[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


                                


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                         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

                              ----------                              
                                                                   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

                              ----------                              



                        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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