[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]
FLOOD CONTROL PROJECTS AND ESA
=======================================================================
HEARING
before the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
FIRST SESSION
on
H.R. 478
A Bill To amend the Endangered Species Act of 1973 to improve the
ability of individuals and local, State, and Federal agenncies to
comply with that Act in building, operating, maintaining, or repairing
flood control projects, facilities, or structures.
__________
APRIL 10, 1997--WASHINGTON, DC; SACRAMENTO, CA
__________
Serial No. 105-12
__________
Printed for the use of the Committee on Resources
U.S. GOVERNMENT PRINTING OFFICE
40-915cc WASHINGTON : 1997
------------------------------------------------------------------------------
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana GEORGE MILLER, California
JAMES V. HANSEN, Utah EDWARD J. MARKEY, Massachusetts
JIM SAXTON, New Jersey NICK J. RAHALL II, West Virginia
ELTON GALLEGLY, California BRUCE F. VENTO, Minnesota
JOHN J. DUNCAN, Jr., Tennessee DALE E. KILDEE, Michigan
JOEL HEFLEY, Colorado PETER A. DeFAZIO, Oregon
JOHN T. DOOLITTLE, California ENI F.H. FALEOMAVAEGA, American
WAYNE T. GILCHREST, Maryland Samoa
KEN CALVERT, California NEIL ABERCROMBIE, Hawaii
RICHARD W. POMBO, California SOLOMON P. ORTIZ, Texas
BARBARA CUBIN, Wyoming OWEN B. PICKETT, Virginia
HELEN CHENOWETH, Idaho FRANK PALLONE, Jr., New Jersey
LINDA SMITH, Washington CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California CARLOS A. ROMERO-BARCELO, Puerto
WALTER B. JONES, Jr., North Rico
Carolina MAURICE D. HINCHEY, New York
WILLIAM M. (MAC) THORNBERRY, Texas ROBERT A. UNDERWOOD, Guam
JOHN SHADEGG, Arizona SAM FARR, California
JOHN E. ENSIGN, Nevada PATRICK J. KENNEDY, Rhode Island
ROBERT F. SMITH, Oregon ADAM SMITH, Washington
CHRIS CANNON, Utah WILLIAM D. DELAHUNT, Massachusetts
KEVIN BRADY, Texas CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania DONNA CHRISTIAN-GREEN, Virgin
RICK HILL, Montana Islands
BOB SCHAFFER, Colorado NICK LAMPSON, Texas
JIM GIBBONS, Nevada RON KIND, Wisconsin
MICHAEL D. CRAPO, Idaho
Lloyd A. Jones, Chief of Staff
Elizabeth Megginson, Chief Counsel
Christine Kennedy, Chief Clerk/Administrator
John Lawrence, Democratic Staff Director
C O N T E N T S
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Page
Hearing held April 10, 1997...................................... 1
Text of H.R. 478................................................. 66
Statement of Members:
Calvert, Hon. Ken, a U.S. Representative from California..... 2
Condit, Hon. Gary A., a U.S. Representative from California.. 3
Dooley, Hon. Calvin M., a U.S. Representative from California 2
Herger, Hon. Wally, a U.S. Representative from California.... 5
Pombo, Hon. Richard, a U.S. Representative from California... 2
Vento, Hon. Bruce F., a U.S. Representative from California.. 3
Young, Hon. Don, a U.S. Representative from Alaska; and
Chairman, Committee on Resources........................... 1
.............................................................
