[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]
LAND AND MONEY MITIGATION REQUIREMENTS IN ENDANGERED SPECIES ACT
ENFORCEMENT
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
FIRST SESSION
__________
MAY 26, 1999, WASHINGTON, DC
__________
Serial No. 106-34
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/house
or
Committee address: http://www.house.gov/resources
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U.S. GOVERNMENT PRINTING OFFICE
58-723 WASHINGTON : 1999
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana GEORGE MILLER, California
JAMES V. HANSEN, Utah NICK J. RAHALL II, West Virginia
JIM SAXTON, New Jersey BRUCE F. VENTO, Minnesota
ELTON GALLEGLY, California DALE E. KILDEE, Michigan
JOHN J. DUNCAN, Jr., Tennessee PETER A. DeFAZIO, Oregon
JOEL HEFLEY, Colorado ENI F.H. FALEOMAVAEGA, American
JOHN T. DOOLITTLE, California Samoa
WAYNE T. GILCHREST, Maryland NEIL ABERCROMBIE, Hawaii
KEN CALVERT, California SOLOMON P. ORTIZ, Texas
RICHARD W. POMBO, California OWEN B. PICKETT, Virginia
BARBARA CUBIN, Wyoming FRANK PALLONE, Jr., New Jersey
HELEN CHENOWETH, Idaho CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California CARLOS A. ROMERO-BARCELO, Puerto
WALTER B. JONES, Jr., North Rico
Carolina ROBERT A. UNDERWOOD, Guam
WILLIAM M. (MAC) THORNBERRY, Texas PATRICK J. KENNEDY, Rhode Island
CHRIS CANNON, Utah ADAM SMITH, Washington
KEVIN BRADY, Texas WILLIAM D. DELAHUNT, Massachusetts
JOHN PETERSON, Pennsylvania CHRIS JOHN, Louisiana
RICK HILL, Montana DONNA CHRISTIAN-CHRISTENSEN,
BOB SCHAFFER, Colorado Virgin Islands
JIM GIBBONS, Nevada RON KIND, Wisconsin
MARK E. SOUDER, Indiana JAY INSLEE, Washington
GREG WALDEN, Oregon GRACE F. NAPOLITANO, California
DON SHERWOOD, Pennsylvania TOM UDALL, New Mexico
ROBIN HAYES, North Carolina MARK UDALL, Colorado
MIKE SIMPSON, Idaho JOSEPH CROWLEY, New York
THOMAS G. TANCREDO, Colorado RUSH D. HUNT, New Jersey
Lloyd A. Jones, Chief of Staff
Elizabeth Megginson, Chief Counsel
Christine Kennedy, Chief Clerk/Administrator
John Lawrence, Democratic Staff Director
C O N T E N T S
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Page
Hearing held Month Day, 1999..................................... 1
Statement of Members:
Miller, Hon. George, a Representative in Congress from the
State of California........................................ 3
Pombo, Hon. Richard, a Representative in Congress from the
State of California........................................ 1
Prepared statement of.................................... 2
Statement of Witnesses:
Bean, Michael J., Senior Attorney, Environmental Defense
Fund, Washington, DC....................................... 140
Prepared statement of.................................... 142
Bruton, Vinton Charles, North Carolina Department of
Transportation, Raleigh, North Carolina.................... 64
Prepared statement of.................................... 66
Clark, Jamie, Director, U.S. Fish and Wildlife Service,
Washington, DC; accompanied by Mike Spear, Manager,
California-Nevada Operations Office........................ 5
Prepared statement of.................................... 7
Dalton, Penelope, Assistant Administrator for Fisheries,
National Marine Fisheries Service, Silver Spring, Maryland;
accompanied by Jim Lecky, Assistant Regional Administrator
for Protected Resources, Southeast Region; Ted Eutler,
Attorney, National Oceanic and Atmospheric Administration,
Office of General Counsel.................................. 17
Prepared statement of.................................... 20
Questions for Penelope Dalton from the Committee......... 161
Johnston, James R., Counsel, Foundation for Habitat
Conservation, Seattle, Washington.......................... 133
Prepared statement of.................................... 134
Schulz, Dave, Chair, Okanogan County, Okanogan, Washington... 57
Prepared statement of.................................... 59
Additional material submitted by......................... 164
Tsakopoulos, Angelo K., AKT Development Corporation,
Sacramento, California..................................... 109
Prepared statement of.................................... 112
Weinberg, Edward R., National Association of Home Builders,
Washington, DC............................................. 119
Prepared statement of.................................... 120
Weygandt, Robert M., Chairman, Board of Supervisors, Placer
County, California......................................... 52
Prepared statement of.................................... 53
Worden, Dwight C., Brondi Development, Incorporated, Fair
Oaks, California........................................... 123
Prepared statement of.................................... 126
Workman, William P., City Manager, City of Corona, Corona,
California................................................. 42
Prepared statement of.................................... 44
Additional material supplied:
Nielsen, J. Mark, Chairman, Board of Directors, El Dorado
County Water Agency, prepared statement of................. 159
OVERSIGHT HEARING ON LAND AND MONEY MITIGATION REQUIREMENTS IN
ENDANGERED SPECIES ACT ENFORCEMENT
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WEDNESDAY, MAY 26, 1999
House of Representatives,
Committee on Resources,
Washington, D.C.
The Committee met, pursuant to notice, at 10:13 a.m., in
Room 1324, Longworth House Office Building, Hon. Richard Pombo
presiding.
STATEMENT OF HON. RICHARD POMBO, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Pombo. [presiding] Good morning. I would like to
welcome you all here today to this oversight hearing of the
Committee on Resources on how mitigation is used in the
enforcement of the Endangered Species Act. Chairman Don Young
is not able to be here today and has asked that I Chair this
hearing.
Today, we are going to hear testimony regarding the
experience of a number of communities and private property
owners regarding their efforts to work with the Fish and
Wildlife Service and National Marine Fisheries Services to
obtain permits and approvals to use either private property or
provide public services at the local level.
The Endangered Species Act prohibits the take of threatened
or endangered species and also prohibits the take of the land
on which they live. This means that a property owner whose land
is found by the government to be habitat for a listed species
cannot use his or her land without the risk of criminal and
civil prosecution under the Endangered Species Act. In 1982,
Congress amended the ESA to allow these property owners to
obtain what we call an ``incidental take permit'' so that they
can use their property as long as their take of species or its
habitat is only incidental to an otherwise legal use of the
property. Within the last four years, the Fish and Wildlife
Service and the National Marine Fisheries Service has issued
over 250 incidental take permits.
In addition, if the use of private land depends on a
Federal permit of any type, the Fish and Wildlife Service and
National Marine Fisheries Service also require a section 7
consultation. This is particularly prevalent where there are
wetlands and the Corps of Engineers must issue a wetlands
permit.
Landowners who find themselves needing a permit are being
asked to mitigate for the loss of species habitat on their land
by either setting aside a portion of the property they own or
paying money for the purpose of buying land elsewhere. This is
a growing industry, particularly in California where the great
majority of mitigation is required.
The purpose of our hearing is to examine how this system is
working. I am concerned about the potential for abuse of
landowners who may not be in the position to bargain over the
amount of mitigation being required. Do these demands for
mitigation violate the Fifth Amendment of the Constitution? The
Supreme Court has addressed this issue in the case of Florence
Dolan v. City of Tigard and found that there are limits on the
amount of mitigation or exactions that can be demanded from
private property owners.
The Federal Government has required private property owners
around the country to pay more than $62 million to various
parties as a condition of obtaining section 10 permits. This
does not include the value of the land they have required to be
set aside and protected ``in perpetuity.'' This Committee will
examine how these funds are spent and whether they are being
spent wisely.
Let me say to our witnesses that we appreciate your coming
here today to testify regarding your experiences. I realize
that there are many individuals who are truly afraid to make
their concerns public or to share their experiences for fear of
retribution and retaliation. Under the ESA, these Federal
agencies exercise great power over the lives of the people who
live in the areas where there are endangered species. They can
literally destroy a small business just by refusing to process
a permit or complete a consultation. So, I know the risks you
are taking, and I want to thank you for living up to your
responsibility as good citizens.
