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40–915cc l




before the





H.R. 478


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Serial No. 105–12

Printed for the use of the Committee on Resources


DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana
JIM SAXTON, New Jersey
JOHN J. DUNCAN, Jr., Tennessee
KEN CALVERT, California
RICHARD W. POMBO, California
LINDA SMITH, Washington
WALTER B. JONES, Jr., North Carolina
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JOHN PETERSON, Pennsylvania
RICK HILL, Montana

EDWARD J. MARKEY, Massachusetts
NICK J. RAHALL II, West Virginia
BRUCE F. VENTO, Minnesota
DALE E. KILDEE, Michigan
FRANK PALLONE, Jr., New Jersey
CALVIN M. DOOLEY, California
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SAM FARR, California
ADAM SMITH, Washington
WILLIAM D. DELAHUNT, Massachusetts
CHRIS JOHN, Louisiana
RON KIND, Wisconsin

LLOYD A. JONES, Chief of Staff
CHRISTINE KENNEDY, Chief Clerk/Administrator
JOHN LAWRENCE, Democratic Staff Director


    Hearing held April 10, 1997

    Text of H.R. 478

Statement of Members:
Calvert, Hon. Ken, a U.S. Representative from California
Condit, Hon. Gary A., a U.S. Representative from California
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Dooley, Hon. Calvin M., a U.S. Representative from California
Herger, Hon. Wally, a U.S. Representative from California
Pombo, Hon. Richard, a U.S. Representative from California
Vento, Hon. Bruce F., a U.S. Representative from California
Young, Hon. Don, a U.S. Representative from Alaska; and Chairman, Committee on Resources

Statement of Witnesses:
Clark, Robert D., Manager, California Central Valley Flood Control Association
Prepared statement
Coe, Thomas S., Regulatory Branch, Department of the Army, Washington, DC
Cook, Walter, Attorney at Law (Ret.), Chico, CA
Prepared statement
Cunniff, Shannon E., Deputy Executive Director, Floodplain Management Review Committee
Prepared statement
Davis, Michael L., Deputy Assistant Secretary of the Army for Civil Works
Prepared statement
Frost, Rob, 2nd Vice President, California Cattlemen's Association
Prepared statement
Garamendi, John R., Deputy Secretary, Department of the Interior
Prepared statement
Grugett, George C., Executive Vice President, Lower Mississippi Valley Flood Control Association
Prepared statement
Guenther, Herb, Executive Assistant, Wellton-Mohawk Irrigation and Drainage District
Prepared statement
Hastey, Brent, Chairman, Yuba County Water Agency
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Prepared statement
Lee, Christopher, Trustee, Reclamation District 556, Walnut Grove, CA
Prepared statement
McFarland, John W., County Commissioner (Ret.), Columbia County, WA (prepared statement)
Mount, Jeffrey, Professor and Chair, Department of Geology, University of California, Davis
Prepared statement
Nolan, Michael F., Chief, Civil Branch, Programs and Project Management, Sacramento District
Nomellini, Dante John, Manager and Co-Counsel, Central Delta Water Agency
Prepared statement
Peairs, Frank, Assistant Chief Engineer, Riverside County Flood Control and Water Conservation District, CA
Prepared statement
Ramos, Susan L., Chief of the Environmental Branch, Corps of Engineers, Sacramento District
Rausch, Michael C., Treasurer, Upper Mississippi, Illinois & Missouri Rivers Association
Prepared statement
Yenni, Norman, Sears Point Farming Co.
Prepared statement
Zappe, David P., General Manager-Chief Engineer, Riverside County Flood and Water Conservation District (preparerd statement)

Additional material supplied:
Baker, Tom, prepared testimony of April 16, 1997, on HB 476
Excerpt, ''The Endangered Species Act,'' from ''How to Save a River, a Handbook for Citizen Action''
Mississippi and Illinois Rivers Facts
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Resolution No. F97-5 of Riverside County Flood Control and Water Conservation District

Communications submitted:
Cartoscelli, Karen (Yuma): Letter of April 4, 1997, to Hon. Richard Pombo
Collins, Roger L. (DOI): Letter of October 24, 1996, to Chet Worm
Cook, Walter: Memorandum to Hon. Don Young with submitted material.
Davis, Michael L. (Army): Letter of May 19, 1997, with attachments to Hon. Don Young
Gauvin, Charles F. (Trout Unlimited): Letter of April 15, 1997, with attachments to Hon. George Miller
Gibbs, Joseph B.: Letter of April 4, 1997, to Dave McMurray
Hansen, Rick L. (DOI): Letter of March 29, 1994, to Col. Richard H. Goring
Hughes, Joseph S. (Army): Letter of August 24, 1994, to Paul S. Davis
Madlin, Joel A. (DOI): Letter of July 20, 1994, to Art Champ



House of Representatives,
Committee on Resources,
Washington, DC and Sacramento, CA.

    The Committee met, pursuant to call, at 12:10 p.m., in room 1334, Longworth House Office Building, Hon. Don Young (Chairman of the Committee) presiding.

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    The CHAIRMAN. Good afternoon—good morning. It depends on which side of this dais that you are sitting on. Those in Sacramento, it is good morning, and, of course, here it is good afternoon.

    The Committee on Resources will come to order. Today, the Committee will try something new. As we sit here in the capital of our country in Washington, DC, we will hear testimony from citizens sitting in the State capital of Sacramento, California, through the use of teleconference technology.

    While this technology is not new, it is new to the House of Representatives. We have only had the capability to use teleconferences for the past few years. This will be the first time the Committee on Resources held a hearing through teleconference.

    Today, we will hear from several citizens, who were victims of the severe flooding in California this past December and January, regarding how the Endangered Species Act has impacted their ability to protect themselves from floodwaters.

    Ordinarily, for the Full Committee to have the opportunity to hear their firsthand stories, it would require many of them to spend a great deal of time and money to travel a long distance to appear before us on this Committee. The Committee could go to California but, again, at great cost to the Committee and only during the district work period.
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    I am particularly proud today to be able to take the testimony of nine individuals with firsthand knowledge of the issue before the Committee through the use of this wonderful medium. This hearing is extremely important, not only to California, but to every area in the country that may someday face flooding.

    Whether it is down in Louisiana or in the northern end of Minnesota, as is happening today, the ability to build, repair, and reconstruct and maintain levees and other flood protection facilities is vital to the safety of millions of Americans.

    At this point, I would like to yield the remainder of my time to a leader in this area, Congressman Richard Pombo, to make an opening, brief statement and introduce our witnesses from California. Mr. Pombo.


    Mr. POMBO. Thank you, Mr. Chairman. I would like to take this opportunity to welcome the witness panels that are testifying today from Sacramento. It is new technology. I expect everything will go well in doing this. It was our idea over the past couple of years to try to bring more people into the process and to try to allow more real people who don't normally have the opportunity to testify before a congressional Committee to have that opportunity. This new technology allows us that opportunity.

    I would like to welcome you to this hearing today. And on our first panel, Mr. Chairman, we have Mr. Brent Hastey, who is the Third District Supervisor from Yuba County; Mr. Dante Nomellini, who is the Central Delta Water Agency; Mr. Norm Yenni from Sonoma, California; Dr. Jeffrey Mount, who is a Professor of Geology from Davis, California; and Mr. Christopher Lee, who is a Trustee of the Reclamation District 556 from Walnut Grove, California. Welcome today, and thank you very much, Mr. Chairman.
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    The CHAIRMAN. OK. At this time, I will recognize Mr. Calvert—if he would like to comment from California also.


    Mr. CALVERT. Thank you, Mr. Chairman. I appreciate you having this hearing today. In the first year that I was elected to Congress, we had a flood in Riverside County along the Santa Margarita River. It caused many millions of dollars in damage, and, in fact, several Marine Corps helicopters were destroyed at Camp Pendleton because of dike failure.

    We have a gentleman here who is going to testify in one of the panels from Riverside County, Mr. Frank Peairs, and I look forward to his testimony because even though the news, of course, is about northern California, we have problems in southern California; in fact, all over the United States because of lack of maintenance of flood control channels cause potential great harm and have caused harm to the public safety to Americans. So I thank you very much for having this hearing.

    The CHAIRMAN. Thank you, Mr. Calvert. Mr. Dooley—Cal Dooley.


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    Mr. DOOLEY. Thank you, Mr. Chairman. I appreciate you holding this hearing. I think the overriding objective here is how do we balance the application of the Endangered Species Act with a need to ensure we are not infringing upon those issues related to health and safety.

    I would also at this time like to ask for unanimous consent that any Democratic members can have their statements inserted into the record, as well as a statement by my colleague, Gary Condit from California, that he would also like to have entered into the record.

    The CHAIRMAN. Without objection.

    [Statement of Mr. Condit follows:]


    Good Morning.

    I want to thank the Committee for allowing me to present testimony today. I look forward to working with you during this process as we work on finding solutions to real life problems that we all face during times of crisis.

    As the Committee is aware, the state of California, and in particular the 18th Congressional District, was severely impacted by this year's earlier flood disaster. As you know, a tremendous amount of federal resources have been and continue to be expended in response to this flood event. Although it is true that this was a flood event of monumental proportions, and that only so much can be addressed by a human response, I believe that much can be done to better address the long term flood protection needs of California, and in particular of the Central Valley. It is my hope that some of the solutions which we propose will better enable the federal government to provide a high level of flood protection so as to better enable us to avoid the fiscal and human costs associated with future flooding of this magnitude. I know that it is a shared goal of all of us that the federal government provide a high level of assistance, instead of obstacles in the regulatory process.
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    To this end, a key issue involving levee and flood control system protection that must be addressed is the need to waive portions of the Endangered Species Act so that repairs and improvements to the system can take place. This waiver must go beyond the period of the Spring snow melt, as proposed by the Department of the Interior, as many of the repairs will not be completed by that time. Additionally, any waiver of the Act must include maintenance of the levee systems. I am working closely with Representatives Fazio, Herger and Pombo on various proposals including H.R. 478 and H.R. 1155, aimed at accomplishing these goals, and am hopeful that the Committee will address these concerns in a Bill.

    To close, let me give you an example I have used before of why legislation is needed. The 1995 flood in the City of Newman was caused by the nearby rain-swollen, debris-filled Orestimba Creek. Similar circumstances along the Pajaro and Salinas Rivers caused extensive damage to Monterey and Santa Cruz Counties as well.

    For years, officials in these communities have been consulting with officials from the Army Corps of Engineers and the U.S. Fish and Wildlife Service to receive authorization to remove the brush and debris from these waterways. It took over a year to receive permits for two portions of the Orestimba Creek, because of the cumbersome consultation process related for protection of the Elderberry bush, habitat for the Valley Elderberry Longhorn Beetle. It is expected to take as long to clear the debris-filled section of Orestimba Creek that is responsible for the Newman flood, regardless of the need to avert future disasters of this kind.

    Pajaro and Salinas River Flood Control District officials never reached agreement with the Fish and Wildlife Service regarding protection of an ivy plant, and, as a result suffered a fate much worse than the City of Newman.
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    While some people may not agree that the problems associated with these examples are a result of the Endangered Species Act, I can say first hand that they are a major contributor to the problems these communities and businesses in my district face every day with the way ESA law is currently administered.

    Thank you again for allowing me this time.

    The CHAIRMAN. And, Mr. Vento, do you have any statements at this time?


    Mr. VENTO. Well, Mr. Chairman, thank you for the opportunity and for holding the hearing. I understand that there is some controversy that surrounds the application of the Endangered Species Act as it deals with various projects. But my observations with regards to whether it is bridges, or flood projects—I guess this is principally a flood project—is that it is a normal course in terms of application time and advanced planning for these that becomes very important.

    We know that water projects per se are subject to a study—feasibility studies, obviously, with regard to improvement and repair that may—but there are various types of waivers that are available and should be utilized. I mean, obviously, life is complicated in 1997. I don't know that we need to apologize for that as we gain more responsibility and expect more out of our resources.
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    But I am interested in looking at this to see if there are solutions to difficulties that are arising. Quite candidly, I think all of us are served better by that, rather than trying to find, as it were I think, and some of us suspect—I know there is some concern about the fact that we not scapegoat a specific law.

    One of the problems I think that has repeatedly occurred with the Endangered Species Act, Mr. Chairman—it is a powerful law and an important law—but that, frankly, other environmental laws and procedures are not used, and so this becomes sort of the last resort sort of aspect. And I think that it really indicates some serious flaws in terms of updating processes for projects and for our consideration; for instance, using NEPA or using EIS's more effectively, or the planning processes and procedures that we have in place.

    I think that is what is really indicated by this, and I hope that this hearing will be helpful in terms of trying to work toward an overall solution with regards to these issues rather than keeping to heap criticism on what I think is an important law.

    The CHAIRMAN. Well, I would somewhat agree with the gentleman, but I can also suggest that anytime a bureaucracy has authority to do what the Congress never intended it to do and misuses that to allow people to be actually flooded, I think that is inappropriate. And I can suggest for those who are in Sacramento, I am well aware of your area. My brother lives in Woodland. My other brother lives in Meridian. We were faced with floods in '38, '39, and '40. I went through those. My niece got flooded in Meridian this year.

    We very nearly got flooded, and a lot of it is because of the lack of maintenance of those levees, especially the one right above our place. It very near the bubble came out, and it was because they had not been able to maintain that levee. And I am not particularly happy right now with the Act as it is in place. We can have our differences of opinion—the gentleman—we are wasting time now. I just want to suggest——
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    Mr. VENTO. Well, I don't want to——

    The CHAIRMAN. Your time is up.

    Mr. VENTO. Well, Mr. Chairman, I would feel remiss if I didn't mention coming from Minnesota that the——

    The CHAIRMAN. You have a few floods too but not like——

    Mr. VENTO. [continuing]—Red River of the north is now——

    The CHAIRMAN. The gentleman from—excuse me—the gentleman from California.

    Mr. VENTO. [continuing]—many feet over, and we are concerned about floods too.

    The CHAIRMAN. I yield to the gentleman from California.

    Mr. POMBO. Mr. Chairman, at this time, I would like to ask unanimous consent that our colleague, Mr. Wally Herger, whose area was also impacted by the floods, be allowed to sit on the dais.
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    The CHAIRMAN. Without objection. Where is Mr. Herger? You shouldn't be standing back there, Mr. Herger. Are you trying to make a grand entrance? Just get up here. We also have—Mr. Radanovich has joined us too, and he is on the Committee. And I welcome both of you. Do either one of you have a statement before we get started? Gentlemen, either one of you want to comment before we get started?

    [Statement of Mr. Herger follows:]


    Thank you, Mr. Chairman, and members of the Resources Committee, for this opportunity to share my testimony regarding HR 478, The Flood Prevention And Family Protection Act Of 1997.

    HR 478 restores proper balance to the Endangered Species Act by placing human life as the top priority, ahead of bureaucratic red tape. The ESA was never intended to compromise human life, yet that is exactly what happens each time a levee or other needed flood control project is postponed or delayed because the ESA requires extensive delays for studies on endangered species and subsequent species mitigation projects. The ESA has established mitigation as a priority over protecting human life. We need HR 478 to return the proper balance.

    This issue can be summed up in the very real story surrounding the January 2, 1997 levee failure on the Feather River, in the community of Arboga, near Olivehurst, California.
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    Since 1986, California Reclamation District 784 otherwise known as RD 784, has attempted to complete reconstruction on the Feather River levee system. In 1990, a US Army Corps of Engineers report determined repairs should occur on the Arboga levee as expeditiously as possible, stating, ''... Loss of human life is expected under existing conditions (without remedial repairs) for major flood events.''

    Despite this acknowledgment, more than six years passed before permission was finally granted to begin repairs. Instead of repairing the levee, in the years 1990 to 1996, RD 784 spent more than $10 million on ESA mitigation required by the Corps before the project was finally put out for bid in 1996. When the levee broke, three people were killed, 32,000 were driven from their homes, and 25 square miles of property and habitat were flooded.

    RD 784 officials have concluded that, not only did bureaucratically imposed red tape contribute to the levee's failure, but mitigation required prior to construction also undermined the levee's integrity. Even before the levee broke, RD 784 officials argued effective maintenance of levees—namely: clearing brush, repairing cracks, and controlling rodent populations that burrow into levees—conflicted with efforts to establish wildlife habitat. The district also disagreed with a required wetland site they were forced to build within 600 feet of the levee. Because of the soil conditions unique to the levee's location, water from the 17-foot-deep pond was free to seep from the pond to the levee, increasing chances of catastrophic levee failure.

    If HR 478 had been in place, this tragedy could possibly have been avoided. No one was surprised by the failure of the Feather River levee. Federal and local officials knew the levee needed structural repairs, but ESA mitigation requirements mandated that, instead of proceeding directly with construction, officials were required to waste time and money on unnecessary studies and delaying mitigation projects. From 1991 to 1994, officials were forced to perform studies to determine what mitigation would be needed for 43 elderberry bushes found on the levee even when the bushes held no evidence of housing even one endangered elderberry beetle. From 1994 to 1995 officials were then forced to plant over 7,500 stems of elderberry bushes on a $10 million, 80-acre mitigation site on the Feather River side of the levee. This mitigation site was eventually washed away in the January floods.
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    Now, in spite of all they have gone through, residents of RD 784 may also be required to add an additional eight acre mitigation site to their levee project that will cost an additional $200,000.

    What really caused the levee to break? It is true that construction on the levee was not scheduled to begin until spring 1997 and spring 1998. According to the Corps, the project was divided into increments with different phases of the project scheduled to be completed at different times along the way. The timeline for these phases, however, was dictated by regulations mandated by the ESA. It was the ESA that mandated all mitigation be completed first, before the contract for engineering work was put out for bid six years after the Corps had determined ''loss of human life [was] expected under existing conditions.''

    By favoring mitigation before construction opponents establish a policy that levees and similar flood control projects are habitat first, when in fact the primary purpose of levees, according to federal regulations, is to provide flood control in order to protect human life.

    The fact is, animals also benefit from a properly managed levee system. When levees fail and flood waters rage, animal habitat is also destroyed.

    Mr. Chairman, the facts surrounding this legislation are very clear. Species mitigation delayed construction on the Feather River levee by preempting and excluding all other activities. HR 478 will remove this red tape as an obstacle to saving human lives. This legislation allows us to maintain levees without having to wait six years to perform necessary repairs.
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    The ESA was not intended to endanger human life. Protecting human life and protecting endangered species are not mutually exclusive.

    HR 478 protects human life, it protects animal habitat and it returns common sense to the Endangered Species Act.

    Mr. Chairman, the facts are clear. Most of the suffered losses to both habitat and human life could have been prevented. Had proper flood control maintenance activities been permitted and not deferred until losses were already occurring not only would my constituents have saved their property, but they would be alive today.

    The CHAIRMAN. In that case, we will bring up our first witnesses. I believe it will be Mr. Brent Hastey, Third District Supervisor, Yuba County, Marysville, California. Mr. Brent, you will be the first witness to appear on this teleconference. Welcome.


    Mr. HASTEY. Great. Thank you, Mr. Chairman. Thank you for allowing me this time to come before you today. It is an honor to be the first witness in a televised hearing.

    Yuba County is in northern California, and it is bounded by the Feather and Bear Rivers and bisected by the Yuba River. Historically, the area has been subject to massive floodflows about every 10 years. Since the 1860's, there has been a continuous effort to provide and improve flood protection for the area. The early efforts were to build levees and provide flood channel capacity to safely pass floodflows. Later efforts included flood storage reservoirs, and the current efforts are primarily to maintain and restore existing levees and floodways.
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    Although the levee and floodway systems are manmade tools to protect the resources of the area, overzealous governmental regulators have lost sight of their intended purpose and have dictated that their primary purpose be wildlife habitat. This often has delayed, increased the cost, restricted, and, in some cases, stopped needed maintenance activities.

    The Yuba River since the early 1860's has been impacted by upstream hydraulic mining debris. Although the California Debris Commission was created by Congress to deal with the problem and major efforts were made, the continued downstream movement of this mining debris reduces the lower river channel capacity.

