980's. The union workers pensions and health insurance were not well funded, so in the bankruptcy of Kaiser, they acquired all the limestone-mining claims of Kaiser in the San Bernardino Mountains for their Vision Insurance Fund. They sell limestone to most of the operating mines and processing plants. Mining income goes to several thousand beneficiaries for eye exams, eyeglasses, eye surgery, and services for blind union members and their dependants. I am co-owner of the White Ridge/White Knob Calcite (limestone) Mine with the Vision Insurance Fund.
Page 173 PREV PAGE TOP OF DOC The Holcomb Valley Mining District was established in 1860 after William F. Holcomb discovered gold in this valley on May 4, 1860. More than $100 million in gold has been mined since that time and numerous gold deposits still exist in the district. Since 1947 and the discovery of the Lucerne Valley Limestone Province, high-grade limestone production has over-shadowed gold production. Presently the district is the largest producer of cement and other limestone products in the western United States. There are only five high-grade limestone districts in the entire United States. Local production is more than 5 million tons per year worth more than $200 million dollars per year FOB mine. This raw material supports several thousand jobs in California and neighboring states. The value added to the economy is greater than a billion dollars per year.
Calcite, the mineral that makes up limestone is considered the ''cement of modern civilization'' and per capita consumption is about 1,000 lbs per year per person. Limestone makes up about 80 percent of Portland cement, and is used a white pigment and filler-extender in rubber, plastics, paints, putties, crayons, and other commodities. It is essential in making steel, glass, and refining sugar. It's used in chewing gum and tooth paste as an abrasive and acid neutralizer to prevent cavities. It is used in food and pharmaceuticals. ''Tums'' the antacid, is ninety-percent calcite or limestone. It is essential in water purification and air pollution control. McDonalds is test marketing ''Earth Shell'' a biodegradable product made of potato starch, limestone, and binder. This product has the potential to replace Styrofoam and paper in the fast food industry.
The California State Board of Mines and Geology has spent several years identifying, classifying and zoning mineral deposits in the San Bernardino Mountains. Under the State Mine Reclamation Act (SMARA) they are charged with protecting valuable mineral deposits from incompatible land uses that would preclude society access to these raw materials. Under the National Environmental Policy Act (NEPA) Federal agencies are required to include these local government planning documents in Federal land use plans such as the San Bernardino National Forest (SBNF) Plan. However, the San Bernardino National Forest in league with the U.S. Fish and Wildlife Service appear to have ''invented'' several ''endangered'' plants that only grow on limestone, the mineral that we are mining!
Page 174 PREV PAGE TOP OF DOC This has been a twenty year process, starting with so called ''Cushenbury Buckwheat'' or Eriogonium ovalifolium, vareity vineum in mid-1970's. District Ranger Jerry Mitchell told me while reviewing a proposed plan of operation for the White Knob Calcite Mine, that the ''only place in the world that this plant was found'' was on the one acre of limestone we proposed to mine. He said the SBNF had this plant on their sensitive plant list and they had to treat it as if it was endangered.
I went home that day and looked the plant up in Edmond Yeager's 1940 Desert Wildflower book and found he reported it (including the variety vineum-Latin for wine colored) as occurring from the Sierra Nevada Range to the Laguna Mountains in San Diego County and even as far as Arizona or New Mexico. Ranger Mitchell suggested we hire and ex-forest service biologist buddy of his, Tim Krantz, who could write us a ''dispensation'' so we could mine. I believe we paid this biologist about $11,000 dollars for his report. Since that times the SBNF put together a listing package for five alleged ''Limestone Endemic Plants,'' and submitted it to U.S. Fish and Wildlife Service for listing under the ESA. USFWS ignored the industry objections that there was little or no scientific data to support these plants as being limestone endemic or even restricted to the San Bernardino Mountains.
Talking to USFWS was like talking to a brick wall, they ignored the fact that all the reports submitted by the SBNF were in house unpublished reports on government letterhead or environment subcontractors. None of these reports in my opinion as a scientist could be published in a professional scientific journal. Normally real scientists are proud of their work and seek to have it published in a peer review journal.
USFWS ignored the fact that Eriogonium ovalifolium; var. vineum was reported as occurring in the literature (Munz, 1974 California Flora and Hickman, 1993. The Jepson Manual of Higher Plants of California, 1993) as being found all over western North America. Professor R.R. Brooks of the University of British Columbia, in his 1993 paper Biological Methods in Geochemical Prospecting, indicates this same species is being use all over the western region of north America as a prospecting tool to find base metals. The flower apparently turns wine colored, if a few parts per million base metals are present in the soil or rock substrate.
Page 175 PREV PAGE TOP OF DOC The five ESA listed plants are invader species, or, as laymen would call them, ''weeds.'' Such plants are nature's first step in restoring the ''climax vegetation'' in open space for a given geographic area. In my experience they require soil disturbance through clearing the chaparral or forest canopy. They grow in areas such as firebreaks, abandoned roads, mines and mine dumps, or in areas cleared by wildland fire. The Coyote Flat fire in July 1976 at the White Ridge/White Knob created a population explosion in Erogonium ovalifolium, var. vineum in the newly built firebreaks and in the burned areas.
However, an even more dramatic example was the September 14, 1991 destruction of the historic Horse Thief Flats Cabin and SBNF Road 3NO3A. Forest Supervisor Gene Zimmerman, brought the Marines in to blast the historic cabin and road out of existence. The Marines were told they were destroying these to keep drug lords out of the area. The real reason was to manufacture wilderness for the Feinstein's ''Desert Closure Act,'' S-21 (see testimony before The Committee on Resources, June 18, 1996The Bighorn Mtn. Wilderness, CA: A Case Study in Federal Land Use Planning: Abuse of Authority, Fraud, Waste, and Violation of the Public Trust to ''Manufacture Wilderness to Deceive Congress as to Wilderness Suitability''. . .).
They blasted the road in four places, the last blast vaporized about forty tons on my family property and sprayed hot shrapnel into the tinder dry forest. The Forest Service staff and the Marines went home and dozens of small fires burned all night and into the next dayfor 18 hours these fires were coalescing into a single wildland fire. A citizen reported smoke, and SBNF and California Division of Forestry (CDF) fire fighters came in and put the fire out. The Road 3NO3A was rebuilt after several congressmen contacted the SBNF. December 11, 1991, District Ranger Rebecca Aus sent out a letter of apology for the fire and destruction of the road. Fortunately the Santa Ana winds stopped the day before or the 16,000 down-wind residents of Bear Valley would have had a dangerous wildland fire on their doorsteps. About $200,000 was spent to put the fire out and rebuild the road.