With that in mind, I ask Director Clark to listen closely
to the testimony of the other witnesses. Director Clark and I
have had several conversations about the future of the species
protection and recovery in this country, and although we may
not see eye to eye on the best way to improve our Federal laws
on this issue, I respect and hold her views in high regard.
Since she took the reign two years ago, I believe she has put
forward a genuine effort to positively address concerns raised
by this Committee. However, as today's testimony will echo,
these exact concerns have been routinely disregarded by the
Fish and Wildlife Service regional offices. Therefore,
responsibility for failure to follow policy by agency staff and
employees has to fall into the Director's lap.
[The prepared statement of Mr. Pombo follows:]
Statement of Hon. Richard Pombo, a Representative in Congress from the
State of California
Good Morning. I would like to welcome all of you today to
this oversight hearing of the Committee on Resources on how
mitigation is used in the enforcement of the Endangered Species
Act. Chairman Don Young is not able to be here today and has
asked that I chair this hearing.
Today, we are going to hear testimony regarding the
experience of a number of communities and private property
owners regarding their efforts to work with the Fish and
Wildlife Service and the National Marine Fisheries Service to
obtain permits and approvals to use either private property or
provide public services at the local level.
The Endangered Species Act prohibits the take of threatened
or endangered species and also prohibits the take of the land
on which they live. This means that a property owner whose land
is found by the government to be habitat for a listed species
cannot use his or her land without the risk of criminal and
civil prosecution under the ESA. In 1982, Congress amended the
ESA to allow these property owners to obtain what we call an
``incidental take permit'' so that they can use their property
as long as their take of the species or its habitat is only
incidental to an otherwise legal use of the property. Within
the last four years the Fish and Wildlife Service and the
National Marine Fisheries Service has issued over 250
incidental take permits.
In addition, if the use of private land depends on a
Federal permit of any type, the Fish and Wildlife Service and
NMFS also require a section 7 consultation. This is
particularly prevalent where there are wetlands and the Corps
of Engineers must issue a wetlands permit.
Landowners who find themselves needing a permit are being
asked to mitigate for the loss of species habitat on their land
by either setting aside a portion of the property they own or
paying money for the purpose of buying land elsewhere. This is
a growing industry, particularly in California where the great
majority of mitigation is required.
The purpose of our hearing is to examine how this system is
working. I am concerned about the potential for abuse of
landowners who may not be in a position to bargain over the
amount of mitigation being required. Do these demands for
mitigation violate the 5th Amendment of the Constitution. The
Supreme Court has addressed this issue in the case of Florence
Dolan v. City of Tigard and found that there are limits on the
amount of mitigation or exactions that can be demanded from
private property owners.
The Federal Government has required private property owners
around the country to pay more than $62,354,875 to various
third parties as a condition of obtaining section 10 permits.
This does not include the value of land they have required to
be set aside and protected ``in perpetuity.'' This Committee
will examine how these funds are spent and whether they are
being spent wisely.
Let me say to our witnesses that we appreciate your coming
here today to testify regarding your experiences. I realize
that there are many individuals who are truly afraid to make
their concerns public or to share their experiences for fear of
retribution or retaliation. Under the ESA, these Federal
agencies exercise great power over the lives of the people who
live in areas where there are endangered species. They can
literally destroy a small business just by refusing to process
a permit or complete a consultation. So I know the risk you are
taking and I want to thank you for living up to your
responsibility as good citizens.
With that in mind, I ask Director Clark to listen closely
to the testimony of the other witnesses. Director Clark and I
have had several conversations about the future of species
protection and recovery in this country, and, although we may
not see eye to eye on the best way to improve our Federal laws
on this issue, I respect and hold her views in high esteem.
Since she took the reigns two years ago, I believe she has put
forward a genuine effort to positively address concerns raised
by this Committee. However, as today's testimony will echo,
these exact concerns have been routinely disregarded by the FWS
regional offices. Therefore, responsibility for failure to
follow policy by agency staff and employees has to fall into
the Director's lap.
Before I introduce our witnesses, I would recognize our
ranking minority member for his opening statement.
Mr. Pombo. Before I introduce our witnesses, I would
recognize our Ranking Member for his opening statement. Mr.
Miller.
STATEMENT OF HON. GEORGE MILLER, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Mr. Miller. Thank you very much, Mr. Chairman, and I thank
you for calling this hearing, and I welcome our witnesses
today, and I look forward to their testimony on the ESA
implementation.
We are all naturally concerned about ongoing ESA disputes
that pit development against species and their habitat. I, for
one, would welcome the opportunity to legislate in a
responsible way on this issue, because I think that all parties
deserve a better ESA management and enforcement program than
exists today.
It is clear that the major objectives to this law is not
being currently met. More than 1,800 species are already
listed, and the number is going to continue to grow as more and
more habitat is lost. The United States has lost approximately
117 million acres of wetlands in the lower 48; 25 million acres
of ancient forest in the Northwest; 22 million acres of native
grasslands just in California. Our national forests contain
nearly 360,000 miles of road, 8 times more than the interstate
highway system. As States like California continue to grow, the
conflicts will continue to mount. While some of the witnesses
will tell us that the Fish and Wildlife Service has been making
the law operate more effectively and fairly, others, I
understand, will focus on the remaining delays and obstacles
and question whether the costs of mitigation are authorized
under law.
The Endangered Species Act requires the activities that
will impact listed species must be minimized and mitigated.
This is not new nor is it unique to the ESA. The Clean Water
Act, the National Environmental Policy Act, and many other laws
require that Federal agencies and private landowners mitigate
their negative impacts on the environment just as many county
and city planning commissions do in terms of the human
environment. I hesitate to think of how unpleasant it would be
if we lived in a U.S. where these laws did not exist and
mitigation was not required.
We will also hear that the Fish and Wildlife Service is
hopelessly slow in processing permits to allow development to
move forward, particularly in the rapidly growing areas of the
country, like California. These delays cost time and money,
and, frankly, they concern me. The biggest cause of delays,
some will tell us, is inadequate staffing yet, ironically, just
a year ago, this Committee was holding hearings to criticize
Fish and Wildlife Service for putting too many staff in Region
1 and neglecting other areas of the country. Well, you can't
have it both ways. You can't criticize Fish and Wildlife for
using its limited resources where the biggest demands are and
then criticize them when they are not doing the job fast
enough. If this Committee wants the Fish and Wildlife Service
to be able to do its job in a timely manner, then we need to
provide the financial and personnel resources that are
required, and to stop wasting time with endless congressional
inquiries and subpoenas for information that divert staff from
the job the witnesses and the people here today want to see
done.
The bottom line is that the overwhelming majority of
Americans support the recovery the endangered species just as
they support the laws that ensure that we have clean water and
clean air. The leadership of the Resources Committee should
demonstrate its willingness to write comprehensive reform
legislation to reauthorize the Endangered Species Act that will
ensure that we recover the species and get them off the list.
This is the real way to reduce the restrictions on landowners.
Thank you.
Mr. Pombo. Thank you. I ask unanimous consent that all
other opening statements be included in the record.
I would also like to ask unanimous consent that Mr.
Hastings from Washington be allowed to sit on the dais and
participate in the hearing.
I would like to welcome our first panel. The Honorable
Jamie Clark, Director, U.S. Fish and Wildlife Service, Ms.
Penelope Dalton, Mr. William P. Workman, Mr. Robert M.
Weygandt, Mr. Dave Schulz, and Dr. Vinton Charles Bruton, join
us at the witness table, please.
Before you all sit down, I would like you to stand and
raise your right hand to take the oath.
------------
Oath: Do you solemnly swear or affirm under the penalty of
perjury that the responses given and statements made will be
the whole truth and nothing but the truth?
[Witnesses sworn.]
Let the record show they all answered in the affirmative.
Thank you very much.
I would like to welcome you all here today, and, Ms. Clark,
we will start with you.