    Until about 10 years ago, local aggregate companies each summer harvested sand and gravel from the accumulated river bars. Regulatory agencies either prohibited or made the process so cumbersome that this practice had stopped, and the channel capacity continuously degrades. It now takes three Federal and one State permit to harvest accumulated material from within the floodway.

    What was previously done at no cost to the Federal Government will probably now require the expenditure of $3 to $5 million for the government to carry out its obligations under the Federal California Debris Commission Act just to correct the loss of channel capacity from the January '97 flood.

    The routine levee maintenance in California is generally carried out by locally funded Levee or Reclamation Districts with limited staff and resources. A number of the districts only have part-time staff and do not even have an office. Obtaining permits and complying with environmental regulations becomes a major and sometimes overwhelming task for these local districts, taking scarce resources that would otherwise have gone to provide essential maintenance to levees and floodways.
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    Since 1988, there has been a major effort to restore the existing levee system to the level of protection the levees were constructed to provide. This work is not new construction or betterment, but simply major maintenance to existing levees. The environmental assessment for this work identified 43 clumps of elderberry bushes, made up of 1,538 stems that would be disturbed by the levee restoration work. The elderberry bush is habitat for the endangered Valley Longhorn Elderberry Beetle.

    The required mitigation before any of the identified maintenance work could be undertaken was to create a 76 acre, $1.9 million mitigation-site. The January '97 floods caused damage to the mitigation-site, requiring $0.4 million in repair. This brings to date $2.3 million for mitigation of 43 clumps of elderberries, or $55,800 per clump, or $1,495 per elderberry stem.

    The assessment also included seven acres of emergent marsh. This was due to the fact that when high water is against the levees, some of it seeps through the levee. In Fish and Wildlife's estimation, this seepage creates wetlands that need to be mitigated. Taking this logic to its fullest, one must assume that the 27 square miles of Yuba County that went underwater will now need to be mitigated. Water seeping through the levee at high water is a failure of the flood control system and should not need to be mitigated.

    As a result of the '97 flood, the U.S. Army Corps of Engineers has identified several additional levee sections needing major maintenance and have indicated that this work on existing levees will require the development of an additional 69 acres of mitigation.

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    If the previous cost of $25,000 per acre holds, this will be an additional $1.725 million or a mitigation cost in excess of $4 million to maintain about 29 miles of existing levees. The mitigation cost to maintain 29 miles of existing manmade flood control levees will be approximately $138,000 per mile.

    We frequently hear from the resource and regulatory agencies that the ESA does not need reformed and that its problems can be corrected administratively. We have not found this to be true. As an example, the January 1997 California floods resulted in three levee breaks in Yuba County and one in adjacent Sutter County.

    Secretary of Interior Babbitt suspended the requirements of ESA so the levee breaks could be expediently restored to prevent further flooding. The resource agencies agreed that the water flowing through the levees could be stopped with minimal consultation. However, before full repair of the levee break was made, the full consultation process would have to take place.

    The resource agencies said that mitigation for the substantial habitat loss was not necessary for the levee break, but the impact from repairing the levee break had to be fully mitigated. In spite of these assurances from the Secretary of Interior, as part of repairing the three levee breaks in Yuba County and one break in Sutter County, it is being required that an additional eight acres of mitigation-site, at an estimated cost of $200,000, be provided for closing the levee breaks.

    Although the Administration continues to give assurances that the ESA works and any problems can be corrected administratively, the end results show otherwise. The policies of the multitude of governmental agencies implementing the ESA are diverse and independent of each other. Without amendments to the ESA, we see little hope for it ever being reasonably implemented.
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    As an example, it does not seem justified to require mitigation at a 5–to–1 ratio for maintaining an existing manmade levee that protects not only human life and private and public property, but extensive amounts of wildlife habitat; nor does it seem justified to be required to mitigate for fully closing the hole in a broken levee that cost the lives of three people, the displacement of 40,000 people, and the loss of many hundreds of homes and several hundred million dollars of damage to public and private facilities. We urge your passage of this bill. Thank you for your time to speak with you today. I will be available for questions at your convenience.

    [Statement of Mr. Hastey may be found at end of hearing.]

    The CHAIRMAN. I thank you, Mr. Hastey. We will continue with the witnesses until we are finished, and at that time, the panel will ask questions. At this time, I would also like to have Mr. Pombo take the Chair, and I will probably be back a little later. I have another appointment. Mr. Pombo, will you please take the Chair?

    Mr. POMBO. [presiding] Thank you. The next witness would be Mr. Dante Nomellini.


    Mr. NOMELLINI. Members of the Committee, my name is Dante John Nomellini. I am an attorney from Stockton, California. I serve as co-counsel for the Central Delta Water Agency, which is an umbrella group, speaking on behalf of the local reclamation districts, a number of which I serve as secretary and counsel.
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    The issue that I see is whether or not we should be imposing environmental restraints, including Endangered Species Act restrictions, on maintenance of existing levee systems, systems that have been in place for many years. These levees were built by our forefathers in accordance with plans. Many of them were built with the help of the Corps of Engineers. They are project levees.

    The local maintaining agencies have been given the duty to maintain these facilities. And what we are embarking on right now is a contest between the duty of the local agencies to carry out their functions and the duties of environmental organizations to protect endangered species and other aspects of the environment.

    Vegetation, in particular, which, in some cases, involves endangered species—some cases it does not—but vegetation on levees create an additional risk of flooding. It impairs levee inspection. It impairs the ability to react in an emergency.

    In the recent flood when we had to put plastic down on the levees and sandbags, we had to put crews in by hand to clear the vegetation out of the way. That takes crucial minutes and hours of time that could be the difference between the levee failure and saving it. Additionally, the vegetation under the water, of course, when the water is up to a high level cannot be removed at the time of the emergency.

    What I urge you people to do is remove the environmental restrictions on maintenance of existing levee systems. And I don't think there should be a debate as to what constitutes maintenance. We use the term rehabilitation. Levees sag. They slump and sometimes your repairwork has to actually take the form of widening the levee or raising it somewhat, not necessarily putting it back exactly the same.
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    But there is no sense to putting our environmental resources in competition with our limited flood control resources. The local districts, as the previous speaker said, do not have the ability to generate the funds to go through these environmental processes.

    And I would submit that we shouldn't require the maintenance of existing facilities to be subjected to these obstacles. Let us take our limited flood dollars and see if we can't do the most work we can for the dollar, the biggest bang for the buck. Let us take our environmental regulatory dollars and point them in a different direction.

    We would be better off spending money to put habitat off of the levee in reserves or by different policies that encourage landowners to foster the habitat and not put it in competition with our levee function.

    Let us take an elderberry bush on the levee. That bush is there. It propagates itself. There is going to be another bush right next to it. We can't work around it. In order to remove it, we have to consult—plant another bush someplace else. Eventually, we are going to have to destroy that elderberry bush. Whether it is in an emergency or part of routine maintenance, we will destroy it.

    So our regulatory environmental investment in that bush is going to be gone, and we will have spent thousands of dollars consulting, debating, mitigating back and forth, and, essentially, we are wasting limited dollars at the local, State, and Federal level. Thank you.

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    [Statement of Mr. Nomellini may be found at end of hearing.]

    Mr. POMBO. Thank you. At this point, I would also call on Mr. Norman Yenni.


    Mr. YENNI. Good morning, California; good afternoon, Washington. My name is Norm Yenni. I am a fourth generation farmer in Sonoma County, California. My brother and I farm dryland hay and grain on 2,300 acres of diked baylands along the north shore of San Pablo Bay. The land was leveed off in the late 1870's and has been in crops or pasture ever since.

    There are another 12 to 14,000 acres in this area similar to ours used in agriculture. A wide variety of wildlife on these lands have peacefully co-existed with the farming practices for generations.

    Since this is tideland, ongoing maintenance of our levees is essential to protect the land from high tides and stormwater runoff. The work is slow and costly, but it is also necessary.

    Poor maintenance of levees can result in seepage, overtopping, and even levee breaches. This translates into lost crops, delayed planting, damaged equipment, reduced habitat for wildlife, and could even take human life. Saltwater intrusion can cause crop damage years after the actual flooding event.
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    Prior to 1980, no one was very concerned about farmers maintaining their property. In 1984, our Soil Conservation Service got a levee maintenance permit for the landowners of the area from the Corps of Engineers. Then in May of 1990, the Soil Conservation Service applied for renewal of that permit. The Corps granted a one-year extension, but the permit itself was returned for more detailed information. And the same thing happened in '91 and '92.

    After three years of extensions and reapplications, the Corps denied further extensions, and we felt that the permit may never be issued. In October of 1993, Congresswoman Lynn Woolsey assigned one of her aides to expedite the permit process.

    From this point on, the key sticking point was the Endangered Species Act. Specifically, the salt marsh harvest mouse, which may exist in our area, and the clapper rail are both considered as endangered. The U.S. Fish and Wildlife Service declared that we must mitigate for 71 acres of lost species habitat; that being the borrow areas, where mud is excavated, adjacent to the levees.

    As landowners, we contend that the borrow areas are the same as they were 120 years ago. Siltation heals and restores the borrow area long before the need to excavate more materials, and the levees have not been moved. Thus, any habitat taken was done years ago, and the impaired habitat has been a static figure. What we are talking about could be termed retroactive mitigation.

    Collectively, the farmers of this area provide hundreds of acres of nonfarmed wetlands in the form of ditchbanks and lowlands. Numerous species use our cropland for food and shelter. Our ongoing practice of digging borrow ditches creates tidal flow essential to the health of a salt marsh. Often, borrow ditches are the only channel of tidal flow. They also reduce mosquito populations by draining ponded areas. Our levees and farmlands serve as a highwater refuge to those species living in the berm areas. But none of this negated the demand for mitigation.
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    The mitigation, which is still in progress today, is to the tune of half a million dollars. All this so we can spend more of our own money to protect our property. The landowners rejected the proposal.

    Fortunately, our congressional aide and the U.S. EPA were working behind the scenes looking for a solution. They convinced the agencies and several other groups to pool their resources already planned for wetland enhancement and credit this restoration to our permit mitigation. After five years, that was the plan that we finally settled on.

    But as for myself and my neighbors, the settlement came too late. For two years, we couldn't do any levee maintenance. We experienced serious flooding in 1995, most of which could have been avoided. Water coming over the top of our levees flooded two-thirds of our ranch, destroying what crop was planted, and delaying further planting until late in the season.

    If we had been allowed to do the type of maintenance which we practiced for the last 100 plus years, much of this flooding never needed happened. If we had legislation such as H.R. 478, this flooding could have been avoided. Levee maintenance must be done on a timely basis. We can't engage in endless negotiation and mitigation to protect a phantom species.

    Several government people really went out of their way to make this permit happen, putting in hours of overtime and suffering verbal abuse. Without their help, I don't know that we would have a permit even today. But what we ended up with can set a dangerous precedent. The agencies will claim that mitigation was done. The landowners claim that mitigation was never justified, and we didn't provide any.
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    This is not how the regulatory process is supposed to work. We shouldn't have to mitigate for a phantom mouse, we shouldn't need congressional help to get a maintenance permit, and the process sure shouldn't take five years. There was little agency consideration given to the beneficial aspects of our practices, the wildlife we harbor in our everyday activities, or the consequences of a denied permit.

    Regarding the Endangered Species Act itself, I think most farmers support the original intentions of the Act. As farmers, we need an environment suitable to grow our crops and safe for ourselves to work in. The public has the right to expect meaningful results from the ESA. For all the efforts and all the money spent, and all the conflict generated, I believe the results of the ESA have been disappointing at best.

    A lot of what we as farmers do relies on common sense. Federal regulations should be based on common sense as well. I think the public would agree that the American farmer is the best person to protect endangered species, and I know they would agree that we must maintain our levees without delay or added cost. Passage of H.R. 478 will help put some common sense and credibility back into the Endangered Species Act. Thank you for your consideration of my comments.

    [Statement of Mr. Yenni may be found at end of hearing.]

    Mr. POMBO. Thank you. Dr. Jeffrey Mount.

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    Mr. MOUNT. Thank you, Mr. Pombo, for the opportunity to be a part of this new technology and the application of the new technology. I am from the University of California at Davis. I am a geologist, which is going to give a slightly different perspective than most of the speakers that you will hear today.

    And I also want to address the issue of what difference this bill might make from a systemic view of flooding. And what I will say at the outset is I doubt that this will make a significant difference in flooding in the Central Valley. And, again, I take the systemic view—the regional view. Let me give you some examples.

    I think there are—I have given you in my attached testimony literally an academic laundry list of my views on this. And I can boil it down to a few comments. I think one of the things we have to keep sight of is the lessons learned from this flood and how it might apply to this bill. Let me start with the first lesson.

    Lesson number 1, it is an immutable fact that we cannot prevent flooding in the floodplain of the Central Valley. It is a floodplain by virtue of the fact that it floods. And as was shown this winter and will be shown in winters in the future, we cannot, despite our herculean efforts, prevent flooding.

    Unfortunately, seven out of ten Californians believe that we can, and it is built like this, particularly with a title that starts with the Flood Prevention Act that actually leads people to believe that. We cannot prevent it.

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    I think the second aspect that we need to learn which is relative to this bill is that levees fail. Levees fail both figuratively and literally. First of all, levees, by virtue of the way they change the basic hydrology of a river, are the source of their own undoing. And I can go into a lengthy academic description of that. Levees have a nasty habit of tearing themselves down because of the change that they make on rivers. But in the long run, of course, we are lulled into a false sense of security.

    That actually brings me to the third part of the lessons learned that I think we should keep track of. It is my belief that we are locked in a vicious, if you want to call it, cycle of serial engineering. And I see that this bill does not do anything to get us out of that cycle of serial engineering.

    Let me explain what I mean by this. We erected levees in Central Valley basically to allow farmers to get into their fields earlier in the season. Eventually though, we became dependent upon those levees as a source of protection for urbanization, urbanization which is rampant right now in the Central Valley. There are more than 20 new communities proposed in the Central Valley. At least half of those were under water in the last flood.

    What happens is we become dependent on those levees, and we assume that they will prevent flooding, but they won't. Flooding will occur; the levees will fail. Even the best engineered levees, which would have nothing to do with this bill, will fail and flooding will occur.

    And then, naturally, like now, there will be a call for new structures, new laws, tinkering with new laws which will really, in reality, have only cosmetic local effect and do not address the systemwide or systemic problems that cause flooding in the first place. But, unfortunately, when we come to the end, we will say we have done something, and we assume we are safe. And what that does is it just stimulates the cycle of growth again on the floodplain.
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    That is our cycle of serial engineering, which is exacerbated, I want to add, by the fact with our immutable capacity to forget that we had floods. I want to tell you, and I am sure you know, that by September we will be talking about water supply and not flooding because we tend to forget in about six months. I think General Galloway called it the flood memory half-life effect, and it plays a major role in flood engineering.

    So we have to break out of this cycle of serial engineering, and, unfortunately, I don't think this bill does anything toward that. And, basically, what we have done is we have asked too much of our floodplains. That is where rivers store water during floods. That is the mechanism that rivers use to actually manage their own flood. And levees, when placed right against a river, divorce the river from its floodplain.

    I think the steps that we have to take in the future, and as I say in the attached testimony, you will see I have got a long list of these things. Most of these deal with actually looking at a watershedwide basis—taking a watershedwide look, not local look, toward flooding. That is really going to be the best approach in the long run and cost the least in the long run.

    I am not criticizing or addressing the Endangered Species Act in particular, but what I am cautioning is both by title and deed in this particular bill we are not really going to solve any significant flood problems in the Central Valley. And I thank you for your time.

    [Statement of Mr. Mount may be found at end of hearing.]
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    Mr. POMBO. Thank you. Mr. Robert Clark.

    Mr. LEE. Congressman, it is Christopher Lee.

    Mr. POMBO. Oh, I have got the wrong one. Yes, excuse me. Mr. Christopher Lee.


    Mr. LEE. Good afternoon, Congressman, and members of the panel. If I can just take a second to take issue with the good professor to my left. Those of us that are actually involved as trustees in maintaining these levees are not just about to rip up 100 years of history and move out of the valley. This is where our homes are. They have been unflooded for 100 years, and the systems work pretty well. And begging the question, so to speak, on this issue that levees fail doesn't do a thing for us as we are discussing this this morning.

    What this hearing I hope is about is taking responsibility on the part of the United States Congress. In 1973, you passed the Endangered Species Act. As was said today, it was a good idea. We don't like farmland being paved over. It is not conducive since there is only so much of it.

    On the other hand, with the passage of the regulations that I have here, and I urge you all to read these regulations promulgated to enforce the Endangered Species Act in 1986, these regulations are an absolute recipe for disaster. They are an excuse not to get things done, and that has been the general effect.
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    I speak as a trustee on Reclamation District 556 located on the Sacramento River, and which during the 1997 flood, we had a levee in danger of failing. The Corps of Engineers appeared on the scene by helicopter. We negotiated the deal in five minutes, and in three days they spent $650,000 to fix 2,600 feet of levee. It worked very well, and, of course, the Endangered Species Act was suspended.

    The contrary example is Reclamation District 348 located 30 miles south of Sacramento, Thornton, California, that flooded in 1986, closed Interstate 5, and was generally a mess because that levee failed.

    That reclamation district, using State funds, applied to get the levee rebuilt. It took them eight years—not eight months—eight years and five Federal and State environmental agencies, as Mr. Nomellini has stated, all competing with each other to who could have the most extreme environmental view, making the district put up signs, put up fences around elderberry bushes—that kind of nonsense.

    Now, did this have anything to do with good flood management to maintain these structures that are flood control structures? Absolutely not. All they did was enter into a contest with Federal and State bureaucrats doing what the law said they could do, but they took no responsibility for the safety of the people behind these levees.

    These levees are no different than California freeways. Freeways protect the public for public transportation. These levees protect the public by keeping water off homes, farms, businesses, and residences. And until you have ever fought a flood like we did in '97 working 22 hours a day, you don't even have a concept of how extreme these problems become.
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    But why should we allow—and in my written comments I attach a letter from the U.S. Department of Interior, Fish and Wildlife Service, to the Corps of Engineers during this eight-year period of nonsense in which the Fish and Wildlife make outrageous demands on this district.

    To give the Committee an example, we maintain my district in Walnut Grove—we maintain over 10 miles of levees. Our tax budget on our local landowners is only $35,000. Now, we maintain these levees for the benefit of the water highways which transfer water for Federal and State water projects to central and southern California. The public gets a huge benefit.

    What we don't need, and where this thing has absolutely gone to Alice in Wonderland—a good idea gone bad, and the good idea was we are going to protect the environment, and then we are going to apply that law to public agencies doing the public's work.

    Now, in California, when we lose the Oakland Bay Bridge or the Century Freeway, we get right on it and fix it like we did the levees. But why do we have to operate under a system where we close the barn door? We have a great deal of government concern to the poor people that are flooded out and the animals and endangered species that are killed. Why don't we fix this ahead of time? Get the Federal Government off our back so we can do our job. Thank you.

    [Statement of Mr. Lee may be found at end of hearing.]

    Mr. POMBO. Thank you, Mr. Lee. I appreciate the testimony of all the panelists. Mr. Hastey, you testified that—in your testimony it says that since 1988 that there has been a major effort to restore the existing levee system and go on to identify what the mitigation was for the elderberry bushes in that area. What length of time did it take from when the project was started before the work was actually completed?
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    Mr. HASTEY. Well, the work actually hasn't been completed, Mr. Pombo. The work was actually ready to start this spring after we had finished the 76 acres of mitigation that was required to be done before we could start the construction on the actual work on the project itself. Where the levee broke was scheduled for June to start to repair the levee.

    Mr. POMBO. So you are testifying that the work or the project that was begun in 1988 has not been completed yet, and that the additional work that has been outlined by the Army Corps of Engineers will cost the district an additional $4 million in mitigation. Will that delay the work that has been set out by the Army Corps to be done—the additional costs that——

    Mr. HASTEY. I don't think that the work will delay the work that is now being done. What has happened in the past is that we have been required to do the mitigation work. And what we were told by under the '86 Flood Act is that we were required to do the mitigation before we could do any of the contract work on repairing the levees. The Corps has now told us that we will be able to do the repairwork and then mitigate after the repairwork is done. They have changed the rules at this point because of the emergency.