Statement of Witnesses:
Clark, Robert D., Manager, California Central Valley Flood
Control Association........................................ 39
Prepared statement....................................... 124
Coe, Thomas S., Regulatory Branch, Department of the Army,
Washington, DC............................................. 47
Cook, Walter, Attorney at Law (Ret.), Chico, CA.............. 35
Prepared statement....................................... 196
Cunniff, Shannon E., Deputy Executive Director, Floodplain
Management Review Committee................................ 54
Prepared statement....................................... 188
Davis, Michael L., Deputy Assistant Secretary of the Army for
Civil Works................................................ 47
Prepared statement....................................... 144
Frost, Rob, 2nd Vice President, California Cattlemen's
Association................................................ 37
Prepared statement....................................... 118
Garamendi, John R., Deputy Secretary, Department of the
Interior................................................... 45
Prepared statement....................................... 131
Grugett, George C., Executive Vice President, Lower
Mississippi Valley Flood Control Association............... 42
Prepared statement....................................... 128
Guenther, Herb, Executive Assistant, Wellton-Mohawk
Irrigation and Drainage District........................... 52
Prepared statement....................................... 182
Hastey, Brent, Chairman, Yuba County Water Agency............ 6
Prepared statement....................................... 70
Lee, Christopher, Trustee, Reclamation District 556, Walnut
Grove, CA.................................................. 13
Prepared statement....................................... 92
McFarland, John W., County Commissioner (Ret.), Columbia
County, WA (prepared statement)............................ 213
Mount, Jeffrey, Professor and Chair, Department of Geology,
University of California, Davis............................ 11
Prepared statement....................................... 84
Nolan, Michael F., Chief, Civil Branch, Programs and Project
Management, Sacramento District............................ 47
Nomellini, Dante John, Manager and Co-Counsel, Central Delta
Water Agency............................................... 8
Prepared statement....................................... 74
Peairs, Frank, Assistant Chief Engineer, Riverside County
Flood Control and Water Conservation District, CA.......... 34
Prepared statement....................................... 229
Ramos, Susan L., Chief of the Environmental Branch, Corps of
Engineers, Sacramento District............................. 47
Rausch, Michael C., Treasurer, Upper Mississippi, Illinois &
Missouri Rivers Association................................ 49
Prepared statement....................................... 149
Yenni, Norman, Sears Point Farming Co........................ 9
Prepared statement....................................... 78
Zappe, David P., General Manager-Chief Engineer, Riverside
County Flood and Water Conservation District (preparerd
statement)................................................. 110
Additional material supplied:
Baker, Tom, prepared testimony of April 16, 1997, on HB 476.. 210
Excerpt, ``The Endangered Species Act,'' from ``How to Save a
River, a Handbook for Citizen Action''..................... 157
Mississippi and Illinois Rivers Facts........................ 164
Resolution No. F97-5 of Riverside County Flood Control and
Water Conservation District................................ 227
Communications submitted:
Cartoscelli, Karen (Yuma): Letter of April 4, 1997, to Hon.
Richard Pombo.............................................. 202
Collins, Roger L. (DOI): Letter of October 24, 1996, to Chet
Worm....................................................... 172
Cook, Walter: Memorandum to Hon. Don Young with submitted
material................................................... 203
Davis, Michael L. (Army): Letter of May 19, 1997, with
attachments to Hon. Don Young.............................. 215
Gauvin, Charles F. (Trout Unlimited): Letter of April 15,
1997, with attachments to Hon. George Miller............... 219
Gibbs, Joseph B.: Letter of April 4, 1997, to Dave McMurray.. 180
Hansen, Rick L. (DOI): Letter of March 29, 1994, to Col.
Richard H. Goring.......................................... 167
Hughes, Joseph S. (Army): Letter of August 24, 1994, to Paul
S. Davis................................................... 170
Madlin, Joel A. (DOI): Letter of July 20, 1994, to Art Champ. 102
FLOOD CONTROL PROJECTS AND ESA
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THURSDAY, APRIL 10, 1997
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.
STATEMENT OF HON. DON YOUNG, A U.S. REPRESENTATIVE FROM ALASKA;
AND CHAIRMAN, COMMITTEE ON RESOURCES
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.
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.
STATEMENT OF HON. RICHARD POMBO, A U.S. REPRESENTATIVE FROM
CALIFORNIA
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.
The Chairman. OK. At this time, I will recognize Mr.
Calvert--if he would like to comment from California also.
STATEMENT OF HON. KEN CALVERT, A U.S. REPRESENTATIVE FROM
CALIFORNIA
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.
STATEMENT OF HON. CALVIN DOOLEY, A U.S. REPRESENTATIVE FROM
CALIFORNIA
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:]
Statement of Hon. Gary A. Condit, a U.S. Representative from California
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.
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.
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?
STATEMENT OF HON. BRUCE VENTO, A U.S. REPRESENTATIVE FROM
MINNESOTA
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.