STATEMENT OF JAMIE CLARK, DIRECTOR, U.S. FISH AND WILDLIFE
SERVICE, WASHINGTON, DC; ACCOMPANIED BY MIKE SPEAR, MANAGER,
CALIFORNIA-NEVADA OPERATIONS OFFICE
Ms. Clark. Thank you, Mr. Chairman. Good morning, Mr.
Chairman and members of the Committee.
I really do appreciate this opportunity to discuss section
7 and section 10 implementation under the Endangered Species
Act. I am accompanied by Mike Spear, the Manager of the
California-Nevada Operations Office and other key folks in
California.
The Fish and Wildlife Service is working with many partners
to provide flexibility and certainty in the way we administer
the Endangered Species Act. We have instituted many reforms
during this administration to make the Act work better for both
people and species, and our reforms are paying off. The United
States economy has never been stronger; at the same time, more
species are being protected and recovered than ever before. The
American public has demonstrated that they want to preserve our
national heritage while allowing economic development to
continue. We are achieving that goal through the Endangered
Species Act.
Consultation, habitat conservation planning, and recovery
workloads have increased dramatically at the same time that the
administration has been working to streamline implementation of
the law. Fulfilling the President's Fiscal Year 2000 budget
request for endangered species is essential to enable the
Service to support the increasing technical assistance requests
from private landowners and to expedite consultation and
permitting actions throughout the Nation. I urge the Congress
to adopt the President's budget request for the Endangered
Species Program for Fiscal Year 2000.
I would like to explain to the Committee how the term
``mitigation'' is applied in the context of the Endangered
Species Act since it is often misunderstood. Mitigation refers
only to activities that may be done to offset or rectify the
impact of an action. Avoiding or reducing the impact is
referred to as minimization. Though the Service tries to
distinguish among the many forms of the term ``mitigation,''
applicants, action agencies, and, as you stated before, even we
sometimes use the term broadly. This leads to confusion over
the difference between minimization and mitigation under the
Endangered Species Act.
Under section 10, the Service helps the applicant identify
the minimization and mitigation actions required to reduce or
offset potential adverse effects of a proposed activity on a
species covered the Habitat Conservation Plan. The law requires
that applicants minimize and mitigate the effects of their
actions to the maximum extent practicable.
Minimization and mitigation requirements can take many
forms depending on the habitat needs and the individual status
of the species and the size and scope of the project. Because
applicants come to us with many types of projects that vary in
size, scope, and impact, we try to be flexible in meeting the
needs of the applicants. We don't use a cookie cutter approach
in developing HCPs.
During the section 7 consultation process, the Federal
action agency and the Service may work together to identify
what measures may be incorporated into a proposed project to
avoid jeopardy and to minimize the effects on listed species.
Because they are incorporated into the project before the
Service completes a biological opinion, it is not mitigation in
the same way that it is used under section 10.
I am mindful, Mr. Chairman, that the Committee believes
that the Fish and Wildlife Service required mitigation through
reasonable and prudent measures on some occasions. I have
received Chairman Young's letter earlier this month that raises
this concern in detail. I take this issue very seriously and
will look into it closely in concert with the regional
directors who are responsible for implementing the consultation
program in the regions. Specifically, I will review the
projects that were raised in the letter to determine if the
guidance concerning the scope of reasonable and prudent
measures is being adhered to consistently across the country.
In closing, I would like to address the demands facing the
Fish and Wildlife Service nationwide that challenge our ability
on an ongoing basis to make the Endangered Species Act work.
For example, California--your home State--is facing rapid
population growth and urbanization and has more federally
listed species today than any other State except for Hawaii.
The challenges in California are especially difficult in
offices like Carlsbad where we have many entities seeking
immediate assistance in project planning related to listed
species, wetlands, and other natural resource issues. I have
seen a copy of the letter sent to this Committee by 26
California members that asked Chairman Young to enlist the
General Accounting Office to review the work of our Carlsbad
office. We welcome this opportunity to have an objective third
party look at and explain to the public the demands and
expectations put on our Carlsbad office, very much
representative of what is happening nationwide.
I am proud of the hard work that our dedicated Fish and
Wildlife Service employees do all over the country to further
our mission, while addressing the needs of private landowners
and species conservation.
Thank you, Mr. Chairman. I would be happy to answer any
questions.
[The prepared statement of Ms. Clark follows:]
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Mr. Pombo. Thank you.
Next, we have Ms. Dalton who is the Assistant Administrator
for Fisheries, National Marine Fisheries Service.
STATEMENT OF PENELOPE DALTON, ASSISTANT ADMINISTRATOR FOR
FISHERIES, NATIONAL MARINE FISHERIES SERVICE, SILVER SPRING,
MARYLAND; ACCOMPANIED BY JIM LECKIE, ASSISTANT REGIONAL
ADMINISTRATOR FOR PROTECTED RESOURCES, SOUTHEAST REGION; TED
EUTLER, ATTORNEY, NATIONAL OCEANIC AND ATMOSPHERIC
ADMINISTRATION, OFFICE OF GENERAL COUNSEL
Ms. Dalton. Mr. Chairman and members of the Committee, I am
pleased to be here today on behalf of the National Marine
Fisheries Service. Accompanying me is Mr. Jim Lecky, Assistant
Regional Administrator for Protected Resources for NMFS'
Southeast Region, and Mr. Ted Eutler, Attorney in NOAA's Office
of General Counsel. NOAA is a partner with the Fish and
Wildlife Service in administering the ESA and works with other
Federal agencies, States, counties, tribes, and private
landowners to carry out its requirements.
Mr. Pombo. Ms. Dalton, could I have you just pull the mike
just a little----
Ms. Dalton. Sure.
Mr. Pombo. Thank you.
Ms. Dalton. Attached to my written testimony is a summary
of all section 10 incidental take permits or Habitat
Conservation Plans (HCPs) that currently are being monitored or
negotiated by NMFS. To date, we have issued only one major
permit and that was to PALCO this year in California. However,
we are a party to four implementing agreements associated with
section 10 permits issued by the Fish and Wildlife Service in
the Pacific Northwest. In addition, we currently are
negotiating about 35 additional HCPs. Most of these agreements
involve management of large tracts of timber in the Pacific
Northwest and northern California. None of the permits or
agreements that we have issued to date require mitigation
payments or mandatory set asides of property. While we have
rarely used off-site mitigation, we believe it is appropriate
where habitat losses are unavoidable, such as compensating for
the mortality of juvenile salmon in the operation of specific
hydro-electric dams.
One example which demonstrates our commitment to working
with private landowners and carrying out our ESA
responsibilities is the PALCO HCP. This plan is being
implemented through a section 10 incidental take permit and
consists of interrelated elements to minimize, mitigate, and
monitor the effects of timber harvesting activities on aquatic
species. Prescriptive measures for any permit activity can be
modified based on watershed analysis, new scientific studies,
and monitoring as long as the plan continues to meet the
objective of maintaining or achieving necessary habitat
functions for threatened or endangered aquatic species.
Although PALCO and other timber related permits require
management of riparian buffers, this is not a permanent set
aside of private land. At the end of the permit period or
sooner, if new information indicates it is appropriate or the
species recovers, these areas could become available for timber
activity. In addition, some riparian buffers are not off limits
to harvest, and they even require cutting for effective
management.
One important point is that in exchange for agreeing to
carry out certain measures to minimize or mitigate effects of
actions on listed species, the landowner receives an ESA
exception. In addition, the landowner receives assurances that
the government will not come back for the lifetime of the
permit and ask for more land, water, or money that was not
provided for in the permit or its implementing agreement. This
assurance is a key element of the Administration's ``No
Surprises'' policy which the Services put into place last year.
With respect to section 7, NMFS works with Federal agencies
and applicants to minimize the impacts of taking listed species
incidental to projects authorized, funded, or permitted by
those agencies. NMFS does not require payments into any kind of
fund or mitigation bank as a reasonable or prudent measure in
an incidental take statement. Measures which we have proposed
have ranged from habitat restoration, inner-bank stabilization
projects, to permitting an activity at a time of year when it
will have the least impact on a species. For example, time-of-
year restrictions are used for such activities as fishing,
dredging, and general construction.