Page 176 PREV PAGE TOP OF DOC The next spring I noticed that two of the alleged endangered species, Cushenbury milk-vetch (Astragalus albens) and Parish's daisy (Eriogeron parishii) were thriving in the disturbed ground of the rebuilt road and the area destroyed by the wildland fire. Astragalus albens has the cute name milk vetch, but in consulting the scientific literature, I found it is a noxious poisonous weed, called locoweed. It can cause delusions, blindness, or even death if eaten by browsing animals or humans. The San Bernardino County weed abatement tells me it is against local laws and ordinances to knowingly propagate it on your property. You can be fined for not removing it, but it is now federally listed as endangered and it is a felony to remove it from your pasture or property!
Another good example of these weeds needing disturbed or cleared ground for habitat expansion is the SBNF own road material quarry at the east end of Lone Valley near Rose Mine, where 3NO3 and 2NO2 join. Several acres have been cleared down to bedrock for barrow material during the last few decades. As the SBNF road crews abandon portions of their quarry about 10 percent to 20 percent of the naturally invading species are Eriogonium ovalifolium var. vineum! On Saturday November 16, 1996 SBNF staffers Ruth Wenstrom, Gail Van Der Bie and John Wimbaugh unknowingly directed about 20 vehicles, some of them state OHV Commissioners, to park right on top of the ''endangered'' buckwheat. They announced that the SBNF had just spent thousands of dollars of State Greensticker funds to prove there were no ESA listed weeds growing there! This is probably the best and healthiest population of this species in the entire SBNF. Thus, the USFS proved that these species could be used to reclaim mined areas.
It is very obvious that facts don't count with USFWS and SBNF. They appear to be out to shut down mining in the SBNF. Science doesn't support listing of these weeds under the ESA. One of the four large mines in our area, the Partin Limestone Mine, was driven out of business by way of using these weeds to stop mining. Over the last decade I have testified that this was going on to both House and Senate Resource Committees. It is now a fact the Partin mine with millions of dollars in reserves is dead. These weeds are just another ''surrogate'' used to shut mining down. In a secret June 10, 1999 meeting (not open to the public in violation of the Federal Administrative Procedures Act) Forest Supervisor Gene Zimmerman distributed an April 28, 1999 letter he wrote on SBNF letterhead to the Pacific SW Forester and BLM requesting that these phony USFWS ESA listed ''carbonate endemic'' weeds be used to close about 30,000 acres of the highest mineral valued lands, mostly zoned by the state under SMARA classification and zoning to remain open to mining. These plans to close the region to mineral entry are now being implemented. This action will destroy the union Dental, Vision, and Life Insurance Fund and other mineral rights holder's mineral assets. This Zimmerman request could be published in the Federal Register at any time.
Page 177 PREV PAGE TOP OF DOC As part of my written testimony I am incorporating a published paper by Howard Brown (1994) in Murbach and Baldwin (editors), Mojave Desert, South Coast Geologic Society, Annual Guidebook #22, pp. 458470. His paper documents many of the abuses of USFWS in the listing of the alleged limestone endemic weeds.
Many botanists and biologists that have worked on these weeds privately doubt that they are really thretened or endangered. However, everyone who told me this said they were afraid of retaliation, and would be black-listed and never work again, if they openly opposed USFWS or USFS conclusions that these weeds are threatened or endangered.
If the USFWS listing stands, the SBNF will close one of the nations richest mining districts to mineral entry and the few existing mines will be depleted and die a slow death. Two of the major mines are already looking for other deposits in Arizona or other areas, in case they can't utilize the remaining reserves in the San Bernardino Mountains. We request the Committee on Resources take action to stop this closure to mineral entry ASAP.
We would like to invite the Committee and staff to visit Forest Supervisor Gene Zimmerman's proposed 30,000 acre ''endangered weed sanctuary'' in the near future.
Thanks for the opportunity to appear before your Committee.
Mr. POMBO. Thank you.
STATEMENT OF LORRAE FUENTES, VICE PRESIDENT OF EDUCATION, CALIFORNIA NATIVE PLANT SOCIETY
Ms. FUENTES. Chairman and Committee members, it is a pleasure for me to be here today to testify before you. My name is Lorrae Fuentes, and I am a native to Southern California. I have lived here all my life. I am currently a resident in Riverside and a homeowner.
Page 178 PREV PAGE TOP OF DOC I have a degree in biological sciences at one of our local universities. I have been an educator for 20 years both in the classroom teaching science to children, and am currently an educator in informal science institutions.
I also still hold my teaching credential active.
I am a representative today of the California Native Plant Society. I serve in that organization on the executive council as Vice President for Education.
California Native Plant Society is dedicated to the preservation of California native flora and is an organization of laymen and professionals united by an interest in the plants of California.
The work of the society is done mostly by volunteers who, along with staff members, work to promote awareness of California's unique flora.
The California Native Plant Society is a science based organization and is the primary scientific repository of information on rare plants of California.
California is, indeed, blessed with a wealth of plant life that reflects the diversity of its natural landscape. California has over 6,000 native species of plants. One third of those are endemic to the state, that is, they are found nowhere else in the world, and over 1,700 of those have some kind of listing, rare, threatened or uncommon.
In general principle, CNPS, the California Native Plant Society, supports the current Federal Endangered Species Act. If allowed to be implemented and enforced properly, it serves species well and is a useful tool for protecting biodiversity the plants, animals, habitats, and ecosystems in California and nationwide.
It is not that the law will never need improvement. On the contrary, new scientific knowledge and knowledge of what works best in both practical and political terms can lead conservationists and politicians alike to seek improvement in the law.
Any law, of course, is only as good as its consistent, effective implementation and reliable enforcement. It is here that CNPS takes issue in regards to the Federal Endangered Species Act. The two previous administrations but especially the current one failed to live up to the responsibilities to fulfill the intent of the Endangered Species Act, that is, to recover imperiled species.
Page 179 PREV PAGE TOP OF DOC Resources to conduct good scientific studies to support listings, development of recovery plans, designation of critical habitat, and protection of species on private and public lands has not been allocated sufficiently. Without listing species receive little protection. Yet review of almost all listing petitions has ceased.
Habitat conservation plans are conceptually a good tool and popular with the public because it protects habitat. However, inadequate habitat conservation plans are being developed and approved. Scientists have identified numerous deficiencies with pending and approved conservation agreements and raised serious questions about habitat conservation plans and their credibility.
The administration has refused furthermore to designate critical habitat aimed at helping species and get them off the endangered species list. The majority of landowners affected by endangered species regulations are willing to and want to comply, but instead become increasingly frustrated with slow permitting and habitat conservation planning process.
Furthermore, there are landowners willing to sell land and to protect species, but, again, the resources are not available for land acquisition.
