[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]



 
 WETLANDS: COMMUNITY AND INDIVIDUAL RIGHTS V. UNCHECKED GOVERNMENT POWER
=======================================================================


                                HEARING

                               before the

               SUBCOMMITTEE ON NATIONAL ECONOMIC GROWTH,
               NATURAL RESOURCES, AND REGULATORY AFFAIRS

                                 of the

                        COMMITTEE ON GOVERNMENT
                          REFORM AND OVERSIGHT
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             FIRST SESSION

                               __________

                             JUNE 16, 1997

                               __________

                           Serial No. 105-64

                               __________

Printed for the use of the Committee on Government Reform and Oversight









                       U. S. GOVERNMENT PRINTING OFFICE
45-478                         WASHINGTON : 1998
____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512-1800  
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001















              COMMITTEE ON GOVERNMENT REFORM AND OVERSIGHT

                     DAN BURTON, Indiana, Chairman
BENJAMIN A. GILMAN, New York         HENRY A. WAXMAN, California
J. DENNIS HASTERT, Illinois          TOM LANTOS, California
CONSTANCE A. MORELLA, Maryland       ROBERT E. WISE, Jr., West Virginia
CHRISTOPHER SHAYS, Connecticut       MAJOR R. OWENS, New York
STEVEN SCHIFF, New Mexico            EDOLPHUS TOWNS, New York
CHRISTOPHER COX, California          PAUL E. KANJORSKI, Pennsylvania
ILEANA ROS-LEHTINEN, Florida         GARY A. CONDIT, California
JOHN M. McHUGH, New York             CAROLYN B. MALONEY, New York
STEPHEN HORN, California             THOMAS M. BARRETT, Wisconsin
JOHN L. MICA, Florida                ELEANOR HOLMES NORTON, Washington, 
THOMAS M. DAVIS, Virginia                DC
DAVID M. McINTOSH, Indiana           CHAKA FATTAH, Pennsylvania
MARK E. SOUDER, Indiana              ELIJAH E. CUMMINGS, Maryland
JOE SCARBOROUGH, Florida             DENNIS J. KUCINICH, Ohio
JOHN B. SHADEGG, Arizona             ROD R. BLAGOJEVICH, Illinois
STEVEN C. LaTOURETTE, Ohio           DANNY K. DAVIS, Illinois
MARSHALL ``MARK'' SANFORD, South     JOHN F. TIERNEY, Massachusetts
    Carolina                         JIM TURNER, Texas
JOHN E. SUNUNU, New Hampshire        THOMAS H. ALLEN, Maine
PETE SESSIONS, Texas                 HAROLD E. FORD, Jr., Tennessee
MICHAEL PAPPAS, New Jersey                       ------
VINCE SNOWBARGER, Kansas             BERNARD SANDERS, Vermont 
BOB BARR, Georgia                        (Independent)
ROB PORTMAN, Ohio
                      Kevin Binger, Staff Director
                 Daniel R. Moll, Deputy Staff Director
                       Judith McCoy, Chief Clerk
                 Phil Schiliro, Minority Staff Director

   Subcommittee on National Economic Growth, Natural Resources, and 
                           Regulatory Affairs

                   DAVID MCINTOSH, Indiana, Chairman
JOHN E. SUNUNU,                      BERNARD SANDERS, Vermont
J. DENNIS HASTERT, Illinois          JOHN F. TIERNEY, Massachusetts
JOE SCARBOROUGH, Florida             JIM TURNER, Texas
JOHN B. SHADEGG, Arizona             PAUL E. KANJORSKI, Pennsylvania
STEVEN C. LaTOURETTE, Ohio           GARY A. CONDIT, California
VINCE SNOWBARGER, Kansas             DENNIS J. KUCINICH, Ohio
BOB BARR, Georgia                    CHAKA FATTAH, Pennsylvania
ROB PORTMAN, Ohio

                               Ex Officio

DAN BURTON, Indiana                  HENRY A. WAXMAN, California
                     Mildred Webber, Staff Director
                Karen Barnes, Professional Staff Member
                           Cindi Stamm, Clerk
















                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on June 16, 1997....................................     1
Statement of:
    Congleton, Doug, president, Protect West Cobb................   104
    Croy, Jim, director, Cobb County Department of 
      Transportation; John Wiles, representative, Georgia House 
      of Representatives; Chris McLean, resident, West Sandtown 
      Community; and David Parr, resident, West Sandtown 
      Community..................................................     4
    Dabbs, Robert E., developer, Dabbs Construction Co.; Grady 
      Brown, cattle rancher, accompanied by Steve Woodall; and 
      Wayne Shackleford, commissioner, Georgia Department of 
      Transportation.............................................    29
    Groszmann, Glynn, Sierra Club................................    99
    Lester, Laura, West Cobb Community Council...................    87
    McCuskey, Dr. Sue, environmental consultant..................    97
    Morgan, George...............................................    95
    Smith, Colonel Grant M., District Commander, U.S. Army Corps 
      of Engineers, accompanied by Bill Hough, district counsel; 
      and Necholus Ogden, Chief of Regulatory, U.S. Army Corps of 
      Engineers..................................................    59
    Weismann, Dr. Jay............................................   106
Letters, statements, etc., submitted for the record by:
    Dabbs, Robert E., developer, Dabbs Construction Co., prepared 
      statement of...............................................    34
    Groszmann, Glynn, Sierra Club, prepared statement of.........   101
    Lester, Laura, West Cobb Community Council, prepared 
      statement of...............................................    91
    McIntosh, Hon. David M., a Representative in Congress from 
      the State of Indiana:
        Letter from Mitch King...................................    78
        Prepared statement of....................................    18
    McLean, Chris, resident, West Sandtown Community, prepared 
      statement of...............................................     9
    Parr, David, resident, West Sandtown Community, prepared 
      statement of...............................................    14
    Shackleford, Wayne, commissioner, Georgia Department of 
      Transportation, prepared statement of......................    42
    Smith, Colonel Grant M., District Commander, U.S. Army Corps 
      of Engineers, prepared statement of........................    63





















WETLANDS: COMMUNITY AND INDIVIDUAL RIGHTS V. UNCHECKED GOVERNMENT POWER

                              ----------                              


                         MONDAY, JUNE 16, 1997

                  House of Representatives,
 Subcommittee on National Economic Growth, Natural 
                 Resources, and Regulatory Affairs,
              Committee on Government Reform and Oversight,
                                                      Marietta, GA.
    The subcommittee met, pursuant to notice, at 1:14 p.m., in 
the Cobb County Commission meeting room, Cobb County Government 
Center, 100 Cherokee Street, Marietta, GA, Hon. David McIntosh 
(chairman of the subcommittee) presiding.
    Present: Representatives McIntosh and Barr.
    Staff present: Karen Barnes, professional staff member; and 
Cindi Stamm, clerk.
    Mr. Barr [presiding]. I would like to welcome everybody 
here today to these hearings by the Subcommittee on National 
Economic Growth, Natural Resources, and Regulatory Affairs of 
the Committee on Government Reform and Oversight of the U.S. 
Congress.
    The hearing will be Chaired by Representative Dave McIntosh 
from Indiana, who is the chairman of the subcommittee. I am 
honored to serve as a member of the committee and this 
particular subcommittee with Chairman McIntosh and other 
Members.
    The genesis of this hearing has both a general reason and a 
specific reason. Generally what we are trying to do in this 
Congress is hold as many hearings as is feasible, given the 
time constraints and the expenses involved, around the country 
to allow our citizens from all walks of life to participate 
more freely and more easily in the oversight processes of the 
Congress.
    When I spoke with Chairman McIntosh several months ago and 
he indicated that they were interested in holding hearings in 
districts around the country, I asked him if he would be able 
to schedule some hearings here. I think this is the first time 
that we have had hearings in the Seventh District by a 
congressional subcommittee or committee, and specifically also 
in Cobb County. Chairman McIntosh indicated that he would be 
very, very happy to do so and asked for input as to what an 
appropriate subject matter would be.
    After talking with a number of constituents from local 
government, from the business community and private citizens, 
we determined that one of the most relevant topics, one of the 
most timely topics that we could do some work on and really 
provide to Chairman McIntosh and the rest of the committee some 
important insights, would be to focus on the wetlands 
regulatory affairs.
    Wetlands affect virtually everybody in the country, whether 
you live on or near wetlands or not, because of the cost of the 
regulation, the sweep of the regulations and ultimately, the 
cost to the taxpayers of this country.
    What we will be doing today is hearing from a number of 
individuals, private landowners and developers who are 
interested in building subdivisions and other developments in 
our communities in the Seventh District. We will be hearing 
from individuals concerned directly with the transportation 
needs of our citizens. The State Department of Transportation 
Commissioner Wayne Shackleford will be speaking. We have on our 
first panel Mr. Jim Croy from the Cobb County Department of 
Transportation. We will be hearing from State Representative 
John Wiles as well as representatives from the Corps of 
Engineers. It is the Corps of Engineers which has the primary 
jurisdictional responsibility for implementing and enforcing 
wetlands regulations, and they will be speaking with us today 
to answer any questions and provide information on those areas 
in which they have been active.
    The purpose ultimately of these hearings is two-fold. One, 
to bring to the public's attention a better understanding of 
both the shortcomings as well as the benefits of the existing 
wetlands regulations programs, policies and regulations, to 
highlight those areas where there have been problems, either 
problems with miscommunications, problems with overly 
restrictive or overly confusing regulations, time delays, costs 
involved; and ultimately the purpose of that is to identify 
areas in our Federal regulations, and if necessary in our 
Federal wetlands related laws, that can be amended, so these 
work better.
    When we talk about working better, what we mean, at least 
what I mean, is that all of the different interests are 
balanced properly so that no one side of the equation 
overshadows everything else. We want to make sure that true 
wetlands are properly protected as a resource for all of our 
citizens to continue to enjoy and so that we all benefit from 
the very positive results of having proper wetlands throughout 
our country and not diminishing those important natural 
resources. But we also want to be mindful of the fact that 
whenever we do have these Federal regulations, there are costs 
involved, and those costs are ultimately borne by the taxpayers 
of this country.
    And we want to make sure that the regulations in this area, 
as well as other regulatory areas, in which the Government is 
involved--we want to make sure that the different interests are 
balanced; the interests of the taxpayers, the interests of our 
local governments which have to ultimately provide the services 
that sometimes are brought to a standstill by Federal 
regulations. We want to make sure that those business people in 
our communities who have a responsibility to their employees 
and to the consumers in our communities to provide the jobs and 
the amenities such as housing, transportation, and businesses 
that the citizens demand and have a right to expect. We also 
want to make sure that the environmental concerns are properly 
reflected and weighed in the equation.
    So again, to recap, what we are trying to do here in these 
hearings and in others that we will be having throughout the 
country and some in Washington as well, is to look generally at 
these problems, to identify those areas where we can do a 
better job of either enforcing or drafting our regulations and 
our laws and using examples such as we will be seeing today and 
hearing about today, to highlight, again both those areas in 
which these regulations are working properly as well as those 
instances where we can be doing a better job.
    We will have three different panels today. We will try and 
stay on a fairly rigorous timeframe because we do have a lot of 
witnesses and we do want to leave some time at the end of the 
hearing today for something that Chairman McIntosh believes is 
very important in all of our hearings whenever possible, and 
that is to provide a time period for public comment.
    We will be swearing in each of our three panels at the 
beginning of each one of those panels. The written remarks for 
any of the members of the panels who wish to submit them, will 
in fact be printed in their entirety in the record, so even if 
you are not able to make it through your entire written 
presentation, please rest assured that all of the comments will 
appear fully in the record of these hearings and be available 
for other members of the public, for the interest groups, as 
well as the general public, when these hearings are published 
later on this year.
    Each panelist will be given approximately 5 minutes in 
which to make their opening remarks. We will just proceed in 
the order. Then each member of the subcommittee; namely, myself 
and Mr. McIntosh, will have 5 minutes each to ask questions of 
each panel. And of course, these proceedings are being 
televised, so we would ask everybody kindly to speak up.
    And with that in mind as preliminary thoughts, let me 
invite and ask each member of panel No. 1 to stand and be sworn 
in and then I will introduce the members of the panel and we 
will proceed with the remarks. If each panelist would stand and 
raise their right hands.
    [Witnesses sworn.]
    Mr. Barr. Thank you. Each witness has responded in the 
affirmative.
    The first panel, we will be hearing from four individuals 
who have a very significant understanding of different aspects 
of wetlands regulation. I would like to introduce those members 
of this panel that we will be hearing from.
    Appearing for Cobb County will be Jim Croy, our director, 
here in Cobb County, for the Cobb County Department of 
Transportation. Jim is appearing here in his capacity as 
director of the Department of Transportation in lieu of 
Chairman Bill Byrne. Jim, we are very happy to have you here 
today.
    Also on this panel is the Honorable John Wiles, one of our 
State representatives who represents portions of Cobb County in 
the State House of Representatives, and has done a great deal 
of work, both in his private capacity as well as in his work as 
a State legislator, looking at the costs of regulations and 
again, doing--what we are trying to do at the Federal level, he 
is trying to do at the State level, and that is to bring a 
proper balance to these regulations. Representative Wiles, we 
appreciate very much your appearing here today with us.
    We also have two individuals--we have Chris McLean from the 
West Sandtown community and Mr. McLean is intimately familiar 
with certain aspects of Federal wetlands regulations. We 
appreciate your appearing here today to share your experiences 
and answer any questions as they might relate to problems that 
you have run into. Mr. McLean, we appreciate your being with us 
today.
    And finally, we have Mr. David Parr, also with the West 
Sandtown community. He is a resident that in his capacity has 
also come into contact with Federal wetlands regulations and we 
appreciate your taking time to share your experiences with us 
here today, both you and Mr. McLean I think have interesting 
stories to tell that are relevant, both to us in the Government 
here, as well as to the population generally, and we appreciate 
your appearing.
    With that as preliminary comments, what I would like to do 
is to begin the presentations with Mr. Jim Croy, the Cobb 
County Department of Transportation head.

  STATEMENTS OF JIM CROY, DIRECTOR, COBB COUNTY DEPARTMENT OF 
 TRANSPORTATION; JOHN WILES, REPRESENTATIVE, GEORGIA HOUSE OF 
    REPRESENTATIVES; CHRIS MCLEAN, RESIDENT, WEST SANDTOWN 
  COMMUNITY; AND DAVID PARR, RESIDENT, WEST SANDTOWN COMMUNITY

    Mr. Croy. Good afternoon, Representative Barr.
    I am Jim Croy, the director of the Cobb County Department 
of Transportation. I am here today on behalf of Chairman Byrne, 
our Board of Commissioners and our county manager, Mr. David 
Hankston, to provide a statement for Cobb County.
    It is the responsibility of the Cobb County Department of 
Transportation to plan, manage and implement our transportation 
improvement program. In Cobb, that program since 1985, will 
total approximately $960 million worth of road improvements 
that will be invested in our county through local funds. This 
investment is comprised of over 540 scheduled projects, many of 
which will require and have required permitting under Section 
404 of the Clean Water Act.
    On reviewing our project history, I would just like to make 
the following observations.
    1. In the event that the Corps of Engineers in reviewing an 
application denies the permit, we have seen there is no formal 
appeal process within the system for the further review and 
consideration of that project and a discussion of the issues as 
it relates to the denial of the permit.
    2. The applicant assembles--in this case Cobb County--we 
assemble a team of professionals from the various different 
fields to prepare our technical area evaluations. These are 
evaluations such as traffic, transportation planning, 
environmental, constructability, hydrology, structures and just 
standard roadway design for the project. And typically these 
are reviewed by the Corps and many times we feel we have not 
been able to have that degree of discussion about some of these 
different expertise that certainly I am not a professional 
expert in all the issues and we need to have some degree of 
ability to discuss these at a technical level.
    3. There are concerns regarding the coordination of the 
permitting process as it relates to the Corps of Engineers and 
the other regulatory agencies. I give--for example, we have one 
project which we have reached agreement on but it required 18 
months to develop consensus between the Corps of Engineers and 
the Georgia State Historic Preservation Office over a 
Memorandum of Agreement over a historic structure on one of our 
projects, the Powder Springs Parkway. The same situation 
existed in time for another road project here in Marietta.
    In looking at the review criteria, I would like to make a 
couple of comments as it relates to maybe some of the original 
direction of the NEPA 1969 directive.
    It appears at times that the review process does not regard 
the definition or purpose in regard to the original direction 
of NEPA. Projects were brought forward that, in our mind, 
fulfill the socio-economic and other requirements of present 
and future generations of Americans and we have every practical 
means and measures incorporated into the design of the project 
that is sensitive to the critical importance of restoring and 
maintaining environmental quality to the overall welfare and 
development of man. And those are quotes out of NEPA.
    I think our projects in Cobb County as we bring them 
forward, we have tried to look at that balance. I think 
sometimes in looking at the balance of environment, community 
and transportation, many times I think due to the current 
regulations, the scale is tipped toward environmental in many 
instances instead of balance.
    It appears that at times the review process does not 
equally balance, as I said, impacts both positive and negative 
between environmental and human issues as these projects are 
developed, and to create and maintain conditions under which 
man and nature exist in productive harmony. Again, a quote from 
the 1969 NEPA documents.
    Transportation improvements are identified to address in 
Cobb County our existing and future travel demands. We have a 
process of modeling and prediction and developing a system of 
transportation improvements throughout our whole county that is 
interconnected. Our region, the Atlanta region, with which Cobb 
is a portion of, has continued to grow and develop irrespective 
of road and other modal systems that are being put in place. 
The notion that no road equals no development has been 
historically incorrect. As there are no controls that have been 
incorporated, private development will still have the potential 
of impacts to our stream quality and wetlands even under the 
no-build scenario. I think this part of the no-build scenario 
certainly needs to be incorporated into the process.
    And finally, it would appear at times, especially in the 
past, that the lack of consistency for approval of techniques 
used in the mitigation impacts our projects. At times it would 
appear that the methodology used for one project has been 
unacceptable in another project.
    Also, the methodology used to get to the point of 
discussions of mitigation appears many times not consistent. 
For example, the discussion of traffic studies and corridor 
studies are very difficult to get past that point, to get to 
the actual discussions of the actual alignment. Again, I think 
it gets back to the point of bringing each of the different 
studies together to reach consensus prior to the alignment 
issue.
    On behalf of Cobb County, I would like to thank the 
committee for the opportunity to testify today and will be 
available for any questions you might have.
    Mr. Barr. Thank you, Jim.
    Representative Wiles, if you please now would make whatever 
opening remarks you would like to for 5 minutes and then as 
soon as we finish with the panel, we will have questions for 
all of you.
    Mr. Wiles. Thank you, Representative Barr.
    It is indeed a pleasure to be before you and members of the 
committee to testify today about wetlands. I am a State 
representative, I represent the 34th District, which is west 
Cobb, Kennesaw and west Marietta. And importantly, I am also in 
private life a real estate attorney.
    I appreciate the opportunity to come today and talk to you 
about the problems that face my constituents and by extension 
your constituents. As a result of the Corps' delay, delay and 
delay on the many road projects of west Cobb, our constituents 
sit daily in bumper to bumper traffic, which affects the 
quality of life, and to me, it is just--the belief if you do 
not build a road, there will be no development and you and I 
both know, and members of the committee know that development 
is here. Cobb County has addressed it by taxing themselves, the 
citizens have agreed to tax themselves to build these roads, 
but it appears the Federal Government through the Corps of 
Engineers has said no, we do not want to let you build these 
roads that the community wants.
    In my opinion, there are three main issues with the 
wetlands legislation. I have talked to many of my constituents 
and many of my clients and one of the problems is trying to 
figure out what a wetland is. It depends where you are and it 
depends who is interpreting. One person's wetlands is another 
person's dry land. One of the things that was reported to me in 
one situation in Cobb County, there was a wet area, the Cobb 
County Department of Transportation went out and surveyed the 
water, checked the water, turns out the water was chlorinated. 
That means there was a water main leak. They found the water 
main leak. To this day, the Corps of Engineers considers that 
area that was wet because of a water main leak, wetlands. That 
is ridiculous. If it is chlorinated water, it is certainly not 
wetlands.
    What I think is there needs to be some process available to 
identify what wetlands is so that if a person goes in to 
develop their land, to farm their land, that they can turn to a 
resource and say yes, this is wetlands and now the process is 
you develop the land and then, in essence the Corps of 
Engineers through the traffic cop comes out and says you were 
speeding and you say well I did not know I was speeding, I did 
not know it was wetlands. They say, oh, well, you should have 
known. You should have known by the flora or the content of the 
water or whatever the plant life is.
    The other thing is what seems to me this arbitrariness of 
the Corps of Engineers--we are the Federal Government, we are 
right and you are wrong. And you are the constituents in Cobb 
County, my constituents, your constituents, and they choose to 
build the road, tax themselves, do not seek Federal funds, have 
public hearings, come up with a road plan that everyone agrees 
to, the Federal Government through a bureaucrat down in 
Savannah says no, you cannot build this road. And then when we 
say well we want to build the road, the only recourse is to go 
to the Federal courts. And we have all heard about the backlog 
in the Federal courts and how long and of course how expensive. 
That is the tax on the constituents and the citizens of Cobb 
County because they have to hire a good law firm to go down in 
Federal court. Why is there not a procedure within the Corps of 
Engineers, an Administrative Procedures Act procedure, a short 
circuit so we do not have to go to Federal courts to resolve 
these disputes.
    And the third thing is--and this to me is the most 
important--why are we talking about this as a Federal issue. I 
understand it is the Federal waters, I understand it is the 
environment. But we at the State level, me at the State House 
and my fellow members of the General Assembly, the local 
government. We are just as concerned about the environment, 
perhaps more concerned, than the Federal Government is. Why can 
this issue not be devolved to the States? Why are we regulating 
in Washington, DC, conduct in west Cobb County? That is the 
challenge I put to you as a Congressman and to the entire 105th 
Congress--return this back to us. Trust us at the State level. 
The 10th amendment says that the power should be reserved to 
the State. This should be our area, not the Federal 
Government's area, and I ask that you would consider and 
Members of the Congress would consider returning this back to 
the State level.
    When I go to the people that live around Dowell Elementary 
and tell them that a Federal bureaucrat has said there is going 
to be a four-lane road right by their elementary school, it is 
really hard for me to explain that to them. When the county 
representative who has been elected to represent, where the 
citizens have decided on a road path, and instead a Federal 
bureaucrat tells them that they are going to put a four-lane by 
their school. There is just no justification for that. So I 
would urge the Congress to consider devolving this back to the 
States and let us handle it at the local level. At the State 
level, I would like to send it back down to the county level. I 
do not want to be a mini-Federal Government and I do not think 
we should be. I think we can handle this at the local level.
    I thank you, Mr. Congressman. If you have any questions, I 
will gladly address them.
    Mr. Barr. Thank you, Representative Wiles. We appreciate 
not only your testimony today but your work in behalf of the 
citizens in your district and indeed throughout the entire 
State of Georgia.
    Mr. McLean, if you would provide us some insights in your 
opening testimony and then we will have questions for the 
entire panel.
    Mr. McLean. Thank you, Representative Barr. I appreciate 
the opportunity to speak here.
    Ladies and gentlemen, my name is Chris McLean. I am a 
resident of west Cobb County and a businessman in the 
community. And the issue that I want to testify about is one 
that Representative Wiles spoke of, which is the four-lane 
highway going in front of Dowell Elementary, which is a route 
that completes a road called the Cobb Loop, if you will. I 
choose, just in the essence of time, just to read my testimony 
which I printed out and provided copies.
    The Loop project is one that will be completed. Common 
sense should direct anybody's thinking to the completion of the 
project. Any further delay will cause more people to be 
negatively affected, such as those at Pennington Subdivision. 
If no road is built, the increasing traffic will find its way 
down existing roads and cause injuries and fatalities.
    The routing of the Loop has been focused on West Sandtown 
Road. Three years ago, it became obvious to the majority of 
west Cobb citizens that Noses Creek would be the correct 
routing for the Loop. Now after untold sums have been spent of 
citizens' money to ensure the proper routing of the Loop, West 
Sandtown Road in particular is now again in jeopardy.
    If West Sandtown is utilized it adversely affects 2,100 
residents and hundreds of school children at the Dowell 
Elementary School. They will be subjected to 40,000-plus 
vehicles traveling 50-plus miles an hour 24 hours a day.
    The completion of the project should be the Noses Creek 
route, as it will deliver the least injury and fatalities for 
those who use and live near the route.
    Delay of the project increases the amount of people it 
affects. There has been a subdivision built in the past 3 years 
that will be disturbed by the Noses Creek route. We have been 
told that the road cannot be developed along Noses Creek 
because of danger of disturbing the environment. Environment is 
a major concern for all of us. After reviewing the list that is 
used by the Corps of Engineers, it is obvious to me that there 
is a major environmental concern missing. That concern is the 
human environment in relation to all conditions and options. If 
you do not consider human environmental conditions as important 
as the balance of nature, how can you make moral and ethical 
decisions? The answer is you cannot.
    We all need to understand that today each of us should set 
the only logical, moral and ethical decision in our minds. The 
decision that Noses Creek routing needs to be developed and 
acted upon. The health and well-being of thousands of innocent 
people depend on it. It is in our hands here today. The issue 
is prosperity or adversity. One of those will prevail.
    I appreciate the time. Thank you very much.
    Mr. Barr. Thank you, Mr. McLean.
    Rounding out this first panel will be Mr. David Parr, like 
Mr. McLean, also a resident of the West Sandtown community 
which is impacted greatly by recent decisions and delays 
regarding the West Cobb Loop.
    [The prepared statement of Mr. McLean follows:]