NMFS has made significant progress over the past five years
in making the ESA more workable for the American people. First,
we partnered with the Fish and Wildlife Service to issue joint
guidance on conducting section 7 consultations and developing
HCPs. The HCP handbook includes guidance for evaluating whether
plans will be effective and accomplish minimization and
mitigation goals. The section 7 handbook is extremely useful to
Federal agencies and their applicants, because it tells them
what to expect when they enter into the consultation process.
Second, we have worked within NMFS to make sure that our
regions receive the guidance needed to implement the ESA fairly
and consistently. The policies and regulations that are now in
place should provide economic assurances and greater
certainties to landowners. In addition, they have strengthened
cooperation among Federal, State, and local officials and non-
governmental groups and private citizens.
In addition to its ESA program, NMFS has initiated habitat
restoration projects in many parts of the country. These
projects contribute to the recovery of listed species and
encourage local community involvement. One example is the
Haskell Slough in Washington State where NMFS supplied initial
funding and worked with State and local partners to implement a
plan for restoring habitat. Participants included Northwest
Chinook Recovery, private landowners, Trout Unlimited, the
Upper Skagit Indian Tribe, People for Salmon, Washington
Department of Fish and Wildlife, and others. Volunteers dug
ditches and moved earth to reconnect the Slough to the
Skionmish River, providing salmon with 3.5 miles of critical
habitat they need to spawn, feed, and grow. Adult salmon
returned to these streams within 24 hours of its opening last
November. This is habitat salmon once had access to and now
have access to again.
Finally, the Administration has requested substantial
increases in the Fiscal Year 2000 budget for recovery of
protected species, conserving ocean biodiversity, and
enforcement and monitoring. The salmon initiative is an
ambitious approach that challenges State, local, and tribal
authorities to take the lead in developing recovery plans with
Federal guidance and assistance. The request will establish a
Pacific Coastal Salmon Conservation Fund to be matched dollar
for dollar with non-Federal contributions and made available
for agreements with the Pacific States.
In summary, recovering threatened and endangered species is
an enormous challenge with profound social, economic, and
ecological implications. With budgetary investments and a
commitment to making it work, we believe the ESA can be
implemented without unnecessary economic burden on any sector
of the economy.
Mr. Chairman, this concludes my testimony. I would be
pleased to respond to any questions.
[The prepared statement of Ms. Dalton follows:]
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Mr. Pombo. Thank you.
At this time, I would like to recognized Mr. Calvert.
Mr. Calvert. Thank you, Mr. Chairman. I am happy to
recognize my good friend and the city manager of the city of
Corona, Bill Workman, who is with us today and his able
assistant Laura Manchester who is in the audience. The city of
Corona is a growing city right next to Orange County. It is
right in the heart of southern California. It is probably, if
not the fastest-growing city in the United States right now, it
is probably in the top 10, and it is difficult to balance the
needs of a city--crime, fire protection, parks, open space,
water, a multitude of problems that face any community--and,
certainly, we have our fair share of problems regarding ESA and
mitigating for ESA, and I think Mr. Workman will point out that
it is not mitigation that we are concerned about, it is
reasonable mitigation, and I look forward to his testimony, and
I appreciate you giving me the opportunity to introduce Bill
Workman.
Mr. Pombo. Mr. Workman?
STATEMENT OF WILLIAM P. WORKMAN, CITY MANAGER, CITY OF CORONA,
CORONA, CALIFORNIA
Mr. Workman. Thank you, Mr. Chair and members of the
Committee. As Mr. Calvert indicated, I am Bill Workman, the
city manager of Corona, California, and I am appreciative of
your invitation to speak today on the effectiveness of the Fish
and Wildlife Service and its administration of its regulatory
duties as well as improving its service to clients, such as the
city of Corona. I have submitted a written statement which I
will briefly summarize.
Let my message to you begin by saying that changes are
needed in the operation of the Fish and Wildlife Service's
Carlsbad office. Based on our experience in Corona, changes are
specifically needed in two areas. First, the timely processing
of environmental clearances under Federal regulations and,
second, the acceptance of mitigation plans that reasonably
compensate for justifiable environmental impacts. I speak to
you on this subject from a base of 20 years experience serving
communities both as an administrator and a planner. My
experience includes resolving difficult environmental issues in
communities located in Los Angeles, Orange, San Diego, and
Riverside County. I am personally and professionally committed
to ensuring that critical environmental habitat be protected in
balance with the land use needs of our human population.
It is with this background that I will relate to you our
frustrated efforts to reach closure on a project known as
Corona's Operations and Maintenance Manual. This project is
illustrative of the problems that need to be addressed in the
Carlsbad office of the Fish and Wildlife Service. In short
form, the city of Corona conducts municipal operations and
maintenance activities for a variety of public facilities
within the Prado Basin in southern California. These activities
occur on land that is owned by the city as well as leased from
the Army Corps of Engineers.
At the urging of the Army Corps of Engineers and the Fish
and Wildlife Service, the city of Corona, five year ago, began
development of a Prado Basin Operations and Maintenance Manual.
The manual's intent is twofold: one, protect critical habitat,
and, secondly, permit the city to conduct its routine
maintenance and operations activities.
After hundreds of hours of work, hundreds of thousands of
dollars of investment and multiple agency reviews, we submitted
the Operations and Maintenance Manual through the Army Corps of
Engineers to the Fish and Wildlife Service for a section 7
consultation on March 17, 1998. The Corps formally requested of
Fish and Wildlife a section 7 consultation on May 20, 1998.
More than a year later, I sit before you with the United States
Fish and Wildlife Service refusing to initiate a formal section
7 consultation, a clear disregard for the processing deadlines
detailed in Federal regulations. I sit before you with a crazy
quilt of oral and written explanations why the Fish and
Wildlife Service cannot do its prescribed duties.
Most distressing in this process was the outrageous demands
for mitigation that are both physically and financially
punitive. I direct your attention to the Fish and Wildlife
Agency's letter of August 4, 1998. It is listed as exhibit 3 in
our documents. Here is where in writing they seek 3 to 1
mitigation and also 10 to 1 mitigation--threaten 10 to 1
mitigation for routine city operations and maintenance. We are
not talking about new construction but just the routine
operations and maintenance. They have additionally told us that
they have to have mitigation for maintenance activities that
have occurred in past years but which has not been mitigated to
their satisfaction. To translate that, what that means is that
the Fish and Wildlife Service wants retroactive mitigation for
the city's 30 years of doing day-to-day things, such as mowing
the ballfields in our parks, and this mitigation is on top of
mitigation the city has already provided in nine mitigation
sites through the Prado Basin.
Let me say that I thank you for calling this hearing today.
We believe that it is important to gain a better understanding
of the procedures and mitigation requirements employed by the
Fish and Wildlife Service, particularly in Carlsbad, in their
implementation of the Endangered Species Act. We urge the
Committee to seek timely section 7 consultations from the
Carlsbad office as well as adhere to reasonable mitigations for
maintenance of public facilities.
That concludes my remarks. Thank you.
[The prepared statement of Mr. Workman follows:]
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Mr. Pombo. Thank you.
Mr. Weygandt.
STATEMENT OF ROBERT M. WEYGANDT, CHAIRMAN, BOARD OF
SUPERVISORS, PLACER COUNTY, CALIFORNIA
Mr. Weygandt. Thank you, Mr. Chair and members of the
Committee. I appreciate the opportunity to speak before you
today.
My name is Robert Weygandt. I am chairman of the Placer
Country Board of Supervisors. I have submitted my written
testimony, and, today, I would like to, I think, emphasize,
summarize three key points.
First, we believe that the Endangered Species Act needs to
be implemented in a way that preserves and emphasizes local
land use planning controls. We think that this can actually be
done in a very effective way that integrates the mission of
Fish and Wildlife and other agencies.
Second, I would like to support a notion that a market-
based approach to supporting these missions is probably the
best way to bridge the challenges that face the Service as well
as those of us at a local level and especially the private
sector players.
Third, Fish and Wildlife recently, in our jurisdiction,
have been dealing with what they refer to as service area
impacts or, according to California Environmental Quality Act
law, we refer to it as cumulative impacts on a project, and I
would like to develop some discussion about that.