I would like to point out again that the Federal Endangered Species Act is fundamentally good. The implementation and enforcement needs improvement. Congress only needs to provide adequate funding to establish necessary support mechanisms mainly in gathering of adequate scientific data, then good habitat conservation plans can be crafted listing of species and designation of critical habitat can proceed and land acquisition, where possible, can occur.
The Sierra Club, Audubon Society, groups deal largely with a variety of environmental issues, but only the California Native Plant Society is focused specifically on the needs of plant species in communities. Few people realize that the Federal Endangered Species Act provides almost no protection to most currently endangered, threatened plants, and in fact, the Federal Endangered Species Act protects animals everywhere but allows unlimited destruction of federally listed and threatened endangered plant species outside of Federal land where more than 80 percent of the federally listed plants are found in California.
Page 180 PREV PAGE TOP OF DOC This outdated policy flies in the face of biological reality, and we wish that the Endangered Species Act would be amended to give plants equal protection.
Thank you very much.
[The prepared statement of Ms. Fuentes follows:]
STATEMENT OF LORRAE CAROL FUENTES, VICE PRESIDENT OF EDUCATION, CALIFORNIA NATIVE PLANT SOCIETY
Good morning. My name is Lorrae Fuentes and I am here as a representative of the California Native Plant Society to present testimony to this Committee. It is a pleasure to be here and to provide you with this important input into the issues regarding the implementation and enforcement of the Federal Endangered Species Act.
The California Native Plant Society is dedicated to the preservation of the California native flora and is an organization of laymen and professionals united by an interest in the plants of California. The work of the society is done mostly by volunteers who, along with staff members, work to promote awareness of California's unique flora so that a more knowledgeable public will insist on the preservation of native plants and their habitats for future generations. The California Native Plant Society is a science-based organization and is the primary scientific repository of information on rare plants of California.
California is blessed with a wealth of plant life that reflects the diversity of its natural landscape. I work with the general public in my role as educator. People of all ages clearly grasp the concept of biodiversity. On a global scale, people understand that human beings depend on the functioning of ecosystems absolutely. The ecosystems that we manage in order to produce food and other essentialsfarm field, rangelands, and forestsare intimately connected with the global ecology and are not immune from the detrimental effects of the loss of biodiversity. On a regional basis, people clearly understand that the economic wealth of California is an expression of its natural diversity, and that when economic prosperity is manufactured from natural diversity, as it has been in California change in landscape and loss of diversity is inevitable.
Page 181 PREV PAGE TOP OF DOC In general principle, CNPS supports the current Federal Endangered Species Act. If allowed to be implemented and enforced properly, it serves species well and is a useful tool for protecting biodiversitythe plants, animals, habitats and ecosystems in California and nationwide. Furthermore, the Federal ESA has and continues to serve as a model for global protection of biodiversity. It is not that the law will never need improvement. On the contrary, new scientific knowledge and knowledge of what works best in practical and political terms can lead conservationists and politicians alike to seek improvement in the law. Any law of course is only as good as its consistent effective implementation and reliable enforcement. It is here that CNPS takes issue in regards to the Federal Endangered Species Act.
The two previous Admnistrations but especially the Clinton Administration have failed to live up to its responsibilities to fulfill the intent of the ESAthat is to recover imperiled species. Sufficient resources to conduct good scientific studies to support listings, development of recovery plants, designation of critical habitat and protection of species on private and public lands has not been allocated.
Without listing, species receive little protection. Yet, review of almost all listing petitions has ceased. Inadequate Habitat Conservation Plans are being developed and approved. Scientists have identified numerous deficiencies with pending and approved conservation agreements and raised serious questions about HCPs credibility. Too often HCPs data on species populations and habitat requirements are incomplete or missing, assessments of impacts to species are inadequate, resources to monitor the plan's impacts are meager, and plans frequently rely on unproven management prescriptions.
This Administration has refused to designate critical habitat aimed at helping species to recover and get species off the endangered species list even though the ESA makes it clear that critical habitat is a primary mechanism for species recovery. As a practical matter, designating critical habitat helps agencies and individuals understand the areas that need to be protected to maintain a species' viability. Unfortunately, the Federal Government's reluctance to designate critical habitat has severely hampered species recovery efforts. To date, less than 10 percent of all species listed in the U.S. have official critical habitat.
Page 182 PREV PAGE TOP OF DOC The majority of landowners affected by ESA regulations are willing to and want to comply, but instead, become increasingly frustrated with the slow permitting and HCP process. Furthermore, there are landowners willing to sell land to protect species. But again, the resources are not available for land acquisition.
I would like to point out once again that the Federal Endangered Species Act is fundamentally good. It is the implementation and enforcement that needs improvement.
Congress needs only to provide adequate funding to establish the necessary support mechanisms, mainly the gathering of adequate scientific data so that good Habitat Conservation Plans can be crafted, listing of species, and designation of critical habitat can proceed and land acquisition, where possible can occur.
There are inadequacies in the ESA of concern to the California Native Plant Society that I would like to address. The Sierra Club, Audubon Society and groups deal with a large variety of environmental issues but only the California Native Plant Society is focused specifically on the needs of plant species and communities. Few people realize that the Federal Endangered Species Act provides almost no protection to most federally endangered and threatened plants. In fact, although FESA protects federally listed animals everywhere, it allows nearly unlimited destruction of federally listed threatened and endangered plants outside Federal lands, where more than 80 percent of federally listed plants are found in California.
This outdated policy flies in the face of biological reality. Science tells us that plants and animals are inextricably intertwined and contribute equally to the health and survival of the ecosystems that sustain us all. If we are to conserve healthy ecosystems and biological diversity, we cannot pick some species to save and ignore others.
The California Native Plant Society would like to see the Federal Endangered Species Act amended where necessary to protect plants with the same protections that are currently provided to animals.
Page 183 PREV PAGE TOP OF DOC Finally, even though this is not linked directly to the issue of the Federal Endangered Species Act, we would like to be included in the growing number of groups commending the sponsors of H.R. 701, H.R. 798, S. 25 and S. 446 which is sound legislation to provide dedicated funding for land and resource conservation.
Mr. POMBO. Thank you.
STATEMENT OF RANDY KADING, FIELD SUPERINTENDENT, C&H FRAMING
Mr. KADING. Good afternoon, Mr. Chairman and members of the Committee. My name is Randy Kading. I am a field superintendent for C&H Framing, a contracting firm working in Southern California.
Currently I am working on a residential housing project on the north coast of San Diego County in the City of Encinitas. The company subcontracts with builders after a piece of land has been completely entitled and permitted.
I have worked in most of the western states since the date of 1971.