    But the levee broke in '86. They were repaired in '88. We started doing the planning. We were told that we had to mitigate for those 43 elderberry bushes, and that work had to be completed before they could start any construction or reconstruction on the levees themselves.

    Mr. POMBO. So the work that is scheduled—that was begun in 1988 is scheduled to be done this year?
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    Mr. HASTEY. Yes, sir.

    Mr. POMBO. Thank you. Mr. Lee, in your experience in maintenance of the levee and repair of the levee system, it has been said that there are currently exemptions within the Endangered Species Act that in a time of emergency that work can be done. In your experience, is that sufficient to allow you to properly maintain the levee system?

    Mr. LEE. Absolutely not. Good planning and good maintenance is something that is an annual and ongoing event in the Sacramento delta, and I assume for other California levees. The exemption after the damage is done doesn't do anybody any good. You are spending a lot more money; people are disrupted; their lives are ruined; their businesses are ruined. In the exemption, everybody feels sorry for them, and they come in.

    Good maintenance is done every year on all parts of the levees and that this is not rocket science. You plan for the flood five years from now. You plan for the flood 10 years from now or 20 years from now, and you don't do it at the last minute when the water comes up. You go out there and fix the levees and repair the levees as part of good government. Making us study it to death is bad government.

    Mr. POMBO. Dr. Frost testified in his statement—excuse me—Dr. Mount testified in his statement that people forget, that they have short-term flood memory; that when it is wet, people pay attention to that, and when things begin to dry up, they begin to forget that.

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    Mr. Lee, knowing that as you do to be the case, what do you think is going to happen in the very near future when we are talking about there not being enough water in the Central Valley with these maintenance programs that you have been undertaking over the past several years?

    Mr. LEE. Well, Congressman Pombo, we remember so well in the Walnut Grove area where one island after another was either close to flooding or did flood, and a bunch of houseboats were up against our bridges. We had 40 television cameras, and as soon as the crisis left, the television cameras disappeared. That seems to be a common experience today.

    Our problem is that we cannot—if we analyze or look at a necessary repair as we do now after the '96 floods, all these levees need repaired. Now, are we going to identify the problem, get it properly engineered, and do the work? Are we going to identify the problem, apply to the Federal Government, have five Federal and State environmental agencies compete to who can work us over the most, and then try to get the project done in 10 years? As I illustrated, we fixed a levee in three days a half a mile, and it took Thornton, California, District 348, eight years. Now, this kind of nonsense has got to stop.

    Mr. POMBO. Thank you. One final question for Mr. Nomellini. Mr. Nomellini, do you feel that the implementation of the Endangered Species Act, as it is currently being implemented, played any role at all in the recent flooding that you experienced in your area?

    Mr. NOMELLINI. Yes, I do and I think the role that the Endangered Species Act played is that of an obstacle to channel maintenance and levee maintenance. There are levees that would be in far better condition today and channels had the Endangered Species Act not been applied. They were designed—these facilities were designed to sustain certain flood stages.
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    And, as testified many times by others, vegetation in the flood channel, vegetation on the levee obstructs the flows. The water is higher in the river than it would have otherwise been. And, of course, on the levee, it is more difficult to maintain.

    It is very difficult to tell why a particular levee fails, but there is no question that the Endangered Species Act, which is part of a package of environmental restraints, has resulted in less maintenance, less efficient flood control systems, and a squander of valuable limited resources both on the environmental side and the flood control side.

    Mr. POMBO. Thank you. At this point, I would like to turn to Mr. Dooley for his questions.

    Mr. DOOLEY. Thank you, Mr. Pombo. I guess in listening to the majority of the testimony, it seemed like most of the witnesses were commenting on the inability or the difficulty in maintaining levees which resulted in increased incidents of flooding in this last event that we had in California.

    I guess when I look at H.R. 478 though, I am a little concerned in terms of its breadth and its scope because it appears that it could go even beyond just the operation and maintenance of levees because it includes also a statement which would allow for the building of facilities in order to prevent flooding.

    And I am a little concerned that even while I am one who totally supports, you know, the exemptions for operations and maintenance of ongoing maintenance of levees, I would be interested to hear from some of the members of the panel, do you believe that we should exempt the major construction of new facilities from the provisions of ESA?
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    And, in fact, in some interpretations of H.R. 478, which we are considering today at this hearing, would even say that you could even put the building of the Auburn Dam in this—being exempted from many provisions of the ESA under this legislation. And I would just be interested in hearing from some of you. Do you think that would be appropriate?

    Mr. LEE. Congressman Dooley, perhaps I can help you out on this. The California legislature is ahead of Congress in this matter. This week the Assembly passed Senate Bill 181 by Senator Kopp of San Francisco, and they have exempted the Endangered Species Act as it applies to California by State law for a period of two years. And this bill is going to pass out of the California legislature by the Assembly bill. It was voted bipartisanly 72–to–1 out of the 80-member Assembly.

    Mr. DOOLEY. So just to clarify, are you saying the California State legislature passed legislation that would exempt the construction of dams from any California ESA actions?

    Mr. LEE. Well, I should have finished. They exempted the San Francisco Giants ballpark and the levees. OK.

    Mr. DOOLEY. The levees.

    Mr. LEE. And the levees were included as a bipartisan measure. I don't know how you want to clean up this language here if it needs cleaning up, Congressman Dooley. But what the panelists are talking about today are maintenance of existing structures, some of which are over 100 years old. And that is my position as a farmer and an attorney and a trustee. We have got to be able to fix these flood control structures.
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    I might add something though. We have another problem that this bill does not address, and it does no good to fix the levee and strengthen the levee if you don't dredge the rivers because, as Senator Feinstein personally observed during the '97 floods, the Sacramento River at Rio Vista—its bed has been raised four feet in the last 10 years. Well, you can have the strongest levee in the world if you don't go back to dredging, and this is a continuing problem.

    Mr. DOOLEY. I would just go on to say that I think that just in all honesty, just for some of you in terms of achieving your ultimate objective, if we don't, I think, further limit the scope of some of this legislation that it is going to have a very difficult time passing.

    And I would say that there is an alternative that has been introduced by Congressman Fazio, as well as co-sponsored by a number—myself and also Mr. Condit, that does try to limit this exemption as it relates strictly to the operation and the maintenance that is required to maintain the integrity of the levees and also enhancement to those levees. And I think that is something I hope you will consider because even in the political environment we have in Washington, I think something that goes much beyond that is going to be very difficult to achieve.

    Mr. POMBO. Thank you. At this time, I would like to recognize Mr. Herger if he had any questions at this point.

    Mr. HERGER. I do. Thank you very much, Mr. Chairman. I do appreciate you having this hearing. My district was one that all 10 of the 10 counties I represent were declared disaster areas. The flood in Yuba County, of course, that inundated all of Yuba County is also my district.
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    And I would just like to, before I ask a question, just respond to a couple of the comments that were made. One is that the intention of this bill is to do nothing more than to be able to go in and repair our levees and make sure we have an integrity within the levee system that they were originally designed to complete.

    The goal of this legislation is not to build new reservoirs. I personally feel that we need to do that, but that is not the intention of this legislation, and certainly that can be defined as we go further into the process.

    I would also like to comment on Mr. Fazio's bill, which was just mentioned. Even though that is legislation that would be helpful with this disaster, regrettably, it is limited to this disaster. It will not help us prevent future floods. It will not help us do the type of things that we need to maintain the levees that we need to maintain in years to come. So it is, therefore, very shortsighted. And even though I support the Fazio legislation, it will only help us during this immediate disaster and does nothing for us in years to come so, therefore, again, I believe we do need this.

    Just as background, and I would like to ask Mr. Hastey a question if I could. And, Mr. Hastey, if you could comment on this. We had, as was mentioned, this process, and the reason for this legislation is that the process of repairing these levees were identified as far back as 1988, some nine years ago.

    Some studies were done. In 1990, the Corps of Engineers came out, and they wrote a document, and I want to quote from that. In their 1990 document, the U.S. Army Corps of Engineers reported and determined that repairs should occur on the Arboga levee as expeditiously as possible, stating—now, this is on the very levee and the very spot that broke in which three lives were lost, plus millions of dollars of damage and thousands of acres were inundated—''From this 1990 study,''a study done some seven years ago, ''loss of human life is expected under existing conditions without remedial repair for the major flood events.''
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    So this is something we identified in 1988 that needed to be repaired. A study was done two years later in which the Corps of Engineers themselves predicted what actually happened, and that was that there would be loss of life. We are still now—yet in January 2 of 1997, this year, that levee had still not been repaired because of environmental hoops that had to be jumped through. And we have three individuals that lost their lives, plus that.

    Mr. Hastey, if I could ask you, can you explain the mitigation requirements that were mandated for this levee before these construction efforts were allowed to begin? And how many acres and how much money was spent on this?

    Mr. HASTEY. Certainly, Congressman Herger. There were identified 43 clumps of elderberry bushes. And when an elderberry bush is checked on by the Fish and Wildlife Service, they then go through the process of measuring every stem. And every stem that is over one inch is required to be mitigated. They identified 1,538 stems on elderberry bushes. To mitigate it, they ripped out 76 acres of prime production peaches that were in production and planted 76 acres at a cost of $1.9 million.

    They planted the elderberry bushes' stems at a 5–to–1 ratio. Not only did they plant the bushes at a 5–to–1 ratio, but they removed 25 of the grown elderberry bushes and replanted them inside the riverbottom inside this mitigation area. It came to a cost of $55,800 per bush to mitigate for these stems for an Elderberry Beetle that has never been sighted north of Stockton.

    And when you talk to Fish and Wildlife and you talk to the Corps of Engineers, we would ask the Corps, ''Why are we doing this?'' And the Corps would say, ''Because it's not worth fighting with Fish and Wildlife over this. It is just better to go spend the $2 million.'' And we would rip our hair out, and we would build mitigation-sites instead of fixing levees that protect people's lives.
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    Mr. DOOLEY. Thank you. Do you know how much money was originally expected to repair this particular levee? Mr. Hastey, I don't know, are you aware of the amount of money that the original construction of repair for this particular levee was placed at?

    Mr. HASTEY. If it was placed into just that section of levee, probably the best fix would have been a slurry wall. Slurry walls amount to about $4 million a mile. There is probably about a three-quarter mile stretch there so it is about $3 million to fix that stretch of levee.

    Mr. DOOLEY. And yet there were some 8 million or more that was spent during this period of time just on litigation on this berry bush, and in the process, we have spent far more money, probably more than double the amount of money, just on mitigation——

    Mr. HASTEY. Right.

    Mr. DOOLEY. [continuing]—some eight years later and still do not have the levee repaired. And yet we ended up losing three lives. And I believe that for itself speaks for the absolute necessity of this legislation and also speaks for the fact that we cannot come up with just a temporary fix that only fixes this for this disaster. We have a responsibility as Members of Congress to come up with the type of insight and the type of leadership that will help prevent this type of incident from not happening again. Thank you. Thank you, Mr. Chairman.
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    Mr. POMBO. Thank you. At this point, I would like to recognize another Californian, Mr. Sam Farr.

    Mr. FARR. Thank you very much, Mr. Chairman. Perhaps this question goes to Mr. Hastey. As I understand it, levees by definition are manmade. We have two types of levees. We have Federal levees that are maintained by the Corps of Engineers, and we have other levees that are maintained locally. The levees in question, are they federally maintained levees?

    Mr. HASTEY. To my knowledge, Congressman, there are no federally maintained levees. Levees in the State of California are maintained by the local levee districts, and this happened to be maintained by Levee District 784.

    Mr. FARR. Do those levee districts have a maintenance plan that has been adopted and funded?

    Mr. HASTEY. They have a maintenance plan that they have adopted, and they have an assessment that is given to the property owners. The property owners pay the tax for the maintenance on the levees.

    Mr. FARR. Is that assessment adequate to do the maintenance requirements in a continual process so that they can maintain them in a timely fashion?

    Mr. HASTEY. It is. When you consider what maintenance is in the State of California, I think you need to go to—reclamation districts are much like your garden person who is taking care of your lawn. And I will use this definition.
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    The State of California owns the levees in California. The Corps of Engineers was the general contractor who built them. The levee districts maintain them, check them for squirrels, mow them, and burn them. They do not do major maintenance. They are like your landscaper who comes to your lawn. The engineering work and the ownership is held by the State of California.

    One of the major problems in our State is when there is a disaster, we call on these levee districts who have been doing maintenance. We call on the kid mowing the lawn to fix the problems that the owner should have seen long ago.

    Mr. FARR. Well, that is what my point is. I represent some of those districts, and what I have seen in the process is that they have not either adequately assessed themselves, or they have refused to do the maintenance work. And then a flood comes along, and the blame goes around, and it ends up the ESA is the one that the people like to blame.

    On my own time, Mr. Chairman, what I am suggesting is that this issue needs to be addressed in a management fashion. You are talking about managing a water system that has awkward jurisdictional governance. It is not something that one government owns, and one government can fund, and one government can plan for.

    This bill, I think, goes far beyond that process because this bill relates to the building of dams, to the operating of dams and rivers, to the repairing and maintenance. And I think what the whole testimony we have heard here today about is the maintenance of levees. The majority of those levees are not even controlled by the Federal Government.
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    And I think that what we ought to be focusing on with this legislation is a maintenance program that allows a proper maintenance with all the agencies having to be on board with one plan. When we have that, we operate well in these jurisdictions. And, in fact, many areas in my district have been able to operate under these laws without problems except for the lack of funding—sometimes blamed on the Federal Government; sometimes blamed on the local.

    We have one river where the north side of the river is in one county, and the south side of the river is in the other county. They have two different assessment districts, two different boards of supervisors to deal with, a special district on one side, upstream by two other counties, and nobody can get along, and we can't adopt a maintenance plan. But that is the problem. It is not just the Endangered Species Act that I think people are trying to attack today.

    So I appreciate the testimony from Sacramento. I sat in that room many times in my career in the legislature, and I would suggest to this Committee that you just heard from the witnesses at the California legislature, which is right on top of this problem.

    In dealing with it, they limited their legislation to levee maintenance, and they did it for a two-year moratorium, essentially, on the ESA to get the levees from the last storm back in. They did not go as far as this bill does to providing exemptions for building and operating dams. So thank you, Mr. Chairman.

    Mr. POMBO. Thank you. At this time, I will recognize Mr. Billy Tauzin.

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    Mr. TAUZIN. Thank you, Mr. Chairman. I am Billy Tauzin from Louisiana where we know something about levees. If we didn't have levees, most of us could not survive in my district in southeast Louisiana. I am shocked, frankly, by some of the testimony I read and hear today and by some of the documents in front of me. I particularly refer to your submitted testimony, Mr. Lee.

    I have gotten in my hands a copy of the ''Policy Guidelines and Regulations for the Mitigation for Levee Construction, Maintenance, and Repairs'' for the Sacramento district of the U.S. Army Corps of Engineers. Look at this thing.

    And when I read the statement of Mr. Lee and the actual letter from the Corps of Engineers detailing the mitigation requirements to make a simple repair in the west bank of the Mokelumne River near Thornton in San Joaquin County, California, I am astounded.

    This report by the Corps says before you can fix that levee, because you are going to possibly hurt some Elderberry Longhorn Beetles, who are dependent upon the elderberry, that you had to go out and identify all the elderberry plants of a certain dimension in a one-third-of-an-acre area. You have got to mitigate by 5–to–1.

    You have got to transfer a title to the mitigation area to either some resource agency or a private conservation authority, and you have got to fund that private conservation organization in perpetuity to permanently maintain that new area.

    A qualified biologist has to be on board all during this process; written documentation requiring that on an annual basis other plants are manually picked up so they don't disturb the elderberries; that permanent fencing has to be provided; permanent signs; two or three species of other plants have to be planted for every five elderberry seedlings; monitoring by qualified biologists annually with annual reports on December 31 identifying with maps where individual adult beetles have exited holes in elderberry shrub, and elderberry plants have to be analyzed; survival rate condition; real and likely future threats have to be identified; field notes; photographs; all on-site personnel receiving instructions regarding the presence of the Elderberry Longhorn Beetles, et cetera.
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    It seems like the agency is spending a great deal more time making sure that this mitigation-site is maintained than anybody is concerned about fixing the levee. And all of this cost has to be borne, I assume, by the owner of the levee. Is that correct?

    Mr. LEE. That is correct, Congressman. The routine maintenance that—and as Mr. Nomellini said earlier, this becomes a contest between the environmental staffs of the Federal and the State agencies to see who can come up with more absurd requirements, and their backside is covered because all they have to say is, ''We are following the 1986 regulations,'' which are even sillier. And——

    Mr. TAUZIN. We had to do it because of this book. Right?

    Mr. LEE. That is correct. So all the staff people that are making these ridiculous demands, they are covered. Now, this is why I feel so strongly about this, that Congress has to take the lead—not the California legislature, but Congress. Everything starts——

    Mr. TAUZIN. Now, let me ask you something because time is limited. It is my understanding that whoever owns the levee, whether it is a Federal levee or State or local levee, that when repairs are due and maintenance is required on that levee that you still have to go through 404, and you still have to be subject to the Endangered Species Act requirements. In other words, before you can get help or before you can maintain or repair that levee, you still have to go through this process. Right?

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    Mr. LEE. Except in catastrophic emergencies such as 1997.

    Mr. TAUZIN. Right. You are given an exemption after the event. But even after the event, you still have to restore it to the conditions that existed before, which means you got to go do all this mitigation again. Right?

    Mr. LEE. If it is the secondary drill controlling the main function of the project.

    Mr. TAUZIN. Now, here is an extraordinary thing I have learned too today, and that is, before you can get Federal help to fix any levees so lives are not lost and people's property is not destroyed while the riverbed is rising, before you can lift the levee or maintain it or repair it, that you have to sign an agreement assuming liability with the Corps before they will come in and help.

    And then if the Corps delays, if the Corps fails to fix it right, or they put in a mitigation requirement that somebody in court believes contributed to the failure of that levee, such as a mitigation bond, all of a sudden you find yourself in court having assumed the liability for the Corps's failure or the Corps's actions.

    You are in court now potentially liable to those citizens because the levee failed for lack of maintenance or because of a mitigation project that may have contributed to its failure. Is that correct?

    Mr. LEE. That is correct.
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    Mr. TAUZIN. That is absolutely—it is absolutely astounding. Those of us in Louisiana who depend upon levees are getting real concerned that maybe we need some national legislation. Thank you, Mr. Lee.

    Mr. POMBO. Thank you. The Chair recognizes Mr. Miller.

    Mr. MILLER. Thank you very much, Mr. Chairman, and thank you to the panel for your time and your expertise. Dr. Mount, if I might, a lot of discussion here on the ESA and its implications, and I think much of it very valid in terms of mitigation and repair of levees. But let me ask you, if I read your testimony correctly, we can set that argument aside.

    We still have a fundamental problem in the State of California with respect to the management of these rather extreme hydrological events, and you seem to suggest that if we continue down the same vein that we have continued over the last 50 years, that our future doesn't look much brighter than the events that we have experienced in the past. Is that a fair characterization, that we have got to start thinking about some other management tools and other means of providing relief on these water courses?

    Mr. MOUNT. Yes. Mr. Miller, thanks for bringing that up. I appreciate it because in all this discussion, I haven't heard any discussion about how we are going to reduce flooding in the Central Valley. This bill doesn't make any difference at all because every time a levee failed in this valley, it saved other levees. It prevented failure on other levees.

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    So what you are essentially talking about is translating the problem somewhere else, not actually addressing the flood control problem. And that is one of my big concerns. And in this particular bill, it does nothing to help people get out of harm's way. In fact, it stimulates growth in harm's way. It doesn't address the fundamental issues. And actually, I expected at some point to hear some testimony about that, and I have not.

    Mr. MILLER. Let me ask you this. And I don't know if you can answer it, but I think it would be very helpful to the Committee and certainly in terms of our long-term planning, when you look at current water courses and river paths and various floodplains that are available, is it your opinion that we have the ability to construct some alternatives in terms of relief during these events other than just simply building the levees higher and higher as we have done in the past? I mean, do we have places where we can provide strategic relief and anticipated relief to manage these events?