    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    
    Mr. Parr. Thank you very much. I would like to extend much 
thanks to Commissioner Cooper, who put my name in the hat, so 
to speak; Chairman McIntosh for inviting me here; and 
Congressman Barr.
    My name is David Parr, I am a resident of the west Cobb 
community. I live in a subdivision located off of West Sandtown 
Road. I also want to make it clear that I do not represent any 
one group, I represent myself and my wife. However, I do feel 
my views are in line with a majority of the people in west 
Cobb.
    First of all, let me make it very clear I do support the 
building of the West Cobb Loop and its eventual completion. The 
road is very much needed to accommodate the growth of west Cobb 
and that is something that the county definitely needs.
    However, we should do the best to minimize any 
repercussions to our communities, the surrounding communities 
and as well as the environment, which is also very important. 
The question here is can we balance the needs of both the 
environment and our communities. I think we can. It is not 
impossible, but what it takes is team work and pulling together 
of all the parties involved.
    As I have stated, the road is definitely needed to 
accommodate the growth and connect the eastern portion of the 
county with the western portion of the county, and to alleviate 
traffic congestion.
    The Corps of Engineers earlier this year did reject the 
recommended route, which deeply concerns me, and the subsequent 
lack of cooperation between our political leadership, DOT and 
all the other parties. There does not seem to be any 
cooperation there and that bothers me.
    You ask how will this impact our neighborhood, how will 
this four-lane road which may travel through several different 
communities, depending on which alternative route is selected, 
if that is the case? It would definitely impact the health and 
safety of our community and our children. Take, for example, 
the West Sandtown Road, as was eloquently stated earlier by Mr. 
McLean, involves several different homes on the road, 50-plus 
driveways on the road, schools, churches. They would be 
significantly impacted and I do not know that we want to do 
that. I do not think anybody here wants to do that. We do not 
want to endanger the lives of our community and our children. 
We do not want to reduce the quality of life in that area. 
Every day when I drive down West Sandtown Road, I see joggers, 
I see cyclists, I see children walking to and from school. And 
I do not think we want to impact or endanger their lives.
    An additional point that I would like to state is my 
understanding of the east-west connector is we want it to be a 
transportation corridor between east and west. That means 
limited access. And the alternative routes defeat the whole 
purpose of that. They involve different communities, many 
different homes and so forth. So I do not see that being a 
limited access highway.
    So I would strongly urge all parties involved to get 
together to search for a win/win solution, not only for the 
west Cobb communities, but also the environment. I think it is 
very important to keep the environment as natural as possible, 
with as little impact as possible, but we have to weigh the 
needs of the two, the communities and the environment, and 
somehow search for a win/win solution. And I think we can do 
that. We have to pull together, and I would recommend or I 
would urge everyone to come together and revisit the original 
route recommendation which was denied earlier by the Corps, and 
ask five questions in a different light, a more enlightened 
approach, a more positive approach.
    Let us ask ourselves what is already working well with the 
recommended route? What specifically makes it work? What are we 
trying to accomplish? What would be the benefits to the county, 
surrounding communities and the environment? What can we do 
more of better or differently to begin moving toward our 
objective?
    I hope we can do that. If you use that approach, I think 
you will find a win/win solution for all.
    I strongly urge everyone to come together, re-examine the 
original route and do whatever it takes to make that everyone's 
preferred route.
    Thank you.
    [The prepared statement of Mr. Parr follows:]


    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]


    
    Mr. Barr. Thank you, Mr. Parr.
    Before we move into the questioning of this first panel--
and I would like to thank all of the panelists again for being 
here today--I would like to introduce the chairman of our 
subcommittee, who has arrived. Mr. Chairman, we usurped your 
power, but only temporarily and only for I hope the same 
purposes for which you would have exercised it.
    Mr. McIntosh. I am sure it was good intent.
    Mr. Barr. It is a tremendous pleasure for me to introduce 
to the Seventh District, to Cobb County and the rest of the 
citizens from across the Seventh District who have an interest 
in these hearings and have an interest in seeing that their 
Government at the Federal level remains more in contact and 
reaches out more to our communities, I would like to introduce 
the chairman, Dave McIntosh.
    Mr. McIntosh was elected to the Congress at the same time 
that I was, in the 1994 election. He represents Indiana's 
Second District and chairs this subcommittee on the Government 
Reform and Oversight Committee. His prior work positions him 
uniquely to really play a major role in helping to formulate 
the policies, the programs, the regulations that bring us here 
today.
    Mr. McIntosh served as Special Assistant to President 
Reagan for Domestic Affairs. He has also served with former 
Attorney General Ed Meese. But perhaps most importantly is the 
tremendous work that he did with former Vice President Dan 
Quayle working on the Council on Competitiveness. He did 
tremendous work over the years in looking at Federal 
regulations and trying to make them a little bit more rational, 
a little bit more reasonable, a little bit more understandable 
and a little bit fairer to all the interests in our 
communities.
    Mr. Chairman, it is a pleasure to welcome you here to the 
Seventh District and to Cobb County today.
    Mr. McIntosh. Thank you very much, Bob. [Applause.]
    I have a long prepared statement which I will put into the 
record, but let me just say I appreciate you arranging for this 
hearing; thank you for getting it started, and I apologize, 
particularly to the first panel, and to everybody, for being 
delayed. My flight was late, which gave me plenty of time to 
read your testimony on the plane, and so I am familiar with the 
issues you wanted to bring before the subcommittee.
    Let me say very briefly that I think this issue of how we 
enforce wetlands policy in this country is critical, for 
several reasons. First, it is critical for doing the right 
thing for the environment. Second, it is critical for doing the 
right thing for the people who are involved: in this case, the 
homeowners that Mr. Parr represents and others. But also, I 
think it is important that we look at this from the perspective 
of preserving our civil rights, because one of the rights that 
our Constitution guarantees is that the Federal Government will 
not take private property without paying just compensation, 
even if it is for the best public use.
    And one of the things that I think we have seen over and 
over again in this whole area is that citizens, very innocent 
in their own regards, oftentimes are punished or appear to be 
punished because their land is designated as a wetland. And so 
part of this hearing will be hearing from people about how this 
process works: does it protect property rights, does it serve 
the citizens well, and does it end up doing the best job 
possible for the environment in preserving important natural 
habitat?
    And again, Bob, let me say thank you to you and 
particularly your staff here in the district for arranging this 
hearing. Our subcommittee has a tradition now of going outside 
of Washington and listening to people who are engaged in 
everyday lives and do not have time to come to Washington to 
petition us for relief from the Government, and taking that 
information back with us. And I can tell you folks in Cobb 
County that Bob has been a great member of this subcommittee 
and is an active voice for the people here in Georgia every 
time we get together.
    So thank you and let us proceed now with the rest of the 
panel. I have had a chance to read your written testimony and 
look forward to talking with you as we move into question and 
answer.
    [The prepared statement of Hon. David M. McIntosh follows:]


    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    
    Mr. Barr. Thank you, Mr. Chairman. With your permission 
then, I will begin the questioning and then turn it over to 
you.
    Mr. Croy, as the transportation director for Cobb County, 
could you provide a little bit of background to the 
subcommittee on how the West Cobb Loop project has been and 
will be paid for?
    Mr. Croy. The West Cobb Loop project, which is a project in 
west Cobb County that connects Dallas area to the Powder 
Springs Road area through west Cobb, is a project that was 
first initiated in our 1985 Transportation Improvement Program.
    Mr. Barr. I am sorry, that was 1985 or 1995?
    Mr. Croy. 1985.
    Mr. Barr. Thank you.
    Mr. Croy. It was set aside by the voters in 1985 as one of 
the projects in that TIP. Now our Transportation Improvement 
Programs here in Cobb are funded through a local option 1 
percent sales tax. That tax has been voted on by the voters of 
Cobb County in 1985, again in 1990, and again in 1994. So we 
have had three TIPs. Moneys for the West Cobb Loop were set 
aside in both the 1985 and the 1990 program. And this is all 
local funds, there are no State or Federal dollars in the 
project.
    Mr. Barr. Thank you. And can you give us just a ball park 
figure of the current estimates of the cost of the project and 
whether or not those have increased or decreased over the years 
that the project has been delayed?
    Mr. Croy. Well, the current estimates as they stand today 
is on the approximately $35 million range. This is a project 
that certainly costs in construction has increased, especially 
structural work. So although I am not in a position to give an 
exact dollar figure, I would predict that projects where we 
have structures--this particular project has one bridge that is 
approximately 3,000 foot in length--those projects would have 
escalated over the past 12 months.
    Mr. Barr. Representative Wiles, you talked a little bit in 
your remarks about the lack of an effective appeal process for 
the rejection of wetlands permits, section 404 permits.
    Are there some specific ideas that you would want to bring 
to the subcommittee's attention with regard to how we can 
implement an effective appeal procedure?
    Mr. Wiles. Well, in my mind, the courts, the Federal 
courts, should be the last resort, not your first step, if you 
are dissatisfied with a decision of a Federal bureaucrat.
    Mr. Barr. And you say that as an attorney.
    Mr. Wiles. I do, because my constituents are the ones that 
pay the bills for the county's attorneys to go litigate these 
cases. And delay, because of the litigation, we know in dealing 
with the Federal courts, not in particular this case but it is 
always a delay period, it always takes time. Traditionally in 
dealing with the Government, there is the Administrative 
Procedures Act which provides an independent judicial, but not 
really, a procedural appeal process, where someone can hear it 
quickly. Generally they are in that area, whatever area you are 
appealing through the Administrative Procedures Act, they are 
familiar with the issues and they can evaluate the issue. Where 
here, you get a Federal judge who perhaps has never heard a 
case such as this. With an Administrative Procedures Act appeal 
you will get someone that is technically up to speed and 
perhaps get a quicker decision. Importantly, I think you will 
get a much more cost-effective solution. Instead of burdening 
the Federal courts with litigation, you can perhaps resolve 
this case.
    And the other point would be perhaps there needs to be 
mediation or a process after the appeal or before the appeal, 
where you get the people in a room and you try to work it out, 
as opposed to having where you are now; you get a Federal court 
suit and then the judge says can you all not work it out.
    So that is my ideas--mediation or perhaps an Administrative 
Procedures Act appeal.
    Mr. Barr. Thank you.
    Mr. Croy, I know you are very familiar with this project, 
both you, Commission Chairman Byrne, Chairman Wysong, 
Commissioner Cooper, the entire Commission has been working and 
devoting a great deal of attention to this project. We have 
heard today from two citizens from the community directly 
impacted, who have indicated their support for the project 
moving forward. You have heard from Representative Wiles who 
represents citizens who are directly impacted and favor the 
project moving forward.
    In your view, does the project as the Commission has 
proposed it, have the backing of the community in general?
    Mr. Croy. Prior to the Board adopting what is known as the 
Noses Creek alignment, there were several public meetings. One 
public meeting I know was attended by in excess of 600 folks. 
It is my opinion that as this process has evolved since 1993, 
when the Board adopted the Noses Creek alignment, that that 
alignment has the general approval of the majority of the folks 
in west Cobb, as well as the technical staff that has reviewed 
this project on behalf of Cobb County.
    Mr. Barr. When did the county first approach the Corps of 
Engineers for a permit?
    Mr. Croy. The individual permit, I believe--let me check my 
notes--application was made in February 1993.
    Mr. Barr. Four and a half years ago, approximately.
    Mr. Croy. Yes, sir.
    Mr. Barr. I, of course like you, read local media from this 
area and I have noticed in recent days there have been some 
articles that seem to reflect some movement with regard to 
possibly resolving this impasse. Is there anything that you can 
share with us today publicly with regard to whether or not 
there are some positive developments? Because one of the things 
we want to do here is not simply to highlight the problems, we 
want to identify if there are problems in the procedures, in 
the regulations, in the laws that need correcting. But we also 
want to be very mindful of the fact that if there are things 
that are working, that we highlight those as well, and perhaps 
do something to make sure that these things that are working 
happen quicker and in a less costly way.
    Mr. Croy. Our Board of Commissioners has directed the 
Department to submit a new application to the Corps of 
Engineers for the West Cobb Loop. We have had preliminary 
discussions at a staff level with members of the Corps, which I 
think have been very positive. We have a meeting scheduled for 
the first week of July to go over the pre-application process 
for this new alignment.
    So I think we have had very positive discussions that are 
leading, at least from the county's perspective, so we can 
submit an alignment very similar to the Noses Creek alignment, 
but then again, it would be a new alignment, certainly in the 
Corps' eye.
    Now I cannot speak for the Corps, other than that in our 
discussions with staff--and I know there is a process we have 
to go through--but I think the very positive process that we 
have worked well with the Corps over the past 2 or 3 weeks is 
the exact appeal process that we wish we had, that we could go 
back and take a second look at a decision and get answers and 
communication and maybe bring about better views of certain 
documentation.
    As I said in my testimony, I think the traffic 
considerations, there has always been some miscommunication I 
feel as it relates to traffic, and we have had the ability I 
think now in the past few weeks to sit down and address that 
issue.
    So I think what we are doing is very positive, it has 
worked--it is working at this point in time and I think that is 
the very thing we need in an appeal process.
    Mr. Barr. Thank you, Mr. Croy. Mr. Chairman.
    Mr. McIntosh. Thank you, Bob, I appreciate it.
    I have got a couple of questions for Mr. Croy and the staff 
is checking whether there are maps available that we could show 
to help me understand this. But while that is being arranged if 
it is possible, let me ask Mr. Parr and Mr. McLean, do you have 
any general suggestions that we could take back for improving 
the regulatory process, either with relationship to the Corps 
and the wetlands permit and EPA's involvement, or any other 
insights there?
    Mr. McLean. Yes, I believe there are some ideas that should 
be implemented and I believe the appeal process should be 
amended so that somebody can go in and mediate and talk about 
the issue that was selected and the decision that was made.
    It seems to be that the information I have, all parties did 
what they were commissioned to do, but on the other hand, there 
is more information that comes up after the fact that needs to 
be reviewed.
    If we had a process where that information could have been 
reviewed, we may not be talking about this at this point. So 
that would be my suggestion.
    Mr. McIntosh. OK, thank you. Mr. Parr.
    Mr. Parr. I would concur with several statements made 
earlier that there certainly should be some type of appeal 
measure in place other than having to go to court. I do not 
think that speeds up the process at all and all it does is get 
a few lawyers a little more richer.
    Also, just looking at some of the material here. I do not 
have access to that application but I was just reading the 
denial or the reason for the denial, and a lot of it seems to 
stem from maybe some misunderstanding from our side in 
completing that application. It looks like the Corps was 
looking for other alternatives to weigh the benefits of any 
alternative.
    Just based on my background, any time you put forth a 
proposal, you weigh the benefits of all proposals. You do not 
want to just put up one proposal, you want to put up three or 
four options and weigh the cost/benefits of all those options 
and you choose the best one within the scope of whatever you 
are dealing with, whatever your resources are, and the concerns 
of the parties involved.
    I would recommend that we make sure that the original 
application is submitted correctly, and if there is not any 
means in place to make sure that the parties involved, whether 
it be the DOT or the Corps or whatever, are talking and 
everybody understands both sides of the issues. We should make 
sure it is done right the first time rather than have to go 
through all this.
    Mr. McIntosh. Thank you. Actually that keys up my next 
series of questions for Mr. Croy.
    And if you could put up for us, Mr. Croy, a map that 
shows--and I have got it labeled on mine ``Alternative 1-A, 
Nose Creek,'' which I think was the original county proposal. I 
do not know if there is a staff person that could help them 
with that.
    Let us talk about the costs and the benefits of that 
particular proposal, I guess in particular with relationship to 
the concerns the county had with residential areas as well as 
the concerns about wetlands that may be in the route. What is 
the impact in terms of residences in the area and what is the 
impact on wetlands and what was the county's proposal to either 
mitigate that or build additional wetlands in other areas?
    Mr. Croy. OK. And I apologize to the audience for blocking 
their view a little bit here, but it is very hard for you all 
to see up on the screen.
    The alignment that you see before you is the preferred 
alignment, known as the Noses Creek alignment. This is--just to 
orient you--this is Dallas Highway at Villa Rica, Villa Rica 
Road and it leads onto the new alignment. What you see marked 
in blue are the wetland areas along the route and what you see 
in red are proposed bridges. To orient you a little more, this 
is Macklin Road in west Cobb, terminating at Powder Springs 
Road here. North is to your right.
    The proposal as submitted originally to the Corps has--the 
impacts to wetlands, was approximately 11 acres. Of that 11 
acres, three of it was in this area of bridging, primarily in 
the area here. That reduced it to just under seven acres, which 
I believe was in--as you can see, again from memory, 
approximately 13 different areas, the greatest impact is in 
this area near Macklin.
    What we proposed as mitigation sites along the area is a 
combination of mitigation which totaled up to just over 80 
acres of mitigation. That had areas of restoring, areas of 
wetlands, had areas of creation. This area in pink is a wetland 
that would be created. The areas in green are what we consider 
upland buffering, these are areas we would acquire, this piece 
of property, as county property, and we would require as you 
see in the green as upland buffering. Again, another area in 
here of the upland buffering. And restoration, which is shown 
in the yellow.
    So by the 8 acres of impact or 11, 3 of them we mitigated 
with a bridge, the other 8 we came up with a mitigation plan of 
about 80--I think it was 85 acres in round numbers--between the 
green area, which is again, just to review, upland buffering. 
The yellow area which is restoration and the blue area--I guess 
that purple/pink is creation.
    Mr. McIntosh. So let me summarize for my own understanding. 
You would have an impact, particularly with the bridge over a 
total of 11 acres, 3 with the bridge--those wetlands would 
continue to exist but there would be some impact because the 
highway would be built with a bridge over it. And then in 
exchange for that, if you will, you are proposing to upgrade or 
create a total of 86 acres that would be environmentally 
protected areas, to preserve other wetlands in the area.
    I guess that is the environmental benefit. The economic 
benefit for the road I am familiar with in connecting the two 
parts of the county. What is the cost in terms of people having 
to be relocated or other concerns that you would have with the 
community there?
    Mr. Croy. We had several relocations along this project. 
Let me pick up my notes if I might.
    Mr. McIntosh. Sure.
    Mr. Croy. As the project was set on the original alignment, 
there was only three residences that would be impacted as far 
as relocations, with this alignment along Noses Creek.
    Mr. McIntosh. And your usual procedure with that is to 
condemn the property and pay the property owner the value so 
they can choose to relocate in another area?
    Mr. Croy. Right. Our normal procedure in all right-of-way 
negotiations is to make that property owner whole. We would 
have an independent appraisal and offer that property owner 
that appraised value for their property. If it is a relocation, 
then on top of that we offer them relocation assistance if they 
need that.
    Mr. McIntosh. So you attempt to make them economically 
whole and obviously there is an intangible value if that is 
their dream home and they really wanted to live there, there is 
not much you can do about that. OK.
    Now anything else in terms of the costs or benefits in this 
particular alternative?
    Mr. Croy. The only thing I might mention, that since you 
are on new location, the areas from where the new location 
takes over, which is basically this area here just off Villa 
Rica, all the way to the end of the project, which is the 
majority of the project, since you are on new location, you can 
control the curb cut and the access point, and our Board of 
Commissioners had designated this area to be limited access. So 
there was to be--with the exception of land-locked properties--
there would be no access points along that section of roadway, 
which is--in the design process, those type roadways you can do 
on new locations; it is very difficult to do limited access on 
widening off the center line on existing locations because you 
can see the many property owners along like this section of 
Villa Rica that would certainly need curb cuts.
    Mr. McIntosh. And if I remember correctly from some of the 
projects that we have looked at in my State, that allows you to 
have a higher rate of traffic back and forth and greater safety 
than when you have the access, because you have got fewer 
people coming on and off, it is a speedier way of transporting 
east to west.
    Mr. Croy. That is correct, you provide a more safe road, 
you also provide a better flow of traffic because you do not 
have conflicting turning movements along the roadway with the 
curb cut.
    Mr. McIntosh. OK. Now if you have got some charts there--
and it was not clear to me, and having missed your testimony--
there was an alternative three, which the staff had reported to 
me was the one the Corps preferred, when you had submitted your 
proposal for the Noses Creek, and I guess that is called the 
West Sandtown Road?
    Mr. Croy. Yes. I think the one that has been discussed 
primarily, certainly today, is an alternative of West Sandtown. 
Let us rearrange here just a little bit and set this one down.
    [Pause.]
    Mr. Croy. Again, to orient you on where we are at, Dallas 
Highway, this is, in this line here, is the preferred 
alternative. This alignment is the proposed alignment. What you 
see above here in this red is what has been called the West 
Sandtown alignment, which is one of the other alternatives, one 
of four alternatives, actually five, there was that variation 
of one, that were examined in this corridor.
    As you can see, the one difference between the Noses Creek 
and the Villa Rica West Sandtown is that the West Sandtown 
stays along an existing road pattern, either Villa Rica or West 
Sandtown until you get south of Macklin Road. Then the two 
projects are very similar, along the same alignment.
    Mr. McIntosh. And so for that portion of it, you would be 
required to have additional or many more access cuts into it?
    Mr. Croy. Due to the amounts of property, you would have to 
look at one or two alternatives. You would have additional curb 
cuts for the properties along the roadway, or you would have to 
buy the access rights along that section of roadway, at least 
all the properties that front the roadway, and have a greater 
number of relocations. You would have to look at one of the two 
alternatives.
    Mr. McIntosh. And how many relocations, I guess with each 
alternative, would you anticipate?
    Mr. Croy. If we purchased the access rights along the 
alternate, the West Sandtown-Villa Rica alternate, as you 
recall, I think we had approximately three on the Noses Creek. 
If we buy the access rights along West Sandtown, it would 
exceed 40.
    Mr. McIntosh. And if you do not buy the access rights, how 
many relocations would there be?
    Mr. Croy. It would be I think approximately a dozen, but 
then you would have 30 or something, close to 30 curb cuts you 
would have to deal with.
    Mr. McIntosh. And is that the entire route? So it is three 
compared to either a dozen plus the curb cuts or 40?
    Mr. Croy. That is correct.
    Mr. McIntosh. And then what is the impact on wetlands in 
that area?
    Mr. Croy. Well, the impact on the alignment along West 
Sandtown is relatively minor in regard to impacts. You do not 
get into any of the areas that we were bridging in here. 
Basically this green outlines the stream areas. Again, from 
memory, I think we have looked back at this alignment and could 
possibly have the wetland impact of the West Sandtown well 
under two acres.
    Mr. McIntosh. Was there any proposed mitigation with that 
alternative?
    Mr. Croy. No, we have not examined it other than that we 
know we have this same mitigation site in here would be 
available for the West Sandtown also.
    Mr. McIntosh. OK.
    Mr. Croy. This mitigation site is common to both 
alignments.
    Mr. McIntosh. And about how many acres is that, do you 
know?
    Mr. Croy. This particular area is probably--about half of 
the 80-something acre mitigation is in this, so approximately 
40 acres.
    Mr. McIntosh. OK. Thank you, I appreciate it, and my time 
has very much run out for questioning. But let me just say 
those judgments and tradeoffs are ones I very much believe we 
should not be making in Washington and that you all should be 
making here in Cobb County and in Georgia. But it helps me to 
eliminate some of the questions that you have had to ask and 
answer in that. And I will have some more questions later on.
    Bob, did you have anything else?
    Mr. Barr. Just two very quick followup questions.
    One, Jim, if you could for folks that are not familiar with 
some of the technical language, when you say mitigation, what 
do you mean?
    Mr. Croy. Well, basically when we have a transportation 
project and we have any issue, whether it is wetlands, historic 
structures, community; we basically have three approaches. The 
first is avoidance, try to miss them. If you cannot avoid them, 
then you try to minimize whatever that impact is. In other 
words, you do something to reduce the impact. The third is what 
we call mitigation, which means if you know you are going to 
have an impact like an embankment or a fill area in a wetland, 
then you do something to replace that impact, like you create a 
wetland somewhere else, you improve wetland that certainly may 
be improved by additional plantings or along those lines or you 
maybe do some upland protective buffering, so you do not have 
encroachment into other wetlands. So basically those are the 
three areas that we look at and mitigation being just one of 
the three.
    Mr. Barr. And you were just talking with the chairman about 
an area of mitigation there, you are not talking about a one to 
one. What sort of ratio are you talking about?
    Mr. Croy. Well, normally we do not have--at least we do not 
have a set standard here in Cobb, we look at each project a 
little individually and see what is available. We have had some 
projects where we have had, you know, four and five to one. 
This particular project, certainly we have three different 
types of mitigation, that being restoration, creation and 
upland buffering. And if you weighed them all together, it 
would be about a 10 to 1. Now obviously all three of those in 
the environmentalist's eyes carry different weights because 
they provide different issues. One creates a wetland out of an 
area where there is not one or it had been one in the past and 
it has probably through agriculture been destroyed. Two, the 
restoration is basically you are making improvements to an 
existing wetland that may have been damaged primarily during 
agriculture. Or third is upland buffering which we feel is very 
important because it protects--it is the actual protection of a 
wetland area and does not allow any encroachment.
    Mr. Barr. But the bottom line is when you are talking in 
this particular proposal in terms of mitigation, basically the 
county here has proposed a ratio of about 10 to 1 in terms of 
mitigation.
    Mr. Croy. That is correct.
    Mr. Barr. For those areas of wetlands identified by the 
Corps.
    Mr. Croy. That is correct, sir.
    Mr. Barr. And that was rejected, so far.
    Mr. Croy. The permit application was rejected. Now in 
reviewing the permit application, the reason for rejection was 
not the mitigation plan.
    Mr. Barr. I understand. Thank you. Thank you, Mr. Chairman.
    Mr. McIntosh [presiding]. Thank you.
    Just let me close this session by saying I want to commend 
you and the county for doing a good job in working on these 
different alternatives, and Bob has impressed upon me the 
urgency of creating this transportation corridor for all sorts 
of reasons here in the county. And to my way of thinking when 
you can get a tradeoff where you have affected only three 
families instead of potentially 40 and also seem to be doing a 
good thing for the environment, where you create 10 additional 
acres of wetland for every 1 that is impacted; that is a good 
deal. We see a lot of plans coming through where it is one for 
one in terms of what people are willing to do on the 
environmental side.
    So I want to commend you for the good work. We will hear 
from the Corps later on some of their thinking and I would hope 
that in the coming months that we could get a good resolution 
to this.
    Mr. Croy. Thank you.
    Mr. McIntosh. Bob, did you have any further questions for 
this panel?
    Mr. Barr. No, thank you, Mr. Chairman.
    Mr. McIntosh. OK. Let me say thank you to all the 
participants on this panel. I appreciate you coming today, and 
your input. We may have some additional questions and I will 
ask unanimous consent, if Bob will agree, to keep our record 
open for the next 10 days and give you a chance to answer any 
of those that we may have for you at a later time.
    Thank you very much for coming.
    Mr. Wiles. Thank you, Mr. Chairman.
    Mr. McIntosh. I will now call forward our second panel. And 
I would ask that each of you please rise.
    [Witnesses sworn.]
    Mr. McIntosh. Thank you very much. Let the record show that 
each of the witnesses answered in the affirmative.
    Our first member of this panel is Mr. Robert Dabbs, who is 
a local developer and owner of Dabbs Construction Co. Mr. 
Dabbs, thank you for coming, and if you would please share with 
us a summary of your testimony.