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----
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.
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:]
Statement of Hon. Wally Herger, a U.S. Representative from California
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.
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.
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.
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.
STATEMENT OF BRENT HASTEY, THIRD DISTRICT SUPERVISOR, YUBA
COUNTY, MARYSVILLE, CALIFORNIA
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.
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.
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.
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.
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.
STATEMENT OF DANTE NOMELLINI, CENTRAL DELTA WATER AGENCY,
STOCKTON, CALIFORNIA
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.
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.
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.
[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.
STATEMENT OF NORM YENNI, SONOMA, CALIFORNIA
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.
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.
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.
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.
STATEMENT OF JEFFREY MOUNT, PROFESSOR OF GEOLOGY, UNIVERSITY OF
CALIFORNIA, DAVIS, CALIFORNIA
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.
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.
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.]
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.
STATEMENT OF CHRISTOPHER LEE, TRUSTEE, RECLAMATION DISTRICT
556, WALNUT GROVE, CALIFORNIA
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.
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.
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?
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?
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.
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.
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?
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.
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.
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.''
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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?
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
STATEMENT OF FRANK PEAIRS, ASSISTANT CHIEF ENGINEER, RIVERSIDE
COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT,
RIVERSIDE, CALIFORNIA
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.
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.
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.
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.
STATEMENT OF WALTER COOK, CHICO, CALIFORNIA
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.
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.
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.
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.
STATEMENT OF ROBERT FROST, CALIFORNIA CATTLEMEN'S ASSOCIATION,
SANTA PAULA, CALIFORNIA
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.
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.
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.
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.
STATEMENT OF ROBERT CLARK, CENTRAL VALLEY FLOOD CONTROL
ASSOCIATION, SACRAMENTO, CALIFORNIA
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.
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.
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.
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?
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.
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.
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.
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.
STATEMENT OF GEORGE GRUGETT, LOWER MISSISSIPPI VALLEY FLOOD
CONTROL ASSOCIATION, MEMPHIS, TENNESSEE
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.
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.
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.
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.
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.
Mr. Grugett. Thank you, Mr. Chairman.
Mr. Pombo. At this time, I will recognize Mr. John
Garamendi, Deputy Secretary, Department of Interior.
STATEMENT OF JOHN R. GARAMENDI, DEPUTY SECRETARY, U.S.
DEPARTMENT OF THE INTERIOR, WASHINGTON, DC
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.
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.
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.
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.
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.
STATEMENT OF MICHAEL L. DAVIS, DEPUTY ASSISTANT SECRETARY OF
THE ARMY (CIVIL WORKS) POLICY AND LEGISLATION, ACCOMPANIED BY
SUSAN L. RAMOS, CHIEF OF THE ENVIRONMENTAL BRANCH, CORPS OF
ENGINEERS, SACRAMENTO DISTRICT, MICHAEL F. NOLAN, CHIEF, CIVIL
BRANCH, PROGRAMS AND PROJECT MANAGEMENT, SACRAMENTO DISTRICT,
AND THOMAS S. COE, REGULATORY BRANCH, DEPARTMENT OF THE ARMY,
WASHINGTON, D.C.
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.
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.
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.
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.
[Statement of Mr. Davis may be found at end of hearing.]
Mr. Pombo. Thank you. Mr. Michael Rausch.
STATEMENT OF MICHAEL RAUSCH, UPPER MISSISSIPPI, ILLINOIS, AND
MISSOURI RIVERS ASSOCIATION, QUINCY, ILLINOIS
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.
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.
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.
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.
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.
STATEMENT OF HERB GUENTHER, WELLTON-MOHAWK IRRIGATION AND
DRAINAGE DISTRICT, WELLTON, ARIZONA
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.
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.
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.
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.
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.
STATEMENT OF SHANNON CUNNIFF, DEPUTY EXECUTIVE DIRECTOR,
FLOODPLAIN MANAGEMENT REVIEW COMMITTEE, WASHINGTON, DC
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.
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.
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.
[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.
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.
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''?
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----
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.
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.
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?
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.
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.
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.
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?
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?
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.
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.
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.
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.
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.
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.
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.
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.
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:]
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