By way of additional background, back in 1958, my parents purchased this little two bedroom house in Wichita, Kansas. What was unique about this house is along the front and down the side approximately 100 feet was this fence that had three rails on it, and by the time I was seven years old, I could walk this fence without falling down. My mother hated the idea.
Little did I know that in 1971 I would be hired to do the same thing by building houses, single story and two story houses. I was being paid at that time three times minimum wage being a first period apprentice. I fell in love with the trade, could not believe I was being paid to have this much fun.
Page 184 PREV PAGE TOP OF DOC Two years later, I walked into my first recession experience when OPEC decided to become a world player and flex their muscles. The construction industry was affected, and because of this I was forced to, well, walk away from everything I had acquired at that time, stuck my thumb out, and ended up in New Mexico where I lived on a ranch for two years, and these people were small time developers, and I was able to increase my assets by learning how to not just frame houses, but to stucco and lay tile, floor covering, and roof.
During that time nearly everyone I knew was thrown out of work, and it was not just the trades people on the job site. It was the folks who supplied the products, the truck drivers, the loggers, the delivery people. I learned very early on that a recession can have a profound impact on people's lives and their families.
Now, generally the life of a framer or anyone else on the job site can be very nomadic, as I have moved around a lot. In the last 28 years, I myself have worked all over the western United States, including Texas and Louisiana. Basically you go from job site to job site, depending on where the work is.
In the past, as I have alluded to previously, our ability to get work has been related to economic cycles. I now have been through three of these recessions. The last one, which was the most devastating, was the one in the 1980s and the early 1990s. It took a while to overcome that one.
In working with my guys, what generally happens is they either toughen up and survive by moving on, which only works with the single guys. The ones with wives are usually forced to take lower paying jobs, but one that has more of a consistent paycheck, whether it be driving a Wonder Bread truck or maybe working at the postal system.
This is especially hard for me to watch because I see their love for the trade on their faces on a daily basis, and when one of these recessions hits, which will happen pretty soon, as an apprentice, they do not have a lot of assets. Even though they have spent a lot of their money buying their equipment, they have not acquired the skill to stick around or to be kept around when it gets real tight, when there is not a lot of work to keep them busy.
Page 185 PREV PAGE TOP OF DOC And so you can see that they are going to be forced to take jobs that will put food on the table, and they will just look back on their experience as a carpenter or as a builder, as a person in the trade as one of just something that let them down.
And, frankly, it is the fear of the recession that all of us think about most of the time. Not a day goes by when I do not wonder about when work is going to end. I have made my own self recession proof because what I learned in the last one that I experienced was do not acquire anything anymore. The only thing I do now is save all the money I can so that I can survive the one or two year cycle that happens to put me out of work because there was a couple that I did not do that, and it was a real struggle.
So in essence, our ability to maintain a consistent work load and, therefore, to receive a consistent paycheck is directly related to the landowner's ability to get required permits from all jurisdictions, including what I understand can be the most difficult, the Federal Government.
In Southern California, I have noticed by the ebb and flow of work the difficulty landowners have in securing these permits so we can do our jobs and earn a paycheck and put food on the table. I want to make something clear. I am not opposed to protecting our environment, but it seems to me that when people who are supposed to be protecting the environment seem more interested in just stopping growth that there must be a problem.
Oftentimes the focus in on the builder and developer when it comes to these environmental issues and concerns. I am here today, however, to make it clear that they are not the only ones impacted by unreasonable and arbitrary decisions aimed at stopping growth, and I must say it pains me to know that when my guys arewhat they are in for in the next recession hits. No matter what the cost, frankly, recession caused by economy, albeit unfortunate, is easier to understand than one caused by well meaning but misguided and poorly interpreted environmental regulations.
Page 186 PREV PAGE TOP OF DOC What we need is balance. We need fairness. There needs to be a bipartisan committee established between Carlsbad and the building industry and the developers, who I consider to be the good stewards of putting these projects together because what I want in the future is not the boom we are in now. I want controlled growth because that is better than no growth, and that is what takes the hope out of most of the people that are out there in the trade now, is the fact that within just the next couple of years they will be in the midst of their first and my fourth, and it becomes a desperate situation for all of us.
[The prepared statement of Mr. Kading follows:]
STATEMENT OF RANDY KADING, FIELD SUPERINTENDENT, C&H FRAMING
Good Afternoon Mr. Chairman and Members of the Committee, my name is Randy Kading. I am a field superintendent for C&H Framing, a contracting firm working in Southern California. Currently, I am working on a residential housing project on the north coast of San Diego County in the city of Encinitas. Our company sub-contracts with builders after a piece of land has been completely entitled and permitted. I have been working in all seven southwestern states since 1971.
By way of additional background, my family purchased a modest 2-bedroom house in Wichita, Kansas. It was growing up in this house where I first gained an appreciation and love for the art of carpentry. As I learned the trade, I remember thinking why can't everyone have this much fun. I realized shortly thereafter, in the summer of 1973, that the fun can quickly come to an end. What happened? Well, that's when OPEC decided to flex its muscle and threw the United States into a deep recession. One of the first industries to be impacted was the construction industry. Because of this, I was forced to move to New Mexico for the better part of 2 years just to survive.
During that time, nearly everyone I knew was thrown out of work. And it wasn't just the trades' people on the job site. It was all of the folks who supplied the products for construction, the delivery people and anyone else even tangentially related to the industry. I learned very early that a recession can have a profound impact on people's lives and their families.
Page 187 PREV PAGE TOP OF DOC Generally, the life of a framer (or any one else on the job site) can be very nomadic. In the last 28 years, I myself have worked all over the southwestern United States. Basically, you go from job site to job site depending on where the work is. In the past, as I alluded to previously, our ability to get work has been related to economic cycles. As you can imagine, the most recent recession of the late 80's and early 90's made this profession again very difficult.
In working with my guys, what generally happens is they either tough it out and survive by moving around (which really only works for the single guys), or their wives force them to take lower paying but more stable job in a different line work. This is especially hard for me to watch because I see their faces on a daily basis and I know how much they enjoy their jobs. It breaks my heart to know that they don't want to leave, but will have to because they won't be able to weather the next recession.
Frankly, it is the fear of recession that all of us think about most of the time. Not a day goes by when I wonder when the work is going to end. Now, even in these very good economic conditions, it seems that the demand in the market for new housing can not be met because of the difficulty of getting land entitled. Recession is the thing that will ruin our lives. And recession, whether caused by a down economy or environmental concerns, is still a recession. And rest assured, many of us, as working class, regular folks, will lose their jobs, their incomes, their possessions and some will even lose their very families.
In essence, our ability to maintain a consistent workload and therefore, to receive a consistent paycheck is directly related to a landowners ability to get the required permits from all jurisdictions including, what I understand can be the most difficult, the Federal Government.