    Mr. MOUNT. Mr. Miller, we are at a crossroads here. We are fast closing the window on options. We will eventually—if we do not slow the rate of growth on the floodplain, we will close off all our options. I am not advocating that we should be moving people off the floodplain and relocating whole cities, but we still have time and we still have the space to maintain ag land and wildlife habitat as a way to manage floods.

    Again, this bill does not address any of that issue, but it is the most compelling and most important issue. This window is coming to a close. If we don't act now within the next few years, we will have lost all our options.

    Mr. MILLER. So in a sense, we have been in a little bit of a catch–22 here, that we have built the levees stronger so people who have moved into more of the floodplain and some of those areas you look at north of Fresno and elsewhere or almost anywhere in California now, unfortunately, and they have relied on those levees.
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    But at the same time we are reducing some of the options that we would have available to us in terms of planning for these future events. I mean, so we are kind of in a vicious circle here. I mean, is that what you are saying? I don't want to put words in your mouth. I am good at that but——

    Mr. MOUNT. Trust me, I have plenty of words of my own. Yes. What I call it is the cycle of serial engineering, that we are basically locked in this cycle. As long as we continue to erect new and higher levees, we will never break out of that cycle.

    And, look, the Army Corps themselves have pointed out that we are locked in this cycle. The Army Corps is usually pointed as the bad guy who builds lots of levees. The Army Corps has said, ''Look, we have to back off. We have to cut out this overdependence on levees as the solution to flood control because they don't work. They are an untrustworthy ally.''

    And I think that is a message that is lost in all of this, and, again, I want to reemphasize, we are losing our options very rapidly by the rate of growth that we have here in the Central Valley. And when we turn over prime ag land and pave it over, we have lost it as an option for flood control. Again, I didn't hear it.

    Mr. MILLER. Well, I want to just thank you very much for your—my time is about to run out—thank you for your testimony and for the thought that you have put into this. And I must say that I am encouraged. I know that Congressman Condit is working with groups down in his area, which is among some of the highest growth areas in the Valley.
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    And some of the statements, I think, by the governor have been encouraging in terms of our ability to look at some of these options in the future so that we have some opportunity to try and—it doesn't appear that we can prevent floods, but we may be able to have some enhanced ability to manage these episodes in a much less destructive and tragic manner. Thank you very much for your testimony.

    Mr. POMBO. Mr. Gilchrest.

    Mr. GILCHREST. I thank the gentleman for yielding, and I also want to compliment Mr. Pombo and Mr. Herger for bringing this issue to the level that I think is necessary in order for us to make it a priority to understand the full ramifications of what we are doing.

    Sort of continuing on the line of Mr. Miller's questioning, I almost feel compelled to ask if dolphins have any impact on these levees. Mr. Miller didn't hear me say that so we will just move along.

    I guess 100 years ago when these levees were constructed, they were constructed for the purpose of trying to settle this region, protect the residents from harm, from floods, from flood damage, property damage, lives, and all those other things. But I would also guess from the comments that I have heard here this morning that in the last 100 years, and probably especially in the last 10 years or so, we began to understand a little bit more about the mechanics of natural processes.

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    And it seems through the testimony, especially from the testimony of Dr. Mount, that it seems that no matter what we do, and correct me if I am wrong, no matter how rigorous the engineering design constraints, according to your testimony, that the best levees will fail.

    And if I could read one other sentence, ''The predictable failure of levees also stems from the manner in which they are applied. Levees, more than any other flood engineering effort, failed because they usually conflict with rather than conform to natural river processes.''

    I think what we are trying to wrestle with here is figuring out if we can maintain existing levees without a great deal of conflicting of bureaucracies to do what we know is right to do under the existing structure but then move on from that.

    And my question, I guess, Dr. Mount, is there a limit to the capacity of existing water resources to sustain human population increases? Is that going to happen? And that is whether it is flood control or drinking water supplies to all the various communities downriver. At what point do we reach the point where we have exceeded the capacity to save lives and to give people drinking water? Have we reached that point now? Will we reach it in 10 years? 20 years? Dr. Mount?

    Mr. MOUNT. I think that is actually a monstrous question in that here in California we have 1,400 dams. We have almost 6,000 miles of levees. And despite all that, at present, we cannot prevent flooding in California. And we can't simply afford to prevent flooding in California. So in answer to part of your question, in many respects, we already have exceeded our capacity when it comes to something like flood control; that is, we cannot control the flood.
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    As for water supply, that is a whole separate issue, but it is, as you might expect, enmeshed in this overall issue as well. And, again, it would take me a long time to address that. Currently, there is enough water to sustain the population here in California. We are squabbling over it a great deal at present.

    But in terms of flood control, I think the evidence was here on January 2, 1997, that we have exceeded the capacity of our system. We cannot engineer flood protection so that it is foolproof. And we are fooling ourselves if we think otherwise.

    Mr. GILCHREST. Could one of the other gentlemen or any of you, understanding this data, this information, understanding, I guess—we understand here in Washington that we have got to maintain those levees, and we want to expedite the process to make sure that that is done. Is there any thought of future managed growth techniques as a result of past flooding? Would anybody like to address that issue on the panel?

    Mr. NOMELLINI. I will take a crack at it—Dante Nomellini. I think there is room for more planning. I think use of the floodplains for shock absorber capability in the flood is a good idea in some places. I think dams still have a value for flood control. There is a degree of benefit to a number of opportunities, and we should look at the planning issue.

    While it is true that there are no absolutely failproof levees, just like there are no absolutely failproof bridges or highways or rockets that go to the moon, that should not deter us from trying to minimize or lower the risk of failure of our existing structures.
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    So we should make sure that we are doing the best we can with the dollars we have to maintain the facilities that have been designed and are in place, and then we should separately look at what we could do to enhance our capability. And this floodplain idea, I think, is a good one. I think, too, on the water issue we may have exceeded the capacity in California to serve all of our constituents and feed them at the same time.

    We have a conflict between agriculture and the urban areas, but those are broader issues that I think should be addressed, but they should not detract you from the task of trying to keep us from foolishly spending our limited dollars at the local, State, and Federal level of having our environmental interests compete with our flood control interests where we have a duty to maintain the existing facilities. We don't have a choice. We can't walk away from that. Thank you.

    Mr. GILCHREST. Thank you, Mr. Chairman.

    Mr. POMBO. Thank you. Mr. Vento.

    Mr. VENTO. Well, thanks, Mr. Chairman. I was reading some of the background material here, and it commented that after the '86 floods there were—which these particular projects that we are talking about here in Sacramento and San Joaquin delta—there is over a thousand miles of levees in this area. And so they, obviously, as has been pointed out, for 100 years have been important.

    But the issue was that much of the repairwork had been done except on the Marysville and Yuba City area, and it had been started there, and that the contention, obviously, concerning this, that there was some delay with regards to the giant garter snake or something when it was dormant, but that there was also some lawsuits and other things that were involved in terms of protests over the bidding, which I think we are going to hear about later in the testimony from the Department of Interior. The question I have for Dr. Mount is was this '97 flood an unprecedented hydrological event?
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    Mr. MOUNT. This was truly, in my view, a regional flood of this century. That does not mean it was the 100-year flood. That is actually a statistical best guess. But it certainly was a large event. But if you think back over the last 10 years—10-12 years in California, we have seen at least three significant events here in California, and that should be our road map to the future, that, in fact, these events are going to come.

    Now, it may be that for the rest of my lifetime I don't get to see a flood like this. But it also equally may be that I will see another one next winter. The odds are just the same. So I think we have to keep in mind that although this was a large event, it certainly wasn't unprecedented.

    Mr. VENTO. Well, I think the issue here too is is this a common problem? For instance, I notice that one of the witnesses, Mr. Nomellini, pointed out that a lot of environmental laws get in the way of this. I mean, it comes to my mind to me that I assume that these levees are for flooding, but there are also other reasons that they are put in place—principally flooding, but, I mean, there are other benefits.

    When they do feasibility studies, they try to add up all the different benefits that are going to occur so some of them might be in terms of protection of various types of endangered species or recreation or other types of uses that occur in terms of the feasibility studies. These are important. If we are going to take away those particular values here, then you subtract them in terms of how you look at the report.

    But there was a study done in 1994 by the Floodplain Management Review Committee, which was chartered by the Administration's Floodplain Management Task Force, an independent review, of the '93 floods. And they did not find that the Endangered Species Act or other events were the reason for the problems. I don't know all the reasons they found, but they didn't identify that.
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    They did find it was the result, again, of unprecedented hydrological and meteorological events. And we are having a couple of those in Minnesota right now on the Red River in the north, as a matter of fact. And it is flat up there, and that is a problem that we are also having in my district. But the Mississippi River Valley in St. Paul, Minnesota, is a little wider. And so we can accommodate there, and we have moved a lot of things off the river, and they have breached the levees in our area.

    So the concerns are I think multiple with regards to what we are doing here. These other environmental laws like the Endangered Species Act, the Clean Water Act, the requirement to do EIS's—they weren't in force 100 years ago. How do we integrate new environmental policy like this when we have existing structures in place? I mean, that is the real challenge that we have here.

    It sounds to me like it was being used or being approached in a proper way. I don't know that—I guess though that somebody has to be blamed for this so we are going to blame a beetle for it. I mean, I certainly don't want to take the blame, and, apparently, those in California are not eager to admit some responsibility. Dr. Mount, how do we integrate these new environmental laws with these existing type of structures?

    Mr. MOUNT. You have used the most important term possible and that is integrate. What we have to do is start taking a more watershedwide view of these problems, rather than a local view of these problems. That is how we solve flooding. Now, it may be that we can promote habitat in other parts of the watershed which will actually spare us this tragedy each time in terms of maintenance of levees, especially those that are protecting urban areas. So we have to take an integrated look.
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    I am sure that, in fact, everyone on this panel will agree with me that, in fact, part of the problem is this local view especially when it comes to environmental laws. So I think integrated is the right word, and it is a watershedwide approach rather than breaking it up into simple, local districts.

    And I want to also come to this local issue you have identified. That is a lot of the drive to the problem here. I want my levee to be rebuilt stronger and higher so that I can have a city right next to this levee. But, unfortunately, that causes harm to the entire system. And once we get out of that local issue and take a systemwide view, I think we are going to be able to solve more of these environmental problems.

    Mr. VENTO. Let me point out that there was a statement made that under the emergency flood response, would that require consultation and mitigation before repairs are initiated? And the answer to that—the short answer is not unless there are substantial changes over and above what would be required.

    So I think that some misunderstandings have arisen here with regard to this. From what I have heard at the hearing here, it sounded like some believe that that would be the case. So I hope the hearing will shed some light rather than just a lot of heat in terms of this issue. And thank you, Mr. Chairman. Thank you, Dr. Mount, for your responses.

    Mr. POMBO. Mrs. Chenoweth.

    Mrs. CHENOWETH. Thank you, Mr. Chairman. I want to thank you and Mr. Herger for this hearing and for bringing this issue to our attention. I have no questions to ask, but I have a very quick statement with regard to the same type of thing that is going on in my State.
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    In my district, Mr. Chairman, we have also suffered a lot of floods, not to the extent that you have. But in the beautiful town of St. Maries, Idaho, we had the Army Corps of Engineers and the U.S. Fish and Wildlife Service in a conflict. The conflict was resolved by them cutting cottonwoods along a levee along the St. Joe that housed the habitat for the bald eagle.

    I was down there, and the townspeople were very upset because they were destroying the habitat. Now, they have decided to impose on the townspeople—the local units of government—the fact that the planting of new trees will take place two miles away from the levee, that the requirements include placing four or five artificial perches for the eagles on each area of levee where cottonwoods were removed.

    Now, these perches for the eagles instead of the natural cottonwoods—these perches must be 60 to 100 feet high and have at least three ''limbs'' 60 to 100 feet high capable of holding a 20-pound eagle. Other requirements include limiting construction and maintenance to only March 1 through October 1 and then when fewer eagles are present on their artificial perches; then keeping vehicles and snowmobiles off the levee roads. I am not sure how we can maintain the levee at all without having some vehicles in there. And posting signs that tell people to keep their distance from the birds. I am sure people will not be attracted any longer to the beautiful St. Joe with these 60 to 100-feet high artificial perches.

    Mr. VENTO. If the gentlewoman would yield——

    Mrs. CHENOWETH. So thank you very much for bringing this to my attention.
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    Mr. VENTO. Would the gentlewoman yield?

    Mrs. CHENOWETH. And I yield back to the Chairman.

    Mr. VENTO. Would you yield to me? You have the time.

    Mrs. CHENOWETH. Oh, certainly.

    Mr. VENTO. Who made the decision in terms of the removal of the cottonwoods?

    Mrs. CHENOWETH. The Fish and Wildlife Service and the Army Corps of Engineers.

    Mr. VENTO. The Fish and Wildlife Service made the——

    Mrs. CHENOWETH. They were involved——

    Mr. VENTO. I mean, you know, the reason—I don't know what the nature of the problem was with the levee in Idaho. Was this for an irrigation purpose?

    Mrs. CHENOWETH. It was flood control primarily.

    Mr. VENTO. It was flood control.
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    Mrs. CHENOWETH. And irrigation but——

    Mr. VENTO. But, you know, often, of course, cottonwoods absorb and transpire a great deal of water, and so there may be—I thought there may be other reasons here that the irrigation districts might have been concerned about the cottonwoods' presence.

    Mrs. CHENOWETH. Our concern is making sure we can maintain the levee. We have a 200 percent snowpack and expect another flood. We have had one this last February, and we are really worried, of course, about the levee and want to be able to work with the agencies on making sure we can maintain the strength of the levees. But the rush to judgment and imposing 60 to 100-feet high artificial trees on the levee is not what will bring the beautiful, pristine environment back to the beautiful St. Joe River. Thank you.

    Mr. POMBO. I thank the lady. Mr. Gibbons.

    Mr. GIBBONS. Thank you, Mr. Chairman. Gentlemen, my name is Jim Gibbons. I represent that portion of Nevada that is just to the east of you and during the same 1997 timeframe, we had three rivers flood in the district I represent—the Walker River, the Carson River, and the Truckee River—with loss of life along with it. And we had structural failure. Some of those structures were flood protection rather than levees. They are structures, not levees.

    What concerns me is from some of the testimony that I have heard from those people who are so concerned about the protection of the longhorn beetle that they will not vote for a bill or a measure that will allow me to go back to these people along these rivers in my State and tell them that we were able to take action that would have prevented not only the loss of life of your loved ones, but maybe the future loss of life because of their refusal. I am very concerned about that.
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    I would like to direct my questions to Mr. Lee, but before I do, I want to join my colleague from Louisiana, Mr. Tauzin, in his concern about the number of regulations and the amount of work that is required to maintain one of these levees. And I was looking through this historical background, and very quickly I want to read off in 1992 what is required before work on a levee could begin.

    You have to comply with the National Historic Preservation Act, Archeological Historic Preservation Act, Archeological Resources Preservation for Protection Act, Preservation of Historic Properties, Abandoned Shipwreck Act reviews, Clean Air Act permit requirements, Clean Water Act Section 404, Coastal Zone Management Act review, Endangered Species Act consultation, Estuary Protection Act, Federal Water Project Recreation Act review, Fish and Wildlife Coordination Act, Land and Water Conservation Fund Act, Marine Protection Research and Sanctuaries Act.

    This is nuts. National Environmental Policy Act, Rivers and Harbors Act, Wild and Scenic Rivers Act, Executive Order 11988 Floodplain Management, Executive Order 11990 Protection of Wetlands, CEQ Memorandum Analysis of Prime and Unique Farmlands in Implementing National Environmental Policy Act, and at the same time you have got California laws on Environmental Quality Act and Endangered Species Act.

    How in the hell do you people get anything accomplished over there with all of these reviews that don't just bury somebody in the act that you need to take place, which is protect the safety of the citizens from flooding? And that is the point we are here to talk about. We are not here to talk about how to prevent flooding. We are here to talk about protection of lives, loss of property.
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    And I want to ask Mr. Lee if he can tell me is this flood a 100-year flood, and if the levees would have held, would you in California have seen or experienced the same level of damage if those levees that are under consideration had held in 1997?

    Mr. LEE. Certainly not, Congressman. We have all kinds designed into the system besides dams, Federal and State and local dams—we have bypasses all up and down the Central Valley. We were prepared as a district down at the confluence of the Sacramento River and the Georgiana slough right at the head of the delta to take this flood. Unfortunately, the levee failed at the Yuba and up by the Sutter bypass.

    But California has a very intricate and well-planned system of levees, bypasses, and dams that have been designed for over 50 years. We are not talking about brand new structures so some developer can come in and put a bunch of houses in the floodplain.

    The whole intent of the witnesses here, and I think even the good professor, is we are talking about 50 and 100-year old structures that are designed to take these waters. Now, because you have a failure occasionally, that doesn't defeat the basic premise that these levees have to be maintained.

    Mr. GIBBONS. Well, Mr. Lee——

    Mr. LEE. In fact, except for—go ahead.

    Mr. GIBBONS. Mr. Lee, let me ask this question because time is limited here, and that is the exact point I want to ask you. It is my understanding from your testimony that you are saying that as a result of the Endangered Species Act and its application to these levees that these levees failed during the 1997 flood.
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    And let me follow that with a quick question that you might also answer, that if Congress gives this exemption to the reclamation districts for these levee repairs and dredging, will or will not every other special interest group want the same exemption? Can you answer those two questions?

    Mr. LEE. Well, yes, I can. I can only speak for those that are charged as public officials such as I am and such as the supervisor from Yuba County with protection of life and property. We are not seeking to change or enlarge or create something new like concrete over the elderberry beetle.

    We are simply saying these are flood control structures much like the California freeways or the California dams or the bridges across San Francisco Bay. These have to be fixed and maintained. We are not asking for something new. That is not our problem. But we have a duty as local public officials to handle this problem. And as long as the Federal Government is getting in the way, we are having a heck of a time.

    Mr. GIBBONS. Mr. Chairman, I asked a question, and I don't think the witness answered the first part of it, and I just would like your indulgence for one minute to ask that one question again. Mr. Lee, from your testimony, are you saying that as a result of the restrictions imposed by the Endangered Species Act that these levees failed in the 1997 flood?

    Mr. LEE. I think the supervisor from Yuba County has adequately answered that question in the affirmative. Yes, that levee up in Yuba County should have been rebuilt years earlier. It wasn't because of the mitigation required by the environmental agencies. The work would have been done.
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    On the Thornton levee that I talked about earlier that took eight years to do five and a half miles, we abandoned six feet on the water side of the river because of environmental concerns. If we had not abandoned fixing that levee on the water side and only concentrated on the land side, we still would be studying the problem, Congressman, and that whole area would have been under water in '97.

    Mr. GIBBONS. Thank you, Mr. Chairman.

    Mr. POMBO. Thank you. Mr. Schaffer.

    Mr. SCHAFFER. Thank you, Mr. Chairman. I would like a number of people, whoever has opinions there on the panel, to comment on the statement that I heard a little earlier from Dr. Mount when he described his belief that if you repair one levee on the system that it essentially forces or places some kind of pressure on another levee or another structure on the system that will cause it to fail, and that these are all related, that failure will occur somewhere, but repairing levees may just move that failure to some other section of a river or other water system or other sort.

    Dr. Mount, I would like you to tell us more about that theory and provide an example. If the levee in question here were repaired and replaced, what failure will be caused as a result of that? And, secondly, I would like to hear from some of the others, whether they concur or whether they have a different opinion on that matter.

    Mr. MOUNT. I think one of the most important things that came out of the Galloway report from the floods in the Mississippi River of 1993 is one person's disaster is another person's salvation, that, in fact, the 1,000 levee failures that occurred upstream of St. Louis spared St. Louis, literally.
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    And I will also argue, and I will argue strongly about this, that one thing we should keep in mind is that levee failures save the delta. Now, I am going to get some disagreement from my colleagues on this, but it is my professional opinion that indeed the delta, which handles two-thirds of the State's drinking water, would have collapsed had all the levees held in the system. Failure of those levees took pressure off and saved the delta.