 STATEMENTS OF ROBERT E. DABBS, DEVELOPER, DABBS CONSTRUCTION 
CO.; GRADY BROWN, CATTLE RANCHER, ACCOMPANIED BY STEVE WOODALL; 
  AND WAYNE SHACKLEFORD, COMMISSIONER, GEORGIA DEPARTMENT OF 
                         TRANSPORTATION

    Mr. Dabbs. First, I would like to thank the committee, Mr. 
McIntosh, Mr. Barr, for giving me the opportunity to present my 
problem to somebody that I feel like can help us, and 
especially to Karen Barnes, who has been a big help since I 
finally got the number of somebody I could call that I could 
talk to about my problem.
    I am a small real estate developer from Cartersville, GA, 
which is in Bartow County. I have been in the development 
business for 25 years and have never before been in violation 
of a wetlands regulation. I, with two partners, have employed 
approximately 165 workers that were going to build 
approximately 20 something homes once we start our subdivision. 
This is a small residential subdivision called Ivy Chase on 
Shinall-Gaines Road in Bartow County.
    Because of disturbing 0.63 of an acre of wetlands in a 
development of a 111-acre residential subdivision, the Army 
Corps of Engineers has shut down our project for approximately 
3 months, which forced us to lay off approximately 165 people 
that would be building homes on our property, that has either 
had to go somewhere else or had a delay of time without work. 
We have spent thousands of dollars providing information to the 
Corps of Engineers and as you see, we have had no response. As 
a result, my partners and I are on the brink of financial ruin 
if we do not get something done. In fact, one of my partners, 
was a working partner in this project, and his wife had quit 
her job as a sales agent because she was going to be handling 
all our sales. He was doing the grading and once this stopped, 
she had lined up approximately 20 buyers that was lined up for 
a builders draw the following week that they shut us down. It 
has totally put her out of work with no income at all. It has 
put Mr. Hansard out of work, he is down now to only having one 
piece of equipment left. Fortunately, Mr. Temples and myself 
did have--we have got some other income that has kept us going, 
but with a project of this size, it is going to be a financial 
disaster for all three of us.
    Let me tell you how all this began. After retaining a soil 
scientist and a civil engineer to conduct development 
feasibility studies and reports, we purchased the property for 
this development project on April 19, 1996. The property 
consists of 111 acres.
    After purchasing the property, we complied with all local 
and State regulations to plan for the development, including 
State and local permits. We did not realize that any of the 
property consisted of wetlands within the jurisdiction of the 
U.S. Army Corps of Engineers. We did not realize this because 
there was no standing water on the property and because the 
National Wetlands map provided by the U.S. Government to 
display wetlands showed no wetlands on our property. 
Furthermore, we were not advised by our soil scientist, who we 
had hired, or the civil engineer or any of the local government 
people that we had to go through to get all of our land 
disturbance permits and especially the Bartow County Health 
Department.
    Like I say, I have been developing 25 years. We did not 
file a nationwide permit because I had never heard of it. None 
of the people that we hired to do our professional work told us 
about it. I have talked with them since this come up and they 
say they did not know we was supposed to either. At this time, 
I still do not know if we are actually supposed to. The law is 
very confusing to me even after I got involved in it, that we 
went from 10 acres to 3 acres and to 0.3 of an acre as to where 
they have jurisdiction. We are showing now that we have less 
than 2 acres. So I am not even sure today if we are supposed 
to. The 0.3 of an acre supposedly took effect in February of 
this year.
    But after receiving all local approvals to do so, we graded 
and paved streets, constructed drainage ditches and culverts. 
We enlarged a pond on the property from about one-half acre to 
about 2\1/2\ acres.
    The soil scientist had identified certain soil types and 
showed that on the western tip of this property that there 
could possibly be some wetlands area. Due to that, we did not 
do any part of our development as being on that piece of 
property.
    After the subdivision lots were developed and all was done, 
we went to get our last permit that we had to have from the 
Bartow County Health Department, which had visited this 
property numerous times, had us to dig holes on approximately 
every lot in the subdivision and then when we were getting our 
last approval or disapproval on certain lots, they had at the 
end of the letter that they had--in additional, they had asked 
the Corps of Engineers to come inspect this property. For some 
reason, we are the only ones that they have ever called the 
Corps to come inspect and up to now, are still the only ones.
    I asked them at the time did they think we had any wetlands 
or did they know that we were supposed to file a nationwide 
permit and the employee of the Bartow County Health Department 
told me that he did not even know we were supposed to. So I 
have a real problem as to why they waited until we had 
completed the project, but they did.
    Upon being advised of the requested site inspection by the 
Corps of Engineers on March 17, my partners and I immediately 
and voluntarily ceased all development of the subdivision and 
awaited the site inspection results.
    During the site inspection, representatives of the Corps of 
Engineers verbally advised that the property could contain 
wetlands that had been disturbed and that we were in violation 
for failure to obtain a required permit from the Corps of 
Engineers. We were told that we were required to continue our 
voluntary cessation of the development and that we would 
receive a written Cease and Desist Order from the Corps of 
Engineers advising us of further requirements, proceedings and 
dispositions.
    On April 3, 1997, the Cease and Desist Order was issued and 
mailed to us. We had, immediately upon realizing that we were 
possibly in violation of Federal regulations, retained another 
engineering firm with the expertise that specialized in 
wetlands regulations. We were required to continue the 
cessation of development and provide the requested information 
to the Corps. The new engineering firm began the necessary site 
investigations to determine what, if any, wetlands had been 
disturbed.
    As required, our first response to the Corps of Engineers 
was submitted on April 11, 1997. We responded that we had 
voluntarily ceased all development work and intend to cooperate 
with the Corps of Engineers and comply with all applicable 
Federal regulations.
    Our second required response was filed by May 3, 1997 and 
consisted of the following information.
    A wetland delineation of the project showing areas of 
impact and areas to be impacted including detailed drawings.
    A topographical map of the area showing elevations as they 
existed prior to the placement of any fill material.
    Written explanation of the necessity of placing fill 
material in a wetland area in lieu of a high ground location.
    Information on when development work began.
    Indication of the source, type and quantity in cubic yards 
of fill material used to date, the date any work was last done, 
the type of equipment being used and the purpose of the work.
    Copies of all approvals received from any other Federal, 
State or local agency for this work.
    Copies of deeds for the property, names and addresses of 
all property owners and developers involved in this project.
    Explanation as to why notification of the proposed activity 
was not sent to the Corps of Engineers.
    The wetland delineation of the project showing areas of 
impact and areas to be impacted prepared by our new engineers 
and submitted to the Corps of Engineers on May 3, 1997, 
concluded that 0.63 of an acre of wetlands was impacted.
    Even as I speak, I am not sure, since this work was done 
during 1996, if disturbing 0.63 acre of wetlands required a 
permit from the Corps of Engineers. Here is what is most 
frustrating in dealing with the Corps--our engineer advised me 
that he has made repeated telephone calls to staff members of 
the Corps, but can acquire no information as to when the Corps 
will make any determination as to our project. Corps staff has 
told our engineer that they are so overworked that they do not 
know when they can even look at the information we have 
provided them.
    Our engineer even urged the Corps staff to release the 
Cease and Desist Order on the other 110 acres which are not 
wetlands, but to no avail. Again, I understand the response was 
they do not have time to even look at this information.
    In an attempt to get a response, our engineer, on May 22, 
1997, wrote the Corps staff member assigned to this project 
that since less than 1 acre of the 111-acre project had been 
disturbed, based upon the submitted delineation, ``we have 
advised our clients to resume work except in areas within 50 
feet of the wetland defined in our delineation.''
    Again, to date, we have had no response from the Corps of 
Engineers. Despite the advice of our engineers, we have not 
resumed work on this project outside the wetland areas. The 
reason that we have not is that the Cease and Desist Order 
still is in effect, which threatens civil fines of up to 
$10,000 per day of violation, criminal fines up to $50,000 per 
day of violation and imprisonment along with the injunctive 
relief, including restoration of the area.
    We are not that brave or foolish, whichever the case may 
be.
    But in the meantime, because of disturbing 0.63 of an acre 
of wetlands that may or may not be a violation to Federal 
regulations, the development of our entire 111-acre residential 
subdivision has been shut down for approximately 3 months while 
our expense continues. We have spent thousands of dollars 
providing information to the Corps of Engineers. Our 
development and interest expense has continued to mount up. As 
I speak, we have spent approximately $25,000 out of our own 
pockets for interest on an approximately $850,000 that we have 
put into this project, plus the work that the Corps has asked 
us to do which we have submitted to them. And there is no end 
in sight because we could absolutely get no answer. Apparently 
the Corps of Engineers has no requirements establishing time 
limits within which they have to respond to us. We had a 10-day 
requirement to respond to them and a 30 day, which we met.
    I do not dispute that wetlands need to be protected, but at 
what cost or what kind? The land that we are talking about is 
land that never held any water, to my knowledge, but it only 
had a green plant that is called a wetland plant. We actually 
made more water, we made a half acre lake into a 2\1/2\ acre 
lake, we built a dam around it. We have used this for our 
retention pond, which is required by the Bartow County Land 
Disturbance Permit. We have graded the property where the 
entire water runs into this pond or lake and will only go out 
where we have pipes that go out of it that is made where the 
only amount of water that can go through that pipe is the same 
amount that had went off the property before. This is a piece 
that will keep water in it all the time because we dug it 10 
foot deep and used the dirt to make a dam around it. So we 
provided more water in that area for birds and ducks and stuff 
that is on the pond now.
    In closing, I would like to say that I do not think the 
Corps of Engineers staff members are not caring, diligent, 
hard-working people. Maybe they have too much to do and too 
little to do it with. I am asking that during this 
deliberations, you consider these things. When new and existing 
regulations are being enacted and enforced, some consideration 
be given to not just impact on wetlands, but to impact on those 
who are enforcing the regulations and those upon whom they are 
being enforced.
    To me, I have run a construction company. If all of a 
sudden my number of houses to build or develop would go up 
hundreds of permits, I could not get to it. From what I see, 
the Corps is facing is you have gone from 10 acres to 3 acres 
to 0.3 of an acre, so you have given these people thousands 
more projects that is going to be called on for them to inspect 
and evidently from the numbers that I see that work on this in 
Georgia, they do not have the staff to even do it when we do 
have a problem.
    Again, I would like to say that I appreciate this 
opportunity to express to the subcommittee and feel like that 
maybe through this that we can get some help to do what we have 
to do to make right of the land we disturbed. We have a theory 
of taking some area there and planting some wet weather plants 
back to make up for what we destroyed there, or we can fill the 
lake back in to a certain degree to make it to where it would 
be just a very small amount of water where the weeds can grow, 
where now we have a nice looking lake there. But whatever it 
is, we want to know. And we do not know.
    Thank you.
    Mr. McIntosh. Thank you, Mr. Dabbs. Maybe we will find out 
later today.
    The next witness is Mr. Grady Brown and his son, Steve 
Woodall, will be reading his statement. Thank you Mr. Brown and 
Mr. Woodall for coming.
    [The prepared statement of Mr. Dabbs follows:]


    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

    
    Mr. Brown. We do want to thank you for inviting us, Bob, 
committee. We feel like we have got a chance now to tell our 
side of it, which we have not had a chance before, and we 
appreciate it, we want you to know. And this is my son-in-law, 
Steve Woodall. I am going to let him read it for me.
    Mr. Woodall. I am his son-in-law and I have been in his 
family for almost 30 years.
    The property we are dealing with is property we used to cut 
hay and bush hog on, so we have a long history of knowing what 
this property was before these problems were artificially 
developed.
    I am going to read his statement. His statement begins 
with:

    My name is H. Grady Brown and I am a resident of Carroll 
County, Georgia. I am a retired president of a Villa Rica, 
Georgia hosiery mill and am a landowner and cattle rancher. I 
worked my way up from the floor of the hosiery mill to become 
owner and president of my own company. I spent my weekend and 
evenings building my cattle farm.
    Today, I want to tell you about a tough situation I have 
been forced into, stuck between the Georgia Department of 
Transportation and the U.S. Army Corps of Engineers. 
Essentially, the Georgia Department of Transportation in 
advertently flooded some of my farmland, creating a wetland in 
the eyes of the Corps. Now the Corps will not allow the 
Department of Transportation to fix the problem they have 
created. I am stuck with useless, swampy land because the Corps 
insists it is a protected wetland even though it was created by 
accident.
    My farm is located in Villa Rica, Georgia, a once rural 
area of Georgia which is quickly developing as Atlanta expands. 
It has been hard, but I have worked to keep my land 
agricultural and undeveloped. A portion of my farm, which is 
located behind my house, lies alongside Highway 78, just west 
of the city of Villa Rica. The rear portion of this property 
has a creek running through it which provides water for my cows 
and my farming operation. I have owned this land since the mid-
1940's and have cut hay and kept cows along the banks of the 
creek since that time.
    In approximately 1959, the Soil Conservation Service came 
through and dredged and cleared the creek running along and 
through my property in order to better develop the watershed 
for a water reservoir that was built in Temple, Georgia. This 
lake, Lake Buckhorn, was fed in part by the creek running 
through my land.
    When the Service did this, any wetland along the creek was 
drained. During the mid-1980's, the city of Villa Rica and the 
Georgia Department of Transportation built a road off of 
Highway 78 to open up an industrial park for the city. That 
road cut across my property and crossed the creek. The City and 
the Department built a bridge over the creek so that my cattle 
could pass under it and they could continue to graze on the 
western portion of my farm cutoff by the new road. The 
continued use of this portion of my property was essential to 
my agreement to sell the right-of-way for this road.
    Unfortunately, this work diverted the path of a small 
north-south feeder creek or drainage ditch which ran into the 
larger east-west creek running across my property. The 
Department actually put a dog-leg turn in this small creek. 
This diversion caused a buildup of water and silt on my 
property and began to cause a swampy area on the 10-acre field 
which was left on the western side of the new road across from 
my home. This swampy area was further enlarged as industrial 
development began in the new industrial park. A large 
distribution facility was built on the property adjoining mine. 
The driveways going into the property further diverted and 
blocked the small feeder creek where it ran into the larger 
creek crossing my property and added more water and silt to the 
problem. By the late 1980's, the 10-acre field had become a 
wet, grown up swampy area. I could no longer cut hay or keep 
cattle on the property.
    Around 1990, I began to contact the Georgia DOT and the 
city of Villa Rica to discuss the problem which their 
development had caused. After many complaints and the threat of 
legal action against the Department and the City, the Georgia 
Department of Transportation admitted it was their fault and 
agreed to dig out the channel of the small feeder north-south 
creek to drain the area which had become swampy, to try to 
alleviate the damages caused. They did this in approximately 
1995 and after they did this, the area started to get better, 
to drain and go back to the farmland it had previously been. 
However, soon after the work was done to alleviate the blocked 
feeder creek the Georgia Department of Transportation was 
contacted by the U.S. Army Corps of Engineers. Apparently 
someone had complained that the Department and I were trying to 
drain wetlands.
    The U.S. Army Corps of Engineers threatened the Georgia 
Department of Transportation with stiff fines and penalties if 
they did not reblock the now cleared feeder creek. In response 
to this, the Department came back in and built dams all along 
the path of the feeder creek. I think there are approximately 
12 of them that they have built. Now the water from the 
adjoining property does not have a path to get into the larger 
east-west creek which runs along my property. It simply spreads 
out over my land, causing a swamp in an area which was once 
open fescue pasture. It has made my land useless and has 
created an ugly eyesore since it has basically been condemned 
as wetlands. No one can see my land as the trees and grasses 
continue to grow.
    My only desire is to return the property to the way it was 
so that I can use it for my cattle and to cut hay. 
Additionally, this land is located now in an industrial park in 
the growing city of Villa Rica. It has been my desire to leave 
this property to my children and grandchildren, expecting one 
day that they could develop it. Property adjoining this field 
is selling for in excess of $25,000 an acre. The property is 
now useless and I do not understand how the actions of the 
City, the Department of Transportation and the adjoining 
landowners to develop property around my land can be allowed to 
create a situation which takes the value of my land.
    I do not want to sue the Department, the City and my 
neighbors. I simply want my land returned the way it was. The 
simple way of doing this is to clear the feeder creek and allow 
me to drain the property. I do not want to change the land from 
how it was when I bought it, I simply want it returned to 
pasture land running along the banks of a creek.