A little bit of background about Placer County. It starts
at the Valley floor of Sacramento at an elevation that is
almost zero and extends all the way up to Lake Tahoe. So, it
includes a very diverse and complicated habitat; also provides
for our residents a tremendous quality of life, but it reflects
a complex set of circumstances by which to deal with these
issues before us today. It also, in that it has that quality of
life, has been one of the fastest growing counties in the State
of California. Our population has grown from about 170,000
people to 220,000 people over the last 10 years; that is a
growth rate of 30 percent. And by the year 2010, we are
expected to house about 350,000 residents. That is a doubling
of our population in 20 years, and it will require an
additional 50,000 dwelling units.
With regards to preserving local control over the decision-
making process, the county adopted its most recent general plan
in 1994, and it includes, in that general plan, a huge set of
items that are the concerns of the Federal regulatory agencies.
In addition to that, recently, in April of 1998, the board of
supervisors implemented what we call Placer Legacy Open Space
Conservation Project. That is a huge undertaking that is an
effort to essentially implement the open space policies of the
1994 general plan. A component of that we will hope will be the
successful completion of Natural Communities Conservation Plan,
or an NCCP. And, again, one of the key goals of doing that is
to create a much more clear set of rules and regulations and
permitting processes and emphasize that permitting down at the
local level but in fact with compliance of the mission of
especially Fish and Wildlife.
We believe that this is the most effective way to deal with
these issues, because, in fact, we believe that at the local
level our constituents have a better voice in this effort, and,
in fact, it is not in conflict with the mission of Fish and
Wildlife or other Federal regulatory agencies but in fact is in
concert with them. We think, in fact, that if you consider our
review processes at the local level that in fact it would be
simple for the Service to focus in and integrate their efforts
with ours, and in fact the county--we have a culture of
actually requesting that to happen up-front, and we have
experienced good success on that basis.
With regards to the market-based approach to trying to
achieve these goals, the county in its general plan does not
focus on attempting to be confrontational with private property
rights, market economics, or, in fact, individual freedoms,
but, in fact, to embrace those. And we have some good examples
that reflect the results of that in the county. We have a
privately--perhaps the first permitted privately owned
mitigation bank. It provides a streamlined process for
developers to buy inexpensive credit. It has created some great
habitat. We have some premium priced lots that are open space
lots adjacent to nice habitat. The enforcement of the
protection of those is done through the county's planning
department as well as homeowners associations, so the cost is
low, and our business community enjoys a much higher level of
predictability as to their operations, because they are
protected from incompatible uses by our general plan.
We also think, though, that in our recent experiences, the
Service especially needs to focus on what they call service
area impacts in their review. Recently, we have seen some
letters and memorandums that basically reflect the notion that
if you have, let us say, 5 projects that require disturbance of
2 acres each, that if you approve one of those, it has an
impact of disturbing 2 acres, but taken all 5 together, it
would have more than a cumulative impact of the 10 acres. We
actually think that this concept has merit, but, in fact,
according to CEQA and our planning review process, we already
consider that, and the key problem we have had recently is that
there have been recent public infrastructure projects that are
required to support existing entitlements that in fact are
basically having to go through that cumulative impact review
process twice. So, we think that there is a great role there
for review and streamlining and probably renovation of that
policy.
In conclusion, our goal as a county is to up-front try to
deal with these issues so that we are consistent with not only
the goals of our constituents but the mission of protection of
endangered species as well as ``no net loss'' policy, and in
that effort we think there are great opportunities. Thank you.
[The prepared statement of Mr. Weygandt follows:]
Statement of Robert Weygandt, Chair, Board of Supervisors, Placer
County, California
Mr. Chairman and Members of the Committee:
Thank you for this opportunity to share with the Committee
the experiences of Placer County in working with the U.S. Fish
and Wildlife Service to satisfy the mandates of the Federal
Endangered Species Act. As I will describe in more detail
below, by seeking to anticipate and address endangered species
issues rather than react to crises once they emerge, Placer
County is looking to approach endangered species regulatory
requirements in a way that harmonizes property rights with
natural resources imperatives by relying on local land use
planning.
I. INTRODUCTION
Placer County rises from the expansive grasslands of the
Sacramento Valley to the spectacular shores of Lake Tahoe high
in the Sierra Nevada mountain range. This geologic and climatic
diversity makes Placer County home to a rich variety of plant
and animal species and contributes to the County's reputation
as one of the scenic treasures of California.
Over the last 150 years, much of the County's once vast
grasslands, woodlands, and riparian areas has been dedicated to
urban, rural, suburban, industrial, and agricultural uses.
Today, Placer County is one of the fastest growing counties in
California. Since 1990, the County's population has grown from
170,000 to about 220,000, an increase of nearly 30 percent. By
2010, nearly 350,000 people are projected to live in the
County, representing a doubling of the population in 20 years
and requiring the addition of nearly 50,000 units to the
present housing stock. Looking even further into the future,
the California Department of Finance projects a population of
522,214 persons at the year 2040.
Residents and businesses continue to be attracted to Placer
County by the opportunity to live, work and recreate in a place
of such remarkable natural beauty. As more and more people are
lured to Placer County, the region risks losing the natural and
scenic qualities which distinguish it from other places in the
country--unless it engages in thoughtful planning for its
future.
General Plan. To begin to address this need, in August of
1994, Placer County adopted a new General Plan containing a
number of goals and policies to ensure that there is a balance
between growth, economic development and the health of the
environment. For example, the General Plan provides that fish
and wildlife habitat is to be protected, restored and enhanced
to support fish and wildlife species so as to maintain
populations at viable levels. It specifies that open space and
natural areas are to be of sufficient size to protect
biodiversity, to accommodate wildlife movement and to maintain
self-sustaining ecosystems. It also prescribes that wetland
impacts are to be reduced to a point of no net loss of habitat
area, function and values. To implement these and other
policies and goals, the General Plan requires the development
of comprehensive implementation programs to preserve a
sufficient quantity of Placer County's natural inheritance to
maintain a high quality of life and an abundance of diverse
natural communities, while supporting the economic viability of
the County and enhancing property values.
Placer Legacy Open Space Conservation Project. To this end,
in April, 1998 the Placer County Board of Supervisors
authorized planning staff to proceed with the Placer Legacy
Open Space Conservation Project to further the various open
space and natural resource goals of the Placer County General
Plan and associated General Plans of the six cities in Placer
County. The Board, reflecting community consensus, has voted
unanimously to proceed with this project on every policy issue.
The Board directed staff to develop a program that will protect
a wide range of open spaces in Placer County including:
agricultural lands;
natural features for outdoor recreation;
scenic and historic areas;
areas to ensure public safety;
areas that create a separation of urban communities;
and
areas that provide for plant and animal diversity and
the protection of special status species.
The last objective, in particular, is to be addressed through the
preparation of a Natural Communities Conservation Plan (NCCP) for
Placer County. A Natural Communities Conservation Plan is a regional
habitat conservation plan that is based upon California State Fish and
Game statutes. It can provide regulatory relief from California
endangered species andrelated laws and it can satisfy the requirements
of the Federal Endangered Species Act under Section 10 for a range of
species. The County's NCCP will also be designed to obtain regulatory
relief from Section 404 of the Federal Clean Water Act for wetland
impacts. The County envisions this effort to be a unique collaboration
between local, state and Federal agencies, private sector interests and
other members of the community. We have already established a
collaborative team of public and private sector interests who are
working together on the sucessful implementation of this or some
similar program that affords us the opportunity to achieve the
aforementioned comprehensive and long range goals.
The County, in beginning to undertake regional conservation
planning, has engaged in constructive discussions with the Fish &
Wildlife Service. The County, because it has taken a leadership role in
promoting responsible conservation and development through its General
Plan, is developing a cooperative effort with the Service to help it
fulfill its statutory mandates in a manner sensitive to local land use
decision making. We are very early in this process, but are encouraged
about the prospects of collaborating with the Service on a multi-
species conservation plan that will address species issues on a long-
term basis, provided that adequate provisions are made for permitting
key public infrastructure projects in ways that respect and retain
local government land use decision making prerogatives.