    So I think that is something that has to be kept in mind. Unfortunately, I don't have a recipe for how to deal with that issue when you are a local homeowner who is staring at the shadow of the levee next to you. But I think that is something we have to keep in mind when we sit and review the consequences of bills like this. Thank you.

    Mr. NOMELLINI. I will take a crack at that question. I think while it is true that when you have water in the river at a certain stage, when a levee fails adjacent to your district, there is a drop in water elevation. So to that extent, you can say that, yes, there is some relief due to the fact that others have suffered a failure.

    There are floodplains in the system that are designed to take water. There are also areas that are not protected to the same degree as others. So there are always in every flood opportunities or situations where water spreads out.

    And while it is true—you know, I am down in the delta. I would agree, if the water didn't spread out in the upper river areas, the problems in the delta would be greater. But I don't think you go from that premise to the conclusion that you shouldn't repair and maintain existing levee systems. What it tells us is that we need a better plan overall which needs time to be developed.
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    I think it is incorrect for us to take off on the assumption that the solution to the problem is not to repair existing levee systems. We have cities, we have farms, we have large investments that we must protect while we do a better job on our planning.

    Our previous planning was willing to tolerate a disastrous event maybe on the frequency of once every 50 years. Today, we think we don't want to ever have a flood. Well, we are going to have floods, and we are going to have levee failures. And the degree of protection is one of cost and investment. Do we want to protect against a 1–in–300 event?

    I don't think we could ever protect to the point that we could assure there will not be some flooding. There are going to be levee failures. There are going to be dam failures. Bridges are going to fall down. Those things are going to happen on some frequency, but we should maintain what we have, plan for the future, take into consideration these floodplain things, put a larger degree of flood protection in there if we want. But by no means is there any justification for the premise that we should not maintain and repair existing systems.

    Mr. HASTEY. I would also like to take a crack at that. I think that one of the things we have to look at is the system, and as being one member of this Committee, that my house has still not been rebuilt. The system works. I mean, 98 percent of the State of California was dry.

    I mean, you can't say that the total system works. The dams did their jobs. The flows were kept down. The system actually worked. It failed miserably because we have levees that are 100 years old.
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    None of the levees in the North Valley failed because the water was coming over the top. This event wasn't a big enough event to cause the levees to fail by overtopping. It was caused by the structural integrity of a poorly built levee and possibly poorly maintained. And part of that maintenance problem is because we are confined with ESA rules.

    One of the things I would like to point out in this bill that I know Dr. Mount agrees with is that we need setback levees. We need those levees further back so we can widen the channel. If this passes, you may actually get those, but I can tell you there aren't many districts and there aren't many people in the State who can afford to go through the EIS and the entire process to move those levees back. That is monumental.

    I mean, it will take 20 years to get that done. I mean, if you want setback levees, and that is important, and you believe that is a process that needs to happen, then I believe this bill goes a long ways toward making those happen.

    Mr. YENNI. I think that an optimal term we need to address here is we talked about flood prevention, and I think you need to contrast that with flood control. I think at least in my instance, we realize that we can't prevent a flood 100 percent. What you need to concentrate is on controlling it and to what extent are you going to control that flood.

    Regarding building the levees higher and putting pressure on other systems further down, I know in my area if my levees are adequate, the only pressure that also results will be in San Francisco Bay. And I don't think it is going to flood San Francisco Bay. It will put the whole Marina district under water. Likewise, further up the system from me, the drainage is small enough such that we can push the water down with a small elevation in height.
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    Another thing that we have, I think it was mentioned a little bit earlier about dredging of channels. The Corps of Engineers has determined that sloughs and creeks surrounding our lands are navigable waterways.

    I know that when we went out there to look at some of the restoration-site which is taking place on a portion of the place I farm, Fish and Wildlife Service, Fish and Game were out there. And we had trouble finding that navigable waterway.

    We are standing in the middle of it along about July or August. We said, ''Yes, I think it is—it must be around here. There is a depression. That has to be the channel.'' So we need to have a little consideration given to these navigable waterways and how you can't find them.

    Mr. POMBO. Thank you. All right. I want to thank this panel for their testimony and at this time call up the next panel. Thank you very much, and you are excused at this time. The next panel is made up of Mr. David Zappe—excuse me—Mr. Frank Peairs is taking his place; Mr. Walter Cook; Mr. Robert Frost; and Mr. Robert Clark.

    Mr. TAUZIN. Mr. Chairman, I ask unanimous consent to be recognized out of turn at this point. Mr. Chairman, I was not here for an opening statement. I just want to make an observation.

    Mr. POMBO. Without objection, the gentleman is recognized.

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    Mr. TAUZIN. As we are gathering the second panel, it just occurred to me that, you know, we have a similar concern in our State where we are building and trying to maintain levees to protect lives and property. And all too often, we have very, very limited resources available for us; that often the levee doesn't get built, not because of regulations, and the repairs are not made, not necessarily because of regulations, but because we don't have enough money. And when we finally gather the money together, we are told that part of the money has to be used now to go do an environmental mitigation project.

    And while environmental mitigation may be very important and environmental projects may be very important, what I guess we are discussing today is whether these precious dollars, and the precious time we have to fix levees and maintain them, and the precious effort that is available to us in terms of public resources to get that work done should be diverted for other governmental and high-minded purposes to protect beetles. In short, are beetles more important in terms of spending these precious dollars than protecting lives?

    And Mr. Herger showed me a report by the Corps of Engineers that predicted that lives were going to be lost in his district if the levee was not fixed on time. It was not fixed on time, and we are hearing that part of the reason it was not fixed on time was because the government decided that spending money to protect beetles was a higher priority.

    And I think that is what really this panel has taught me—is that in my own State we think we have problems already with these concepts, and we haven't yet been faced with these kind of regulations. If we ever have these problems, I don't know how we would survive in south Louisiana. And I understand a little better why some of your constituents were not able to survive, Wally, and why we need to change some laws in this country.
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    Mr. POMBO. At this time, I would like to recognize Mr. Frank Peairs who is the Assistant Chief Engineer at the Riverside County Flood Control and Water Conservation District. Mr. Peairs.


    Mr. PEAIRS. Thank you, Mr. Chairman, members of the Committee. Over the past 50 years, the district has developed an extensive system of flood control facilities, including 35 dams and detention basins, 48 miles of levees, 188 miles of open channel, and 182 miles of underground storm drains. Timely maintenance of the district's system is critical to ensure protection of the lives and property of our residents.

    The district is mandated to maintain projects constructed with Federal partners to standards dictated by the Federal agencies. And the Federal Emergency Management Agency, or FEMA, mandates local government to maintain its flood control facilities as a condition of participation in the National Flood Insurance Program. Failure to do so can result in expulsion from the program and other sanctions.

    For decades, the district routinely maintained its system without outside interference. But over the past several years, we have been hamstrung in this effort through the regulatory activities of several Federal agencies, including the Corps of Engineers, the Environmental Protection Agency, and the U.S. Fish and Wildlife Service.
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    These agencies have veto power over local flood control maintenance activities by virtue of regulations promulgated under authority of the Clean Water and Endangered Species Acts. Although these laws have been on the books for many years, their impact has become more burdensome as Federal agencies have issued new and more stringent regulations, often without authority of new law and sometimes as a means to negotiate settlement of environmental lawsuits of questionable merit. An example is the lawsuit negotiation which resulted in the Corps of Engineers adopting the so-called Tulloch Rule which was recently overturned by the Courts.

    Today, three separate Federal permits are required under the Clean Water Act to operate and maintain the district's flood control systems, including a Section 404 permit from the Corps of Engineers. In addition, under Section 7 of the ESA, the Corps is required to consult with the Fish and Wildlife Service where a permitted activity may jeopardize and endanger a threatened species. And EPA retains veto power over any activities that they do not agree with.

    This web of multiple Federal permits prevents timely maintenance of critical flood control facilities and poses an ongoing threat to the public health and safety. Many examples can be cited.

    In one case, the district was prevented from making critical repairs to the Santa Ana River levees because two endangered woolly-star plants were discovered in the general area of the work. The district is mandated to maintain these levees by the Corps of Engineers which constructed them. We could not do so for more than two years, even though a failure would have been catastrophic.

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    In another case, in January 1993, overflow from Murrieta Creek caused serious flooding in the Old Town area of the city of Temecula. Flows raged through businesses, restaurants, and residences causing over $10 million worth of property damage. I was there that night. The power was out, and as I looked into the darkness of Old Town, I was certain that many lives had been lost. Through some miracle, none were. But there were many close calls.

    The real tragedy is that the flood was absolutely preventable. Prior to the flood, Federal officials had refused to allow mechanical clearing of vegetation and the removal of accumulated sediment on the creek, partially due to alleged concerns about the endangered least Bell's vireo, and only after the damage occurred did they allow the critically needed maintenance to take place. Ironically, FEMA later reimbursed the district and the city of Temecula for the cost of the post-flood maintenance.

    Survival of an endangered or threatened species was not at stake in either of the cited cases, but inflexibility built into the ESA, coupled with indifference to public health and safety issues on the part of the resource agency and regulatory staffs, prevented the district from taking appropriate corrective measures in a timely manner unnecessarily jeopardizing lives and property.

    I have focused on maintenance issues today, but the district has also experienced major difficulties with the ESA in permitting new flood control projects. Additional information on these problems has been provided in the district's written testimony, along with a specific list of reforms to the Endangered Species Act recommended by the district.

    Time prevents me from covering the entire list, but the most critical of the proposed reforms is a categorical exemption from provisions of the ESA for routine maintenance and emergency repair of all existing flood control facilities, and I would say not just levees.
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    Accordingly, on April 8, 1997, the district's governing board approved Resolution Number F97–5 supporting H.R. 478, the Flood Prevention and Family Protection Act of 1997. A copy will be provided to the Committee upon certification by the clerk of the board.

    The district fully understands that flood control programs and projects are currently undergoing dramatic change. But numerous citizens still rely on existing flood control systems to protect their lives and property. And reform is urgently needed to ease the regulatory burden on local governments and to allow critically needed maintenance to take place. Thank you for your consideration of these remarks and the additional information and recommendations contained in our written testimony. Thank you.

    [Statement of Mr. Zappe may be found at end of hearing.]

    Mr. POMBO. Thank you. Mr. Walter Cook.


    Mr. COOK. Well, thank you, Mr. Chairman. My name is Walter Cook. I am a retired attorney, and I own a walnut orchard which is located adjacent to the Feather River levee which broke on January 2, 1997. Much of my orchard was washed away. The remainder is covered by about six to eight feet of sand. My house, shop, and mobile home were disintegrated. Most of my equipment is hidden under the sand in unknown, scattered locations.

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    H.R. 478 is being offered as a remedy for future flooding. However, before adopting a remedy, the cause of the problem must be first explored. So far, there has been much loose talk that the beetle did it. Based on my personal knowledge of the Arboga levee, I would like to share some information and thoughts which relate to the many probable causes of this breach.

    The levee is made entirely of sand. During previous high river flow, substantial levee erosion has been common in the vicinity of this break. Such erosion is likely to have occurred during the '97 flood and could easily have caused the levee break. Moreover, the toe of this levee had been a long-term problem.

    Rather than a delaying of repairs to the levees, in 1989, repairs were made to the levee at my orchard. A 1,000-foot long, 10-foot deep trench—a toe drain—was dug along the landward toe of the levee just north of Country Club Road. It may be more than coincidence that the break occurred at the precise location of this toe drain.

    While we cannot know whether the toe drain weakened the levee, we do know that the toe drain was ineffective in preventing the break of a levee that had previously existed for some 50 or more years.

    I understand that this stretch of levee was constructed over deep sand and gravel of the old riverbed. Incorrect original placement of the levee was another probable cause of the breach.

    Despite the many factors which could easily have caused the breach, many have seized on the mitigation pond as the undisputed cause of the break. This scenario, disregarding all others, is being used to justify diminishing the effectiveness of the Endangered Species Act.
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    The pond is located about three-quarters of a mile from the center of the levee break and about 200 yards riverward of the levee. The claim that this pond caused the break requires an active imagination, in my opinion.

    It is also claimed that the Endangered Species Act prevented proper levee inspections and repairs, and that it held up levee restructuring. In its '96 study, the Army Corps stated that the levees in the study area are maintained regularly. I could relate to that. Since 1976 annually, the levee slopes have been burned. There has been a prevention of the colonization of endangered species on the sides of this levee.

    In addition to burning the levee, there has been a dragging of a bar across the sides of the levees with a bulldozer. Maintenance—I have to commend Reclamation District 784 for having done an excellent job in maintaining the levee. There has apparently been no problem with the Endangered Species Act insofar as levee maintenance of the levee that just broke.

    In summary, we need to change our outlook on the natural world. The destruction of my orchard is not the fault of nature. The flood was caused by the refusal of we humans to accept the natural world the way it is. And our pitiful attempts to force the river to go where it would not go, blaming other species, which we are about to destroy forever, is not the answer.

    Despite our greed and arrogance, what right do we have to satisfy our own desires by driving other creatures to extinction? Humans can build faulty levees and dams that don't work, but we cannot create even one of nature's most insignificant bugs or rodents. Rather than doing everything we can to destroy the earth, we must learn to live with and protect the paradise we were given.
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    The choice is not whether humans or bugs are superior. Humans must live in harmony with other creatures.

    Without providing any substantial benefits to flood control, H.R. 478 will result in more Los Angeles rivers and other poorly-thought-out projects. Elimination of dams from review is particularly unconscionable. H.R. 478 is a bad bill and should be rejected out of hand.

    Mr. Chairman, I have a small package here of additional information which relates to the toe drain of 1989. I would like to submit that as part of the record if that is possible at this time.

    Mr. POMBO. Without objection, it will be included in the record. Thank you.

    [Statement of Mr. Cook and added information may be found at end of hearing.]

    Mr. POMBO. Mr. Robert Frost.


    Mr. FROST. Thank you, members of the Committee. My name is Rob Frost. I operate a cattle ranch and land clearing business in Santa Paula, California, which is in southern California. I am currently serving as Second Vice President of the California Cattlemen's Association. I am here today representing the organization, as well as landowners along the Santa Clara River who have suffered severe flood damage.
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    The CCA is a nonprofit organization which has over 3,000 members and has represented the State's beef cattle producers in legislative and regulatory affairs since 1917. Our members own, control, and manage approximately 38 million acres of California's 100 million acres. On the land we control, we house a majority of the State's wildlife, plant species, and correspondingly the greatest percentage and number of the State's endangered and threatened species under the Endangered Species Act.

    My testimony today serves to call attention to two issues: the dilemma which I and other landowners along the Santa Clara River have experienced due to the lack of flood control measures to protect public and private property. The other is the dilemma which ranchers and other landowners throughout California face due to agency permitting requirements that restrict our ability to repair or restore property other than just levees and other flood control projects damaged or destroyed by flooding or other natural disasters.

    Basically, in both cases, the dilemma has been the direct result of the Federal Government's enforcement of ESA which has taken a severe toll on the ability of landowners to protect their property and their livelihoods. It seems like every year now we have a flood.

    Just normal rainfall causes floods in Ventura County, predominantly '92, '93, and '94, and '95—weren't bad years but we had floods, and the main reason is that Ventura County Flood Control District will not fund money to do normal maintenance. And then, of course, we have the Corps of Engineers and the Fish and Wildlife Service stepping in with these horrendous mitigation measures.

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    Many producers lost hundreds of acres of crops and land—a permanent loss of 20 to 100 feet of soil depth in each case and the irrigation system that went with them due to torrential rains that caused the river to shift course on a four-mile stretch and rip up nearly $2 million worth of crops and land. Refer to the Sacramento Bee article that is in my testimony. In addition, at least two oil wells and oil lines were at immediate risk, a natural gas line was ruptured and destroyed twice, and utility lines were downed, creating tremendous risk.

    The landowners have requested help. Our problem down there is not levee maintenance. It is just maintaining the pilot channel in our river. The river is not controlled by levees, but the levees do protect the sidewalls of the river.

    The landowners who requested help and had limited financial resources were denied permission to expedite repairs on their property to prevent further flooding and restore what was damaged. Landowners with adequate financial resources were allowed to take immediate action for restoration efforts but only because they could financially commit to unreasonable mitigation procedures.

    For many years, not less than 70, the local flood control agencies contracted out pilot channel excavations in the river to small contractors and owner/operators of earthmoving equipment. Simply put, these contractors and equipment companies maintained a pilot channel that would handle just about any kind of normal rainfall. Except for the major flood we had in 1969, it would take care of that.

    We had rock and sand companies willing to come in and excavate the pilot channels and serve an economic benefit to Ventura County which was out of aggregate at an economical yield. All that stuff was fine and dandy, and the agencies were ready to go until they came up with the mitigation measures.
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    Now, we are talking the farmland valued at $15,000 to $35,000 an acre in Ventura County. The mitigation requirements by the agencies—there was just no cost benefit ratio to the farmers. Nothing was done. The center of our river is higher than the banks right now.

    I am about out of time, but, anyway, we fully support H.R. 478. Our biggest problem is the agencies won't react. They have—I don't mean for anybody to take it personally—they just don't know what is going on. They have got no sense. And we have people down there—small family farms—that are absolutely financially desperate because of the flooding we have had. I mean, they have lost orange groves mainly because the agencies will not maintain a pilot channel down through the river.

    In closing, natural disasters can take a significant financial toll on investment we have in our businesses and our ranches. Property owners who have gone through the trauma associated with having their property destroyed and lives disrupted should not be further burdened with expensive permitting and delayed processes. Thank you.

    [Statement of Mr. Frost may be found at end of hearing.]

    Mr. POMBO. Thank you. Mr. Robert Clark.


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    Mr. CLARK. Mr. Chairman and members of the Committee, I am the manager of the California Central Valley Flood Control Association, and I want to thank you for the opportunity to bring some of the concerns of our members to this Committee today.

    The Association was formed in 1926 to promote and secure the integrity of the Sacramento River Flood Control Project. Today, we represent the interests of those responsible for the maintenance of the levee and drainage system with membership from throughout the Sacramento Valley and Delta.

    Our members include reclamation, levee, drainage districts, counties, one city, and private landowners. The importance of the Endangered Species Act is recognized by our members who, of course, provide considerable habitat for protected species.

    We want to work with the Congress and regulatory agencies in an effort to provide for practical and successful implementation of the Act, while recognizing the greater need to assure protection of life and property from the ravages of flood. We believe the Act needs to be changed to recognize the conflicts created by its strict application.

    Flood control facilities are safety devices. Here in California, our economy, our property, and our lives depend on their successful construction, operation, and maintenance. This protection extends to the wildlife and habitat within the leveed system. Yes, levees protect wildlife too.

    The protection provided wildlife and habitat by levees is never considered when mitigation requirements are developed. A secure flood control system should not be compromised by the misguided desire to enhance fish and wildlife.
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    Environmental law, regulation, and regulators have served to delay, discourage, and sometimes prevent essential flood control work. And in almost all cases, they reduce significantly the funds available for flood protection. One of the most difficult aspects of compliance with environmental regulation requirements is the constantly narrowing time period when work is permitted to be done.

    It seems that by the time periods are set aside for nesting, hibernating, and migrating species, there is inadequate opportunity to accomplish the needed maintenance and repair work in a reasonable and efficient manner. This drastically increases cost and limits the availability of contractors capable of accomplishing their work. Safety first, not safety second, should be our motto.

    The California flood of 1986 resulted in identifying many areas where levee standards were deficient. Many of these sites remain unimproved 11 years later. At one of these sites you heard about a major failure that occurred. We have heard these delays categorized as administrative. Environmental law and regulation is the primary cause of these administrative delays.

    Most of the environmental aspect of a project is based on biological opinion. The opinions expressed by the several regulatory agencies are often in conflict, and resolution of these conflicts delays progress. There is no motivation for any of the regulatory agencies to proceed in a timely manner, and personnel changes, as well as the ongoing process of new ESA listings and revised biological opinions, further add to the delay and rising cost.