In Southern California, I have noticed, by the ebb and flow of work, the difficulty landowners have in securing these permits so we can do our jobs, earn a paycheck and put food on the table of our families.
Page 188 PREV PAGE TOP OF DOC I want to make a something clear. I am not opposed to protecting our environment. But it seems to me when people who are supposed to be protecting the environment seem more interested in just stopping growth that there must be a problem. To be blunt, which I am, I do not want arbitrary political decisions to stop our ability to build houses and earn a living.
Protecting the environment and providing housing are NOT mutually exclusive, in my opinion.
Often times, the focus is on the builder and developer when it comes to these environmental issues and concerns. I am here today, however, to make it clear that they are not the only ones impacted by unreasonable and arbitrary decisions aimed at stopping growth.
I am the face of the working person in the field whose job depends upon builders being able to supply housing.
I am a mirror of the guys in the field who work for me.
And, I must say, it pains me to know what my guys are in for when the next recession hits, no matter what the cause. Frankly, recession caused by the economy, albeit unfortunate, is easier to understand than one caused by well meaning but misguided and poorly interpreted environmental regulations.
You can imagine, as a framer in Southern California, what I must think about these articles condemning growth and the support no-growthers seem to get from the environmental agencies. I remember the coastal initiatives of the 70's. Lately there's been the fairy shrimp on the coast and the kangaroo rat in Riverside. And now we have butterflies again blocking the folks we work for from getting their permits. You may think it's just the landowners that know about this stuff, but we pay attention because it effects us so directly.
I myself am even an avid back-packer who has hiked the Pacific Crest Trail from Baja to Washington State. I enjoy the environment, whether on foot in the mountains, or in the ocean on my surfboard. Some may scoff, but it is the truth. I say this only because it is automatically assumed that folks in our industry don't care about the environment. But we do. We also care about providing shelter for families. A quality product, which I think many in this room may take for granted. Well, I'm saying you just shouldn't.
Page 189 PREV PAGE TOP OF DOC Our guys come from all over the political spectrum. Their top concern is making sure we have work to sustain our families. Previously, many were unable to make their opinions known, let alone gather information about important issues like these. Fortunately, with the internet, we're now able to not only learn more about these issues and better educate ourselves, we are also better able to communicate with other people in the trade and also better able to make our voices heard.
And I guarantee, we will be heard!
The other side of the equation for trades' people in the field is being able to find housing we can afford. The closest we'll get to the houses we're helping build are the days we spend framing. You don't need to ask why when the average new home in San Diego County will soon exceed $300,000. There's not a housing project my guys work on that where they'll be able to afford a unit . . . that is unless they hit the lottery. Many of these guys live with their parents or find other ways to improvise and survive.
I see a big problem with the American Dream in Southern California and I know some of it has to do with all the environmental regulations forced down the throat of the landowner and paid for by the blood, sweat and tears of working men and women throughout Southern California. With my butchered hands, I have built these homes the new buyer comes home to after work. When I'm gone, they'll still have their jobs. But that does not mean we cannot fight for what's right.
In closing, there is probably a myriad of solutions to make the situation better. Any solution should assure a much-needed supply of land to house people affordably, at all income levels and I don't just mean in apartments either. We, the people who build these houses, know the value of homeownership. I think it's pretty ironic that many of us can't afford to but one and live the American dream.
What do we need? We need balance. We need fairness. We need someone working on behalf of the working men and women whose daily existence depends upon their job, not just their net worth.
Page 190 PREV PAGE TOP OF DOC I want to be able to tell my guys that something is being done to preserve their ability to earn money and care for their families. I hope I can leave here today with that message. Please help me provide them with the security I so desperately want to provide my guys.
Thank you for this opportunity. I'm not accustomed to this kind of setting for airing my concerns, but I'm glad that you all traveled from your districts to hear what we had to say.
Mr. POMBO. Thank you.
Mr. CALVERT. Thank you, Mr. Chairman.
Mr. Sauls, why would biologists and private landowners be reluctant to testify at a hearing like this one that you are participating in today?
Mr. SAULS. Congressman Calvert, I think the answer in its shortest form is fear of retribution. I cannot tell you that that retribution is reality. I have heard that it is. I have heard that permitted biologists are denied permits.
You understand clearly that Fish and Wildlife Service has the ability to issue those permits, and I have heard directly from biologists that they are, in fact, reluctant to testify for that reason.
The same thing is true for landowners. They have unresolved issues with the agencies, and they are concerned that their speaking out will draw further attention to them or problems with them.
Mr. CALVERT. And how would an agency such as this do that? Just not process the application? Just continue it?
Mr. SAULS. Well, for biologists, they have to receive their permits. That is one way. That would be to deny or delay their permits for conducting their business.
Page 191 PREV PAGE TOP OF DOC For a landowner, the habitat conservation plans are deemed to be a discretionary permit process. You take the plan, put it on the back shelf, and there is little or no recourse. If you're lucky enough to have a Section 7 permit you might have some time frames, but as we have shared with you, there are ways to ask continually for more information such that the Section 7 process is not initiated.
Mr. CALVERT. Well, I have yet to see a time frame that has been met yet in the experience I have had lately with Fish and Wildlife, but moving on, a witness on an earlier panel, the ReverendI cannot pronounce his last nametestified about his beliefs regarding the loss of species habitat and his belief that it is tied to overpopulation, too many people.
How do you feel about that, since you represent the building industry?
Mr. SAULS. I do not create all of those people. I have my own children, and I happen to love them dearly.
Mr. SAULS. I do want to agree with one thing that the good Reverend communicated, and that is that we are to be stewards of the world we live in. I think it is a gift from God, but I think God also told us to love your neighbor. In fact, I think that was the second most important commandment that Christ communicated, and part of loving your neighbor is an element of respect, and I believe that that is the issue that many people are bringing before you here today, that that respect is either lacking or needs dramatic improvement.
Mr. CALVERT. Thank you.
Mr. Fife: I used to be Chairman of the Mining and Resource Committee a few years ago and before I took on a different subcommittee. I spent a lot of time on issues regarding mining, and mining I have always considered one of the base industries. As our Chairman, Don Young, would say, everything there is is either mined or farmed, you know, and those are the basic industries in this country, what is derived from those industries.
Page 192 PREV PAGE TOP OF DOC How much of the mining that is taking place, from your background, has been exported outside of the United States lately, the last few years? What is just your own feeling about that?
Mr. FIFE. Just the exploration and development money is in the billions of dollars. We have actually exported hundreds of thousands of jobs. The United States in many cases has become a Third World country. If you can mine something, you cannot process it here because of the enormous environmental hurdles you have to get over.