II. THE REASONS FOR THE PLACER COUNTY APPROACH
Conservation planning of the sort being pursued by the Placer
Legacy Project promises benefits for the environment, the development
community, and local governments.
Conserving Resources for the Long-Term. In authorizing habitat
conservation plans, Congress anticipated that such plans would, at
their best, be comprehensive in that they would address the
conservation of not only listed, but also unlisted species and the
ecosystems upon which they depend. Regional conservation planning is
also comprehensive in another way. Because of the project-by-project
nature of traditional Federal and state species permitting,
conservation plans have often been developed in isolation, with
judgments about the rules of development made in a piecemeal, ad hoc
manner. As a result, mitigation requirements have sometimes lacked
consistency from one project to another and mitigation areas have at
times been unconnected and have failed to maximize conservation
opportunities. Needed public infrastructure and other economic
development projects have at times not been integrated by the Service
into local land use decision making. Because of its broader scope,
regional conservation planning enables habitat preservation areas to be
designed in ways that maximize their capacity to maintain the workings
of natural systems and sustain biodiversity across ecosystems. The
conservation plan can focus on the long-term stability of natural
communities and habitats, and not just on the unique habitat needs of a
few sensitive species. With this in mind, we believe our opportunity is
unique in that we are acting long before other jurisdictions that have
undertaken similar efforts but did so in a more crisis situation.
Respecting Private Property and Minimizing Economic Impacts.
Conservation planning is voluntary. Neither land owners nor
jurisdictions are required to participate. And land for habitat
conservation areas will only be acquired from willing sellers. Federal
and state resource agencies do not have their jurisdiction or authority
over private property augmented by conservation planning efforts. To
the contrary, their roles in development permitting of specific
projects are diminished by it, as is discussed below. In a word,
conservation planning efforts can be structured to fully respect and
maintain private property and local decision making.
While voluntary, conservation planning offers numerous benefits
that encourage local governments and landowners to participate.
Regional conservation planning moderates the impact of regulatory
requirements on the economic concerns of an area, thereby reducing the
potential for conflict between environmental and developmental
interests. The broader scope of regional conservation planning provides
greater opportunity for accommodation of interests and appropriate
balancing of land uses. The comprehensive nature of regional
conservation planning further provides land developers with the
prospect of far greater certainty and predictability in their planning
and land acquisition decisions. If species covered by a plan are later
listed under Federal or state law, landowners are relieved of any
additional conservation requirements and are assured the development
plans can proceed unimpeded. This is the important ``No Surprises''
Policy, which says, ``a deal is a deal.''
Furthermore, regional conservation planning offers landowners the
opportunity to resolve local, state, and Federal endangered species
issues once and for all and, more generally, can streamline the array
of local, state, and Federal regulatory processes by collapsing
complicated layers of regulatory requirements and procedures into a
single, unified process at the local government level. Appropriate
mitigation for impacts on biological resources are established through
a single plan, rather than through a series of disjointed processes
independently derived by the different levels of government to achieve
similar objectives.
Strengthening Local Land Use Decision Making. Through regional
conservation planning, primary responsibility is placed in the hands of
local governments to implement Federal and state wildlife, habitat, and
wetlands conservation objectives, while the Federal and state
governments play a role more limited to setting standards, monitoring
performance, and providing technical and financial assistance. This
approach recognizes that decisions about the use of the land are best
left to local government, and that the tools of local land use
planning, unavailable to the Federal and state governments, are ideally
suited to protecting natural resources. In the process of integrating
wildlife protection objectives into the regulatory processes of local
government, opportunities are enhanced for citizens to participate in
the shaping of plans that will affect the long-term environmental and
economic character of their communities.
The Placer Legacy Project is being developed to deliver all of
these benefits. The conservation needs of all of the plants and animals
which are currently, or may in the future, be protected by the state
and Federal Endangered Species Acts will be addressed. Through the
adoption of a NCCP which will satisfy the requirements of the Federal
Endangered Species Act, the County will be in a position to provide
immediate solutions and options to the development community related to
compliance with state and Federal regulations. With such a program, the
County can become the permit issuing authority for compliance with
state and Federal rules, thus retaining maximum local control over land
development activities. This will add certainty to the development
process and will reduce the amount of time normally required to address
these issues, while at the same time providing a state-of-the-art
conservation plan with the greatest potential to maintain the function
and values of preserved natural communities. It will help spread the
costs of implementation more broadly and equitably to all
beneficiaries, rather than imposing undue costs on one principal
sector, such as new development. It is our hope that, the preparation
of a NCCP may lead to the availability of substantial financial
assistance for the acquisition and preservation of open space areas.
III. NEED FOR POLICY GUIDANCE ON SERVICE AREA IMPACTS
While Placer County is excited about the regional conservation
planning efforts underway, there is concern about the need for a more
consistent and uniform treatment of mitigation for what the Service is
calling ``service area impacts,'' especially regarding public
infrastructure projects and their potential impacts within the areas
they are servicing. Broader conservation planning will not succeed if
projects to service existing and anticipated development cannot be
effectively integrated into the planning effort, and if the mitigation
required for them, cannot be determined on the basis of clearly
articulated policy delivered in a timely manner.
It must be remembered that habitat conservation planning programs
are voluntary. Ideally, they involve the collaboration of local
governments, land owners, and other community interests with Federal
and state agencies. Removing impediments to local government
participation in such efforts, therefore, is critical to the success of
such programs.
Specifically, one impediment has been the lack of a clear Service
policy with respect to mitigation associated with permitting public
infrastructure projects. Currently, the Service requires mitigation for
public infrastructure development based on service area-wide impacts,
in addition to the direct on-site impacts caused by construction of the
public facility itself. Thus, when a local government builds a road or
a wastewater treatment plant to better service already existing
development and anticipate realistic, future needs, the Service will
require mitigation for both the direct impacts caused to endangered
species by that particular development as well as for the impacts being
caused by the activity it is servicing throughout the region. Sometimes
the Service will require mitigation for so-called ``indirect effects''
that have tenuous connection to the infrastructure project. In such
cases, it is unclear upon what basis the Service has determined that an
infrastructure project is the direct cause of a future development
impact.
The Service has some legitimate concerns on this issue, but it has
failed to articulate criteria by which potential service area impacts
can be identified and evaluated. How broad is the reasonable scope?
Does it apply equally to both existing, entitled development and to
anticipated future development?
To prevent any real or perceived unfair treatment of local
governments, therefore, Placer County recommends consideration be given
to a policy reflecting a thoughtful and restrained approach to
mitigation required by the Service for public infrastructure projects--
specifically, a policy that would clarify the scope of legitimate
public infrastructure service area impacts and would exclude impacts
for which mitigation has already been provided. It is essential that
the Service remember the cumulative impacts of all major planning
projects are already an integral part of our local planning efforts as
dictated under the California Environmental Quality Act.
IV. CONCLUSION
Placer County is committed to responsible development and
conservation of the natural resources that make the County such a
special place to live. The Legacy Project promises to achieve both. For
the NCCP component of Legacy to fully fulfill the mission of both the
Counties' General Plan and policies of the Service, several conditions
must be met. The County can provide local planning, implementation, and
enhanced enforcement of our mutual goals. The Service will need to
honor the ``No Surprises'' Policy, acknowledge local land use planning,
and clarify or reform the ``service area impact'' issue especially on
public infrastructure projects necessary to support existing
entitlements. The result from both parties must be a more clearly
defined and streamlined permitting process. Placer County looks forward
to having the Fish and Wildlife Service as a constructive resource in
protecting the County's natural inheritance while facilitating
permitting for projects to meet the County's growing needs.
In conclusion, the County's policies are based on the notion that
the most effective path to achieving environmental quality is not to
compromise private property rights, market economics, or individual
freedoms, but in fact to embrace them. Already we have witnessed
several examples. We have a local privately owned mitigation bank that
sells credits. The result is newly developed and spectacular habitat,
less expensive and more timely creation of small acreage credits
available to the development community, and profit opportunity for
entrepreneurs. We have seen subdivision lots adjacent to protected open
space sell for premium prices and their maintenance secured by
partnerships between the County's code enforcement and homeowner's
associations. Our local business community enjoys a more long term and
predictable operating environment because strict zoning protects their
facilities from the encroachment by incompatible uses and the quality
of life of their employees.