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    The actual cost of project implementation is often a fraction of the overall project cost. Funding for construction is not requested or scheduled until all environmental documentation and mitigation is determined.

    The ESA is not used directly to stop projects. It is used as a fallback authority to acquire potential habitat. Flood control managers are good stewards of the environment. They are willing and ready to assist in the preservation of habitat and endangered species. Their first priority, however, is providing protection for the lives, property, and economy of the area they serve. People who live behind the levees are highly motivated to assure a secure flood control system.

    The obstructionist and what appears to be punitive nature of the application of the ESA on vital flood control projects must be overcome. Lacking any achievement of practical reform to the Act in recent years and the current method of application to vital safety projects has led our Association to the support of H.R. 478. We strongly support the view that operation and maintenance of existing flood control structures should be exempt from requirements under the ESA. Thank you for your consideration of our comments.

    [Statement of Mr. Clark may be found at end of hearing.]

    Mr. POMBO. Thank you. Mr. Clark, in your opinion, is public safety being put at any additional risk by the delays and cost increases associated with the ESA compliance?

    Mr. CLARK. Chairman Pombo, I certainly believe there is a risk. Whenever you have a levee that is identified as deficient and defective and you delay for years resolving that problem, it is bound to be a risk when you know you have a problem.
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    And even if you don't know it, you should be working on it. But the delay that is associated with it, it is not unusual to go to a meeting on these projects and spend eight hours discussing them, and the only thing resolved is setting the date for the next meeting.

    Mr. POMBO. Do these additional costs of mitigation and compliance have any impact on the ability of the individual districts to make the repairs that are necessary?

    Mr. CLARK. They certainly do if the cases that are not emergencies because the project—there is a local cost sharing for construction, and, of course, many of the project levee—many of the levees—not project levees—that are owned by reclamation districts, particularly in the delta, are not Federal levees so they receive no Federal funding.

    They get some State assistance in some areas but not all areas. So they do definitely add to the cost and the ongoing mitigation. And I just think the permitting costs are in many cases exorbitant, and they could be much—be streamlined by revisions to the Act.

    Mr. POMBO. You represent a number of people who are involved with the maintenance of the levee system, with the reconstruction of the levee system throughout the entire area. In your opinion and through your experience, when you have these kind of delays that you have described in your testimony and in answering the questions to the repair of the system, over a period of a number of years—say 15 years—where work that should have been done is delayed over a period of time, which, you know, even if it is ultimately done, it delays other work that should be done, and when you have an event like what we went through in the first part of this year, does that impact the ability of the system to handle that amount of flow, that amount of water that goes through it?
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    Mr. CLARK. Well, the levee system in the Sacramento River Flood Control Project is, of course, a very integrated system. It is integrated with the reservoir operations, the levee system, the weirs and bypass system, and so forth. And the delays in environmental work or ones I have referred to earlier, they are expensive.

    They are often faced with impractical mitigation requirements, and it takes time to resolve those differences of opinion. Opinions are written by what I would term apprentice biologists in distant offices, and they have to be revised once they get out to the field and they are reviewed.

    I think one of the main aspects of environmental regulation is the uncertainty it provides to the operations people in the field. They never know what issue is going to impact them in the work they are doing.

    Mr. POMBO. Thank you. At this time, I will recognize Mr. Herger—if he has any questions.

    Mr. HERGER. Thank you, Mr. Chairman. I would just like to reemphasize what the purpose of this legislation is and also what the purpose is not. There were some comments that were made earlier in our hearing that perhaps the purpose of this legislation was to build more reservoirs. I personally feel we need to build more reservoirs, but that is not the purpose of this legislation.

    What the purpose of this legislation is, is to ensure that we do not have a repeat of what we had happen on the Yuba River, and which in 1986—again, to repeat this—Reclamation District 784 recognized that they needed to repair a specific levee problem.
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    Four years later in a study because of environmental laws, U.S. Army Corps of Engineers reported—again, let me—I don't know if we can quote this too many times—this is their quote—now, this is in the precise location where the levee broke—their quote was, ''Loss of human life is expected.''

    And, Mr. Cook, I hope you are listening to this because certainly our purpose of this is not to destroy or allow any of our endangered species to become extinct. That is not the purpose.

    But the purpose is to put human life first, and I believe we have every right to expect that. I believe the families of those three individuals who lost their lives have every right to believe that the U.S. Congress is putting the lives of our citizens even before that of endangered species.

    And to finish this quote, it says, ''Loss of human life is expected under existing conditions without remedial repairs for a major flood event.'' Now, that was a statement made by the Corps of Engineers four years after the levee was attempted to be repaired, and seven years before the levee break occurred, and about seven-and-a-half years before it was finally down to be repaired. Now, that is wrong. That is about as incredibly unacceptable as any disaster that I have ever seen.

    That is the purpose of this legislation, to be able—and during this period of time, also the comment was made that it is not anything new to anyone in this Congress, or certainly in our State, or in any of our 50 States that we have a shortage of funds here in Washington.
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    We are attempting to balance the budget, and I serve on the Budget Committee. We are looking at every dollar we spend. And you know what we spend on a break or—that the original estimate to repair in 1990 of this break was $3 million for this problem— we had in this specific levee, $3 million. Now, after it broke, it is going to cost $9.3 million. Plus that, we spent $10 million on mitigation.

    And not only is the levee still not repaired, but it was written in a letter—a memo I have from the Yuba County Water Agency, 35,000 people were displaced by this one repair that was recognized in 1986, 500 homes were destroyed, 9,000 acres of prime farmland was displaced, and four of the largest employers in all of Yuba County were inundated.

    But as bad as all that is, the worst of all is that three human lives were lost that need not to have been lost right directly in front of where that levee broke. Now, that is wrong. And we have a responsibility to not only protect endangered species, which I also support, but to protect human life.

    And this legislation would allow us to go in and to build and repair our levees, to put that as our highest priority, to do it in an expeditious way in which we do not have to go in and mitigate first so as to be stalled. That is the purpose of the legislation, Mr. Chairman, and I appreciate all of our witnesses that are here testifying on this today.

    Mr. POMBO. Thank you. Mr. Schaffer? Mrs. Cubin? I would like to thank the panel for your testimony. There may be further questions that would be submitted to you in writing. If you get those questions, I would appreciate it if you could answer them as quickly and succinctly as possible so that they can become part of the official record of the Committee hearing. And at this time, I would like to dismiss the panel and thank you very much, all of you, for your testimony.
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    OK. At this time, we are going to call up the next panel that is going to testify here today. It is going to take just a few minutes of delay so that the stuff can be moved out of the way so that they can sit at the hearing table. So we are going to delay for just a few minutes here while they do that.


    Mr. GRUGETT. Mr. Chairman, thank you very much, and I do apologize. I made the only reservation I could to get back home tomorrow. But my name is George Grugett, and it is my pleasure and privilege to serve as the Executive Vice President of the Lower Mississippi Valley Flood Control Association, an agency composed mainly of public officials that for the most part are elected to serve the people on levee boards, drainage districts, ports and harbor, State agencies, cities and towns, and other State agencies in the States of Illinois, Kentucky, Tennessee, Missouri, Arkansas, Mississippi, and Louisiana, extending from Hannibal, Missouri, to the Gulf of Mexico.

    Mr. Chairman, I have been in this business for about 50 years, and I would like to just deviate a little bit from my statement and make a few comments. Dr. Mount, in his statement, said that levees will fail. We in the Lower Mississippi Valley have not had a levee failure since 1927. That is about 70 years. Congressman Tauzin's comments I really enjoyed.

    There was a lot of mention made of floodplains. Our floodplain in the lower valley is 100 miles wide. When you have got that kind of floodplain, you don't talk about moving people out. But this Association has appeared before the Congress and served the people in the lower valley for well over 60 years.
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    I sincerely appreciate this opportunity to testify today on the implementation of the Endangered Species Act. Let me begin by stating emphatically that I strongly believe in protecting our environment, and everyone I know and associate with shares that belief and desire. I also strongly believe in private property rights, the rights that form the economic framework that this country was founded on.

    It is my strong opinion that the multibillion dollar environmental movement and some bureaucratic government agencies have harmed our economy and violated the liberties and freedom of the American public. I am also sure that only the elected Congress of the United States can change that violation of private property rights and prevent Americans from being crushed by fanatical environmental extremists.

    My discussion of the implementation of the Endangered Species Act must begin with the long-held belief that there is nothing basically wrong with the Act itself, but the interpretation and enforcement of this Act by Federal agencies have created a very costly and unacceptable time-consuming situation that is not visible to or known by the public.

    This interpretation and enforcement has caused the Federal Government to expend lots of resources, both money and people. Fortunately, because of the generosity of the taxpayers, the Federal Government has those resources.

    Unfortunately, the local people do not have the necessary resources and assets. Therefore, work, especially flood control work, simply does not get done. The time and money required just to file an application for a permit is not available in most cases to the ordinary citizen.
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    The Federal Government has to expend the time and money because of the rules, regulations, and policies that have been promulgated by the Endangered Species Act. The majority of this effort is to satisfy the U.S. Fish and Wildlife Service.

    An example of the resources that must be used to both satisfy the misinterpretation of the Endangered Species Act and provide adequate flood control protection took place on the St. Francis River in east-central Arkansas.

    This reach of the St. Francis River was an integral part of the complex St. Francis Basin Project that provides flood protection for almost 2 million acres in northeastern Arkansas and southeastern Missouri. The project had been jointly built by the local people and the U.S. Army Corps of Engineers.

    In order for the flood control project to function properly, maintenance work in the form of dredging to remove accumulated siltation was required on the St. Francis River south of Highway 64 in Arkansas. The Corps awarded a contract for the maintenance work in 1977 at an estimated cost of approximately $1 million.

    Shortly after work began, a dead mussel, identified as a fat pocketbook pearly mussel, was discovered near the worksite. Since the fat pocketbook pearly was one of 50 or so mussels listed as endangered, work was stopped. The contractor filed a claim against the government, and he was paid approximately $1 million, this in spite of the fact that little or no work had been performed.

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    The maintenance work was halted for a period of 11 years, and lands and homes were flooded that would not have been if the required work had been done. In addition to this damage, the Corps of Engineers spent another $1 million locating and relocating the fat pocketbook pearly mussel. $2 million was expended, 11 years was wasted, and no flood control protection was provided.

    The epilogue to this story is that work was resumed with individuals being paid to literally crawl on their hands and knees in front of the dredge removing and relocating mussels. The irony is that not only was the fat pocketbook pearly mussel subsequently found in large numbers over a vast area, but it was evident that they grew best in disturbed channels, in other words, channels that had been previously dredged.

    There are many stories that are as ridiculous and costly as the experience with the fat pocketbook pearly mussel. We cannot afford that type of thing any longer because of drastic cuts in the Corps of Engineers civil works project.

    If I may, sir, I would like to point out one thing that is of great concern to us now, and that is the Fish and Wildlife's designation of critical habitat for endangered species. Just one example is a proposal by the Service to designate a total of 3 million acres in Louisiana and Mississippi as critical habitat for the conservation of the Louisiana black bear.

    No one wants to see harm come to the Louisiana black bear. But if almost 5,000 square miles are designated as critical habitat, and the Corps of Engineers' 404 permitting program requires that the issuance of a permit does not result in the adverse modification of critical habitat, you can easily see that we and the Corps of Engineers are going to be hard-pressed to bring some 300 miles of deficit levees in Louisiana and Mississippi to the required grade and section.
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    When those levees fail, and they will if not corrected, not only will the Louisiana black bear be in immediate and critical danger, but so will about 4 million people and their homes and property. I must point out that this designation of critical habitat also has a strong potential for imposing undue restrictions on the activities of private landowners.

    Briefly commenting on H.R. 478, that proposes certain exemptions from the Endangered Species Act for flood control projects. We do not believe that flood control projects in their entirety should be exempted from the requirements of the Endangered Species Act as the Act itself has made positive contributions to our quality of life in the United States.

    What we are really asking for is tolerance for people and their livelihood on the implementing rules of the Act. The Endangered Species Act, because of the way it is formulated, requires the U.S. Fish and Wildlife Service give total weight to the conservation of the species regardless of the consequences to people, their property, and their livelihoods.

    The Act should be modified to reflect a balance, the weighing of people's needs against that of the species. We hope that the Congress will modify the Endangered Species Act to bring about that balance, and thank you for your time.

    [Statement of Mr. Grugett may be found at end of hearing.]

    Mr. POMBO. Thank you, sir. If none of the members have any questions of the witness, he can be excused at this time, and thank you very much for your testimony.
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    Mr. GRUGETT. Thank you, Mr. Chairman.

    Mr. POMBO. At this time, I will recognize Mr. John Garamendi, Deputy Secretary, Department of Interior.


    Mr. GARAMENDI. Mr. Chairman, I appreciate the opportunity to be here today to discuss the recent and tragic flooding which has taken place in California, the Northwest, the Midwest, and other parts of this country. Our hearts go out to those who have suffered losses from this series of devastating floods.

    First, I would like to commend the U.S. Army Corps of Engineers, the Bureau of Reclamation, the Geological Survey, Fish and Wildlife Service, as well as State and local floodfighting agencies. While the extent of this year's flooding was catastrophic, these agencies have performed effectively and thereby avoided serious additional damages and threats to life and property that would have occurred had they not been working so effectively.

    Mr. Chairman, my testimony is beyond the length of time available. I am going to in my comments shorten it. The written statement has been presented, and I would like you to put that in the record. In January of 1997, the Fish and Wildlife Service implemented the disaster provisions of the Endangered Species Act, Section 7, consultation regulations in 48 California counties that were declared disaster areas by the President. Rapid and effective response to damaged flood management systems was undertaken, and that did result in the minimization of risk to life and property.
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    In addition, on February 19, 1997, the Director of the Fish and Wildlife Service issued a policy statement further clarifying and articulating our flood emergency policy under the Endangered Species Act. A copy of that policy has been provided to the Committee, and it is attached to my testimony.

    The policy is that, essentially, during this flood season, the repair and replacement of flood damaged flood control facilities may proceed unimpeded and without review as long as landowners and government agencies plan to repair or replace the damaged facilities to substantially the same condition as existed before the flood.

    I think we need to spend a great deal of our time looking at the long-term restoration of the California and American flood systems. The Department of Interior's long-term flood management strategy is to develop cost effective and economically sustainable approaches to reducing future flood damages so that these systems are consistent with the need to protect and restore important environmental natural resource values that are inherent in the floodplain and adjacent lands.

    Our Department will continue to work cooperatively with Federal and State agencies, local communities, water districts, and concerned citizens to examine the long-term flood damage reduction measures. Our hope is to achieve a flood control system that is based on reducing flood damages through these cost-effective and, where appropriate, nonstructural alternatives while minimizing the development in the floodplains.

    If I might for a moment turn to the Endangered Species Act regulations and the flood protection measures. This Committee has heard much today, and much has been said in the past about the Endangered Species Act and the flood. Let me make it perfectly clear that in our view, the Endangered Species Act has been wrongly blamed for flood damages in California, particularly relating to the operation and maintenance of the levee systems along the Sacramento and the San Joaquin Rivers.
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    The storm that hit northern California beginning just after Christmas paralleled or exceeded the historic California storms of the 20th century. For example, flooding on the San Joaquin River ranked four times greater than 1986. Oroville Reservoir on the Feather River experienced a record inflow of over 302,000 cubic feet per second. That is over a 120-year event. And the outflows were 20 percent greater than the previous record in 1986.

    Mokelumne flows below the reservoirs peaked at close to 8,000 cfs, which is the highest flow recorded in over 80 years. On the Cosumnes River, it experienced flows over 90,000 cubic feet per second, which was twice as high as any recorded flows since 1906. Certainly, the levee systems were simply overwhelmed by the magnitude of the January floods.

    In addition, we are aware of no cases where it can be shown that the implementation of the Endangered Species Act caused any flooding and any flood control structures to fail. Nor has the presence of any listed species prevented the proper operation and maintenance of flood control facilities prior to the recent floods.

    Now, I would like to take an opportunity to express my Department's strong opposition to the Flood Prevention and Family Protection Act of 1997, H.R. 478. While the Department agrees with the need to reduce flood damages and to protect residents living in flood-prone areas, we do not believe this legislation will achieve these goals.

    In fact, legislation has the potential to worsen the problems it seeks to address. Legislation proposes broad exemptions from the Endangered Species Act which would encompass a majority of Federal and nonFederal water resources projects. There are thousands of Federal and nonFederal projects that have flood control as one of their functions.
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    You might include the Hoover Dam, or the Grand Coulee, or the Shasta Dam in this list, and certainly most every hydropower facility would be included. We believe this bill, as written, would exempt virtually all Federal and nonFederal water resource projects and flood projects from compliance with the Endangered Species Act.

    Amending the ESA in this fashion will not enhance anyone's ability to operate or maintain flood control facilities. If assumptions that floods can be prevented solely by structural means, by eliminating the Endangered Species Act, that would allow businesses and residences to live and to work in areas that are subject to frequent flooding. As a result, some communities will become immune to small and medium-sized floods, only to be devastated by larger and more intense floods that will inevitably occur.

    The bill will contribute to a false sense of security and may encourage further development in flood-prone areas, thereby increasing future flood damages. It doesn't solve the flood problem. It doesn't solve flood damages or lost lives and property. We believe it will make things worse.

    We also recognize that there are several endangered species living along the levee system in the Sacramento and San Joaquin Rivers, and we have, therefore, developed cooperative agreements with Federal and State agencies, water management districts, and others to reconcile the needs of the listed species. We have many examples of how these coordinated and cooperative programmatic consultations have sped projects and caused them to be undertaken in a more timely manner.

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    I will not go into all of those details. But, in conclusion, all of us must recognize that this is not the last natural disaster that will affect lives and properties. Therefore, all of us must be committed to continually improving our capability to respond. We can do this by designing our systems so as to recognize that Old Man River will have his way eventually. We must design our systems to accommodate the river. That is the conclusion of my testimony. The written version is available to you, and I would hope you would put that in the record. I would be happy to respond to questions.

    [Statement of Mr. Garamendi may be found at end of hearing.]

    Mr. POMBO. Thank you. Your full written statement will be included in the record. Mr. Michael Davis.


    Mr. DAVIS. Mr. Pombo and members of the Committee, thank you for the opportunity to be here this afternoon to testify on the impacts of the Endangered Species Act on the ability of Federal, State, and local government agencies to provide flood protection.

    I am Michael Davis, the Deputy Assistant Secretary of the Army for Civil Works. I work for one of your former colleagues, Martin Lancaster. With me today are representatives from the Corps Sacramento District and a representative from the Corps' headquarters Emergency Management Office. Mr. Pombo, I too will summarize my statement, and with your permission, submit the full written text for the record.
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    While my statement today focuses on activities in the California Central Valley and its recent devastating floods, the basic tools used by the Army Corps of Engineers to address flood protection and environmental issues apply across the nation.

    Let me say upfront that we believe that implementation of the Endangered Species Act is not inconsistent with the need to build, maintain, and operate flood control infrastructure. We know today that it is not only vital to protect human safety and property, it is also important to protect our natural resources.

    Using existing regulatory provisions under the Endangered Species Act and the Clean Water Act, we are able to maintain the important balance between flood protection and natural resource protection. In fact, with existing exemptions, emergency provisions, and general permits, it is rare that a detailed Federal evaluation is required for maintenance and repair of flood protection levees.

    For example, in January of 1997, the Sacramento District issued a general permit for those nonexempt emergency flood repair activities. Since that time, that district has issued over 30 permits for specific activities with the average turnaround time anywhere from two hours to two days.

    The Corps enjoys a solid working relationship with Federal and State resource agencies. We work together to ensure that flood control projects go forward in a timely manner with minimal adverse effects on the environment. A good example of this working relationship is the emergency floodfighting work that was done following the New Year's storm in California.
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    As soon as the Corps became involved with fighting levee breaks, we coordinated with the Fish and Wildlife Service and the State of California Fish and Game to obtain guidance on endangered species consultation. Both agencies stated that an initial consultation was not necessary to initiate emergency levee repairs during floodwide conditions. Instead, concerns or requirements for endangered species mitigation would be addressed once the floodfight ended. The emergency work went forward without delays for environmental consultation.