Mr. CALVERT. And many people, as yourself, are aware of the value added jobs that go along with mining and the importance of the mining industry in providing for those. By the way, I believe probably some of the best paid blue collar jobs in the country, primarily union jobs, and an industry that has probably been as devastated as any industry and continues to be devastated even in this recovery.
So I just wanted to point that out, Mr. Chairman, and I know my time has expired.
Mr. POMBO. Mr. Hunter.
Mr. HUNTER. Thank you, Mr. Chairman.
Mr. Kading, you build homes.
Mr. KADING. Yes, sir.
Mr. HUNTER. And I think that is a very honorable profession. You know, my dad built homes for many years and said at one point the thing he was proudest of was the fact that he was able to make a payroll every Friday. That is a tough thing to do, and I know that you are concerned also about the people who work with you, working folks, and their ability to buy the homes that they are building.
We led this hearing off; at least that was my statement. I know my friend Mike Spear was not in the audience at that time, and Mike mentioned later the relative prosperity that we are experiencing right now, but one of my points was in San Diego County the average home, and I believe it is about $270,000. In fact, we can have one of our staff folks hold that up. I think it is 265.
Page 193 PREV PAGE TOP OF DOC You see, Richie is shopping for a house in San Diego County. It is 265. The median home is $265,000. That requires with today's interest rates about a $70,000 paycheck, annual paycheck, and that requirement has placed the ability to buy a home in San Diego County beyond the means of many of the working folks who work in the building industry.
But are there many of your folks who can afford to build the median home in San Diego County?
Mr. KADING. No, not at all.
Mr. HUNTER. Beyond that, the information that I have, and I have talked to some builders, for example, one builder, for example, that built a $185,000 home was making $10,000 profit per unit, but the hard cost of building the home was only $59,000 out of the remaining $175,000, and I said, ''What is the rest of it?''
He said, ''Land and land use regulation.'' He said all of the consultants you have to hire, the biologists you have to hire, the time you have got to spend working with the Federal agencies and state and local government, which also have their own level of bureaucracy.
So the rest of that, that almost $60,000 out of $175,000 is not building the home at all. It's that little piece of land that it is on and the land use regulation, and the estimates that I have seen is that we could avoid or lower costs of housing by almost 35 percent in San Diego County if we offset or took away the cost of regulation, land use regulation.
So I guess my second question is in the old days at least, when we were building homes up in Arupa Hills up in Riverside, we built homes for a lot of working people. I mean, in fact, a lot of the folks working on our homes ended up buying our homes. They were good homes, good 1,500, 1,600 square foot homes.
You do not see that. Do you see many working people being able to purchase their homes in San Diego County now?
Mr. KADING. No. Actually most of the people that purchase or work in San Diego County that I am familiar with live in Riverside County. They are forced to commute because it is cheaper up in Riverside County.
Page 194 PREV PAGE TOP OF DOC Mr. HUNTER. So they are driving how far?
Mr. KADING. Oh, one way, 60 miles, 70 miles, more.
Mr. HUNTER. Okay.
Mr. KADING. Some are working as far south as Chula Vista.
Mr. HUNTER. And isn't that the area out north of March Air Force Base? A lot of the folks there work, in fact, in Orange County and Los Angeles County from what I understand.
Mr. KADING. That is correct.
Mr. HUNTER. I think that shows some of the misguided policies, and, Mr. Chairman, I think this falls on our back as well as those of the Administrators. In this effort that is to protect the environment and the perversion that I think we have made of some of the regulations, we have actually damaged the environment. We have massive traffic jams that are a result of people not being able to afford homes in the areas where they work.
One reason they cannot afford homes is because we are protecting their environment in the communities where they work. So we have them put out tons of smog on the freeway to get 60 miles away where they can afford a home.
So I think that working America has a real stake in seeing to it that we pull back regulation, make it more reasonable and make it more applicable to folks like the gentleman who was in here, Mr. Turecek. I do not know if you saw him, but average people that have pieces of land that they want to develop, to give them a fighting chance at it.
Mr. Kading, I appreciate all of the witnesses, but I especially appreciate you being here and laying out the perspective of a working man.
Mr. KADING. Thank you.
Mr. HUNTER. Thank you.
Page 195 PREV PAGE TOP OF DOC Mr. POMBO. Ms. Bono.
Ms. BONO. Thank you, Mr. Chairman.
I really just want to thank the panelists. I think their testimony was extremely straightforward, and I have no questions. I would yield back the balance of my time.
Mr. POMBO. Thank you.
Mr. Fife, I know that you have spent a lot of time. You and I have had the opportunity to talk in the past, and you have spent a lot of time on the issues that you have testified about. One of the questions that I have for you is how is it that you have such a difficult time and others have such a difficult time when it comes to the science and getting Fish and Wildlife to look at that science?
You know, it would seem to me that it would be natural that they would go to the people that are living and working in an area and say, you know, in your example, an endangered plant, ''Where do these grow? Where do you see them?''
Why is it so difficult to put that information together and give it to Fish and Wildlife and have them do something with it?
Mr. FIFE. Well, I think probably it is either incompetence or actually the desire to get as many things listed and build as big an empire and get as much authority over the private sector as possible. I do not know how to explain it.
There is virtually nothing published in the scientific literature that supports these plants, for instance, as being restricted to the San Bernardino Mountains or endangered. In fact, there is information to the contrary that is right out there for anybody.
I mean I am a paleontologist, and my specialty is in micro plants, but I mean, it does not take much effort for me to find these things in the literature.
And where are these people coming from? It is either incompetence or it is an intention to seize some kind of power. What happens is you get the listing package for the Forest Service for these five plants. One of the plants does not even grow on limestone. We have never been able to find it on limestone. I mean, how could it be limestone endemic? It grows on granite.
Page 196 PREV PAGE TOP OF DOC It is just amazing how they get away with this. The listing package the Forest Service sent to Fish and Wildlife was totally inadequate. They went out and counted 3,721 of these plants, ''known in the world.''
I come out with my botanist, and of course, I have been dealing with these for over 20 years, and we can count that many in a day just walking around.
And then we find other things going on, such as I was hoping to bring a gentleman here today to introduce you to, a former Forest Service employee who contacted me to apologize for the fact that the Forest Service had bought a seed spreader and was spreading seeds on my property to prevent me from mining, and sure enough, we have been held up since August 1990 to get a permit on that property.
Mr. POMBO. Now, wait a minute.
Mr. POMBO. They are doing what? They are spreading seeds?
Mr. FIFE. They are collecting the seeds from these allegedly endangered plants and they are spreading them on my roads and other roads with a seed spreader. I took one of the gentlemen who was on the witness list that did not come in today, a botanist, a local guy; took him out, and we walked a newly built off road vehicle trail, and we were amazed at the endangered locoweed. It looked like lawn on each side of it, like somebodywe did not think at the time it could have been planted, but that explains why this stuff is growing there.