    Thank you.
    Mr. Brown. Thank you for your time.
    Mr. McIntosh. Thank you both, we appreciate that and we 
will have some additional questions for you at the end of the 
panel.
    Our final witness on this panel is Mr. Wayne Shackleford, 
who is the commissioner of the Georgia Department of 
Transportation. Mr. Shackleford, welcome, thank you for coming.
    Yes, Mr. Barr?
    Mr. Barr. Excuse me, Mr. Chairman, I would just like, for 
your further background, to state that during the time that I 
have had the honor of representing the Seventh District in the 
Congress--the same length of time as you have had that pleasure 
and honor with the Indiana Second District, we have worked very 
closely with Mr. Shackleford, with the State DOT, with Mr. Max 
Golden, who is our representative from the Seventh District, 
with Chairman Johnny Gresham, who is from this county, and have 
found Mr. Shackleford, the folks that work in his office and 
the Board extremely responsive to working with us to try and 
identify and work through problems and it is a particular honor 
to have Mr. Shackleford here today from his very busy duties on 
behalf of the people of Georgia.
    Mr. McIntosh. Thank you. Thank you very much, Mr. 
Shackleford, for joining us.
    Mr. Shackleford. Mr. Chairman, Congressman Barr, I want to 
thank you for the opportunity to meet with you today and share 
with you our deep concerns about a process that needs re-
engineering, a process that has lost its customer focus. I 
refer to the process of managing and regulating our Nation's 
water resources.
    The Georgia Department of Transportation makes every effort 
to comply with our Nation's wetland policies. We believe in 
these goals. However well intended these goals are, these 
policies are, the administration has become an impediment in 
meeting our State transportation and our economic needs of our 
State. What we need is a renewed Federal and State partnership 
which recognizes the value of all our resources, both natural 
and manmade, that are essential to sustaining our quality of 
life.
    The Clean Water Act was intended to protect this Nation's 
water resources. However, the Corps of Engineers and the 
Environmental Protection Agency have greatly expanded their 
jurisdiction and created a bureaucratic maze through 
Memorandums of Agreement with other Federal agencies. Thus, in 
effect, the Federal agencies have extended the extent of 
congressional law.
    For example, one Memorandum of Agreement between the Corps 
of Engineers and the Fish and Wildlife Service allows the Fish 
and Wildlife Service to request denial of the permit based on 
the premise that the wetlands are of national importance. Mr. 
Chairman, Congressman Barr, there is no definition of national 
importance in the law. Please note that in the Memorandum of 
Agreement between the Corps and the Fish and Wildlife Service, 
which was provided to you, the purpose is to minimize, to the 
extent practical, duplication, needless paperwork and delays in 
the issuance of permits. This Memorandum of Agreement has the 
exact opposite effect.
    Furthermore, the Fish and Wildlife Service is able to 
control the Corps of Engineers' actions because of a process 
that we are required to follow. Our Department provides an 
extensive information package to the Federal agencies that 
provides the Department's best alternative and a purely wetland 
minimization alternative. The wetland minimization alternative 
which we are required to do by this process values wetlands 
above homes, businesses, churches, schools, historic resources 
and other environmental considerations.
    The Department meets onsite with the Federal agencies to 
answer questions concerning the proposed alignment and impacts. 
Unfortunately some representatives show up unprepared and thus 
in turn adversely affects the service that is our 
responsibility to provide to our customers and theirs as well.
    After the field visit, the Federal agencies are supposed to 
submit timely comments. However, our Department is currently 
waiting on comments from the Fish and Wildlife Service on over 
15 projects for which the field visits were held as long as 15 
months ago. The reason given to us for the lengthy delays have 
been lack of personnel and time. We believe that the real 
reasons are lack of ability to make decisions and a refusal to 
accept validity of our analyses.
    Mr. Chairman, Congressman Barr, this process has created a 
bureaucratic nightmare resulting in enormous delays and since 
1989, we estimate an additional cost of over $100 million in 
our State alone. For example, Riverside Parkway widening in 
Rome, GA. We have been attempting to obtain a permit for over 6 
years. The current roadway is a dangerous two-lane facility 
which has experienced numerous accidents. As recently as 1995, 
this stretch of road, which is a mere 1\1/2\ mile long project, 
has experienced 35 accidents resulting in 10 injuries to 
people.
    Our desire would be to fill only seven-tenths of an acre of 
wetlands which we have offered to mitigate with 4.1 acres of 
created wetlands on the site, which will result in a 25 percent 
net increase to the stream basin. We have shown no industrial 
pollution to occur in the project impact area. Yet we have been 
asked by the Federal agencies over and over for additional 
information. Due to the regulation process that allows Federal 
agencies to never come to closure, we cannot construct this 
most needed project.
    The Homer bypass in Banks County, GA. The alignment for 
this project had been developed over a 12 year period in 
consideration of a reservoir proposed by local government and 
right-of-way was subsequently purchased at a cost of $1.6 
million. However, the permit was denied by the Corps. An 
alternate to avoid wetlands would have displaced 2 businesses 
and 10 homes at an additional cost of $3 million.
    Mr. Chairman, Congressman Barr, all of this additional cost 
to avoid only 7\1/2\ acres of wetlands which we offer to 
replace with 56.9 acres of wetlands.
    You have heard the Villa Rica, GA case from Mr. Brown. He 
is a victim, caught between our responsibilities to maintain a 
roadway and a Corps of Engineers who will not allow us to do 
so. Yes, we have in fact put the check dams back in place. Yes, 
we have continued to divert water from its natural flow along 
that road to the main tributary to that stream he described, to 
a minor tributary.
    Mr. Chairman, Congressman Barr, we have had numerous 
problems with the Corps wetland regulatory policies. However, 
we have had the opportunity to work together on some successes 
as well.
    To date, our department owns approximately 6,700 acres of 
wetland mitigation throughout our State scattered on about 60 
locations. For each acre we fill, we are currently replacing it 
with approximately 5 acres. Still, some of the Federal agencies 
cry that we do not do enough.
    Mr. Chairman, Congressman Barr, there are not enough 
success stories, but we believe that can be changed. Congress 
has been struggling with reauthorization of the Clean Water Act 
for several years. This reauthorization should address the 
division of the Corps and the U.S. Environmental Protection 
Agency. Unnecessary Memorandums of Agreement should be 
eliminated. Let the law stand on its own merits.
    The timing of this hearing could not be more appropriate. 
Please note the letter we provided that we were just advised in 
May 1997 that the Fish and Wildlife is withdrawing from 
participating in our field reviews. These field reviews are the 
actual cornerstone for resolving our differences on projects. 
Could it be that some Federal agencies do not want to resolve 
disputes in a timely manner and to partner with their 
customers?
    The Clean Water Act should be amended to require the 
Federal agencies to meet us halfway and to provide practical 
alternatives instead of asking us as applicants over and over 
and over for additional and unnecessary studies. This could 
eliminate the lengthy string of requests by Federal agencies, 
substantially shorten the time to resolve issues.
    In closing, Mr. Chairman, Congressman Barr, we believe that 
our Department and the Corps of Engineers can work together to 
provide a transportation system and better protect wetlands. 
But only if the regulatory procedures and policies can be 
streamlined.
    I want to share with them in some of the successes that we 
have. Preservation such as you have seen today--Phinzy Swamp in 
Augusta; Bowen's Mill Pond on U.S. 84--and I would like them to 
share with pride in our transportation successes.
    And I thank you for the privilege of appearing.
    [The prepared statement of Mr. Shackleford follows:]


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    Mr. McIntosh. Thank you very much, Mr. Shackleford, that is 
enormously helpful in terms of understanding. I have got 
several questions that your testimony raises.
    I appreciate all the members of the panel, and now we will 
go and alternate off on questions. Actually let me start right 
away, Mr. Shackleford, with you.
    You mention the Fish and Wildlife Service has indicated in 
a letter to you, and I think we have got a copy here that I 
will submit into the record, that they no longer will 
participate in the field reviews. Is that--and I have not had a 
chance to see the letter--but is that a new national policy of 
theirs? And their absence in those field reviews, will that 
mean that the other agencies will be able to go ahead and make 
decisions without them?
    Mr. Shackleford. It probably means that the decisions will 
not be made without them. They could be. I think you know that 
U.S. Fish and Wildlife can ask the Corps to elevate to a higher 
level any decision the Corps is about to make that they do not 
concur in. So very honestly, I do not see that as an 
opportunity to speed the process up.
    Mr. McIntosh. Do you think it will inevitably slow it down?
    Mr. Shackleford. Yes, sir.
    Mr. McIntosh. And is that a final decision or is that 
something they are putting on the agenda at your next 
coordinating meeting in July?
    Mr. Shackleford. The letter to the Corps says that we will 
not be back. It is addressed to Necholus Ogden; ``Therefore, I 
am going to withdraw the Service from the upcoming May 28-29 
PAR, the Preferred Alternatives Report, and future PARs until 
we can agree on what they are intended to accomplish. I will 
utilize this saved time to address some of our PAR backlog.''
    Mr. McIntosh. We will put that on our agenda to find out 
what is going on.
    What would you say the major reforms are that could be made 
in this process to make it much more streamlined from your 
perspective?
    Mr. Shackleford. Well, I think if we are going to make 
wetlands preservation reach the potential that it deserves, 
that true partnering is going to have to exist; that we have 
got to recognize that in addition to the preservation of 
wetlands, we have the responsibilities to preserve historic 
resources and to share impact on our people, their homes, their 
churches, their schools and businesses. Wetlands banking, 
mitigation banking--you heard the discussion earlier about how 
one compensates someone whose right-of-way is taken, pay them 
for the value of what you are taking, pay them for the 
consequential damages on the remainder, mitigate the impacts on 
their lives as best you can.
    Mitigation is a clear and viable or practical alternative 
to the wetlands issues. When we are mitigating at the ratios we 
are mitigating, it should not be months and years while 
decisions are made.
    Mr. McIntosh. And to speed up the process so everyone can 
get their answer. And do you think a banking approach would 
work where there would be already mitigated areas that could 
then be offset against future projects?
    Mr. Shackleford. I very much do.
    Mr. McIntosh. Mr. Dabbs, let me ask you, you mentioned that 
you and your engineer had not even received a telephone call 
back from the Corps of Engineers. In the written testimony, 
does that remain the case?
    Mr. Dabbs. Our engineer, who is David Bleetman with Blue 
Ridge Engineering, he has made repeated calls to the Corps of 
Engineers and has asked them when would they be able to come 
by, visit the property as they stated they would need to do, 
and review it with him and then tell us what was necessary to 
do to resolve the problem. And the answer that he gets from 
them is that they are so overworked or so far behind, they have 
got other projects that are ahead of us and that they cannot 
give him any date as to when they might be able to come back or 
even be able to review the material, which this is one of the 
books that we were required to send to the Corps.
    Mr. McIntosh. And his conclusion is that you are not even 
under the jurisdiction of the Corps because you would be 
covered by the national permit for small areas?
    Mr. Dabbs. No, I made the statement that I am not sure that 
we are. But due to the fact that at one time it was 10 acres, 
it was reduced to 3 acres and now it is reduced to 0.3 of an 
acre; we started this project in April 1996. I am not sure and 
have not been able to find out as to when the acres were 
reduced. We have continuously, through our engineer making 
phone calls to the Corps, the local Corps here in Atlanta, he 
has asked them would they release the 100 acres. Everything, as 
I stated awhile ago, that he has determined to be in the 
wetlands, to where we could go on with our development, and has 
been refused, that they could not release any of it until they 
had time to study the material and to visit the property.
    We have a nice entrance that we have built going into the 
subdivision. We have landscaped it with nice plants. We were in 
the process--we had got our irrigation system set in that bed 
of plants, we lacked 10 feet of pipe of tying it into our sales 
trailer and the water meter that is adjacent to it. I even 
asked him to ask them could we, about a month ago, for the 
first time since last fall, we had some weather where the land 
got dry and these plants were hurting for water, I said ask 
them can we just connect our pipe, we have got to run 10 feet 
to where we can water these plants. We have got $1,000 or 
whatever in them and we hate to see the plants die. And he has 
even refused that, that any work being done there was subject 
to the $10,000 a day fine or $50,000, which you know, that 
would even ruin a rich man, let alone somebody like us.
    Mr. McIntosh. In your estimation, why are they refusing 
even to make common sense determinations like that? Is it an 
effort to increase the monetary punishment?
    Mr. Dabbs. They said they could not do it until they had 
time to come back and visit the property or review the 
property.
    Another problem that I have got is we have available to us 
in Bartow County, it is a national wetlands map, which shows 
property that could potentially be wetlands. And of course I 
was told by the people that visited the property when I showed 
them this wetlands map which had our property on it, which 
showed no wetlands on it, that this did not mean anything, that 
this was just a guideline. So, why print them?
    Mr. McIntosh. By the way, what was the plant on the 
location that they decided was a hydrophilic plant?
    Mr. Dabbs. Where were they located?
    Mr. McIntosh. No, what type of plant was it?
    Mr. Dabbs. All I know is I was told that this was a 
spreadly type weed that was considered on the endangered 
species. As far as knowing the name, I have no idea.
    Mr. McIntosh. That is interesting. The reason I asked is 
that when I was working with Vice President Quayle, we went 
into great detail about the manual and it became very clear to 
me then that the scientists do not even agree as to what areas 
are sensitive environmental areas to be protected as wetlands. 
And sometimes they go on the existence of plants where there is 
not necessarily water because the plants can live in dry areas 
as well. And so that leads to occasionally bizarre results 
where there is no water but they still call it a wetland. And I 
know that those problems continue to exist.
    My time has elapsed on this session. Mr. Barr, do you have 
any questions for this panel?
    Mr. Barr. Yes, thank you, Mr. Chairman.
    Mr. Dabbs, let me just make perfectly clear that I 
understand the situation here. Your engineers have told you 
that you can resume work on the project outside of the wetlands 
area, but you have not done so. Have you actually been 
threatened with criminal prosecution if you move forward?
    Mr. Dabbs. Oh, yes, I have, with the letter that I got from 
the Corps of Engineers. He advised me to go ahead back to work. 
He felt like--I think his feeling was that this would maybe 
enact the Corps to respond to us and try to get ours finished 
up. But he has advised me that since he wrote that letter, he 
has had no information come from them, I have had none and 
neither one of my partners. But there is no way that we can 
take a chance to go in there and do anything now without being 
subject to a $60,000 a day fine or being put in prison.
    Mr. Barr. Mr. Brown, has there been any threat of throwing 
you or State DOT in jail as part of your efforts to just get 
your property back the way it was?
    Mr. Brown. I did not take it that way, but they did tell 
the DOT if you do not put--plug these ditches up, we are going 
to fine you $125,000 a day and of course the DOT did not want 
to have to pay $125,000--they made them come up there by 
telling them they were going to charge $125,000 a day.
    Mr. Barr. Thank you.
    Commissioner Shackleford, I think I have the amount right 
here. I think in your presented testimony you indicated that 
since 1989, you estimate just that your Department alone has 
incurred a cost increase of over $100 million as a result of 
inflation and changes in project scopes due directly to the 
delays that you all have experienced. Where does that $100 
million come from? Do you all just make that up out of thin 
air? How is that going to be paid? Is it the taxpayers of 
Georgia that are having to foot that bill?
    Mr. Shackleford. Yes, sir. Mr. Congressman, there are only 
two sources of motor fuel tax funds in our budget, the Federal 
Highway Trust Fund and the Surface Transportation Act, the 
Intermodal Surface Transportation Efficiency Act of 1991 and 
Georgia's Motor Fuel tax. There is a third source of revenue in 
the Governor's Road Improvement Program and those are general 
obligation bonds since 1991, about $125 million a year. Each 
year that the delay drags on on a permit carries with it the 
increased right-of-way costs, the increased construction costs, 
a very severe impact on lives. People who are waiting for a 
decision cannot plan the rest of their lives. That is something 
that bothers me greatly, sir.
    Mr. Barr. Is $100 million important to the people of the 
State of Georgia or is that an insignificant amount?
    Mr. Shackleford. It is a very substantially important 
amount to the people of the State of Georgia, sir.
    Mr. Barr. Mr. Shackleford, in focusing--I know you have 
expended a great deal of time in trying to work with Mr. Brown 
and resolve the situation as he described it. In your view, do 
you believe that the wetlands created on Mr. Brown's property 
were the result of State DOT's normal maintenance activity on 
roadside ditches?
    Mr. Shackleford. Those wetlands were created when a 
driveway was installed without a side drain. The water that 
normally traveled down that road to the lower stream then was 
diverted down his driveway across the properties and created 
the new area of wetlands. There is no question but what they 
were created by the Department of Transportation and the lack 
of a side drain at that driveway, sir. And it was the 
correction of that issue that led to the actions against my 
Department.
    Mr. Barr. We sometimes have a tendency to focus on sort of 
the big picture and sums of money, but you touched on something 
else that I think, and I want to make sure on this, is 
important to your work and the work of your commissioners. And 
that is the public safety. You spoke specifically I think about 
that with regard to a project that is also in the Seventh 
District and that is the Riverside Parkway widening in Rome, 
GA.
    Could you just clarify, is the primary reason why you all 
have sought to correct that situation there simply for the 
public safety, the safety of people to travel on that 
relatively short stretch of highway?
    Mr. Shackleford. Yes, sir, it is a mile and a half in 
length and would provide a divided roadway, substantially 
reducing danger to lives. You know the numbers, Congressman, 
our interstates, our limited access highways, are five times as 
safe as county and city roads and streets on the national 
average. Our other State routes are twice as safe. We have a 
need. You heard my testimony on the number of wrecks and the 
number of injuries. It is that simple.
    Mr. Barr. Is the--let me also clarify with regard to your 
testimony exactly what you are saying here. I do not read your 
testimony or interpret your testimony as saying that the issues 
that are raised in trying to protect as part of the overall 
equation here wetlands in our country are to be ignored.
    Mr. Shackleford. Oh, I very much--I began my testimony by 
saying we totally subscribe to the fundamentals, we very much 
believe in it, we are very proud of what we have done at Phinzy 
Swamp, we are very proud of a 1,300 acre mitigationsite on the 
Altamaha in Long County mitigating 129 acres on U.S. 341. We 
are very proud of 443 acres in Bowen's Mill Pond. We totally 
have that responsibility. We want to be a part of the solution, 
we want to share with the environmental agencies in pride in 
the protection of those resources. We would like them to share 
in the transportation solutions that make this great State and 
this great Nation competitive in a global environment.
    Mr. Barr. So your position is that the notion and the 
philosophy underlying the Federal law that does protect 
wetlands is good and it is sound, but the process that brings 
us to this situation today where we have these delays, the 
threats of our citizens being put in jail, has really become an 
impediment to the effective use of the wetlands law itself.
    Mr. Shackleford. You can be assured putting those check 
dams back in that road made more sense to me than becoming the 
victim of a civil fine or criminal penalties.
    Mr. Barr. Well, we much prefer to have you here as a free 
citizen instead of in shackles as well, Mr. Commissioner.
    Mr. McIntosh. Who is Bill Phillips, by the way? He is the 
man who received the letter.
    Mr. Shackleford. Yes, and he is one of my staff people.
    Mr. McIntosh. One of your staff people.
    Mr. Barr. Just one other thing briefly to followup on a 
question the chairman had. With regard to these Memorandums of 
Agreement or Memorandums of Understanding that seem to now, as 
you have indicated, be interjected into this process and really 
have led to further delays, is this a new phenomenon that you 
are seeing or is this a problem that you have witnessed for 
quite some time?
    Mr. Shackleford. Mr. Congressman, the Corps of Engineers is 
a victim of the process. They are prisoners of the process. 
They have the legal responsibility but they have the clear 
knowledge that EPA can veto Corps of Engineers and the other 
Federal agencies can require it to be elevated. They need the 
clear powers to make decisions and take actions.
    Mr. Barr. Thank you.
    Mr. McIntosh. Let me followup on that question. So by 
implication, one way in which the Corps would be able to act 
more responsibly would be if we removed the EPA veto of their 
decisions on wetlands permits?
    Mr. Shackleford. My testimony was that they should be split 
out and let the law stand on its own merits. That is correct, 
sir.
    Mr. McIntosh. Let me followup on a slightly different train 
of thought rising from some of the questions Bob asked. You 
indicated some statistical analysis of the safety of interstate 
and limited access highways.
    Mr. Shackleford. Yes, sir.
    Mr. McIntosh. And State roads compared to local street 
traffic. Could you, for the different projects that we have 
discussed and that you have in your testimony and perhaps the 
east-west highway that we were talking about in the first 
panel, do a statistical analysis for us to determine how many 
anticipated lives would be saved by upgrading those?
    Mr. Shackleford. There is research that has been done under 
the guidance of the Transportation Research Board, the Federal 
Highway Administration that clearly spells out the data. In our 
own State, in the last year's data, we have on the State 
system, 1.68 fatalities per 100 million miles traveled. We have 
a much lower number on the interstate system, a substantially 
higher number on the county and city nondivided median roads. 
The number for my entire State during 1995 was 1.75, it is 1.68 
on the State system. It is substantially lower than that on 
limited access highways. And you heard Jim testify in behalf of 
the alternative that is a limited access and the fact that the 
more driveways that are injected into the system, the greater 
the numbers.
    That statistical data can be analyzed. Cobb County is very 
capable of having their consultants do it, we are available to 
help them, sir.
    Mr. McIntosh. I would appreciate that and then you had 
mentioned a couple of other projects in your testimony. If you 
could provide that analysis for us. And we will keep the record 
open----
    Mr. Shackleford. We can, sir.
    Mr. McIntosh [continuing]. For you to do that.
    Mr. Shackleford. Yes, sir.
    Mr. McIntosh. It is an aspect that sometimes is overlooked, 
although it is interesting, in other areas of regulation. In 
health and safety, we worry about concerns of increased 
statistical probability of say somebody who eats dirt next to a 
utility having cancer develop, and the 1 out of 10 million, 10 
to the minus 7 is the statistical way of expressing it, and 
that triggers concern for us in the regulatory process. So it 
would be interesting to see what possible increased health 
risks are being caused in pursuit of this wetlands policy.
    Mr. Shackleford. And in your great State of Indiana, the 
numbers are the same, across this Nation. Limited access 
highways are the safest. Other well laid out roads, State roads 
are generally sounder than county and city roads. An operation 
like Cobb County as fundamentally adequate as their staff is, a 
Commission that is willing to make the hard decisions, to hire 
the proper consultants, their limited access roads have the 
same numbers that we have on ours on the State system, sir.
    Mr. McIntosh. Thank you very much. I appreciate it. I have 
no further questions. Mr. Barr, do you have questions for this 
panel?
    Mr. Barr. Just one followup. Mr. Dabbs, you talked about 
the construction jobs and I think you used the figure of 165 
construction jobs. Are those folks unemployed at this time, 
that would be normally working and anticipated to be working on 
your project?
    Mr. Dabbs. Some would probably be or they have had lost 
hours. The 165 I am referring to is we had lined up on April 3, 
the day we got the Cease and Desist letter from the Corps of 
Engineers, we would at this time be building 20 to 25 homes 
that we would have approximately two-thirds completed. The 
subdivision above us had none started, were not as far along as 
we were and as of today, they have probably got 15 homes built 
in there. It is according to which of our customers went 
somewhere else, found lots--which I know they had a period of 
time that they lost work. Some of them still may not have. So 
the 165 is an estimate from knowing how many numbers of people 
would be working on that project today, including plumbers, 
electricians, carpenters, painters and that type. Unless they 
found work other places, then they are out of work.
    Mr. Barr. But these are real people, men and women who are 
trying to be productive and work and need to support family and 
provide for the health and needs of their families, that are no 
longer able to do that, at least based on the work that your 
project would have offered to them.
    Mr. Dabbs. That is correct. And like I say, I have living 
testimony, standing in the rear is Mary Hansard who is the wife 
of one of the partners that I said awhile ago was one of the 
working partners. She quit her job and had been working for 
months sending letters to builders to sell the lots to, that 
were going to build the homes. She had everything set up for 
the second week in April and when this came--she had to call 
all of them and tell them what had happened. Those buyers have 
gone other places. She has been totally--to my knowledge, has 
been totally out of income since that date because this is all 
she had lined up. Of course, we really felt like that we would 
get this resolved in 30 to no more than 45 days. But like I 
say, the last information or correspondence that has come to us 
as the developers is this Cease and Desist letter that the 
Corps mailed us on April 3. The only other information we get 
is where our engineer has made telephone calls to the local 
Corps office here in Atlanta.
    To answer the question that you asked me awhile ago more 
clearly, this is what it says in our Cease and Desist order: 
``We are required by Federal regulation 33 CFR 326.3 to issue a 
Cease and Desist Order to all persons responsible for or being 
involved in the performance of unauthorized work.'' We come 
under that because we did not file a nationwide permit that we 
were not familiar that you had to, and still I am told you do 
not have to on certain lands unless you think you have got 
wetlands on it. If you do not, then it is a violation, to my 
understanding. Which we did not think we had any, if I had 
known about it. But we did it without knowing anything about it 
or any of our people that we had hired, the soil scientist, the 
Department of Health, the civil engineer, none of them told us 
this.
    But when you get a letter that says this, any work 
performed within our jurisdiction as of this date does not 
assure forthcoming authorization. In addition, any unauthorized 
work which you may perform may subject you to civil and/or 
criminal prosecution, civil fines of up to $10,000 per day of 
violation, criminal fines of up to $50,000 per day of violation 
and imprisonment are provided along with the injunctive relief 
including restoration of the area.
    To me, this is strong. There is just no way we could take a 
chance to violate this. It has just been a nightmare to us. 
What really scares me is when we talk to other people that have 
friends or somebody that something similar to this and they say 
you will be lucky if you hear from them in 12 months.
    I heard Mr. Shackleford make a statement awhile ago they 
have had a project they have been working on, have not had 
anything done in 15 months. That is what I understand.
    So, we are subject to be the same thing. Right now, we do 
not know, it might be 2 years before we hear a thing. We were 
in process of getting our final plats stamped by Bartow County. 
They have had to hold up that because of this, that they 
cannot--until we get relief by the Corps of Engineers. They do 
not know what they are going to make us do, so they have had to 
hold our final permit until we get relief from them. And we are 
just at a standstill. I mean my opinion, I always looked to the 
Corps of Engineers as being the people that help build lakes, 
that help to the needs of the people, boating, building camp 
sites, helping the American people. But what we are subject to 
here is just absolutely a nightmare and by taking the land like 
they have took our land for this period of time and not knowing 
when it will be released or if they will take it without 
compensation, as Mr. McIntosh said awhile ago. I mean this is 
something that the American people would only think that this 
could happen in another country, not in the free United States 
of America.
    Mr. Barr. Thank you, Mr. Dabbs.
    Mr. McIntosh. Thank you very much. Bob, did you have any 
further questions of this panel?
    Mr. Barr. No, Mr. Chairman.
    Mr. McIntosh. Thank you all for coming, I greatly 
appreciate your participation. And as I said, we will keep the 
record open and may have some additional followup questions for 
each of the panelists and particularly for Mr. Shackleford in 
following up on that one area of analysis.
    Let me now call forward our third panel, which consists of 
Colonel Grant Smith, who is the District Commander of the U.S. 
Army Corps of Engineers for the Savannah District. And Col. 
Smith, I understand that you also wanted to have two of your 
staff members testify as well.
    Col. Smith. Well, they are only here to help assist in 
details if I need it.
    Mr. McIntosh. OK. Why do I not ask all three of you if you 
will please rise.
    [Witnesses sworn.]
    Mr. McIntosh. Let the record show each of them answered in 
the affirmative. And by the way, that is something that the 
full committee has asked us to do with all the panels, whether 
we are here on a field hearing or back in Washington.
    Col. Smith, obviously I appreciate very much your 
willingness to come, and particularly to sit through the 
earlier portions of the hearing where your agency and some of 
your own staff members' work has been called into question. I 
appreciate your willingness to come and talk with us about 
that. Frankly, I have heard some very disturbing things, but I 
want to give you a chance to talk about those, to talk with us 
about where you see things going and some of the things that 
have happened in the past. And then Bob and I will both have 
questions for you and perhaps you can refer to your staff 
members if you wish to. And we welcome their participation 
really at any time they feel they can add to the discussion.
    But I do appreciate greatly your coming today and 
participating in this hearing. If you could give us a summary. 
We have been asking witnesses to take 5 minutes, but you have 
got a lot to say, I would imagine, so go ahead and take longer 
than that. And also, if you get a chance to, address some of 
the issues that were raised in those two earlier panels.