    And now that the Corps is in the rehabilitation phase of levee reconstruction, the Fish and Wildlife Service continues to work closely with our Sacramento District so that we may expedite the site evaluation process and, ultimately, the final levee rehabilitation before the next flood season.

    The Fish and Wildlife Service and the State Fish and Game representatives accompanied the Corps team as they conduct site visits. A determination is made on-site of any ESA, NEPA, or California Environmental Quality Act concerns or habitat mitigation requirements.

    After the Corps and the Fish and Wildlife Service have determined what mitigation measures can be reasonably and practicably implemented to protect endangered and threatened species and other environmental values, those measures are implemented as the rehabilitation and reconstruction work proceeds, or as soon thereafter as is practicable.

    It is our strong belief within the Department of the Army that both human needs and our natural environment can be given appropriate consideration, and the decisions regarding flood protection and development issues should reflect both sets of considerations.
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    The Corps recognizes that environmental laws such as the Endangered Species Act and the Clean Water Act are essential to ensure the protection of our nation's resources. While it is true that at times construction schedules and practices have been modified to address environmental concerns and requirements, this does not interfere with our ability to provide the design level of flood protection. We continue to work with the other agencies to improve these programs and to further reduce delays where possible.

    In the Chairman's letter of invitation, they asked for comments on H.R. 478. Let me express the Department of the Army's strong opposition to H.R. 478. We do not believe that it is necessary to allow us to deal with flood protection or flood emergencies. Moreover, its broad approach will result in unnecessary impacts to threatened and endangered species.

    The recent floods in the Northwest and central California, the Ohio Valley, and now in the upper Midwest have caused substantial damage to property. They have cost taxpayers billions of dollars, and, most importantly, they have cost human lives. No agency is more sensitive to this devastation than the Army Corps of Engineers. Our dedicated field staff witnesses firsthand the destruction and the fears of landowners.

    It is time that we seriously reexamine our floodplains and our floodplain policies. We must ask if our current approach is sustainable in terms of flood protection, in terms of the fiscal investment required, and the impact on our natural resources. Our short-term objective must be to help communities recover from the devastation. However, our long-term objectives must be one that includes a serious look at all options, not just an automatic return to structural solutions that may no longer be appropriate or effective. If we carefully evaluate all options, we can demonstrate that we do not have to choose between flood protection and environmental protection. Mr. Chairman, that concludes my statement.
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    [Statement of Mr. Davis may be found at end of hearing.]

    Mr. POMBO. Thank you. Mr. Michael Rausch.


    Mr. RAUSCH. Thank you, Mr. Chairman, and members of the Committee. I am Michael Rausch. I am Treasurer of the Upper Mississippi, Illinois and Missouri Rivers Association. My testimony is presented on behalf of our Association.

    Our Association was created in 1954 and has been expanding, particularly since the great flood of 1993. Our membership includes individuals, businesses, and municipalities which are all interested in the continuing improvement of flood control, navigation, economic development, and habitat protection along the rivers of the Midwest.

    The United States Army Corps of Engineers has transformed these great natural resources into the essential centerpiece of our Midwest economy. In the 1930's, the navigation system was modernized, and our great transportation infrastructure advantage was established. Today, however, that infrastructure's advantage is quickly deteriorating, and our state-of-the-art system is in imminent danger of being inferior to numerous other areas of the world.

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    Those in the Midwest who provide the resources to keep our economic engine running have been pleading for improvements. Many environmental interest groups have been lobbying to block those efforts or any other improvement in flood control systems on the incorrect presumption that improvements to navigation or flood control will harm fragile ecosystems or habitat.

    The Midwest economy and environment can prosper together. This will not occur if a proper balance and consideration for flood control, economic development, and recreation is not quickly implemented. The instability of a poorly maintained flood control system prevents economic growth and stable recreation, while causing erratic food production and a less efficient navigation system.

    The greatest threat to river transportation and wildlife habitat is the accumulation of sediment in the rivers. The Corps, during the past 35 years, has seldom removed dredge material from the floodway in the upper valley. The material have been placed within the floodway on islands, beaches, or in deep water where it is deposited back in the navigation channel or upon wildlife habitat at the next time of high water. This practice should be stopped and the dredged material placed outside the floodway immediately.

    Efforts to remedy this problem of sedimentation are being delayed and prevented by those who wish to turn the great resource of our Midwest rivers into a quasi-national park. Government programs are even funding placement of millions of tons of rock in the rivers and building structures and islands in the river. Current action and inaction is increasing the risk of flooding and increasing the inefficiencies of navigation.

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    In the meantime, if a city, industry, or community wants to improve their economic base by improving flood control, the idea is declared either economically impossible by the current cost benefit formulas or alleged to be environmentally damaging, immediately making it politically imputable and, thereby, impossible to implement.

    We do not really know the full impact of the Endangered Species Act on the ability of the government to provide adequate flood protection. We do know that the fear of the Act and the related costs and delays associated with threatened environmental issues rising under the veil of the Act have caused serious compromise to most flood control activities in our area.

    Maintenance of levees has been prevented or delayed due to alleged critical habitat of the Indiana bat. Dredging to repair levees was delayed due to concerns for mussel beds and the Higgins eye clam. During the 1993 flood, levee districts that had been flooded could not be intentionally breached to let water out until Federal and State agencies were satisfied that habitat surveys were completed which caused much additional damage to the particular district during the delay.

    Another specific case involves a pecan grove that was killed on the Illinois River during the 1993 flood. The local office of the Federal Soil Conservation Service had approved a plan for removal of the dead trees and replanting of such in October 1994.

    In January 1995, the Corps of Engineers notified the owner that his actions might require a Section 404 permit. One week later, the Corps issued a cease and desist order threatening a $75,000 per day fine and possible imprisonment to restore the area to its previous condition.
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    After one-and-one-half years of red tape, a Section 404 permit finally allowed restoration work but nearly was denied because of concern regarding the endangered Indiana bat. This was the official action and position even though the Corps of Engineer personnel indicated there had never been a bat sighted in the area, but that there was a possibility that one could stray into the dead pecan grove.

    The Section 404 permit was subject to two pages of conditions, which I have attached to my testimony in the written record, including the restriction against it doing any work between May 1 and September 1, obviously the best, most cost-effective time to do this type of work, to protect these nonexistent Indiana bats.

    The Corps of Engineers is facing the issue of altering the water flows of the Missouri River in part to accommodate the presumed needs of the piping plover, a lesser tern, and the pallid sturgeon. This seems to be totally influenced by the Endangered Species Act concern with very little concern about the communities, businesses, and property owners on the downstream reaches of the river.

    Additional attachments to our testimony have been submitted to the Committee for your reference. They expand upon the use of the plover and tern as instruments to prevent flood control development. Most interesting might be the attachment with excerpts indicating how people are instructed on ways to use the Endangered Species Act as a tool to prevent other activity they wish to stop. This strongly indicates that the ESA is primarily being used to implement an agenda to prevent growth and respect for human needs, concerns, and rights.

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    Mr. Chairman and members of the Committee, we certainly thank you for the opportunity to make our statement before you. You are dealing with a very critical issue that affects our part of the country, as well as every other area of the country. We strongly support the amendment being considered and referred to as the Flood Prevention and Family Protection Act of 1997.

    We certainly need this common sense improvement in a body of administrative regulation that has reduced human incentive, prevented improved flood control, and delayed or prevented efficient economic development. We must establish a legislative priority and administrative system to maintain and improve our infrastructure including flood control structures and human concerns. Thank you very much.

    [Statement of Mr. Rausch may be found at end of hearing.]

    Mr. POMBO. Thank you. Mr. Guenther.


    Mr. GUENTHER. Thank you, Mr. Chairman, and members of the Committee. My name is Herb Guenther. I am the Executive Assistant with the Wellton-Mohawk Irrigation and Drainage District in Wellton, Arizona, which is located along the Gila River in southwestern Arizona, about 50 miles east of Yuma.

    The district that I represent provides Colorado River water to about 62,500 acres of prime agricultural land, and we are also responsible for flood protection along 60 miles of the lower Gila River. The lower Gila River is normally a dry river. In early 1993, however, we did experience a 500 year flood event, one that filled and spilled all the reservoirs on the Gila and Salt River upstream in the Phoenix area.
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    Painted Rock Reservoir, which is a Corps of Engineers flood control facility, is located about 70 miles upstream of our district. Our flood control facilities were designed to handle a 10,000 cubic feet per second release from Painted Rock Dam, and were about 98 percent complete at the time of the '93 flood.

    The Painted Rock Dam filled and spilled. Again, it was a 500-year event, and the peak uncontrolled releases reached almost 26,000 cubic feet per second. So, obviously, with a 10,000 cubic foot per second project design, we had problems.

    The damage to the public facilities in our irrigation district exceeded $100 million. That is to only public facilities. So, of course, we needed disaster recovery assistance, and it was a federally declared disaster so we applied for that assistance under the Stafford Act.

    Shortly thereafter, we were notified by the Corps of Engineers and the Federal Emergency Management Agency that we would be required to obtain a 404 Clean Water Act permit, for those areas of our project restoration that were located within waters of the U.S., and we would have to get a NEPA, National Environmental Policy Act, clearance for the remainder of the area.

    Now, those requirements by themselves, the NEPA requirement and the Clean Water Act requirement, opened up the other cans of worms, if you will. It opened up the Endangered Species Act, the National Historic Preservation Act, Section 106, the Executive Order on Floodplains 11988, and the Executive Order on Wetlands 11990.
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    That leads us to the second problem, and that was that before we could restore the flood protection that we had enjoyed prior to the flood event, we had to go back through a full-blown environmental compliance process.

    I am a fish and wildlife biologist by training. I have spent 26 years either working with or for the Federal Government in environmental compliance. I cut my teeth on the Endangered Species Act and the National Environmental Policy Act, and I have never, ever been involved in anything as nightmarish as the last four years in trying to get environmental compliance to restore the flood protection system that was destroyed by a 500 year flood event disaster.

    In this instance, the Endangered Species Act did not prove to be a real problem. That was primarily because the Fish and Wildlife Service in our area used common sense, that the ''moonscape'' that existed following the flood would not support the Yuma clapper rail or other endangered species that might be found. I mean, there was no habitat left. It was gone. It was denuded.

    So the ESA was not a major problem. However, it did lead to a Notice of Intent to Sue by some environmental groups which is still pending. It was a 60 day notice letter. Our major problem revolved around the environmental compliance including the Clean Water Act, both Section 404 and 401, as well as the NEPA requirements for the environmental assessment and the National Historic Preservation Act, Section 106, and as I have mentioned, the executive orders.

    We had to prepare the environmental assessment. We had to do a wetlands analysis. We had to do the 404 reports, the 404 justification plan, the 401 substrate analysis, and develop a total mitigation plan which was negotiated with the Fish and Wildlife Service and the local State game and fish agency.
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    Also involved in the negotiations was, of course, the Corps of Engineers, from whom we sought the 404 permit, and the U.S. Fish and Wildlife Service, from whom we had obtained the Section 7 finding of no effect.

    We also had to prepare and negotiate a 106, National Historic Preservation Act treatment plan, on a previously 106 certified rock quarry. Now, the EA which was very controversial, led to the Corps of Engineers finding of no significant impact which was based upon a fully mitigated restoration project.

    However, EPA continued to demand the preparation of a complete environmental impact statement. And, again, we are just trying to put the thing back the way it was and to restore the flood protection. This is not a new project. It is not a different project.

    The controversy over the environmental assessment led to litigation on behalf of some environmental groups, and that litigation is continuing as we speak. We currently are in the 9th Circuit Court of Appeals where the Plaintiffs are appealing a judgment of the District Court. Also, it led to FEMA denying funding and looking for another agency, namely, the Corps of Engineer, to fund it under their P.L. 84–99 program.

    But now the bottom line is, we are four years after the disaster. We are still trying to complete the environmental clearance. We are still trying to secure funding. We are still without flood protection for the area, and the $43 million Federal, State, and local investment in nonflood infrastructure restoration remains in jeopardy.

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    And, lastly, we are still involved in the frivolous litigation which has already cost us over $160,000 in legal fees. We support the House Resolution 478. However, we feel it doesn't go quite far enough. We feel a bigger umbrella for compliance relief, such as the ESA and NEPA, is justified. While we don't necessarily need an exemption, we think there should at least be a process whereby we can expedite the reviews that are necessary following federally declared disasters and the recovery therefrom.

    I thank you for the opportunity to testify here today, and I have submitted my written comments and ask that they be made a part of the record.

    [Statement of Mr. Guenther may be found at end of hearing.]

    Mr. POMBO. Thank you very much. Ms. Cunniff.


    Ms. CUNNIFF. Thank you, Chairman, and Committee members for giving me the opportunity to testify before the House Resources Committee on the findings of the Floodplain Management Review Committee on the 1993 Midwest floods. With your permission, I too would like to summarize my prepared remarks.

    In 1993, the Midwest was hit by disastrous flooding. It was a disaster that led many to question how the Nation manages its floodplains. The Review Committee was created to independently review the causes and consequences of the '93 flood and to review the recovery efforts. I served as its deputy director.
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    Our report's recommendations are those of the Review Committee's and not the agencies who supplied staff. Our report, which I have brought with me, is based on research and extensive interviews with State and local officials, nongovernmental organizations, and numerous private citizens.

    The Midwest flood of '93 was basically a flood of record or several floods of record and demonstrated that people and property remain at risk. Activities in floodplains even with levee protection continued to remain at risk. The one important lesson of the '93 flood is that the Nation needs to do more to minimize the risk of damage from floods. The difficulty is that no single action will suddenly reduce the vulnerability of those at risk or prevent others from becoming at risk or being put in the same position.

    We found that the basin contained an uncoordinated collection of agricultural levees constructed by different agencies and individuals at various times and under various programs. The majority of levee breaches were caused by overtopping. We found that the primary factors contributing to levee breaks were, first and unsurprisingly, a great deal of water for a long time. And, second, the placement and design of construction of the levees themselves.

    Poorly sited levees can be expected to fail again. We identified inadequate levee maintenance as a possible factor contributing to levee breaks. We did not find, nor were we told of, any situations where environmental protection statutes were the reason for inadequate maintenance.

    Protection and recovery of endangered species did not adversely affect scheduled levee repairs. Measures to avoid and reduce the risks of flooding can be compatible with environmental protection. In fact, protection and restoration of the natural and beneficial functions and values of floodplains are crucial elements of any plan to reduce risk and damage from floods.
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    The Review Committee proposed a better way to manage flood risk. The historical focus primarily on structural ''flood control'' solutions should be replaced with a sequential strategy of avoidance, minimization, and mitigation. Where the risk cannot be avoided, damage minimization approaches should be carried out but only when they can be integrated into an overall basinwide systems approach to flood damage reduction.

    To enhance floodplain management, attention to the environment during Federal operations and maintenance and disaster recovery activities needs to be increased. Existing authorities to acquire lands from willing sellers should be funded and expanded. And legislative authority to increase post-disaster flexibility is needed to assist relocation efforts.

    Full consideration needs to be given to all of the possible alternatives for vulnerability reduction. Vulnerable population centers and risks to critical infrastructure should be reduced through the use of floodplain and watershed management activities where appropriate. States should be responsible for siting, design, and assuring maintenance of non-Federal levees.

    Now, before I conclude my remarks, I would like to emphasize that while the flood of '93 was an unprecedented hydrometeorological event, floods of this magnitude can happen again. Although we can't predict or stop floods, we can adopt a new approach to floodplain management that will lessen our vulnerability to the costly damages caused by floods. I would be pleased to answer any of the Committee's questions.

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    [Statement of Ms. Cunniff may be found at end of hearing.]

    Mr. POMBO. Thank you very much. Mr. Davis, you said in your testimony that a January '97 exemption was given that allowed the floodfight to begin or the repair of the levees—that process—to begin. And I don't think anyone who worked through that system that we went through between the 1st of January and today can criticize the actions that the Corps took. I think that they did an exemplary job of fighting the flood to begin with and then immediately trying to patch the holes as quickly as they can.

    But the problem was not what happened between January and today, the problem was that we went through 15 years of delays on maintenance and routine maintenance of the system before we ever got to the point that we had this catastrophic event. And how do you go back now and say what mistakes did we make before January happened, and how do we improve those?

    Mr. DAVIS. Mr. Pombo, let me say that we are always looking at our programs and looking for ways to improve them because we certainly can do that. But when I mentioned the January '97 permit, I think it is important to put that in the proper context. That was a permit that was issued to complement existing relief mechanisms that have been in place for some time.

    For example, we have had a general permit in place—a nationwide general permit for the maintenance and repair of levees and flood control structures for many, many years going back I believe into the late 70's perhaps. That has been in place. We have had other general permits in place. There are some statutory exemptions that have been in place that the Congress provided in '77. So this January permit was to complement some existing things that were not already covered by this so it has provided some additional relief.
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    Mr. POMBO. Excuse me, but with all due respect, everything that we have heard—that I have heard over the past several years has been that there is a problem, that, you know, you get a permit. You call in Army Corps, and you put in your application for a permit to do maintenance work. And you begin that process that you are going through.

    And because of Section 7 consultation, you bring in Fish and Wildlife as well and what other Federal agencies in that become involved in that process. And you end up with an extremely cumbersome process that it has to go through, and you have heard testimony earlier today, I am sure, that you are personally aware of situations where projects were delayed for several years.

    You have two people that are on the panel with you that have testified about delay in projects because of the regulations and the way they are currently being implemented. How can you then go back and say that ESA is no problem, that it hasn't caused a problem even though all of these people have testified, with your own personal involvement with this?

    I know for a fact that you have personally been involved with some of these cases of regulatory problems that have come up over the years. How can you then justify saying it is no problem? Isn't that shortsighted? Should not it be a question of these are the problems that we actually did have. Here is our suggestion from Army Corps of how to fix it so it doesn't give us a problem in the future?

    Mr. DAVIS. Again, we are always open to suggestions, and I think that we can always find cases where we have examples of where the system didn't work as efficiently as it should have, and we ought to look at those. But on balance, when you look across the spectrum of things that are going on out there, we think it works pretty well, and things are generally going forward with minimal requirements and, in many cases, absolutely no requirements.
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    The vast majority of the actions under the 404 program, for example—83 percent plus are covered by a general permit. They get a decision in 16 to 20 days on average. You can always pick a few cases where it didn't work as well as it should have, but on balance I continue to believe that it works pretty good.

    Mr. POMBO. Well, sir, you say that you are always open to suggestions, and you are interested in hearing different ideas. The response that we have received from the Administration at this point has not been, ''These are the things that we would change about the legislation. These are the problem areas that we have seen come up.'' The only response that I am aware of to this point is, ''The Endangered Species Act hasn't been a problem, and we don't think anything needs to be changed.''

    I mean, if this is going to be a dialog, if we are going to work toward solving some of these problems—and believe me, the people that have testified truly believe that the Endangered Species Act is a problem. They truly believed that the delays sometimes for years in maintenance projects were caused by the implementation of the Endangered Species Act.

    They truly believe that, and I tend to believe that maybe those that are working firsthand on this, the levee district managers, the reclamation district managers, may have a close idea of how the Act is being implemented out there, how it is happening actually in the field. And when they come in and say, ''This is a problem. We need to fix it,'' I don't think our response should be, ''No, it is not. We are not going to fix it.''

    So how do we go about making those changes? How do we get your agency, for example, to actually look at the legislation and say, ''These are the changes that we would accept. These are the things that we would not''?
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    Mr. DAVIS. This Administration has been very effective, in my opinion, about taking on problems with the Clean Water Act, Wetlands Program, and the Endangered Species Act Program, and I will let Secretary Garamendi comment on the ESA part of this.

    But we have taken very aggressive and substantive steps over the last three or four years to address legitimate problems. We may not be all the way there yet, but we are still working on it. We will engage in a dialog with the Congress to discuss these issues. What we will not do is engage in a dialog that substantially rolls back any environmental protection.