And I had this not from just this ranger that told me, and he said he is willing to testify in court or wherever. I was told before that by volunteers that worked as volunteers for the Forest Service on off road vehicle road restoration projects. Two couples said that the Forest Service was doing this. I really did not believe it until this forest ranger actually told me about it.
And I would certainly like to have the GAO investigators depose this guy or interview him. He is willing to do it. We have name, rank, serial number, time. I mean I even have the records, the time cards of when these people were out there doing this, and we do have evidence.
Page 197 PREV PAGE TOP OF DOC Mr. POMBO. It is my understanding of the Endangered Species Act, and I will have to ask Mr. Spear about this later, but that would be illegal.
Mr. FIFE. I think it is called habitat manipulation. I think that is what the Act calls it, and I believe if you are going to do it, you have to go through the legal process within at least an EA to do this, but I guess maybe NEPA does not apply to the Endangered Species Act.
Mr. POMBO. Yes, we are going to have a series of questions for you, Mr. Fife, because if you do have evidence that this is occurring, I think the Committee needs to investigate that further, and the Committee hearing will be left open for you to provide additional information on that.
Ms. Fuentes, a question of you. In your prepared statement, even though you and Mr. Fife come from a little bit different angle on this, unfortunately it appears that your complaints are very similar to his, and they may be coming from different ends of the spectrum, so to speak, but you have a real problem with the science that is being used as well and do not feel that it is adequate or that the efforts that are being made are adequate.
Would you like to respond to what you have heard here?
Ms. FUENTES. I cannot respond to
Mr. POMBO. Not that specifically.
Ms. FUENTES. Okay. Thank you.
Mr. POMBO. I would not do that to you.
Mr. POMBO. But I mean just in terms of the science end of it. You were not out spreading seeds out there, were you?
Page 198 PREV PAGE TOP OF DOC Ms. FUENTES. No. I do not believe I would comply with the law if I did that.
I think our main point here coming from the Native Plant Society is that there has been an incredible backlog in the listing of endangered species, especially endangered plants, and designation of critical habitat. Habitat conservation plans that are put together, although conceptually I think they are a good tool but inadequate for plants, which means there is not enough of good science based information.
And I think the agencies involved just have been under-resourced for over a decade, and that there is not enough good scientific information for people to come together for good negotiations, and sit down with, you know, just common sense and come up with a plan to protect species.
You have to have them listed. They cannot be protected unless they are listed, and there is just this huge backlog of listing, and they do have recovery plans in place for them, but I think what we are coming at if ''inadequate science'' is that there is just not enough of it. You have to have the resources available to go out there and get the good baseline information that you need to make good decisions.
Mr. POMBO. Mr. Kading, I know my time has expired. I just wanted to end with you.
The houses that you are working on now, where are you working in San Diego County?
Mr. KADING. Just west of La Casta Resort, Interstate 5 and La Casta Avenue up on the bluff there.
Mr. POMBO. Approximately what size houses are going up in that area?
Mr. KADING. The present project I am on, the smallest home is 3,820. The biggest one is 5,000 square feet.
Page 199 PREV PAGE TOP OF DOC Mr. POMBO. This is, I think, the real problem that we face, and I am seeing this in my own community. The more expensive you make land, the more expensive you make the process to go through. The only thing the developer can do at that point is build a bigger house and sell it to the higher end of the market.
Mr. KADING. Yes.
Mr. POMBO. And what we are seeing in my area, and I would like you to comment on this, is that we have seen the two bedroom starter home disappear from the market. We do not have houses that a young couple, just married couple that is starting out can move into. We have got a lot of houses that are 350, $400,000, but in the starter home area you either have to end up in an apartment somewhere or you are out of luck.
And is that what you are seeing happen down here?
Mr. KADING. Well, the current project I am working on, the houses start at $1 million, and I have not seen the homes you are talking about in 15 years. I would not even know where they built those at anymore.
Mr. POMBO. Now, I do not know. You know, it is real frustrating because a lot of what we hear is that, well, this only hurts the rich guy. You know, it is the big developer, the big landowner. Those are the only guys that get hurt by this, and we really do not care if they have to spend $1 million on a habitat conservation plan. It does not matter to us because that is just the wealthy guy that has to pay.
But that is not what is happening in my area. In my area, it is the little guy that is getting hurt because he cannot find a house to buy, and he cannot find a job, a place to work, and we are unfortunately going through a lot of the same things that you do.
I live in a little farming community, what used to be a little farming community that has now become a suburb of the San Francisco Bay area because people are driving all the way, some of them two and a half hours each way commute because there is no place they can afford to live. It is the only place they can afford to buy a house.
Page 200 PREV PAGE TOP OF DOC And that cannot be good for them. It cannot be good for their family. It cannot be good for the environment no matter how you look at it.
Mr. KADING. No, it is not.
Mr. POMBO. But that is what we are ending up with, and I appreciate all of your testimony.
Mr. Fife, I will have a series of questions for you that I will submit in writing, and if you can answer.
I thank all of you for your testimony. I guess more importantly I thank you for your patience in waiting around, and I apologize, but somebody had to be on the last panel, but I appreciate all of you for your testimony and for your answers to our questions, and thank you for being here.
Mr. HUNTER. Mr. Chairman.
Mr. POMBO. Yes, Mr. Hunter.
Mr. HUNTER. Mr. Chairman, I want to thank our host, Ken and Mary, and you for such a wonderful hearing. You came a long way to run this hearing. It is very important to our working people. It is very important to our landowners and everybody that believes in basic fairness.
Thanks a lot for holding this hearing. We appreciate it.
Mr. POMBO. Thank you.
Mr. CALVERT. Mr. Chairman, let me just add onto that and thank you for taking the time. I know that it does take a lot of time. I have done it, as well as you have, to come out and do these hearings, and I certainly appreciate. I am sure both Mary and I understand that, and we really do appreciate it.
I just wanted to say that there is some terminology we heard today, ''practical,'' ''reasonable,'' ''balanced,'' ''fairness,'' those types of words, and I hope, Mike, that you and I and Fish and Wildlife, we can work toward trying to get back to that because I think Fish and Wildlife's reputation from when I was a kid is a lot different than it is today, and I would like to look to the day that we can say that it is back to where it should be.
Page 201 PREV PAGE TOP OF DOC With that, Mr. Chairman, thank you very much.
Ms. BONO. My turn, Mr. Chairman?
Mr. POMBO. Go ahead.
Ms. BONO. I, too, would like to thank you, Chairman Pombo, for holding this hearing, for again spending part of your vacation time here with us.
I think we have learned an awful lot. I think it has been very productive.