STATEMENTS OF COLONEL GRANT M. SMITH, DISTRICT COMMANDER, U.S. 
 ARMY CORPS OF ENGINEERS, ACCOMPANIED BY BILL HOUGH, DISTRICT 
  COUNSEL; AND NECHOLUS OGDEN, CHIEF OF REGULATORY, U.S. ARMY 
                       CORPS OF ENGINEERS

    Col. Smith. Thank you, Mr. Chairman and also Mr. Barr.
    As a matter of introduction, I am Col. Grant Smith, 
Commander and District Engineer of Savannah District, U.S. Army 
Corps of Engineers, headquartered in Savannah, GA.
    Savannah District is one of five districts in the South 
Atlantic Division of the Corps of Engineers and we already had 
introductions--accompanying me, I have my District Counsel, Mr. 
Bill Hough and our Chief of Regulatory, Mr. Nick Ogden.
    At this point, I would like to address several of the 
issues that have been brought by previous witnesses. I may miss 
some of these and certainly we can discuss this during question 
and answers.
    One of the items that was brought up earlier in testimony 
had to do with the Corps' preference for the West Sandtown 
alternative on the county proposal for West Cobb Loop. I want 
to correct, at least from our view, that fact, in that the 
Corps has no preferred alternative with regard to the West Cobb 
Loop permit application.
    I would also like to address the issue of appeals. The 
Corps has recognized the need to have an appeal process 
associated with our regulatory work and we have established 
this process, it is currently awaiting resourcing. So the 
process would allow an appeal, administrative appeal, of a 
Corps of Engineers decision on a permit application. It would 
also allow for an appeal on the delineation of the wetlands.
    I would also like to address Mr. Dabbs. I must say that as 
the District Engineer, I was unaware of Mr. Dabbs' predicament 
until we prepared for this hearing, and in fact, several of my 
senior staff were also unaware of his predicament. So I 
certainly apologize if Mr. Dabbs feels that he has not been 
satisfied as a customer. It is our policy to satisfy all of our 
customers.
    It also appears that Mr. Dabbs was not aware of a scheduled 
meeting that is scheduled this week. My staff informs me it is 
on the 18th, to meet onsite and clarify the issue of the 
wetlands delineation on his property. I will say that my staff 
has indicated that the initial indications from our folks 
looking at the property is that it was more than the 0.63 acres 
of wetlands, it could be upwards of 5 acres of wetlands. But 
our jurisdiction only does cover that area of wetlands. So if 
Mr. Dabbs has property clearly in the uplands that is not 
potentially a wetland, he can continue work on that right now. 
And I apologize for any kind of miscommunications that may have 
occurred to lead him to believe that he could not continue work 
on uplands areas where there was absolutely no possibility of 
there being wetlands involved.
    Mr. McIntosh. Great. I appreciate that and I am sure Mr. 
Dabbs will as well. And that would narrow it down to those 
smaller number of acres, 5 or 0.63----
    Col. Smith. That might be in contention as to whether or 
not they are wetlands or not.
    Mr. McIntosh. That is imminently sensible and I appreciate 
you----
    Mr. Dabbs. May I have that in writing, sir? [Laughter.]
    Col. Smith. We will certainly provide that in writing, yes.
    Mr. Dabbs. Thank you.
    Mr. Barr. Maybe even better, today you have it under oath, 
right now.
    Mr. McIntosh. Thank you, Col. Smith, I appreciate that.
    Col. Smith. OK, I would like to go ahead and proceed.
    The Corps is responsible for managing and administering a 
regulatory program under three authorities. These authorities 
are Section 10 of the River and Harbors Act of 1899, which 
regulates structures or work in or affecting navigable waters 
of the United States; Section 103 of the Marine Protection 
Research and Sanctuaries Act, which regulates the 
transportation of dredge material for the purpose of ocean 
disposal; and principally what we are discussing today is 
Section 404 of the Clean Water Act, which regulates discharges 
of dredged or fill material into waters of the United States.
    Savannah District administers this program in the State of 
Georgia. In administering its regulatory program, the Corps 
utilizes a number of different kinds of permits, including 
nationwide general permits, regional general permits and 
individual permits. Nationwide permits issued by the Chief of 
Engineers allows certain activities deemed to have minimal 
impact on the environment. Typical nationwide permits include 
installing aids to navigation and the construction of minor 
road crossings.
    Savannah District has also issued several regional general 
permits for certain repetitive minor activities within its 
geographic jurisdiction, such as the construction of boat docks 
and the creation of artificial reefs.
    Nationwide and regional general permits are designed to 
expedite the permitting process for those projects that have no 
more than minimal adverse environmental effects. In 1996, 
Savannah District authorized 1,235 projects under nationwide or 
regional permits. The average processing time for these 
nationwide permits was 15 days and for the regional general 
permits, 8 days.
    Projects of major scope and which have potentially large 
environmental impacts require individual permits. Some of these 
projects include piers, bulkheads, large dams and projects that 
require filling large areas of wetlands. Major road projects, 
such as may being constructed throughout the metropolitan 
Atlanta region and in Cobb County are another example. Savannah 
District issued 88 individual permits in 1996 with an average 
processing time of 75 days. We denied three applications during 
that same period with an average processing time of 72 days.
    I am aware the subcommittee is particularly interested in 
my recent denial of the road project known as the West Cobb 
Loop. As you are aware, suburban Atlanta, including Cobb 
County, is growing at a very rapid pace. Since 1990, Savannah 
District has processed and approved 218 permits in Cobb County 
alone. The average processing time for these permits was 27 
days.
    The Savannah District received a completed permit 
application from Cobb County Department of Transportation in 
February 1994 for the West Cobb Loop project. As required by 
our regulations, the Corps issued a joint public notice 
regarding the project shortly after receipt of the application. 
It was mailed to 935 addressees. We received comments, 
information and requests for additional information from four 
Federal agencies, six State of Georgia departments, 127 
citizens of Cobb County and concerned environmental and 
historic preservation groups. We also responded to 12 
congressional letters requesting information on the project and 
the status of the application.
    This application took longer than average, almost 3 years, 
to fully determine whether the project complied with all the 
applicable laws and determine that a full and complete public 
interest review process had taken place.
    On January 14, 1997, I denied Cobb County's permit 
application for the West Cobb Loop road project. The reason for 
the denial was that of the four alternative corridors presented 
in the application, only the preferred alternative corridor was 
described in any detail by the applicant. Requests for 
environmental analysis of the three other alternatives did not 
result in sufficient information to judge the practicability of 
other potentially less damaging alternatives.
    On February 13, 1997, Cobb County filed an action in the 
Federal District Court for the northern district of Georgia 
seeking to challenge the denial of the permit. The matter is 
now in litigation before the Honorable Robert L. Vining, Jr., a 
senior Federal judge in the northern district of Georgia.
    The parties have had several productive meetings to discuss 
areas of mutual concern and recently signed a joint motion to 
remand and stay the litigation. This motion was submitted to 
Judge Vining and the Judge signed the order on June 3, 1997. 
The Department of Justice has requested that questions 
regarding the litigation be directed to Robin Richardson, the 
Department of Justice attorney handling the litigation. The 
purpose of the remand is to allow Cobb County an opportunity to 
submit a new modified application to the Corps. Pre-application 
meetings will be held next month to discuss this matter and to 
review the purpose and need for the new road project. Following 
these meetings, we anticipate that a new application will be 
submitted. I do not have any additional information at this 
time regarding the road project that will be submitted by Cobb 
County in its new application.
    In conclusion, the Corps of Engineers is dedicated to 
protection of our Nation's aquatic resources, including 
wetlands, while also ensuring that responsible development 
which is in the public interest and meets criteria established 
under the Clean Water Act is not unduly hindered.
    As Commander of Savannah District, I must ensure that 
projects subject to my jurisdiction are carried out with due 
regard for potential environmental impacts and with appropriate 
protection and mitigation of our valuable aquatic resources. I 
am committed to making the application process a fair, open and 
responsive one.
    Mr. Chairman and other members of this subcommittee, this 
concludes my statement. Thank you for this opportunity to 
discuss the role of Savannah District in carrying out the 
Corps' responsibility under Section 404 of the Clean Water Act 
and I will be pleased to answer questions you may have.
    [The prepared statement of Col. Smith follows:]