Towards these multiple goals, there is a role for all the existing
players; Federal, state, and local governments, property and business
owners, and community interests. Certainly, there is room for reform
that scrutinizes and thereby reorganizes the appropriate roles and
relationships among these players. If our policies provide value to our
constituents, adhere to private property rights, market economics, and
good science, environmental enhancement will certainly be forthcoming.
Mr. Pombo. Thank you.
Mr. Schulz.
STATEMENT OF DAVE SCHULZ, CHAIR, OKANOGAN COUNTY, OKANOGAN,
WASHINGTON
Mr. Schulz. Thank you, and good morning. For the record, my
name is Dave Schulz, and I am chairman of the Okanogan County
Commission, the general executive and legislative authority for
the government of Okanogan County in the State of Washington. I
appear on behalf of the Okanogan County to provide the Members
of Congress with an example of the pitfalls of the
implementation of the Endangered Species Act and to propose a
more constructive approach to implementation that will promote
the recovery of the protected species and broad scale
compliance with ESA. It is our hope that the National Marine
Fisheries Service and U.S. Fish and Wildlife, collectively
called the Services, share our views on a preferable model for
ESA implementation and that the Services will use practical,
flexible, and incentive-based approaches that hold more promise
for long-term species recovery while minimizing the disruption
to the life and economy of communities affected by the ESA
listings.
Ninety-one percent of the lands in the Methow are public
lands owned by the United States Forest Service or by the State
of Washington. The natural resources of timber, mineral waters,
and agriculture are the economy. The exceptional scenic value
of the Methow Valley has placed the County at the heart of
several controversial issues concerning Federal and State
natural resource policies, including a landmark decision by the
U.S. Supreme Court on the procedural nature of NEPA. That
designation ski resort was never built. The spotted owl, the
grizzly bear recovery zones, and now in August 1997, we added
steelhead as endangered; June 1998, bull trout were added, and
on March 1 of this year, the chinook were added. The Methow
Valley is intensely impacted because of the extensive use of
irrigational water diverted to more than 50 ditches serving
hundreds of small farms and landowners. The ESA listing in
Okanogan County places the exercise of private water rights by
small farms and businesses on a potential collision course from
the ESA.
Okanogan County, once again, is a test-case for Federal
environmental policy, and the outcome is certain to be a
setting precedent for the future implementation of ESA and
other watersheds in Washington and throughout the West.
Okanogan County, therefore, urges Congress and the Services to
promote ESA implementation in a way that emphasizes creative
and cooperative programmic compliance rather than a case-by-
case enforcement and controversy.
Section 7 talks about special use permits issued by the
United States Forest Service. In March 1998, the Forest Service
prepared and submitted to the Services the biological
assessment for the renewal or continued use of special use
permits held by irrigation ditch companies in the Methow. Under
the most generous interpretations of ESA, formal consultation
on ditch permits should have been completed by the fall of
1998. As of this date of this hearing, however, consultation
remains incomplete and effected irrigation ditches in the
Methow are not permitted to divert water even though the
irrigation season began back in April. I looked at a letter
today from Mr. Stow and it says, ``Staffing limitations have
hampered our ability to process the workload.'' Simply, they
need money and people to help in this process.
Under section 9, the county exercises no authority over the
use of water rights, and the authority of the State is very
limited in that regard. There simply is no authority by which
the State or the county may immediately impose regulatory
restrictions that curtail the use of private water rights, and
there is certainly no appropriations to provide compensation
that would necessarily accompany the regulatory taking of
private property interests.
Under an agreement between the State and the county, a
waterbank will be established in State rules and county
ordinances. A waterbank, or HCP, is a programmic solution that
minimizes legal conflict while providing the correct incentives
to provide interest to take volunteer actions to efficiently
use water, conserve, and restore ESA listed fish and comply
with ESA.
What are the barriers and recommended solutions? In your
packet, I have give you a number of those. There are four of
them. I think it would be well worth the time to look at those.
Most of the water that is required to satisfy NMFS fundamental
condition is the property of numerous third parties. Neither
the county nor the State can make the commitments required by
National Marine Fisheries Service. The requested action that I
am asking is a commitment for the Services to work
cooperatively on a waterbank HCP with the county and the State
of Washington. Mitigation credit for immediate action is there
so the HCP development and approval through increments, and,
thirdly, financial support, unfunded mandates. We simply need
money as well as NMFS and others. Fourth, interim action and
relief, and we have House bill 2514, 2496; we are trying to
implement that.
Thank you for listening from our 38,400 residents from
Okanogan County.
[The prepared statement of Mr. Schulz follows:]
Statement of Dave Schulz, Chair, Okanogan County Commission, Okanogan
County, Washington
For the record, my name is Dave Schulz, and I am chairman
of the Okanogan County Commission, the general executive and
legislative authority for the government of Okanogan County,
Washington. I appear on behalf of Okanogan County to provide
Members of Congress with an example of the pitfalls for
implementation of the Endangered Species Act (``ESA''), and to
propose a more constructive approach to implementation that
will promote the recovery of protected species and broad-scale
compliance with the ESA. It is our hope that the National
Marine Fisheries Service (``NMFS'') and the U.S. Fish and
Wildlife Service (``FWS'') (collectively the ``Services'')
share our views on a preferable model for ESA implementation,
and that the Services will use practical, flexible, and
incentive-based approaches that hold more promise for long-term
species recovery while minimizing disruption to the life and
economy of communities affected by ESA listings.
I. Okanogan County's Methow Valley:
A Report from the Frontline of ESA Implementation
Washington State's Okanogan County is a vast county
covering 5,268 square miles along the Canadian border and
extending east from the crest of the Cascade Mountains to the
Columbia River. See Attachment 1 (Maps of Okanogan County and
Methow Valley). The Methow River flows southeast from its
headwaters in the North Cascades National Park through the
semi-arid and irrigated Methow Valley and into the mainstem
Columbia River. Okanogan County and the Methow Valley are
exceptionally scenic areas, generously endowed with natural
resources and populated with communities who enjoy and depend
on outdoor recreation and natural resources for their
livelihoods.
The United States and the State of Washington own and
manage a majority of the land in Okanogan County, and those
public lands are the source of timber, mineral, water, and
range resources upon which much of the regional economy is
established. Like many rural and natural resource-dependent
counties, Okanogan County has suffered a long-term decline in
the vitality of its timber, mining, ranching, and agricultural
sectors. Growth in rural tourism has been beneficial to the
County, but is not expected to fully replace the employment and
income lost through the decline of resource industries. The
Okanogan County Commission does not seek to stop change or turn
back the clock, but the Commissioners do feel that it is
essential that Federal, state, and local governments assist
private interests to make adjustments and transitions in the
face of change, especially when change is wrought by policies
and laws imposed by government.
Not surprisingly, Okanogan County's abundance of natural
resources and the exceptional scenic value of the Methow Valley
have placed the County at the heart of several controversies
concerning Federal and state natural resource policy. In the
1980's, a destination ski resort proposed for the Methow Valley
was the subject of special land exchange legislation enacted by
Congress and litigation that led to a landmark decision by the
U.S. Supreme Court on the procedural nature of the National
Environmental Policy Act. The resort was never built. In 1982,
the North Cascades Grizzly Bear Recovery Zone was established
to promote land management for the conservation of grizzly
bears listed as threatened under the ESA. The zone includes
much of Okanogan County, including the Methow Valley and cities
such as Twisp and Winthrop. In the 1990's the northern spotted
owl was listed as a threatened species, and national forest
lands in Okanogan County are now subject to added management
restrictions under the Northwest Forest Plan Also in the
1990's, the State of Washington formulated a special management
plan designed to conserve lynx habitat in the 130,000-acre
Loomis State Forest. Lynx are now proposed for listing as a
threatened species under the ESA. Ironically, completion of the
Loomis plan spawned a citizen suit in 1997 alleging that the
state management plan would take grizzly bears in violation of
the ESA. In 1998, Omak Wood Products, one of the County's
largest private employers and a major purchaser of timber from
the Loomis Forest, declared bankruptcy and closed its doors.