I want to also take this time to thank my colleagues, Ken Calvert and Duncan Hunter. I work so often with them on so many issues, as you all know, especially the Salton Sea. I think the three of us have sort of become a littleI do not know what you would want to call ussome sort of strange Three Stooges. I do not know.
Ms. BONO. But it is always a pleasure and it is truly an honor for me to work with all of these gentlemen. I my one year in Congress I have learned so much, but I have to tell you that I have learned that there are a lot of really very decent people in Congress, and I think this whole panel was evidence of that.
I would like to thank the City of Hemet for hosting this event, the Senior Center, the police department, once again, for all of their hard work, but there is somebody I really, really want to thank. She is asleep right now or she is peeking an eye. My daughter Chianna has stayed through this entire hearing, and I just want to thank her for being here.
Ms. BONO. So thank you, Mr. Chairman.
Mr. POMBO. Well, thank you all very much.
I would like to just close the hearing by saying that we have a lot of different ideas, a lot of different directions that people would like to do. I think we all agree that the goal of the Endangered Species Act should be to protect endangered species, and if we can get beyond a lot of the issues that we have dealt with today and can get back to what the original intention of the Act was, we would not have to hold hearings like this, and some day I hope to see that happen.
Page 202 PREV PAGE TOP OF DOC Some day I hope that we can pass a reauthorization bill that gets beyond a lot of the fights and a lot of the problems that we have now, and I hope my kids or my grand kids could look back at it and say we did a better job of protecting endangered species than what I am looking back at now.
But to Fish and Wildlife Service, we all look forward to the changes that will come here. We look forward to working with you, and I hope if nothing else, I hope this hearing pointed out to you that there are some real problems. It is not just a few guys out there who are not straight shooters, who are not playing right. There are some problems, and it is not just created in someone's mind somewhere, and I hope that you can go back with that and look at what has been going on and make some changes so that it does not have to happen again.
But I appreciate you being here. I appreciate you sticking through the entire hearing with us. That does mean a lot to me that you were willing to stick here and listen to all of the testimony.
But thank you all very much. The hearing is adjourned.
[Whereupon, at 2:35 p.m., the hearing was concluded.]
[Additional material submitted for the record follows.]
STATEMENT OF HON. BILL THOMAS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Chairman, thank you for the opportunity to give this statement to the Committee and to discuss the concerns of my Kern and Tulare County constituents from California's 21st District. Your dedication to holding hearings on this matter and keeping the spotlight on the many problems of species protection laws is very much appreciated by me and by rural landusers in California.
We Need Real Conservation
As you know, I have introduced three Endangered Species Act reform bills, H.R 494The ESA Fair Process Reform bill, H.R. 495Fair Land Management Reform bill, and H.R. 496The Liability Reform bill. In my last appearance before this Committee I had only time to briefly touch upon these bills and their goals. I want to give you some specific comments on other reforms that are needed.
Page 203 PREV PAGE TOP OF DOC My constituents have been severely affected by the designation of over 20 Federal threatened and endangered species and almost 100 candidate species. Kern County comprising two-thirds of my district embraces more than 8,000 square miles of desert, mountain and valley terrain (equal to the size of Massachusetts), including two important military facilities, Edwards Air Force Base and the Naval Air Warfare Center at China Lake.
Rural land users can never have faith in the government's action toward endangered species protection unless we are a part of that process of listing species and devising plans for their recovery and management. That is why I wrote the Fair Process Reform bill to correct the current problems of land users being shut out of the process. People need to have equal access to inforrnation relied upon by Federal agencies when making decisions on endangered species. If the government collects insufficient or inadequate information, then the public should be able to point that out and present necessary information. There needs to be a legitimate hearing by government officials, not a meeting in which a government clerk collects local complaints and says ''I'll pass this on'' to the people who actually make the decisions. ''I'll pass this on'' means that complaints from local landowners will be dropped into the black hole of a government file folder.
A legitimate hearing involves an opportunity to call government officials as witnesses, question their actions, put on independent witnesses and experts, and provide more scientific evidence. A rural landowner who may ultimately bear the burden of paying for endangered species protection has the right to look in the eye of the government bureaucrat who is listing a species and ask, ''Why did you ignore this information?'' and ''Our witnesses show this species is not endangered. How do you respond?'' That is why I included in my bill a provision for such a hearing process with full disclosure of information by the agencies. My bill includes provisions for open access to the public for scientific studies and underlying study data. My bill also includes provisions to improve the scientific basis of government decisions such as minimal information requirements for petitioners, peer review of multiple scientific studies used to support listing or government action, and economic impact analysis of its actions required for listings.
Page 204 PREV PAGE TOP OF DOC I have previously spoken in support of Chairman Young's bill, H.R. 1142, that compensates landowners for significant government takings. I wrote my bill, H.R. 496the Fair Land Management Reform bill, with a similar provision. You also know, however, about the general practice of the government in extracting ridiculous mitigation requirements from landowners. No doubt today you will hear many more such examples. The problem is one that is built into the current system. The government is staffed with people who follow their own view of species protection and have taken power far beyond what Congress envisioned. Since Congress does not provide money to protect these species, government officials force landowners to pay. Frankly, with nothing stopping them, Washington has taken on the power to demand land and money from landowners which is why we continue to hear stories of these outrageous mitigation requirements. I include a provision in H.R. 496 that limits the how much mitigation the government can require for both land and water projects. If there must be mitigation, then it should be on an acre for acre basis.
Lastly, we must stop penalizing landowners for ''harming species'' when no harm occurs. In my last testimony to this Committee, I recounted how the government made my constituents sandbag a tree that would be flooded; the tree was assumed to be the habitat for a species, but in fact there was no species present in that tree. The government nonetheless would not relent and demanded that the tree be sandbagged regardless of the work and cost. My bill, H.R. 495, the Liability Reform bill, would stop such nonsensical actions. In no way do we affect the current criminal and civil penalties in the Endangered Species Act against intentional actions. If a person intends to harm a species by cutting down trees with the nests of spotted owls or plowing fields with endangered kit foxes, the current law would operate just as it does today. But criminal and civil penalties should be limited to actual and intentional takings of an endangered species, not accidental or hypothetical ones. My bill also includes ''Safe harbor'' and ''No surprises'' provisions to end the string of broken promises and added obligations put on landowners by the government such as those mentioned above. It is sad that we need a law to
Page 205 PREV PAGE TOP OF DOCensure government honesty, but apparently that is needed.
Until such steps are taken, the Endangered Species Act will continue to fail to achieve its intended goal of Federal wildlife protection, which reflects the will of the American people. I ask this Committee to consider the bills I introduced as means to fulfill America's promise to protect endangered species and endangered family farm and landowners as well.