    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. McIntosh. Thank you very much, Col. Smith.
    Let me start with a general question, if I may, and it has 
to do with a problem that we have had in putting together this 
type of hearing in other parts of the country chiefly, where 
witnesses are reluctant to come forward because they are 
worried that in future work that they need to do with a 
Government agency, that they will be penalized for that. And we 
set a very vigorous and clear policy of pursuing any subsequent 
activity of that, and we have had a couple of instances where I 
have had to intervene on behalf of the committee with the 
agencies at higher levels.
    So let me just ask you now to join me in giving those 
witnesses who appeared today an assurance that you will not 
hold that against them and that you will work aggressively to 
make sure that your staff does not do that.
    Col. Smith. Certainly, Mr. Chairman, I am pleased to sign 
up to that commitment and I can assure you that we are 
interested in solving problems and not creating them.
    Mr. McIntosh. I appreciate that, and you can understand how 
that fear would come up, but I wanted to reassure each of them 
and others who might testify at the open mic, that that was our 
joint position on that.
    Let me ask you a question on the West Cobb Loop project. 
You indicated there was no preferred alternative. In essence, 
and not speaking legally but more practically, the Corps' role 
in this in having to sign off on it means that they have to be 
involved in a real practical way as the county moves forward, 
otherwise they make a proposal and it kind of goes into a black 
box and they hope they get a favorable answer.
    First, what were the concerns you had with the proposal 
that was rejected and what are some of the guidelines that the 
county should keep in mind as they are preparing a second 
proposal pursuant to the Corps' remand?
    Col. Smith. I guess if I could summarize what the Corps' 
issue principally was and led to the denial of the permit, it 
had to do with the purpose of the project, in a general sense, 
which is to move traffic from south to north in west Cobb 
County. As proposed to us, there were four corridors in the 
application that were possible corridors to move that traffic 
from south to north. We felt that we were never able to get 
enough information to make a decision about alternatives in 
three of those corridors, and in essence what we were left with 
was a detailed presentation of alternatives in only one of the 
four corridors, and as a result, we could not make a 
determination that we had the least damaging--environmentally 
damaging practical alternative.
    Mr. McIntosh. And what type of additional information would 
you need for the other three alternatives?
    Col. Smith. What we asked for was alternative analysis 
similar to what we got for the alternative that was presented 
to us, where there were detailed variations of how the traffic 
could be moved from south to north.
    Mr. McIntosh. I am not following you.
    Col. Smith. In essence, the application submitted to us 
included a traffic analysis that was used to limit the looking 
of specific alternatives to a single corridor. We had some 
great difficulties with that traffic analysis and as a result 
could not make--could not agree, applying the regulations as we 
are aware of them, we could not agree to limiting the look for 
this project into that single corridor.
    Mr. McIntosh. Now I am somewhat confused, because is it not 
the Corps' responsibility to make a judgment about the impact 
of the project on the waters of the United States, or wetlands 
under the 404, rather than to conduct a traffic feasibility 
study? I mean, is that not what DOT or Georgia Department of 
Transportation is supposed to do--aren't they charged with that 
expertise?
    Col. Smith. Yes, it is, but we are charged with ensuring 
that what we have in the final project is the least damaging 
environmental practical alternative for the stated purpose of 
the project. And in this case, since we had very little 
analysis looking at what alternatives were available in the 
other three corridors, we could not make that determination.
    Mr. McIntosh. Now by alternatives, you mean in terms of 
impacts on the wetlands?
    Col. Smith. Alternative routes that include not just 
impacts on the wetlands, but in various other----
    Mr. McIntosh. You see, I am concerned that you have defined 
your mission too broadly, because I think the Corps is supposed 
to look at the impact on wetlands and that part of the 
environment, among all the alternatives and not judge the 
practicability as to traffic flow. And so my question would be 
did you have sufficient information on the impact on wetlands 
for the other three alternatives?
    Col. Smith. No, that is why we could not make a 
determination on what was the least damaging to the 
environment.
    Mr. McIntosh. OK, so they need to provide you with 
information about the other alternatives. And I take from the 
testimony earlier today, they are going to work on 
reconfiguring their preferred proposal.
    Col. Smith. Either that or in some way redefine the purpose 
of the project so that it is not as encompassing as the 
original permit application.
    Mr. McIntosh. See, that is where once again I see the Corps 
going beyond its mandate. Why are you concerned about the 
purpose of their project?
    Col. Smith. That is what we have to--we have to deal with 
the application as it is submitted to us, Mr. Chairman. We 
cannot interpret the application, the application states a 
project purpose and the purpose of the project as stated to us, 
as we understood it, was to move traffic along one of four 
corridors in Cobb County.
    Mr. McIntosh. Right. And I would be greatly concerned if 
the Corps takes on itself a broader mission than analyzing the 
impacts on wetlands and the waters of the United States in 
determining, say for example, the need or the scope of the 
traffic problem. And I think that is what leads to the problem 
in this particular case, that you have got to end up deferring 
to the local government on those issues and then analyze 
whether their proposal in this case to mitigate is sufficient. 
And I guess the question I would have for you is if you have 
got a mitigation proposal that is 8 to 1 or 10 to 1 on the 
ratio, that is pretty good, is it not?
    Col. Smith. The mitigation is very important, but the 
regulations require us to sequentially look at the impact on 
the environment, and the sequence is avoidance first, so that 
the ideal situation is to avoid any impact on the environment. 
And that involves alternate routes, looking at alternate 
routes, which kind of led us to this issue of how can we make a 
proper determination on whether we have the least damaging 
environmental--least environmentally damaging practical 
alternative when we do not have an analysis that might say 
there is a route available in the fourth corridor which does 
not impact the environment at all, and still satisfies or still 
meets the purpose of the project, which is to move traffic 
north-south adequately.
    Mr. McIntosh. But if the county commissioners come back to 
you and say our goal is to have a restricted access freeway and 
we have analyzed the different routes and we have determined 
that this is the route that accomplishes that goal, all the 
others do not accomplish that goal because we are going to have 
to create more access cuts. Then they have come back with the 
one that has the least impact on the environment and they have 
identified that there are not any others in which you can avoid 
impact on the wetlands, and still accomplish their goal; which 
is to have limited access transportation and, presumably, have 
a minimum impact on people's lives.
    Col. Smith. I guess the best way I can address that is to 
say that--and I probably have not articulated it very well, I 
obviously have not--is that we, based on the project 
application, the permit application, that was presented to us, 
we felt very strongly that in order to be able to make a 
determination about the least environmentally damaging route, 
we had to see a comparison of alternatives that included 
alternatives in the other corridors. And we never got that 
analysis, even though that was made clear at the beginning of 
the application process, and we also have other issues that 
enter into this as far as agreements made prior to the 
application process as to how we would approach the permit 
applications for what is known as the Cobb Loop Road.
    In fact, I mention in my written testimony, but not in the 
oral testimony, that while we were processing this application 
for West Cobb Loop, we were also processing two other permit 
applications for the east-west connector and there is also 
another road to the north. And those were approved. And the 
agreement was made at that point that these three applications 
would stand absolutely alone. And that is another reason why we 
obviously feel a need----
    Mr. McIntosh. Let me make sure I understand--each of them 
would stand by itself?
    Col. Smith. Separate utility.
    Mr. McIntosh. And you felt that that was not being 
adequately pursued in this application, those prior agreements?
    Col. Smith. Yes, sir.
    Mr. McIntosh. Do you have adequate assurances now as the 
county is preparing their new submittal, that those will be 
followed?
    Col. Smith. We will not know until we receive their 
application.
    Mr. McIntosh. Have you asked your staff to work with the 
county as they prepare this new application?
    Col. Smith. Absolutely.
    Mr. McIntosh. So that they can understand the concerns?
    Col. Smith. On almost all of these projects, we hold 
extensive pre-application meetings to resolve these kind of 
problems ahead of time.
    Mr. McIntosh. What is your estimate as to the time it will 
take to finish the application and reach a decision by the 
Corps?
    Col. Smith. I do not know. I would probably be guessing, 
maybe I could ask for some help on that one.
    Mr. Ogden. Typically we look at about 4 months, but in a 
project of this magnitude with the ``concerns that it has,'' I 
would not be surprised if the timeframe does not extend beyond 
that.
    Mr. McIntosh. But are you not aided in this by the fact 
that you have already seen one application on it?
    Mr. Ogden. Yes, sir, we have significant information in 
here. The first thing we plan to do, and we discussed this with 
Georgia DOT--excuse me, Cobb DOT--is to discuss the project 
purpose again. As the Colonel stated, the project purpose was 
very broad on this particular portion of the road. When I refer 
to portion of the road, I am talking about the Loop Road, as it 
has become known. In the new application, hopefully we can 
focus on a more defined project purpose so that we can focus 
more clearly on what Cobb County actually wants.
    When we started pre-application consultation back in 1992 
and 1993 on this project--on not this project but on the loop 
road, period, we asked Cobb County up front, do you want to 
approach this as a single project. Cobb County says no, we want 
to approach it as portions of a road that would satisfy a 
particular need. And when that happened, of course, they told 
us that at no time--and we assured them that at no time, if 
this is your approach, all of these points may or may not 
connect, if that is your purpose. And now the purpose is to 
connect it, which is fine, if this is the way it can be worked 
out.
    Mr. McIntosh. And let me repeat, I would find significant 
problems if the Corps defines its mission to second guess them 
on that purpose. I agree with you, you should get a very clear 
statement from them on what the county's purpose is, but let me 
strongly urge you not to second guess them in that because I 
think they can make that best determination for the local 
community.
    Let me also request, Col. Smith, if you could update the 
committee at the end of 4 months as to what the status of the 
discussions have been and the review process, and if it takes 
longer than that, then we will ask you for continued updates 
after that.
    Let me end my session of questioning for this round--I have 
got some more on some other subjects--and turn now to Mr. Barr.
    Mr. Barr. Thank you, Mr. Chairman.
    I guess in many respect, Colonel, what our decisionmaking 
boils down to, whether it is Mr. McIntosh, as chairman of this 
subcommittee, whether it is the head of a Federal agency, 
whether it is yourself, whether it is myself in my previous 
role as a Federal prosecutor--it comes down to prioritizing the 
use of scarce resources. And I think one of the primary jobs 
that the citizens and taxpayers of this country expect of us 
and have a right to demand is that we use those limited 
resources and prioritize so that the most important work gets 
done and that we do not spend a lot of their money worrying 
about chasing after gnats when there are life threatening 
animals out there, as it were.
    Is there some justification that you can provide through 
this forum today, or some explanation as to why among all of 
the projects with which your agency is working or may not be 
able to because of scarce resources, what great public harm, 
how many lives would have been at stake, had Mr. Grady Brown, 
who you heard from earlier, been allowed to keep his land in 
the way that it was before it had been messed up inadvertently? 
Why was that so all fired important to--as you have seen, you 
heard from Mr. Shackleford here, who has indicated I think very 
sincerely that he is interested in working more as a 
partnership and working in major projects around the State, and 
we have projects because apparently lack of resources you are 
not able to move forward quickly--what was your decisionmaking 
that felt this burning need to worry about Mr. Grady Brown's 
property?
    Col. Smith. Well, I guess I do not know the specific answer 
to how we became aware of the particular problem with the 
wetlands. I guess I could only state that as the laws are 
crafted at this point, and I will certainly acknowledge that 
Mr. Brown's situation is probably a unique one in many ways, 
but as the laws are crafted at this point, once a wetlands is 
created, the resource--I have very little recourse in making a 
determination of whether these wetlands should or should not be 
protected by investigating how they came to be.
    Mr. Barr. I understand that and I understand and I 
certainly presume that any project in which you are involved 
meets the definition of your jurisdiction, falls within your 
jurisdiction and a justification can be found for it. I am not 
talking about that. I am saying among--say you walk into the 
office tomorrow and you have 100 different matters with which 
to deal, some involving thousands of acres, some involving, as 
Mr. Shackleford has said, a project where lives and public 
safety is at stake, and then you have a project where you have 
land such as Mr. Grady Brown's here, where it is not hurting 
anybody; as a matter of fact, it would have been better to 
leave the land in the State that it was originally. I mean is 
there any decisionmaking process that you can relate to us that 
leads you to the conclusion that to the top of the pile goes a 
case like Mr. Brown's? I just have a hard time among all of the 
different projects on which you all could be working and the 
very limited resources, why those sorts of projects are so 
important that you take time away and resources away from 
thousand acre projects and public safety projects.
    Col. Smith. Well, I do not know that we--go ahead.
    Mr. Ogden. If I may, I would like to attempt to answer 
that. In our world, with the resources that we have, we set 
priorities on permit applications, first priority. Violations 
fall somewhere down at the lower end of the spectrum. Now with 
regard to a project that would have an impact on human life, 
that is taken under consideration during the review process. So 
we do prioritize that with the resources and the persons that 
we have to do that.
    Mr. Barr. OK, how many lives were at stake in Mr. Brown's 
project.
    Mr. Ogden. There were none, to my knowledge.
    Mr. Barr. Well, see, that is my point.
    Another thing, and I must admit that, Colonel, your answers 
to Mr. McIntosh's questions leave me a little bit mystified, 
especially when I weigh them against your written words here. 
You state, for example, on page 5 of your written testimony, in 
talking about the remand to Cobb County to allow an opportunity 
to submit a new modified application--and I commend you for 
that and I do appreciate what I read and what I have heard 
today about the Corps working with the county. But the language 
that I find extremely troubling is where you say that you will 
be holding meetings, ``to determine the purpose and need for 
the new road project.''
    Where in Federal regulation and the laws of this land is it 
the job of the Corps of Engineers to determine the purpose and 
needs for road projects in our communities? I am not talking 
about the CFR, I am not talking about Memorandums of 
Understanding or Agreement. I am talking about in the laws of 
this land.
    Col. Smith. Well, I am trying to find the exact words here.
    Mr. Barr. It is about three quarters of the way down on 
page 5.
    Col. Smith. I only have four pages in my version here.
    Mr. Barr. This is very strange, because I have your written 
testimony here--would somebody show this to the Colonel--it is 
talking about the remand to Cobb County.
    Col. Smith. OK. Well, I guess I can--as interpreted by you, 
I can certainly see why you might interpret it to say as you 
have interpreted it, but I must just say that the reason that 
is written like that is just so that we can meet with the 
county and discuss this very important issue as relates to our 
determination about the denial of the permit to begin with is 
exactly what the purpose of this project is, has a key factor 
in what areas we must consider under the regulations as to what 
might be the least environmentally damaging alternative to meet 
the purpose of the project.
    I will certainly acknowledge that the need for the project 
is not something that the Corps of Engineers necessarily has a 
role in. But in having a pre-application meeting, the whole 
purpose of it is to prevent any kind of miscommunications in 
stating what--in putting it in the actual application, because 
once we receive the application, we must deal with what we have 
received. And in this particular case, for the West Cobb Loop 
Road, we had to, under the purpose of the project, had to 
consider other alternatives beyond which the county considered 
to be alternatives in the specific corridor they selected to--
--
    Mr. Barr. I think the feeling that a lot of the governments 
with which you deal--a lot of the governmental entities and 
certainly myself and I think judging from the chairman's 
questions as well, I think the discomfort that we have with 
that is that you are taking something, section 404 authority, 
and the way you have just interpreted it and the way it is 
written out here, there is virtually no limit to your power, 
once you determine that, in your view, there may be a wetland. 
You are saying that you then have the power to decide and to 
look at what the purpose of the project is, whether there is a 
need for it, and I just do not think that that was the intent 
of the Congress or the previous administrations in this country 
to give that power to the Corps. For the life of me, with all 
the things you all have to do, I do not know why you would want 
to subsume that, for heavens sake, but it may very well be and 
this may be something that would be helpful to the Corps, that 
we ought to go back, and maybe this is a benefit from having 
these hearings, look at these laws, look at this huge body of 
Code of Federal Regulations and these memorandums and so forth, 
and just get back to some basics and clarify exactly what the 
jurisdiction of the Corps is in this area, which I think is 
what our State and local officials are saying, we do not mind 
working on these things, we recognize that there is a problem, 
but there have to be some limits to it.
    Col. Smith. Mr. Barr, let me--I know Mr. Ogden wants to try 
to respond, but let me take one last shot at trying to 
articulate the issue of the corridors and the purpose of the 
project.
    Mr. Barr. Sure.
    Col. Smith. As an example, if the project--permit 
application had stated specifically that the purpose of this 
project was to connect two specific end points along a route, 
that has--that allows significantly different review and 
analysis by the Corps of Engineers in reviewing that permit 
application than if the permit application says the purpose of 
this application or project is to move traffic from some 
southern area to some northern area, in a broad range. I am 
trying to articulate why it is important what the purpose says 
of the project. The application that we received, that we 
denied the application for, was not specific about the purpose 
of the project. It did not say the purpose of this project is 
to connect two different specific points with a route that 
connects those two points. And as a result, we were limited in 
what we had to consider in our analysis.
    I do not know if that helps, I feel like I'm failing to 
articulate----
    Mr. Barr. Well, and I am not convinced that the problem is 
yours. I think we may have put our finger on a fundamental 
problem with the way this whole wetlands issue has developed 
and it may very well be time now to go back and try and clarify 
exactly what your jurisdiction is so that you have better tools 
with which to work and to prioritize your programs.
    Mr. Chairman, if I could just ask one other followup 
question. I know you have some as well.
    Mr. McIntosh. Certainly.
    Mr. Barr. Again, Colonel, hopefully you will have this--I 
do not know how I wound up with more of your testimony than you 
have, but on page 2, the very last paragraph of your testimony, 
you say ``Projects of major scope and which have potentially 
large environmental impacts require individual permits.'' It is 
my understanding just from having reviewed a lot of material 
here over some period of time, not just today, that the Cobb 
County project, the loop project, that there was no single 
large environmental impact, that there were a lot of 
potentially small impacts, as it were. Does the Corps 
interpret, here again, their jurisdiction that even if there is 
no single potentially large environmental impact in a road 
project, if there are a certain number of small impacts, that 
you sort of aggregate all those and say bingo, we have got a 
major impact here, even though there is no one little thing 
that we can point to?
    Col. Smith. Yes, there are--in our regulations and 
guidelines, we must consider----
    Mr. Barr. Not in the law, but in--here again, we go back to 
your guidelines.
    Col. Smith [continuing]. Cumulative impacts. And so in a 
situation where there are numerous minor impacts to the 
environment for the analysis when taken in conjunction with one 
another in a cumulative manner, that can be determined to be a 
major significant impact.
    Mr. Barr. Do you assign a numeric value to each of these? I 
mean, if you have a roadway that is 20 miles long and there are 
10 little minor impacts, how does that all of a sudden become a 
major one? What is the threshold?
    Col. Smith. Can you address that?
    Mr. Ogden. Let me attempt to address that, sir.
    The way we would look at that is that you may have 10 minor 
impacts to wetlands, there might be wildlife corridors 
dissected as a result of that, there might be historic 
properties along the way that would be impacted as a result of 
that, there might be problems with water quality as a result of 
the project--and I am just giving hypotheticals now. When we 
begin to add up all of those ``impacts'' then they could come 
out to be a significant impact.
    Mr. Barr. It is not really scientific.
    Mr. Ogden. That is right.
    Mr. Barr. I did not think so.
    Mr. Ogden. It is based on professional judgment.
    Mr. Barr. I understand. Thank you, and I appreciate the 
time, Mr. Chairman.
    Mr. McIntosh. Thank you, Mr. Barr.
    Col. Smith, I have several somewhat unrelated questions, 
but let me start with the testimony we heard earlier about the 
Fish and Wildlife Service sending a letter to Mr. Ogden 
indicating they would no longer participate in the field 
meetings. What is the Corps' position on whether that is 
helpful or not. One of the things that we worked with in the 
Bush administration, and I understand that President Clinton 
has continued this in the wetlands area, is an attempt to 
maximize coordination among the different agencies involved and 
try to make sure that there is a process in place so that you 
do not have one agency waiting outside that coordination 
process and then saying, well, everybody else agreed to your 
project, but we did not, so you have to start over again.
    Could you comment on that development? It is news to me, 
and I think the subcommittee which also has jurisdiction over 
the Interior Department may be looking into that.
    Col. Smith. I think it is a relatively new development and 
I guess I would say in a general sense that the Corps' position 
is that in every case where we can improve communication and 
dialog and learn about problems earlier rather than later, we 
support that kind of process. I just was quickly updated on 
this particular issue and I certainly cannot and do not want to 
even try to speak for the Fish and Wildlife Service, but I 
understand that their issue with regard to attending the 
meetings is that they were not going to be able to accomplish--
or they had some issue with what the stated purpose of the 
meetings were and that they could not accomplish--we were not 
going to be able to accomplish in those meetings what we said 
we were going to do. So they saw their time better spent on 
working off the backlog. And I am probably speaking out of 
line, like I said, I do not want to talk about what their 
position might be, but that is my brief understanding.
    Mr. McIntosh. And the letter mentioned something about 
saving time and working on the practical alternatives report 
backlog, which I was unfamiliar with as well. But in general, 
what was their concern with the stated purpose of the meeting?
    Mr. Ogden. The specifics of that is the Fish and Wildlife 
Service did not feel by visiting the site they would come away 
with the sense that the preferred alternative would be 
determined in the field. They felt that even though we would go 
out there and look at it, suggestions and recommendations would 
be made and then the applicant, in this case, Georgia DOT, 
would come back with that same particular application or 
alternative.
    Now----
    Mr. McIntosh. So they are concerned that by attending that 
meeting, it might imply that something discussed there is being 
agreed to and they wanted to reserve the ability to think about 
other alternatives, I guess?
    Mr. Ogden. I guess that is a fairly good overview of it.
    Mr. McIntosh. OK. And I do not mean to ask you to respond 
on their behalf. We are going to pursue that with them. I guess 
the question I would like to ask, maybe Mr. Ogden and all of 
you could tell me, in your opinion is it helpful to have 
everybody at that field meeting?
    Mr. Ogden. We find that they are very helpful in that we 
can resolve many issues on the site at one time rather than 
keeping the maze of letter writing campaign going back and 
forth. The system has worked fairly well, obviously not as good 
as many would like, but it is an attempt to communicate. We are 
mandated by law to have the resource agencies involved in these 
processes. If we issue a permit with impacts to their laws, 
then of course that would be elevated, or it would be denied up 
front, to be honest with you. So we have to get their input.
    Mr. McIntosh. OK. Mr. Ogden, do you concur with that?
    Mr. Ogden. I am Ogden.
    Mr. McIntosh. Oh, I am sorry, they told me the other way 
around.
    Col. Smith. He is Mr. Hough.
    Mr. McIntosh. Excuse me. OK, Mr. Ogden.
    And Mitch King had written you the letter. I am going to 
ask that that be included in the record today and we will 
pursue that with the Fish and Wildlife Service to find out what 
is going on.
    [The material referred to follows:]


