SPEAKERS CONTENTS INSERTS
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60–463 l
1999
ENFORCEMENT OF THE ENDANGERED SPECIES ACT IN CALIFORNIA
FIELD HEARING
before the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
JULY 9, 1999, HEMET, CALIFORNIA
Serial No. 106–49
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/house
or
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Committee address: http://www.house.gov/resources
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana
JAMES V. HANSEN, Utah
JIM SAXTON, New Jersey
ELTON GALLEGLY, California
JOHN J. DUNCAN, Jr., Tennessee
JOEL HEFLEY, Colorado
JOHN T. DOOLITTLE, California
WAYNE T. GILCHREST, Maryland
KEN CALVERT, California
RICHARD W. POMBO, California
BARBARA CUBIN, Wyoming
HELEN CHENOWETH, Idaho
GEORGE P. RADANOVICH, California
WALTER B. JONES, Jr., North Carolina
WILLIAM M. (MAC) THORNBERRY, Texas
CHRIS CANNON, Utah
KEVIN BRADY, Texas
JOHN PETERSON, Pennsylvania
RICK HILL, Montana
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BOB SCHAFFER, Colorado
JIM GIBBONS, Nevada
MARK E. SOUDER, Indiana
GREG WALDEN, Oregon
DON SHERWOOD, Pennsylvania
ROBIN HAYES, North Carolina
MIKE SIMPSON, Idaho
THOMAS G. TANCREDO, Colorado
GEORGE MILLER, California
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
PETER A. DeFAZIO, Oregon
ENI F.H. FALEOMAVAEGA, American Samoa
NEIL ABERCROMBIE, Hawaii
SOLOMON P. ORTIZ, Texas
OWEN B. PICKETT, Virginia
FRANK PALLONE, Jr., New Jersey
CALVIN M. DOOLEY, California
CARLOS A. ROMERO-BARCELÓ, Puerto Rico
ROBERT A. UNDERWOOD, Guam
PATRICK J. KENNEDY, Rhode Island
ADAM SMITH, Washington
CHRIS JOHN, Louisiana
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DONNA 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
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Thomas, 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
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Moser, 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''
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California 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,
Hemet, California.
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.
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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.
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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.
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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.
[Laughter.]
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.
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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.
[Laughter.]
Mr. CALVERT. I do not make this stuff up, folks.
[Laughter.]
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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.
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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.
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And I thank you.
Mr. POMBO. Thank you.
[Applause.]
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.
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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 factors—there are other agencies that are involved—that 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.
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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.
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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.
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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.
[Applause.]
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.
[Witnesses sworn.]
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.
[Laughter.]
Mr. POMBO. We have a cop sitting in the back of the room. He's going to watch me drive out of here.
[Laughter.]
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
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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.
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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.
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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
INTRODUCTION
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.
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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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BACKGROUND
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.
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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.
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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.
Searl Tank
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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Maintenance
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 supply—thus 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.
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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.
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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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Conclusion
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.
Mr. Bragg.
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.
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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.
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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.
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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.
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[Applause.]
Mr. POMBO. Thank you.
Ms. Rosen.
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.
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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.
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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.
Thank you.
[The prepared statement of Ms. Rosen follows:]
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Mr. POMBO. Thank you.
[Applause.]
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.''
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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?
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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?
Thank you.
[The prepared statement of Rev. Moore-Kochlacs follows:]
STATEMENT OF REV. PETER MOORE-KOCHLACS, DIRECTOR–ENVIRONMENTAL 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 you—but 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).
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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 2000—the 200th anniversary of Jesus' birth—as 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.
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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 Jubilee—freedom, 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);
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WHEREAS 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 amended–Plenary 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.
[Applause.]
Mr. POMBO. Mr. Woolfolk.
STATEMENT OF VIRGAL WOOLFOLK, JMAW ENVIRONMENTAL SERVICE GROUP
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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.
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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.''
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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.
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Thank you very much.
[The prepared statement of Mr. Woolfolk follows:]
[Applause.]
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?
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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.
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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.
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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.
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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 50—I 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?
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Rev. MOORE-KOCHLACS. Yes. Yes, you did.
Mrs. CHENOWETH. I see. Hum.
[Laughter.]
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.
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[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.
[Laughter.]
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.
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''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.''
[Laughter.]
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.''
[Laughter.]
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.''
[Laughter.]
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.
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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.
[Applause.]
Rev. MOORE-KOCHACS. Because the Noah story is the first——
Mr. MILLER. This individual to your right—Mr. 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.
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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——
[Applause.]
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.
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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.
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.
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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.
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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 relationship—go 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.
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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 Reverend—I 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.
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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 holy—everybody has left, they cannot build, and they have got a $2 million bill.
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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.
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