    Mr. POMBO. Mr. Garamendi, in your statement—and I don't believe it was in your written statement, I believe it was just in your testimony—you said that if H.R. 478 were adopted that it would encourage development in the floodplain, that it would encourage further development of floodplain. Does the Endangered Species Act currently prevent development in the floodplain?

    Mr. GARAMENDI. It could depending upon the nature of the habitat or the creatures that are in the floodplain. If there are endangered species in a particular section of the floodplain, it could prevent development in that area.

    Mr. POMBO. So, currently, the Endangered Species Act is preventing development in the floodplain, am I to understand you correctly?

    Mr. GARAMENDI. In certain areas there are——
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    Mr. POMBO. In certain areas it is preventing?

    Mr. GARAMENDI. In certain areas where there are endangered species, there may be prohibitions from some kinds of development.

    Mr. POMBO. In your written testimony, you say that the presence of any listed species prevented the proper—nor has the presence of any listed species prevented the proper operation and maintenance of flood control facilities prior to the recent floods. In light of some of the testimony that we have heard here today, how would you answer some of the people that have testified that the current implementation of the Act has delayed the proper maintenance of some of these facilities?

    Mr. GARAMENDI. Perhaps you could refer me to specific testimony that you are referring to? As I listened to the testimony, Mr. Lee's testimony, for example, he spoke of the Thornton area. The maintenance at the Thornton levees was prior to 1986 and was not an issue of the Endangered Species Act at all but rather funding issues and general maintenance. That levee broke in 1986. It did not break subsequent in this year and in intervening floods.

    He said that the levee had to be set back six feet. I suppose we should all be thankful that it did have to be set back six feet because that increased the channel capacity by that six feet. It is hard to say what would happen if they were allowed to build the levee six feet closer to the river. My guess is it may have gone over the top this time. It was, in fact, a funding issue that delayed for five years that particular levee maintenance in Thornton.
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    I think we heard testimony from Mr. Guenther here from Arizona that the Endangered Species Act was not an issue in the question—in his particular area. We find all kinds of specific issues. We must deal with the specificity.

    In Mr. Herger's case, it was not the Endangered Species Act that caused the delay of 10 years. The first four years was a study by the Army Corps of Engineers, and there were several years of—a couple of years of that delay were caused by congressional debate over the amount of money and which areas were to be studied first.

    The Endangered Species Act did not cause a delay in the maintenance in the area where the levee broke, and you heard testimony to that effect. So it is not the Endangered Species Act that is causing this. It is a factor, along with many other factors, in the general design of levees, in the maintenance, and in the reconstruction—not in the reconstruction, but in the construction of new levees. And it is a factor that we must take into account.

    You have also heard testimony today that we must rethink how we design and protect ourselves from floods. The design of the flood system in the Central Valley is to build the levees as close to the river as possible, which inevitably means that those levees will fail and they have.

    We have to rethink that, and that is our policy—to rethink, to redesign, to set back the levees to allow the river more room so that there will be more channel capacity. And in doing that, we will also create better opportunities to protect all of the species whether they are endangered or not.
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    Mr. POMBO. My staff came across a memo that was issued in 1985 by the Department of Interior, and it talks about a project of bank stabilization project for the Chico Landing to Red Bluff in the Butte basin section of the upper Sacramento River.

    Project proposed by U.S. Army Corps of Engineers, and included in this memo was a press release that was sent out by a then member of the Assembly that includes the statement, ''The project's death blow was recently delivered when the U.S. Fish and Wildlife Service invoked the Endangered Species Act earlier this month to halt a riprap project.''

    This is not something that just occurred in the last two years. This is something that I think most of the reclamation district managers will testify to has been ongoing. It is something that has been a problem, that has built up over the years.

    If we would have had this kind of a flood event in 1985, we probably wouldn't have had the kind of breaks that we did this year. But after several years of delays of projects—of work that should have been done that was not done, we ended up with a situation where the system could not handle as much water as it could have otherwise.

    That is not to say that we would have no flooding in the absence of this. I don't think myself or Mr. Herger has said that we would have had no flooding. But we would have had less, and the system would have done the job it was designed to do.

    I have just one final question to Mr. Rausch. Is it your opinion that the Endangered Species Act has played no role in the delay of the routine maintenance and proper operation of any of the flood control systems that are in your area?
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    Mr. RAUSCH. No. To the contrary, I mean, we have had instances where levee districts have been precluded from gaining efficient access to their levees for maintenance by the most direct route and things like that under the guise that there was some habitat that might have been compromised.

    Certainly, the repair after the flood was very directly affected from our perspective in terms of the delays precipitated. As I mentioned, one situation in my levee district that was completely under water, a 20,000-acre lake.

    The only fashion that we could get the water off of there was to gravity drain it through the lowest portion of the levee by effecting an artificial breach in that levee. And it was delayed many weeks by studies of the track that the water would take as it left the district across a government swatch of land about 3 or 400 feet wide.

    Mr. POMBO. Thank you. My time has expired. Mr. Herger, do you have any questions at this point?

    Mr. HERGER. Thank you, Mr. Chairman. And I want to welcome Mr. Garamendi here in your position as Secretary. It has been some years ago that we served together in the State legislature; you in the Senate and myself in the Assembly at that time.

    I do find quite alarming some statements that both you, Mr. Garamendi and Mr. Davis, are making. I find it just incredible, near unbelievable, how the Administration can claim that there aren't any delays. We have example after example after example of how the Endangered Species Act has delayed levee repairs, and we have had breaks afterwards. I really find it difficult to understand how you can sit there and say it isn't.
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    And, Mr. Garamendi, you are asking for a specific. I would like to once again quote a specific and have both you and our Corps of Engineer, Mr. Davis, comment on this on how you can say that the Endangered Species Act did not prevent this levee repair.

    And let me just go over again—and why it is so serious is three Californians—constituents of mine, constituents of yours, Mr. Garamendi—lost their lives here on the 2nd of January. They lost their lives right in front of a levee that broke, that was identified to be repaired—and maybe you didn't hear this testimony—maybe you haven't looked at this. This is an example. I don't know how we could find a more glaring example. I don't know how you can ignore this and deny this.

    The reclamation district identified a problem in 1986. That is almost 11 years ago. Because of the Endangered Species Act specifically, they needed a study. The Corps wouldn't repair it until they had studied it. Four years later, the Corps finally finished studying this—in 1990.

    In 1990, your people, Mr. Davis—your people wrote, and let me quote again—this is a quote from your people, the Corps of Engineers, ''Loss of human life is expected.'' Loss of human life. Now, we are trying to protect the elderberry beetle, but, ''Loss of human life is expected under existing conditions without remedial repairs for major flood events.''

    Well, we didn't repair that levee in 1990 when we found it, when you stated that four years after the reclamation district stated that their engineers noticed it. They didn't repair it in '91, didn't repair it in '92, '93, '94, '95, '96; they didn't repair it.
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    Finally, in spring of '97, just coming up, the Corps, because of the ESA, because of studies that were required, because of mitigation that was required, some 11 years later, it is finally getting around to repair a levee. What the law of averages are—and I am not a gambler, but if you roll the dice enough times, sooner or later it is going to break, and it did break, and three people lost their lives.

    Now, I am curious. How can either of you with a straight face sit there and tell me that the ESA had nothing to do with this? Would you answer that please?

    Mr. DAVIS. Congressman, I will go first here.

    Mr. HERGER. Thank you.

    Mr. DAVIS. And let me just say that, obviously, there is nothing I can say that mitigates the loss of life and the tragedy that occurred there. But I think it is important to understand all of the issues that resulted in the delays, and perhaps the Endangered Species contributed.

    But there were other substantial and perhaps even more significant contributing factors in the delay there, like the difficulties in purchasing a right-of-way, like the modifications to contracts that were made at the project sponsor's request. There are other things in the list here that contributed to the delays here. If the Endangered Species contributed, perhaps it did. It certainly wasn't—it was in a long list of other things that also played a major role in this problem.
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    Mr. HERGER. Now, let me ask you something, Mr. Davis. If the legislation which I have introduced, whose purpose is not to build more dams, even though I believe we need more reservoirs, and I believe years like this show that we do, and drought years also show it—that is not the purpose of this legislation.

    I am more than willing to amend it where it does not include the building of that if that is the concern of the Administration or anyone else. The sole purpose of this legislation is to go in and be able to do shortly after 1986 when it is identified by people who are experts that a levee needs to be repaired to protect loss of life and property that we be able to do it.

    Now, let me ask you something, and I want you to answer this—not that you wouldn't, but I want to state it anyway—I want you to answer it truthfully, if there were not the Endangered Species Act, how soon do you think we could have gotten in there and repaired that levee?

    And let me ask you this. Do you think we could have done it in eight years without the Endangered Species Act? Now, sure, there were some, some delay, but very little in the areas that you are talking about—maybe a year or two or something.

    But do you think they would have been repaired within eight years? Because if they were, three people's lives who lived directly in front of that break would have been alive today. What is your opinion? Would they have been repaired within eight years or less?

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    Mr. DAVIS. Well, Congressman, let me say that I would certainly——

    Mr. HERGER. Nine years and they are still not repaired.

    Mr. DAVIS. Let me say that, first, I would certainly always answer truthfully. I cannot give you an answer in terms of the incremental increase in time associated with any factor here, but, again, there were funding problems. There were other problems. We will certainly be glad to try to analyze this for you and get back to you for the record.

    Mr. HERGER. Well, that is not an adequate answer.

    Mr. DAVIS. Well, my second——

    Mr. HERGER. And that is not a truthful answer. The fact is it would have probably been done within a few years. There were $3 million that were put up by the Federal Government earlier on to repair this. We had money there. We have spent $9 million just on mitigation on a repair that would have only cost $3 million. And if we can't repair a levee in less than 11 years after it is identified, we need some major changes with the Corps of Engineers.

    Do you have a comment, Mr. Garamendi, on how the Administration can defend the loss of three lives and the stalling of 11 years directly because of the ESA or at least the vast majority of that?

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    Mr. GARAMENDI. Mr. Herger, we, like you, are grieved and concerned by the loss of human life. And this Administration and the Federal employees, State employees, and local employees made extraordinary efforts to protect human life.

    The project to which you are referring is a long-term rehabilitation project of a major stretch of California river. It is a phased project, phased over many years principally because money is not available in any given year to do the entire project. You know this.

    You also know very good and well that this particular project is one that began with the 1986 floods. A study was commissioned by Congress which took a while for Congress to get the study together, to get the legislation, to get the funding. That study took a couple of years to complete. In 1990, the study was completed.

    Obviously, there was danger in here because this levee in this area failed—a levee in this area failed in 1986. It was well known that these were dangerous levees. There is no surprise about that. There is nobody debating that.

    But these projects do take time. They take time because Congress takes time, because you don't have the money. The American public doesn't have the money to do these things initially. It is incorrect to say that the Endangered Species Act is the sole cause for the delay of this project. It is not. It is not the cause. It is not the only reason.

    There is also the well-known fact that the specific project in this area was not completed in 1996 because of a contractual dispute that took place. That is reality. It is terribly unfortunate that the project was not going forward as it was expected to go forward.
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    Now, we have to consider where do we go from here? If we are going to look to the Endangered Species Act as being the cause of the problem, we are being foolish. There are many, many factors that need to be taken into account in designing a flood system that protects California.

    If we continue to build the levees right up next to the river, we will never have the money to build them high enough because there will be another storm that will overtop or cause some levee to fail. We need to be wise.

    We need to take into account the information that was developed in the Galloway report and apply it to California. That is where our effort needs to be. We need to apply our intelligence, our creativity, and our time and effort to designing a system that accounts for very large floods.

    We need to set back some of these levees. We need to maintain and we need to improve other levees, and we ought to be about that business. That is what this Administration is trying to accomplish in changing national policy so that we have a system that accommodates the fact that major storms occur.

    I have been in the flood business for 25 years. I live in an area that is subject to flooding, and every year there is another storm that exceeds anything that had ever been imagined. So we had better get wise here and prepare for storms that exceed our imagination. And, in part, that is restoration and reconstruction. In part, it is designing a different system than we presently have.
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    Mr. HERGER. Well, thank you, Mr. Garamendi. And we are in partial agreement. I couldn't agree more with you on the fact that we have to begin looking at the entire watershed system from the mountains where the snow falls to the ocean where the levee system travels. We can't just patchwork our system as we have in the past——

    Mr. GARAMENDI. To an ocean that is also rising.

    Mr. HERGER. To that extent, I agree with you very much, but, again, to somehow state that it should take from after the study is completed in 1990 to beyond 1997 where they found the elderberry beetle, and because of the elderberry beetle there was litigation going on, and there was actually a wetland that was created inside the levee system that was dug below where the bottom of the levee was, which allowed for seepage—which many feel and some engineers feel further contributed because of endangered species litigation—directly because of that, that we have a major problem. And I believe that if the Administration continues to ignore this and try to excuse somehow that seven years with it still not repaired, and let me just for the last time quote——

    Mr. GARAMENDI. Mr. Herger, it is——

    Mr. HERGER. Now, I am speaking now. I will let you finish speaking—where the Corps of Engineers themselves says that, ''Loss of human life is expected under existing conditions.'' That is in 1990—that we can go until 1997 and still not repair that is wrong.

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    Mr. GARAMENDI. Mr. Herger, the project is a multiyear project. Work has been ongoing for several years on this project beginning first with a comprehensive study of the area to be protected. It takes a couple years. I think it took three years to complete the engineering studies to determine how to repair the levees, which ones needed to be improved, and repaired.

    And then work began, funding cycles—you are very much aware of the funding cycles here in Congress. You don't fund the entire stretch of river. You fund sections in multiyear projects. This project has been underway for some years. It is not fair to say—it is incorrect to say that nothing has been done in this area.

    This particular stretch was supposed to be done in 1996. It was delayed for the reasons I stated earlier. Now, it also happens to be that that language that you read is in most every Corps of Engineers report as accurate justification for the project.

    Mr. HERGER. Now, I have a memo here that says that the EIS had scheduled to commence in the spring of '93—we can talk back and forth, and let me just conclude with this, Mr. Garamendi. And, again, I do thank you. If I seem a bit upset, it is because there is a number of families who I represent that are very upset.

    Mr. GARAMENDI. I understand.

    Mr. HERGER. There is a number of families I represent throughout the Sacramento Valley, and I really believe I am speaking for the entire nation, who live around rivers, who have built homes, who have maybe had family farms, and I know your family has, for several generations that deserve to have their property and their lives protected.
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    And any system that allows us to go and litigate for seven years because of a study that indicated that there was an elderberry beetle there is wrong and needs to be corrected. And let me just conclude with that, and I thank you for your testimony.

    Mr. POMBO. Thank you. Before we conclude, there was a statement made earlier that this bill would contribute to a false sense of security amongst the people that live in floodplains. I think people have an assumption that the levee system was designed and built to give them that sense of security. And I think that we as policymakers have the responsibility of ensuring that that assumption is carried out.

    When the Chairman asked the local Army Corps of Engineers in Sacramento to answer a list of questions after this occurred, the one question that was asked was whether or not the Endangered Species Act had delayed any of the projects, and the answer came back that, yes, it had delayed projects in the Sacramento area.

    One in specific was a project in Reclamation District 1500 that was delayed because of various factors, one of which included potential impacts to the giant garter snake, a threatened species. Additionally, work on the Sacramento River Bank Protection Project continues to be delayed in an effort to reach consensus with Fish and Wildlife Service on requisite mitigation for impacts.

    So to say that it has had no impact I think is a misstatement. To say that—I guess blindly put your head in the sand and say that we are not going to change anything, that we are just going to pretend none of this happened and that the Endangered Species Act played no role I think is a mistake.
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    I don't think that Mr. Herger or myself have ever made the statement that the Endangered Species Act was the sole reason for flooding. I don't think that either one of us has ever made the statement that if this legislation had been adopted, we would not have flooded.

    I think, more accurately, the Endangered Species Act has played a role, in some cases a significant role, but a role in contributing to the levee system, the flood control system not being able to handle as much water which resulted in some of the floods. And I think that that is the problem that we are trying to correct. I think it is a very serious problem.

    I think that the legislation that Mr. Herger and myself introduced earlier this year was an attempt to go down the road to solving that one particular problem that both of us have heard quite extensively about from our districts.

    If the Administration has recommendations for ways that we can fix this, of other ways that we can do this, I know that myself, and I am sure Mr. Herger, are more than happy to listen to any suggestions that you may have of ways that we could fix that. Yes, sir?

    Mr. GARAMENDI. If I might, Mr. Chairman, specifically for the Central Valley of California, we have at hand an opportunity to achieve the goal you just stated. We can make major progress in fixing the flood system and flood control system in the Central Valley of California.

    The Bay-Delta Program, together with the supplemental appropriation legislation that is presently before Congress, provides us with that opportunity. Embodied in the Bay-Delta Program and Proposition 204, which was supported by the people of California last November, is a major flood control component.
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    There is a substantial amount of money available for the reconstruction design of the levee systems in the Sacramento-San Joaquin basin so as to provide improved habitat, some of which would be valuable for endangered species, and at the same time increase the capacity of the system to handle these extraordinary floods that we have had.

    We are all—this Administration and this Congress has that opportunity in the next several months to pass that legislation, to appropriate the necessary money. If that occurs, then we all—State, Federal, all stakeholders—can move rapidly forward to not only improve the levees that Mr. Herger is so concerned about, and correctly so, but also to set back levees to create meander zones, floodways, bypasses, surge areas, and other kinds of very important flood control facilities, and at the same time habitat facilities. We can do two things at one time.

    My concern with this legislation is that it takes us off target, and it does, in my view, provide a false sense of security, and it doesn't really solve the problem. I did not mean to imply that the Endangered Species Act is never an issue.

    We do not see it as an issue in the flooding that occurred in California this year, but we do have this very positive opportunity to move forward. And I know that this Congress will be dealing with this, and we certainly would hope that we can work together to accomplish that.

    Mr. POMBO. Well, I appreciate your comments, Mr. Garamendi, but I think that with the simple fact that the proposals that you talk about—set back levees, flood areas, and such—under current law would not be exempt from these same regulations either.
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    Mr. GARAMENDI. No, they shouldn't be.

    Mr. POMBO. And we would be talking about several years of delay and studies. I mean, Mr. Herger talks about a case where we have got 10 years of studies to determine something—maybe long-term—oh, that some of those ideas will work. And you heard testimony earlier today about people advocating doing that and saying that they thought it was a good idea.

    But having said that, I do think that this legislation is necessary. I think that a change in the law in order to accomplish some of these things is necessary. We may not be able to agree on that.

    Mr. GARAMENDI. Well, it is not a matter of agreement. It is a matter of the facts as they are being developed in California today. The Bay-Delta Program will this summer be moving forward with its environmental impact statement, both for the State and the Federal Government. That study will authorize the construction of these kinds of projects.

    It is feasible today under the current laws, including the Endangered Species Act, to take immediate action now, this day, and in the days in the immediate future to initiate and to construct the kind of projects that allow levees to be set back and the river to have room; specifically, in your own district, sir.

    The lower San Joaquin—we are working on projects in that area today that would allow the levees to be set back, would increase the flood capacity substantially, not by several magnitudes, and at the same time create habitat, reducing the endangered species issues for the entire area because the habitat is provided within the river zone itself. That is going on in the lower San Joaquin, Stanislaus, San Joaquin County, and in the counties to the south.
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    We are in the process. It is not going to be a multiyear. If we get the appropriation that the President has asked for, we will be moving forward immediately within the current year and on into '98 and '99. So, you know, the issue is before this Congress. It is this Congress's opportunity to move forward on the flood protection that I have just described.

    Mr. POMBO. Well, I appreciate the gentleman's comments. I am quite well aware of the activities that are going on in my district, and it is—I won't go there. I want to thank the panel for their testimony. I, again, want to apologize to this panel for the delay in getting you up here, but I do appreciate a great deal your testimony and your traveling here—those of you that did.

    And, again, there may be questions that will be submitted by members who were not able to ask those questions. If you could answer those in a timely manner, it would be greatly appreciated. Thank you very much. Oh, I thank the people in Sacramento that helped set this up as well. Thank you.

    [Whereupon, at 3:50 p.m., the Committee was adjourned; and the following was submitted for the record:]