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    Mr. McIntosh. A second area that came up--occurred to me in 
listening to some of the testimony of people who had had 
problems in dealing with the Cease and Desist Order. They 
mentioned that their consultants and engineers were unaware of 
some of the changes in the standards and that the local 
government, I guess particularly Bartow County Health 
Department was telling, I think it was Mr. Dabbs, that they did 
not realize that there might be a process that they had to go 
through with you. Does the Corps have an effort in, I guess, 
information dissemination, either to practitioners in this 
area, people who are working in construction in the engineering 
side, or to the local governments who also issue permits, to 
try to keep them up to date as changes are made, like on the 
changes in the nationwide permit?
    Mr. Ogden. If I may, when the new nationwide permits came 
out in February 1997, each Corps district including Savannah 
District, had the requirement to send out through our public 
mailing list these changes. And our mail-out is something in 
excess of 1,500 on our mailing list. So practically every 
community, every conservation group, every citizen on that 
list--and every citizen in the State is not on that list, it is 
by choice--does get that information. There are certain 
workshops held around the State that we have had and we invite 
people in the business community to come so that they can sit 
in and participate in this information process. That has been 
done throughout the State of Georgia since these new 
regulations went into effect. I do not know what else we can do 
to get that information out to the public.
    Mr. McIntosh. Are some of the engineering firms also on 
your list?
    Mr. Ogden. Yes, sir, many of them are.
    Col. Smith. I would also add that there was a public 
hearing conducted by the Division Commander of South Atlantic 
Division here in the Atlanta area with regard to the nationwide 
permit changes. Again, we can apologize for folks not getting 
that word, but we made very clear, conscious efforts to try to 
get the information out there.
    Mr. McIntosh. And I think that makes sense. I guess in this 
particular case, there has been a change from when the project 
started and that presents some particular problems.
    Let me ask you Col. Smith, to address another question. The 
cost of delays are enormous, and we heard testimony earlier. I 
think everybody would understand that, because when you are 
developing a site, you are often doing it on borrowed money, so 
you have got time value of money to deal with. Is there a 
process in place where the Corps has switched from an approval 
process to an enforcement process, issued a Cease and Desist 
letter or whatever the step is, where you try to expedite 
resolution of that, at least as to areas where the Corps may 
not have jurisdiction or there is a question of jurisdiction 
that needs to be resolved?
    Col. Smith. Well, I would refer again to what Mr. Ogden 
said earlier as far as our overall priorities, is our----
    Mr. McIntosh. It sounded like enforcement was lower down on 
the totem pole.
    Col. Smith. Enforcement is lower on the totem pole. 
Priorities are for--permit applications are the highest 
priority, but within all of that, obviously we can work to do 
better and minimize impacts. And if these particular issues 
with major impacts are brought to our concerns, we will try to 
respond wherever we can in as rapid manner as we can. It is an 
issue that every agency has in trying to maximize its output 
responsiveness with a limited staff.
    Mr. McIntosh. Let me urge you to think about--and in 
particular on that Cease and Desist Order and others that bring 
things to a standstill in development whether there might be a 
way to expedite that. And I do not know if that means 
reordering your priorities or focusing in on a management of 
the time that elapses on those, because there is a particular 
cost involved once somebody has started a project, that means 
they have signed the loans, they are not waiting for permit 
approvals in order to get the money flowing and so there are 
some very serious costs that can be incurred, and you might 
want to take all that into consideration. Just kind of real 
world effects, in establishing that priority within your 
office. And I understand the difficulty when you have got 
limited resources and you have got a lot of different things 
that staff has to review and sign off on. But that struck me 
earlier as something that could be particularly taken into 
account.
    And in that line, I ask you to respond to the other 
criticism that was leveled was by Mr. Shackleford, who said 
there is a lack of ability to make decisions.
    Col. Smith. Well, I would have to disagree. I think we have 
the ability to make decisions wherever possible and I guess 
what we are charged in the field here as executing the program, 
we balance trying to make sure all the concerns per our 
guidelines and the regulations and law that exist are taken 
into account, so that we can in fact approve permits. Our goal 
is to approve permits, not deny permits. And I think our record 
shows that statistically, we do a pretty good job of that, and 
very seldom, in fact, wind up denying a permit. So I guess all 
I can say in response is I feel we are fully capable of making 
decisions and we make them wherever we--in as timely manner as 
we can and in a balanced manner with regard to our 
responsibilities under the Clean Water Act.
    Mr. Hough. Mr. Chairman, if I might?
    Mr. McIntosh. Yes.
    Mr. Hough. I do not recall Mr. Shackleford's comment being 
directed at the Corps of Engineers.
    Mr. McIntosh. It was a general comment about the process, I 
think that is right.
    Mr. Hough. We might ask him. I do not recall that being 
directed at the Corps, it was directed at someone else.
    Mr. McIntosh. Mr. Shackleford, do you want to elaborate?
    Mr. Shackleford. Simply to the point, the Corps issues the 
permit, the Corps has the responsibility to take into 
consideration input from the other agencies, but ultimately the 
Corps has to make the decision, so they have got to be able to 
work through the process, they have got to be able to deal with 
15 month delays on PARs. So you heard me say that they are a 
prisoner of the system. They need to be able to deal with the 
system and so some of the blame has to rest with the Corps. 
Primarily it rests with the agencies that have review process.
    I want to give you one example. I talked about the 
situation up at Homer. U.S. Fish and Wildlife tried to 
blackmail us--the purchase of 2,900 acres between that bypass 
road and the core center of that town, to mitigate 7\1/2\ acres 
of wetlands--2,900 acres of upland. Col. Smith's predecessor, 
Col. Boy, ultimately turned that permit down because it was 
determined there was a viable alternative that essentially 
dismantles the town.
    Mr. McIntosh. That is pretty strong language, Mr. 
Shackleford.
    Let me tell you this, I do think you are correct and there 
are problems in both the way the system is designed where you 
get the Fish and Wildlife Service and EPA having effectively a 
veto over Corps decisionmaking, but then I think there is some 
valid concern there that the Corps needs to, within the system 
that is flawed in its design, needs to work to reach those 
decisions in a way that is good for the public.
    And believe me, this is coming from someone who tried for a 
long time to say EPA should stay out of it and we should allow 
the Corps to make these decisions on their own, because in fact 
from my perspective, back when I was in the Bush administration 
and today as a Member of Congress, the Corps does have the 
ability to do that and your perspective of trying to grant 
permits rather than deny them is one that was appreciated. So I 
think there is an equal measure of concern on all sides there.
    I have no further questions on this. Mr. Barr, do you have 
further questions of Col. Smith?
    Mr. Barr. Thank you, Mr. Chairman, just two quick things.
    To go back, Colonel, to Mr. Grady Brown's situation, would 
you be prepared to tell him today that in the great scheme of 
things and the great list of priorities that you all deal with, 
would you be prepared to tell him today that he can simply 
restore his land to the condition in which he found it when he 
purchased it?
    Col. Smith. No, sir.
    Mr. Barr. I have this nasty habit of always going back and 
trying to find things in writing and let me just mention one 
other of your documents, and it is not really a question, Mr. 
Chairman, although if you would like to respond, Colonel, I 
certainly would want it. It simply follows on to my earlier 
questioning with regard to your written testimony and I think 
this is again an illustration of the problems that counties and 
other governmental agencies are having dealing with the Corps.
    This is part of the document package dated January 14, 1997 
to Mr. Jim Croy, and it has to do with the Cobb County project 
that has consumed a great deal of our time today. And in your 
part one introduction of the background materials that 
accompany your letter to Mr. Croy, under paragraph (h) it talks 
about the basic project purpose. And this is what we kind of 
come back to. It says, ``We have considered the applicant's 
reported project purpose and need.'' However, then it goes on 
in the next sentence to say, ``The basic project purpose as 
determined by the U.S. Army Corps of Engineers,'' and then it 
goes on. This is, I think, the confusion and this is, I think, 
the root of at least some of the problems that we are seeing 
here, in that the Corps is, for some reason, feeling the need 
to make independent determinations of the needs in our 
communities for these projects, notwithstanding the fact that 
the State agencies, the local governmental agencies' may have 
already determined that in their view, based on the needs of 
their citizens in the community, they need a road project. And 
then they come to the Corps and the Corps conducts an 
independent study and analysis to itself determine whether 
there is a need for the project or what the purpose is to then 
determine if it fits within what the Corps views as its 
jurisdiction.
    Again, all of us may be wrong in this, I do not know, but 
this is really the genesis for a lot of the confusion and 
perhaps even a great deal of wasted time and money, and is 
something that I know I want to look into further and perhaps 
highlighting some of this. And again, in fairness to you all, 
it may be a problem for you all too in trying to determine and 
decipher exactly what your jurisdiction is. But I think it is 
much broader in practice than it was intended by our Government 
and the Congress in passing these laws to be.
    And I appreciate you being with us today, and again, if you 
would like to respond to that, that is fine--you do not have 
to.
    And I appreciate--before we move into the general public 
comment period--very much your bringing these hearings to the 
Seventh District of Georgia, Mr. Chairman, and giving us the 
opportunity to let you and our colleagues know some of the real 
problems out here in the real community that we have to deal 
with.
    Mr. McIntosh. I appreciate that. Col. Smith, did you want 
to make a comment?
    Col. Smith. Well, I think in response, the only thing I 
would say is that clearly it is not my intent, as a district 
engineer, to try to determine what the needs of a local 
community are with regard to road projects. I do not believe 
that that is in my purview and if that is the way the language 
is written there, then probably we are not articulating it 
well. I see my mission as one of regulating within my 
jurisdiction the law under the Clean Water Act to find a way 
for a local community to find a way to have a project that can 
damage the environment in the least manner and get the project 
constructed, and balance those different and competing--in many 
cases, competing requirements of the Clean Water Act and the 
requirements for development in the local community.
    Mr. McIntosh. Let me followup on one thing and then I will 
be done. With regard to Mr. Brown's situation, you indicated 
when Mr. Barr asked if you could allow him to go back and 
restore his land to the way it was--what can he do to have the 
ability when another entity of the Government has come in and 
changed the nature of his land, to have it restored back to the 
way it was?
    Col. Smith. I think that what has happened as in the case 
of Mr. Brown, which is a very clearly unique case and I think 
probably we can all relate to Mr. Brown and say it is a very 
unfortunate case, but it is a case where wetlands have been 
created, and wetlands are protected under the law and 
therefore, his avenue to have the wetlands removed would be to 
get permission to do that, a permit.
    Mr. McIntosh. And it is the legal position of the Corps 
that wetlands that are artificially created are protected the 
same as naturally occurring one?
    Mr. Ogden. May I answer that?
    Col. Smith. Go ahead.
    Mr. Ogden. In the law, it does not differentiate between 
naturally occurring wetlands or wetlands that might be created 
as a result of manmade activities, it does not differentiate.
    Mr. Barr. Can you all not use something called common sense 
here? [Laughter.]
    I mean that as a very serious question. [Applause.]
    I mean we have the situation, and apparently you all do not 
disagree with anything that Mr. Brown has testified to in terms 
of his basics as just related by Mr. McIntosh, and you are 
saying notwithstanding that, simply because the law does not 
differentiate, we in the exercise of independent common sense 
cannot do so.
    Mr. Ogden. He can apply for a permit and we can go through 
the process. I do not know how we can circumvent the law. 
[Applause.]
    Mr. Barr. OK. I do not think you are circumventing the law, 
you are saying that the law does not say exactly--does not 
force you to do exactly what you have done here. We are saying 
is not common sense, in addition to, as you indicated earlier, 
your professional judgment, should that not be part of the 
equation too? A common sense interpretation of the law.
    Mr. McIntosh. I think you could make an argument that at 
the time the law was passed and even extended by regulation to 
his property, it was not a wetland and the Government owes him 
the obligation to restore it to the way it was at that point in 
time. And I think that would give you ample authority to make 
the decision that yes, if we need to now issue a permit to do 
that, we can do it.
    Mr. Brown. Let me ask you something. Could I ask a question 
of this engineer? Now that might not be lawful or might be out 
of order, but I would like to ask him something.
    Mr. McIntosh. Sure, Mr. Brown.
    Mr. Brown. I would like to know how you found out, the 
Corps of Engineers found out that was wetland? Do you know?
    Col. Smith. I do not know the answer to that.
    Mr. Brown. Either one of you know? Do you know what they 
told me? The Corps of Engineers came out there and said at 
first he came out there and saw wet land there. Well, whenever 
he came out there, the ditch was already dug and it was not wet 
land, I mean the water was running down in the stream. I asked 
him, I said, you said you came out there and saw it. You did 
not see any wet land, did you? I said who--what did you do, 
what happened? He said I got an anonymous call. That is the way 
you all got it, through an anonymous call.
    Have you all got plenty of time that every time somebody 
calls you to run out and see about somebody? There in Villa 
Rica where it is hurting nothing. It is my land and I bought it 
in 1943, around in the early 1940's. I have paid taxes on it 
for all that amount of years and here it is, an anonymous call 
can come down there and get my land--I mean put water all over 
my ground, plug up ditches. It does not make sense, it does not 
make common sense. It is a bunch of people that are taking this 
country over and people are getting tired of it. [Applause.]
    Voice. Why do you not go after the State, they are the ones 
that caused the problem?
    Mr. Brown. The State did not have anything to do with it. 
The DOT had to go out there and fill up that ditch after they 
dug it. That does not make sense.
    Voice. May I speak?
    Mr. McIntosh. Let me now--actually we are going to move on 
to the open microphone where people will be able to speak.
    Mr. Ogden, did you have any comment with respect to that? I 
will give you the final word.
    Mr. Ogden. About the only thing I could say about that, I 
personally was not involved in that site visit, but wetlands 
are determined based on a three-parameter approach. We look at 
hydrology, vegetation and soil conditions, and even though you 
might pull the hydrology away by putting a ditch in, the soils 
are not going to change overnight and there will be remnant 
vegetation there for sometime. So to this specific case, I 
could not say who made the determination on my staff or how it 
was made, but I would assume that there were wetlands there and 
the ditch was dug and it removed the hydrology and as far as we 
are concerned you still have a remnant wetland there.
    Mr. McIntosh. Well, I would urge you, if Mr. Brown puts in 
a permit, to study this and determine whether there is a 
flexibility in the law to allow him to restore his land to the 
way it was. And I am pleased to hear you say that this is a 
relatively unique problem that comes up.
    Let me close out this portion of the hearing and once again 
thank you, Col. Smith. I know it is not always pleasant, but I 
appreciate your willingness to listen to people.
    And now we are going to move on to the open microphone 
portion of the hearing. We were, I think, scheduled to close 
out at 4 but this has taken longer than we thought, so we will 
go until 5 and get as many people as possible.
    I will call forward names based on the sign-up sheet that 
was out there with the staff and we will ask everybody to 
please keep your comments to 3 minutes and Bob and I may have a 
question or two for you after that.
    The first person who had signed up is Ms. Laura Lester, if 
she is available. And please, if you could come forward to this 
front podium, so we can record it for the record. And then 
perhaps Karen Barnes, who is the staff assistant there in the 
powder blue suit, if folks could identify themselves to her and 
line up so we could rapidly go through the list of people, that 
will allow as many people as possible to participate. Thank 
you, Ms. Lester, if you could share your remarks, and I would 
ask you to keep it to 3 minutes, if you could.

     STATEMENT OF LAURA LESTER, WEST COBB COMMUNITY COUNCIL

    Ms. Lester. I hope it will be 3 minutes. I do have a title 
for my paper and although I did not have time--I was so busy 
putting up green signs everywhere letting everybody know that 
the meeting was held today--that it is not proofed, but I 
certainly want you to have a copy of it and will certainly 
forward one that is proofread.
    Mr. McIntosh. We will put the whole paper in the record for 
you also.
    Ms. Lester. Thanks. ``Checks and Balances versus Unchecked 
Government Power'' is the title of my brief remarks. The 
subtitle is ``Local, State and National Governments Use the 
Road of Power and Wealth in Search of Economic Development 
While Citizens Rely on their Rights to Assemble, to Speak 
Freely and to Petition the Government in Search of Quality 
Living.''
    Welcome to Georgia, Chairman McIntosh. We are the largest 
State east of the Mississippi and home of more trees than any 
other State in that region. The beauteous pastoral character of 
western Cobb County and the peace and tranquility of its 
citizenry are the subject of my brief address today.
    Chairman McIntosh, Karen Barnes of your staff asked me what 
my position was when I called your office to request being 
included as a witness. Was I against the West Sandtown route 
chosen by the Corps of Engineers? I responded that my 
organization, West Cobb Community Council, had organized a 
steering committee, held community meetings and I wished for 
the entire range of views to be presented. Ms. Barnes said the 
list was unfortunately already filled. However, I could wait 
until the end for the open mic panel.
    The staff member at the office of Representative Bob Barr 
said the list of witnesses was being done in Washington, and 
only residents along West Sandtown Road were invited. I 
responded that I lived along West Sandtown. Then I was told 
that potential names of residents were from Commissioner Bill 
Cooper.
    The staff member at the office of Chairman Byrne said they 
had no involvement in the witness list and had not received it. 
The staff at the office of Commissioner Cooper said she was not 
involved in the witness list, but she would have the 
commissioner call me.
    Ms. Barnes from Chairman McIntosh's office faxed my office 
a tentative list of witnesses 2 days after our initial talk. I 
carried copies to the Atlanta Journal Constitution and the 
Marietta Daily Journal, who had received none as well.
    Neither John Wiles nor Bill Byrne, neither the Government 
witnesses for Cobb County nor the State of Georgia have met 
with the organization that we formed or with the remnants of 
Protect West Cobb or with any of the affected subdivisions or 
with the school parents or with the church members along West 
Sandtown Road or with those on nearby Irwin Street or John Ward 
Road. Commissioner Cooper did attend one of our meetings on 
February 20, 1997, held at Cheatham Hill Baptist Church. Some 
of the residents who opposed the Noses Creek route were present 
and spoke, as did a large group of people living directly 
adjacent to or off West Sandtown Road. I oppose efforts to 
divide and conquer between neighbors. I oppose efforts to 
present one side only of a many-sided issue. I oppose posturing 
of a political nature.
    I have three points to make. The first is to question the 
traffic study done by Moreland Altobelli Associates, Inc., in 
January 1994 in cooperation with the Cobb Department of 
Transportation. Cobb DOT used this document almost exclusively 
as the basis for their decision to build a stand-alone four-
lane highway. This study forms the heart of the West Cobb Loop 
Permit Application Support Document. I was told that copies of 
this document were probably not available because of 
litigation. I filed under the Freedom of Information Act and 
made copies of portions. I find the study irretrievably flawed.
    The study does not look at traffic patterns in a connected 
pattern for the region, but specifically centered and limited 
the study to an area on either side of West Sandtown Road. 
Traffic counts were judged superficial by eye witnesses. These 
witnesses report that the West Sandtown Road traffic count was 
done only at the dropoff in the morning for students attending 
Dowell Elementary School, with over 700 students arriving for 
school. Computer projections filled out the numbers used in 
volume/capacity ratios. The centering and the counts were major 
factors in the results.
    The Army Corps of Engineers did not say this today, but 
they are much more critical of the study. The denial states 
``There are problems with data interpretation related to 
improvements shown in the volume/capacity ratios. It appears 
that invalid data which prevails in the Permit Application 
Support Document was used by the applicant to support the 
preferred corridor alternate.''
    This harshly critical statement means that the routes 
presented were all based on improper and inaccurate 
information. Neither Noses Creek nor West Sandtown were 
properly studied, presented and evaluated.
    The second point is that I find the intended road to be 
essentially a developmental highway, not a transportation 
corridor. This is a segment of a huge road proposal designed to 
link the interstates and the shopping mall areas, Town Center 
and Cumberland. Others beside me have stated the viewpoint that 
an environmental impact statement was required. In 1994, 
Protect West Cobb wrote in their response to Joint Public 
Notice required by the application that this was ``an improper 
segmentation of a larger road construction project.'' They 
state that due to the magnitude, the project constitutes a 
major Federal action significantly affecting the human 
environment such that an environmental impact statement is 
required pursuant to the law.
    Now most of these segments have been built. Denial of the 
whole scope of the road project is limited to what segments 
remain.
    In the 1980's, Wayne Shackleford characterized roads as 
links to malls.
    Mr. McIntosh. Ms. Lester, I am going to have to ask you to 
summarize the rest of your points.
    Ms. Lester. I certainly will, it is very short.
    I find this a transparent effort to support 
commercialization of existing residential land. I call for an 
environmental impact statement at this juncture.
    The third point is a critical look at the stand-alone 
nature of the road as a Cobb taxpayer. It is unfair to expect 
Cobb residents to bear alone the cost of relieving traffic 
congestion of our Paulding County neighbors. A new traffic 
study will in all likelihood indicate the need for a corridor 
and these commuters do account for a tremendous amount of 
consumer purchases in our malls. But the designation as a 
stand-alone did disguise the pattern and the purpose.
    In summary, I find three errors in the process of planning 
and building these roadways through west Cobb. There is 
intentionality in the error of the West Cobb Traffic Study and 
its subsequent use. There is intentionality in the error of 
segmenting the project artificially to avoid the study of 
environmental impact. There is error in the assignment of 
county taxes to a regional road plan.
    I recommend that the new application for a permit be based 
on a regional traffic study.
    I recommend a study of the impact of a new permit 
application on the human environment.
    I recommend that the State of Georgia become a planning and 
funding partner.
    It is unjust to tax the citizens of Cobb for roads that 
have a State purpose.
    In conclusion, I cast no stones and I blame no persons or 
institutions. It is fortuitous and providential that we 
citizens are able to make use of the checks and balances of 
power between local, State and national governments. My 
neighbors and I choose to live out here on West Sandtown Road 
to enjoy the countryside, the natural beauty and the quiet. We 
want the most to say about our pursuit of happiness. 
[Applause.]
    [The prepared statement of Ms. Lester follows:]
    [GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
    
    Mr. McIntosh. Thank you, Ms. Lester, we appreciate that. 
Represent Barr, did you have any questions?
    Mr. Barr. No.
    Mr. McIntosh. Thank you. The next citizen witness on the 
list was Erin Bout-heilier. And let me mention a couple of the 
other people so you can be on deck, as it were. George Morgan 
will be third and Dr. Sue McCuskey is fourth. Is Erin here?
    [No response.]
    Mr. McIntosh. OK, let us move on to George Morgan. Mr. 
Morgan. And then it will be Dr. McCuskey.

                   STATEMENT OF GEORGE MORGAN

    Mr. Morgan. Good afternoon, Mr. Chairman, Congressman Barr. 
I am George Morgan, I am a general partner in SMG Development 
Associates and president of George S. Morgan Development Co.
    One of our most recent projects, after 25 years of 
development in north Atlanta, is Hamilton Mill in northeast 
Gwinnett County. Hamilton Mill is a 1,400-acre planned 
community with approximately 2,500 homesites, a true home town. 
We also have two golf courses, a town center shopping center 
and other amenities that make Hamilton Mill a self-contained 
residential community.
    In June 1995, my engineer secured a nationwide wetland 
permit from the U.S. Army Corps of Engineers for Hamilton Mill 
under the nationwide permit regulations. The nationwide permit 
delineates existing wetlands in the total site consisting of 
17.6 acres and allowed disturbance of 4.1 acres of the existing 
wetland, authorized creation of a 4.4 mitigation area and 
placed over 15 acres of additional land in perpetual restricted 
covenant. I was told by the Corps of Engineers staff at the 
time that my compliance with the national wetland permit 
satisfied their requirements. While I philosophically do not 
agree with the taking of private land without just 
compensation, I accept the conditions of the national wetland 
permit.
    The problem I am now having is that certain inherent 
changes must occur in developing a large project such as 
Hamilton Mill, over a 6 to 8 year period. I am told by my 
consultants and engineers that the Corps of Engineers now has 
changed their wetland permitting regulations by reducing the 
maximum allowable impacted areas for a single project from 10 
acres to 3 acres. My consultants say that under the revised 
regulations, I must reapply to the Corps of Engineers for an 
individual permit for any disturbed areas. According to my 
consultant, any other developer who has been through this 
process, the individual permit can take from 6 months to a year 
to finalize, not to mention the extra cost. I just might point 
out it took me 2 years.
    The revised nationwide permit regulations are patently 
unfair, unacceptable to those of us who earn our living in the 
marketplace. I am very appreciative of the House Government 
Reform and Oversight Committee's interest in this important 
matter and I am asking for review and reform of the wetlands 
permitting process.
    Reforms that would be most beneficial to a large project 
such as Hamilton Mill are:
    (1) A permitting system that is flexible and lends itself 
to easy and fast revisions for impacted areas.
    Recognition by the regulators that large projects that have 
larger wetland areas should be allowed proportionately larger 
disturbed areas under the national wetland permit. For example, 
a 1,400 acre is subject to the same maximum allowable 
disturbable area of 3 acres as a 10 acre tract.
    These two changes in the process would be of great value to 
developers such as myself and I believe would greatly help to 
preserve the wetlands. Keep in mind that I am a residential 
developer, I develop a place for people to live. We consider 
wetlands, we consider any area that preserves the natural 
beauty of a property to be a great asset. So therefore, we do 
everything in our power to work within the confines of the law 
to preserve those things and to make great access to those 
things. And I will point out that we have had numerous good 
working process with the Corps on other projects and we have 
turned these areas into some of the highlights of our 
development.
    But this particular project, I do not intend to resubmit 
this project to the Corps of Engineers for a chance to review 
this again, since we have made a deal to mitigate approximately 
four to one ratio. In other words, we set aside approximately 
20 acres to their 4.5 acres. The wetlands that exist on my 
property, which were minimal at best, this is an extraordinary 
cost for me and it is an extraordinary cost of the public 
taking of private property, which no compensation has been 
given to anyone, not to mention the process took, as I 
mentioned, almost 2 years and several hundred thousand dollars 
in both time, interest, engineering fees to accomplish, due to 
the bureaucratic indecision of the Corps.
    It would be most unfair to allow the Corps another bite at 
the apple. We are all sensitive to protecting our environment, 
but at the same time, the cost is ultimately passed on to the 
consumers, the people who live at Hamilton Mill.
    I just want to point out that I think that what Mr. 
Shackleford said is really the issue here. We play by the 
rules, we apply, we do everything as we are told, we set aside 
land, we covenant that land for eternity, never to be done 
anything with, we strike a deal and the end result is there is 
no closure, it is not over, it keeps going. If the rules 
change, they get the chance to redo it.
    I say a deal is a deal and let us stick to it and then I 
think that everyone could play by the same rules and there 
would not be near the indecision that takes place now within 
the Corps. I am not sure if this indecision comes through the 
EPA or comes from the Corps itself, but I can tell you on many 
personal instances they have told me that they interpret those 
rules as they see fit and if they see that there is a change, 
whether it be political or whether it be from a written thing, 
they will make those changes on their own accord. So, I feel 
that the rules just keep changing and I am asking you in any 
way, shape or form to establish a set of rules so we all know 
how to play this and do it correct.
    Thank you for your time.
    Mr. McIntosh. Thank you very much, Mr. Morgan.
    Our next witness is Dr. McCuskey and on deck would be Glynn 
Groszmann and Doug Congleton.

    STATEMENT OF DR. SUE MCCUSKEY, ENVIRONMENTAL CONSULTANT

    Dr. McCuskey. Thank you. My name is Sue McCuskey, I am with 
an environmental consulting firm here in Atlanta and I have 
been in environmental consulting for 19 years. I was asked to 
come today and speak by the National Association of Industrial 
and Office Properties.
    And essentially I have a lot of experience with the wetland 
permitting process. I know the wetland folks down in Savannah, 
I have been out in the mud and the dirt with those guys and 
also the folks in the Atlanta office. I have been involved with 
a lot of the resolution really of wetland violation projects 
with both the Corps and the EPA folks. I have a lot of respect 
for the individuals involved in this process. And I think it is 
clear from what we have heard from everyone today here that no 
one is opposed to wetlands, no one wants to destroy wetlands, 
to endanger our water quality. That is not the purpose. On the 
other hand, we do have the Clean Water Act and the purpose of 
that Act is to define and direct protection of what is required 
under the law.
    In the case of the Clean Water Act, there are lots of 
different guidances that have come out in addition to the law. 
These include the section 404(b)(1) guidelines, regulatory 
guidance letters, a number of different even internal memos 
that help define some of the terminology in the wetland 
identification. So there are a number of other things that the 
Corps lives with and the EPA lives with, and as a consultant, I 
live with as well.
    One of the problems that we have all discussed together, 
and I think we would all agree with is that there is no 
distinction between a low quality wetland and a high quality 
wetland. The people who do not deal with wetlands on a daily 
basis expect a wetland to look like the Okefenokee Swamp and it 
does not look like that. There are many times when a wet place 
in the back of a shopping mall is a jurisdictional wetland 
according to the law, and you look at the three parameters and 
yes, it is legally protected. But there seems to be--as you 
mentioned, Representative Barr, there ought to be an element of 
common sense. And I think that we are probably all in agreement 
with that.
    When we talk about destruction of wetlands or, for example, 
on the West Cobb Loop road project, potential impacts to 8 
acres of wetlands, we are not looking at an 8 acre forested 
swamp with lots of wildlife habitat. We are looking at 13 small 
pieces of the edges of wetlands and tremendous cost and effort 
that has gone into protecting as much of those wetlands as 
possible. If the Corps' sole avenue of resolution is to look at 
no impacts to wetlands, then yes, you would have to ignore 
displacement of citizens on West Sandtown Road. But if you were 
to look at the bigger picture, then you would look at human 
impacts as well as wetland and wildlife impacts.
    So we need to have a way to look at the value of different 
wetlands in order to interpret the amount of impact, regardless 
of the total acres.
    I think another thing is that a lot of people do not 
understand the different kinds of permits. There are two major 
kinds--the nationwide permits, which are specifically designed 
for what is legitimately recognized as minor impacts. And they 
were designed just in order to keep the Corps from being 
totally tied up in impacting small areas when people wanted to 
extend their driveway or some minor issue. And then there are 
the larger permits which are the individual 404 permits.
    Keep in mind that with the change in the nationwide 
permits, most people focus in on the nationwide 26, which was 
the most commonly used nationwide permit, and it used to allow 
impacts up to 10 acres if you had a body of water that had less 
than 5 cubic feet per second flow. Most people do not know a 5 
cubic feet per second flow if they ran into one in the mall. 
And I usually define it as something that I could jump over. So 
if your creek is bigger than that, bigger than something I 
could jump and it has greater than 5 cfs flow, then the 
nationwide 26 would not apply. Unfortunately, that makes it 
much more difficult to conceptualize where your permit might be 
a problem. So any impacts to a wetland associated with a larger 
body of water is going to require an individual permit, even if 
it is 0.06 or whatever it is.
    There have been permits filed on individual basis for 
wetlands the size of a tennis table.
    I am out of time.
    Mr. McIntosh. Go ahead and summarize your comments.
    Dr. McCuskey. OK. Because of the change in the allowable 
impacts, allowable acres of impact on the nationwide 26, a lot 
more parties are going to be involved in that and the Corps 
will need more staff in order to evaluate and process those 
impacts--excuse me, those permits. Also, you can no longer 
combine several nationwide permits, even though they may have 
been individually assumed to be of minor impact, when they are 
combined in the 26, you have to combine the acres.
    In addition, there are more permits required of pre-CN, 
that is a pre-construction notification, or restoration plans, 
and 18 of the 39 new nationwide permits require something 
called a compliance certificate even if you have not had to ask 
for a permit in advance.
    The second kind of major permit is the individual permit 
and I have heard people call for an environmental impact 
statement. Actually an individual permit is an environmental 
assessment, it is the same as a NEPA EA. An EIS is 
distinguished only from an EA in that an EIS requires public 
participation notification. On the West Cobb Loop project, 
there was already public notification. That aspect of a NEPA 
process was already satisfied.
    As was mentioned earlier, on an individual permit, there 
are many, many issues beyond wetlands that are addressed, 
including the need and purpose of the project, traffic counts 
and so forth. I am not qualified to evaluate traffic. I am not 
qualified to evaluate the species of fish. I know wetlands, I 
know a lot about wetlands but I could not work for the Corps 
and give my full hearted evaluation of a permit that discussed 
seven or eight different major topics. No one person writes an 
EA or an EIS or an individual permit. It takes the working 
together of a number of skilled professionals and that is why 
it makes it very difficult for them to then come up with a few 
people from the Corps who are very well intentioned and very 
good at recognizing wetlands, but may not have the skills and 
background to do the rest of it.
    So let me just say that I think that in the permitting 
process there are many, many shadings to it that make it very 
difficult and particularly for linear projects where you have 
roads or sewer lines because you cannot define a single and 
complete project if you are building a road from here to 
Tennessee unless you happen to have funding for the entire 
length, and in most cases that does not happen.
    Thank you very much.
    Mr. McIntosh. Thank you very much, Doctor, we appreciate 
you coming by and testifying. Next would be Glynn Groszmann and 
on deck would be Doug Congleton and Jay Weismann testifying for 
Sam Collier.

           STATEMENT OF GLYNN GROSZMANN, SIERRA CLUB

    Mr. Groszmann. Good afternoon. My name is Glynn Groszmann, 
I am the water issue leader for the Georgia Chapter of the 
Sierra Club. I am also the conservation leader for the local 
group of the Sierra Club. These are volunteer positions. My 
occupation is a self-employed environmental consultant, I am a 
certified profession in erosion sediment control. I address a 
number of issues affecting aquatic resources, including 
wetlands delineation and permitting. I am speaking representing 
the Sierra Club.
    The Georgia Chapter of the Sierra Club supports the 
provisions of the Clean Water Act which require the protection 
and conservation of wetlands and we support the U.S. Army Corps 
of Engineers' efforts to administer the act's provisions for 
regulating and permitting activities that affect wetlands.
    Wetlands are vital natural resources that provide crucial 
benefits to the community, including flood control, filtering 
and conversion of toxic chemicals, trapping of sediments and 
natural areas for fish, wildlife, recreation, greenspace and 
biodiversity. When wetlands are destroyed, it is the people of 
the community who pay the price for their loss, while those who 
cause the destruction reap the profits. It is the people who 
have their properties damaged by the increased flooding who pay 
for flood controls and higher insurance rates, who pay the 
higher costs of drinking water treatment, who pay to have 
sediment removed from their lakes and reservoirs and who lose 
the temperature control, oxygen generation, natural 
environments and recreation benefits that wetlands provide.
    The Sierra Club has a slogan that says, ``Not blind 
opposition to progress, just opposition to blind progress.'' 
For many years, mankind viewed wetlands as undesirable wet 
areas filled with mud, insects and reptiles that were no good 
to anyone unless they were drained or filled. However, as 
scientists learned more about not only the plant and animal 
communities that occupy wetlands, but also the processes and 
functions that occur there, it became apparent that wetlands 
provide many benefits to mankind that more than justify their 
preservation. This is especially true here in the north Georgia 
piedmont, where wetlands tend to be smaller and more isolated, 
scattered along streams and around lakes. The rapid pace of 
development caused by the sprawl of urban and suburban areas in 
north Georgia creates an even greater need for the benefits 
that wetlands provide, with increased development and adjacent 
flood plains, high levels of nonpoint source pollution runoff 
from roads and landscaped properties, the huge levels of 
sediment discharged from constructionsites and ever-increasing 
needs for water reservoirs and treated drinking water. It would 
be blind of us to ignore these needs and the benefits wetlands 
provide and allow the destruction of wetlands in the name of 
progress.
    Relaxation or removal of wetlands protections will only 
benefit owners of large tracts of land and will, in fact, cost 
other members of the community either directly by increased 
flooding and polluted water supplies, or indirectly, by higher 
taxes, water bills and insurance rates. In the case of the 
publicly financed West Cobb Loop road project, it seems 
fiscally irresponsible, if not unAmerican, to spend the 
people's tax dollars to destroy natural resources that benefit 
the community, only to have to spend more of the public's money 
in the future to replace the benefits that were destroyed. In 
fact, the West Cobb Loop project is an excellent example of how 
the U.S. Army Corps of Engineers works with developers to help 
them achieve successful projects while preserving and 
protecting wetlands and other aquatic resources.
    We have found the Corps of Engineers to be reasonable and 
competent in enforcing wetlands regulations and that they are 
willing to work with developers who are willing to work with 
them. The West Cobb Loop is an example of a developer, Cobb 
County, who failed to address any of the provisions for 
wetlands protections and now that the Corps has forced them to 
address the wetlands, the county is working with the Corps to 
find a solution that provides a road and preserves the wetlands 
for the community.
    In summary, the Georgia Chapter of the Sierra Club feels 
that the community, developers and the American Congress should 
support the U.S. Army Corps of Engineers in their efforts to 
protect wetlands and other vital natural resources for the 
benefit of all current and future Americans.
    Thank you. [Applause.]
    [The prepared statement of Mr. Groszmann follows:]

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    Mr. McIntosh. Thanks, Mr. Groszmann. Mr. Barr had a 
question for you, and I may have one as well.
    Mr. Barr. Thank you. Mr. Groszmann, focusing not on the 
West Cobb Loop, because I understand your position on that and 
respect it. I think you have done a great deal of work on it.
    Focusing though on Mr. Brown's situation here that I think 
you have heard, we have discussed a great deal about. What are 
the benefits to wetlands that you enumerated--the filtration, 
the cleansing, the wildlife--which one of those would be 
present in a situation like Mr. Brown's that would provide the 
basis on which to prevent him from taking his land and putting 
it back the way it was naturally?
    Mr. Groszmann. I am sorry, I was not here to hear Mr. 
Brown's case, but I did hear enough about it to realize that it 
is the kind of case I think we all hate to hear. And from my 
experiences, I would expect that the Corps would work with him 
if he would work with the Corps. This seems like a very 
difficult situation when things change, I think that might be 
where the Corps has a tough time. As the gentlemen a few people 
ahead of me pointed out how some of the regulations have 
changed since he got his permit. That may be an area that they 
have a hard time deciding for themselves how best to handle 
these situations. I have not ever experienced any maliciousness 
from the Army Corps of Engineers and I do not think they have 
malicious intent. But I certainly do sympathize with Mr. Brown 
and his need to have his property.
    Mr. Barr. If you carry any weight with the Corps, I am sure 
he would appreciate it if you would communicate that to them. 
Thank you very much and I appreciate your thoughts, Mr. 
Groszmann.
    Mr. McIntosh. Mr. Groszmann, let me just ask you to clarify 
one thing you said, and coming in from outside I have learned 
about this preparing for the hearing and obviously have not 
been working on the West Loop situation as much as you and the 
local officials and the Corps have. But you indicated you 
thought Cobb County had failed to address any of the wetlands 
concerns, and it strikes me that you might disagree with them 
about their proposal and maybe they did not go far enough in 
addressing those, but when they came up with a mitigation 
proposal that did try to provide 8 to 1 acres of wetlands for 
the ones that are impacted by this, that they did at least 
think about the problem of wetlands in putting together their 
proposal.
    Mr. Groszmann. I have to disagree with that. The Corps has 
very specific criteria for the order that things have to be 
followed. Mr. Croy, with Cobb County Department of 
Transportation stated those. No. 1 is avoidance, you are 
supposed to show that you tried to avoid impacting wetlands. 
Step No. 2 is minimization of any impacts that are unavoidable. 
Step No. 3 is mitigation and the Corps specifically stated that 
mitigation cannot be the only consideration, that the other two 
have to be given full due consideration first and you cannot 
ignore them and jump straight to mitigation. Cobb County knew 
this when they submitted their plan. Cobb County knows how the 
Corps of Engineers works and I believe they intentionally set 
this up for a failure.
    Mr. McIntosh. OK. So your quarrel is not that they did not 
do any wetlands analysis, it is that they did not do the first 
two correctly and went right to the third.
    Mr. Groszmann. Yes, basically they skipped step No. 1. And 
you cannot go any further without starting at step No. 1.
    Mr. McIntosh. And the other thing that came out in the 
testimony earlier was that there were, I guess, some 
differences on the purpose of the project and that that needs 
to be cleared up first, then you can determine if there are 
other feasible alternatives or if this is the only one and 
therefore, we cannot avoid it altogether. And so I think like 
two ships passing each other in the night not realizing it, if 
you do not agree on that purpose, then the county may have said 
we have a purpose for a limited access freeway and minimizing 
the impacts on families, and there might be as many as 40 
disturbed under one of the alternatives that had fewer impacts, 
although it still had some impact on wetlands, based on the 
testimony earlier today. And that that limited access highway 
may not be for the same purpose that the Corps recognized in 
the proposal, and so they were questioning it because you have 
not told us whether you can do something that has no impact. So 
I think it is going to be key that even before they start the 
wetlands analysis, they reach this understanding about what the 
county is trying to do with the project, and then I think you 
are right, the Corps has a hierarchy that they ask them to 
follow and they need to go through and say OK, we have looked 
to see whether there is a way of avoiding wetlands impact 
altogether. Then the second step of minimizing the impact and 
then the third on mitigation.
    But from what came out today, it looked to me like that 
first precursor to even the wetlands analysis was causing 
different interpretations further down the line.
    Mr. Groszmann. Well, I think it was very important for the 
Corps to understand what are you trying to do here. I do not 
think the Corps can offer suggestions as to if they are not 
happy with alternative No. 1, they cannot suggest what might be 
a viable alternative, if they do not know what the goal of the 
project is. So I agree that it is important that right up front 
it be understood what are we trying to achieve here. Then the 
Corps can come in and say well, you have got three other 
alternatives and it looks like at least one or two of them 
might still meet your goals and meet our goals of minimizing 
impacts to the environment. So you are right, I agree that it 
is crucial that they understand what is the goal. I do not 
believe--I never got the impression that the Corps was ever 
going to reject the permit because they disagreed with the 
purpose. My understanding was they simply needed to understand 
the purpose to be able to work in a cooperative manner.
    Mr. McIntosh. To be honest, it sounds like they had 
different understandings of the purpose.
    Mr. Groszmann. Maybe so.
    Mr. McIntosh. And that was leading to the decision. Let me 
ask you a philosophical question because you seem to be a very 
thoughtful advocate for the environment, and I have run into 
some people who are not so thoughtful, as you are, who also 
disagree with some of the decisions that the government makes.
    How would you in the area of wetlands say that we should 
structure a policy, and let us step way back and say if we 
could start over again, to balance out the needs of a community 
and the families involved in projects. You mentioned some of 
the costs for not considering wetlands, which I think are a 
very valid perspective. But, I guess, would you agree with me 
that we should also consider the costs of not going forward 
with the project, and try to get an understanding of all the 
different impacts on people and the environment and then try to 
make a judgment that maximizes it from the perspective of the 
human population as well as preserving sensitive environmental 
areas?
    Mr. Groszmann. I would have to agree, of course, to looking 
at all the alternatives, including a no-build alternative, have 
to get due consideration. I thought we heard from several 
citizens that live along East Sandtown Road and they were 
talking about how their community was going to be impacted. But 
that community was being impacted, not by wetlands, but by a 
road project. And it seemed somewhat out of place here in a 
wetlands hearing to be complaining about a road project, which 
by and large we found that in Cobb County, the problems that 
currently exist and need for the road, has been created by poor 
planning, by allowing over development, by a lack of searching 
for transportation alternatives, which Sierra Club has tried to 
promote to the county for years and years and years and yet the 
citizens find themselves locked up in traffic jams. We have got 
to have more roads. They are finding that the more roads they 
build, the more congestion they have and it is a vicious cycle 
that is going the wrong way.
    Mr. McIntosh. The other thing that we have discovered in 
other areas is if you do not have adequate transportation 
facilities, then you have other clean air effects and other--I 
mean a lot of different ramifications.
    Mr. Groszmann. Yes.
    Mr. McIntosh. Thank you. I appreciate your coming today and 
your joining in on this process and making your views known to 
us.
    Mr. Groszmann. Well, thank you. I have got something for 
you and the other Congressman. I know you both were very 
envious of my name tag which says ``Be Conservative, Conserve 
Wetlands'' and I would like to give one to each of you. 
[Laughter.]
    Mr. McIntosh. Well, thank you, I appreciate it. [Applause.]
    I think we have time--I had asked Doug Congleton to come 
forward as the next one and Jay Weismann and then we will have 
to just say that is it, but anybody else who had something in 
writing that they would like us to consider as part of the 
record, if you could submit that to Karen--and I apologize, we 
have just run out of time for the rest of the open mic period. 
Mr. Congleton.

   STATEMENT OF DOUG CONGLETON, PRESIDENT, PROTECT WEST COBB

    Mr. Congleton. I will be as brief as I can.
    Mr. McIntosh. Thank you.
    Mr. Congleton. Thank you very much.
    I am a concerned citizen and a resident of west Cobb and 
president of Protect West Cobb, which Laura Lester mentioned 
earlier, a group composed of people, residents, from 12 
different neighborhoods along the Noses Creek alignment. I also 
ran into some of the same problems that Laura ran into in 
trying to testify at this meeting. I just wanted to bring that 
up.
    One problem we have with what is going on is what Glynn 
just talked about. In planning roads, we think the county is 
doing a poor job of planning, and especially in this West Cobb 
Loop situation. This is obviously a much bigger project than 
the 5 miles we are talking about from Dallas Highway to Powder 
Springs Road. It goes all the way from Cumberland Mall to Town 
Center Mall and the county knew that when they started and they 
should have thought about that when they were looking at 
alignments before building the sections of the road outside of 
the West Cobb Loop and now saying that the West Cobb Loop has 
to terminate at Ridgeway Road and at east-west connector.
    They have also allowed some neighborhoods to go in along 
the alignment of the West Cobb Loop that were not there when 
the road was planned. We also think the traffic just does not 
justify or the local traffic does not justify the road between 
Dallas Highway and Powder Springs. If you build the road the 
traffic is going to be there.
    We also are concerned about not only the immediate impact 
to the wetlands along the alignment that has been chosen by the 
county, but we are also very concerned about secondary impacts, 
is what we call them. In my case, I live along the wetlands and 
I am very concerned about when runoff from this road happens 
and during construction of the road when wetlands are being 
filled and backed up, that my home is going to be flooded and I 
know that there are a lot of people along this alignment that 
are very, very concerned about that. As a matter of fact, I 
think the Corps of Engineers had a videotape of a home that was 
along the wetlands that is already being flooded.
    Mr. Croy earlier said the people think no road equals no 
development. And I would tend to agree with him in that that is 
not true. The development is going to come, and I guarantee you 
if the road comes, a four-lane highway, there is going to be 
development and it is going to be major. Just look at either 
end of this road, the east-west connector or up at the mall, 
the development is huge and will take over wetlands in 
immediate impacts and in secondary impacts.
    As far as the mitigation, we have a real question about the 
one purple area that Mr. Croy showed on the map, where they are 
going to create wetlands. If you look at the map closely, this 
is at the intersection of where the West Cobb Loop, a four-lane 
highway, at Macklin Road just now widened to a four-lane 
highway, meet. This is right at the corner of that and if 
somebody can tell me that there is not going to be development 
at a major intersection like that, then I would like to see 
that in writing.
    Mr. McIntosh. Let me interrupt you for just 1 second on 
that.
    Mr. Congleton. OK.
    Mr. McIntosh. If they did put that into a covenant and the 
county bought up the property and put it into the title that 
they could not develop it, does that in your view kind of make 
it a more positive result at the end of the day?
    Mr. Congleton. Well, call me skeptical, but how long would 
that last? And what are the other three corners, the impact on 
those corners, what are they going to do with that area as far 
as runoff from parking lots and other things.
    Mr. McIntosh. OK. Yes, they would need to do the analysis 
for all of it. But OK, thank you, I appreciate it.
    Mr. Congleton. I am concerned that Mr. Brown's problem may 
become my problem when they go back in these wetlands and 
disturb them and then all of a sudden I am going to have a 
wetland in my yard from everything getting backed up and my 
house is going to be flooded and then the Corps is going to say 
you cannot go out and cut your grass. I am worried about his 
problem, I can sympathize with him and I am very concerned 
about that.
    And in conclusion, I would just ask you, Representative 
Barr and Chairman McIntosh, if you want to come on out to my 
house I will take you on a tour of the area, we will have 
breakfast or dinner, we can go look at the traffic and just see 
exactly what this area looks like and what the impacts are 
going to be.
    Thank you.
    Mr. McIntosh. Thank you, I appreciate it. I will have to 
rely on Bob to do that.
    Mr. Barr. The record will reflect that I do live in West 
Cobb, Mr. Chairman, I am very familiar with the specifics of 
what we have been talking about here today and very sensitive 
to both sides.
    Mr. McIntosh. And our last witness is--and I have a note 
that it is Sam Collier, but Jay Weismann will speak in his 
place. Is that correct? Is that how you wanted to do it? Are 
you Dr. Weismann?
    Dr. Weismann. Yes.
    Mr. McIntosh. Welcome and thank you for participating.

                 STATEMENT OF DR. JAY WEISMANN

    Dr. Weismann. Thank you, Chairman McIntosh, Congressman 
Barr. I will be very brief.
    The Atlanta Journal Constitution has spent a good part of 
the past week detailing and comparing metropolitan development 
in Atlanta to other cities, including Toronto, Portland and 
just on the southern end. It clarified that there are right and 
wrong ways to develop. Some of these wrong ways we have been 
engaged in for 30-40 years, an unfortunate result for very 
well-intended policies that in some way positively influence 
many of us. It is easy to go wrong.
    I live in east Cobb, really perhaps one of the most 
polluted areas in the all of Georgia, perhaps the most 
polluted. I do not have children breathing this air. I do have 
children, they are grown and they have moved on. I just bid us 
all to carefully review the excellent studies that have been 
done and with the thought to our future generations, the next 
generation and that following; that we take that into 
consideration in reviewing our development policies.
    Thank you.
    Mr. McIntosh. Thank you very much, Dr. Weismann. 
[Applause.]
    That concludes the testimony for our hearing and let me 
reiterate my thanks to Congressman Barr's staff and Congressman 
Barr for setting up this field hearing. This has been 
enormously helpful to us in the subcommittee and we will take 
all this testimony back with us.
    Bob, did you have any closing remarks that you wanted to 
make? And then we will stand adjourned.
    Mr. Barr. Thank you, Mr. Chairman. I would like to 
reiterate what I told the audience both present here as well as 
listening in the media before your arrival today, and that is 
that we very much appreciate what you have done in bringing 
these hearings out into the real world outside of Washington. I 
know that that is something that you are very committed to, I 
know it is something that Speaker Gingrich is very committed 
to, in the prior Congress and this Congress, to allow citizens 
more direct and easier input into the decisionmaking.
    I think the hearing today was very valuable. I certainly 
learned a lot even though I live in this very community that we 
are talking about with some of these projects, Mr. Chairman, I 
learned a great deal today about what is going on. I have some 
very specific things that I know you and I and others on the 
committee will be looking into.
    I did want to recognize one of our State representatives, 
though she did not testify today, I notice she has sat through 
the hearings, because she is likewise very concerned about this 
and that is State Representative Judy Manning. We very much 
appreciate Representative Manning being here. [Applause.]
    And again, we hope that on your next visit, you will have a 
little bit more time so that we can go out and see actually a 
little bit more of the community and what it represents. It is 
a great community we have here in the Seventh District and we 
appreciate you honoring us with your presence in these 
hearings.
    Mr. McIntosh. My pleasure. Thank you very, very much. And 
by the way, I was remiss in not saying that the ranking 
minority member, Bernie Sanders, indicated that they very much 
appreciated this hearing and one of their Members, Mr. Kucinich 
of Ohio, had endeavored to change a lot of travel plans in 
order to try to be here today and they felt very badly they 
were not able to be part of it, but were looking forward to 
seeing the record and participating in the deliberations of the 
subcommittee.
    With that, the subcommittee is adjourned.
    [Whereupon, at 5:15 p.m., the subcommittee was adjourned.]
    [Additional information submitted for the hearing record 
follows:]



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