And, in 1999, after years of permit processing and
environmental analysis, the Crown Jewel Mine proposed for
Okanogan County was denied final approval in a Federal record
of decision based on an unprecedented interpretation of Federal
mining law with consequences for the mining industry
nationwide.
Okanogan County clearly is no stranger to natural resource
controversy, but now faces a new crisis in the implementation
of the ESA that may affect the County more profoundly than all
of the litany of natural resource controversies that have
visited the County over the past three decades. Beginning in
1997, NMFS and FWS listed three fish species found in Okanogan
County for protection under the ESA. In August of 1997, NMFS
listed the Upper Columbia Steelhead Evolutionary Significant
Unit (``ESU'') as endangered under the ESA, and NMFS added the
Upper Columbia Chinook ESU as an endangered species in March
1999. In June 1998, FWS listed Columbia Basin bull trout as a
threatened species. Because the habitat of these fish depends
on water quality, the use of water resources, the quality of
riparian habitat,and land use in general, fish listings pose
what is probably the greatest natural resource challenge to the
economic and social stability and health of Okanogan County.
While there have been several ESA listings of anadromous
fish throughout the Pacific Northwest, Okanogan County has been
more immediately and severely impacted by ESA listings for
salmonids because it is among the few places where the fish are
classified as endangered. The Methow Valley is intensely
impacted because of the extensive use of irrigation water
diverted through more than 50 ditches serving hundreds of small
farms and landowners. In short, the ESA listings in Okanogan
County place the exercise of private water rights by small
farms and businesses on a potential collision course with the
mandates and prohibitions of the ESA.
Okanogan County is once again a test-case for Federal
environmental policy, and the outcome is certain to be a
precedent for future implementation of the ESA in other
watersheds in Washington and throughout the West.
Implementation of the ESA in the County provides an opportunity
to build a model for ESA compliance and species recovery that
can be used elsewhere, but it also presents a risk that
adversarial implementation will work against the long-term
prospects for species recovery and cooperative compliance by
landowners and water users in Okanogan County and elsewhere.
Okanogan County therefore urges the Congress and the Services
to promote ESA implementation in a way that emphasizes creative
and cooperative programmatic compliance rather than case-by-
case enforcement and controversy.
II. Case-by-Case Enforcement:
A Formula for Conflict and High Costs Without Recovery
Okanogan County recognizes that the Services are required
to implement and enforce the ESA, and must do so with limited
resources. It is this combination of limited resources and a
host of compliance requirements for innumerable Federal and
nonfederal actions that begs for programmatic solutions that
avoid individual review and enforcement for every single
activity and litigation that will consume limited agency
resources and provoke additional errors and delays. At this
time, however, it appears that implementation of the ESA in the
Methow Valley is at risk of slipping into a mode of adversarial
enforcement that will do more to harm the objectives of the ESA
than it will to recover salmon.
The risk of adversarial enforcement of the ESA is centered
on two issues: (1) Section 7 consultation on special use
permits issued by the United States Forest Service (``Forest
Service'') to ditch companies for the conveyance of water on
rights-of-way across Federal land, and (2) threatened
enforcement actions by the United States or citizens alleging
violation of the ESA's ``take'' prohibition.
Under the ESA and both rules and guidelines implementing
the ESA, Section consultation is subject to certain procedural
requirements and time limitations. In March 1998, the Forest
Service prepared and submitted to the Services the biological
assessments for the renewal or continued use of special use
permits held by irrigation ditch companies in the Methow. Under
the most generous interpretation of the ESA, formal
consultation on the ditch permits should have been completed by
the Fall of 1998. As of the date of this hearing, however,
consultation remains incomplete and affected irrigation ditches
in the Methow Valley are not permitted to divert water even
though the irrigation season began in April. See Attachment 2
(April 22, 1999 Letter from U.S. Forest Service to NMFS
concerning consultation issues in Methow Valley). There is no
apparent excuse for this delay, and the delay imposes a severe
hardship on Methow Valley landowners. Id. The Services are now
engaged in an effort to conclude consultation with haste, but
consultation is not expected to be complete for another month
or two, during which affected ditches are forbidden to divert
water. The situation appears to be ripe for litigation that
will drain the resources of the Services and will be
destructive for the affected landowners and water users.
There is a substantial risk that the Services, in their
recent haste to complete consultation, may render an ill-
considered biological opinion that imposes unduly harsh
targeted stream flow conditions through an incidental take
statement. Under such a statement, affected ditches would be
required to curtail diversions when affected stream reaches
drop below a flow level set by the incidental take statement.
Because watersheds are shared resources with multiple users, an
incidental take statement with terms and conditions based on
targeted stream flows threatens to impose on a single permittee
an unfair condition that may be beyond the control of that
permittee. Establishing terms and conditions for targeted flows
is also a threat to water rights that are not subject to
consultation because the terms and conditions may promote
citizen suits to enforce the targeted flow as a standard for
take. Water resource users who may be affected by such a
precedent have no opportunity to evaluate and comment on the
scientific basis or economic impact of target flows. The County
and the State are currently engaged in an active public
planning process to address instream flows as part of a
comprehensive water resource planning effort for the Methow
Valley, but that process requires time and scientific evidence.
Okanogan County is concerned that flawed Federal biological
opinions could become a stumbling block for long-term water
resource planning, ESA compliance, and salmon recovery by
establishing an unrealistic precedent for targeted stream flows
deemed necessary to avoid jeopardy or prevent take of listed
salmonids.
Coupled with the mired consultation process in the Methow
Valley are threats of enforcement based on allegations of take
prohibited by Section 9 of the ESA. In a recent letter, NMFS
asserts that the County and the State of Washington should take
emergency action under state law to restore instream flows or
risk liability for take. See Attachment 3 (Undated Letter from
NMFS to Tom Fitzsimmons, Director, Washington Department of
Ecology). The interpretation of the ESA set forth in the NMFS
letter is inconsistent with the legal obligations and
authorities of both the County and the State. The County
exercises no regulatory authority over the use of water rights,
and the authority of the State is very limited in that regard.
There simply is no authority by which the State or the County
may immediately impose regulatory restrictions that curtail the
use of existing private water rights, and there certainly is no
appropriation to provide compensation that would necessarily
accompany the regulatory taking of private property interests
in water rights. At most, the State may adjust instream flows
established by rule, but any adjustments will not and cannot
curtail existing water rights to achieve those flows.
Implementation of the ESA must be consistent with the authority
and realistic resources of the State and County if it is to be
successful. Threats of liability will not change the law or the
resources under which the County and State must operate.
The Services should look to the County and State as
cooperators who must work within their own constraints.
Okanogan County appears before the Congress today to declare
that it is prepared to cooperate with the Services in
developing constructive long-term ESA compliance and
conservation solutions that avoid the difficulties that
currently afflict the Methow Valley. Toward that end, Okanogan
County offers with this testimony its recommendations and
requests for implementation of the ESA.
III. Programmatic Compliance and Recovery:
Building Cooperative, Flexible, and Incentive-Based Habitat
Conservation Plans
In response to ESA listings for anadromous fish, the State
of Washington has provided funding and authority for counties
and other interested stakeholders to formulate and implement
watershed-based plans for water resource management, protection
of water quality, and conservation of protected species and
their habitat. In 1998, Okanogan County was awarded a
substantial grant to commence this planning process and the
County also agreed to work with the Washington Department of
Ecology to create a waterbank that will be used to implement
water resource objectives.
Under an August 4, 1998 Memorandum of Agreement (``MOA'')
between Okanogan County and the State, a waterbank for the
Methow Valley will be established in State rules and County
ordinances. See Attachment 4 (MOA and Notice of Proposed
Rulemaking). The MOA guiding the creation of the waterbank was
concluded before the current controversy involving the Services
and consultation on irrigation ditches in the Methow Valley.
The waterbank will facilitate the transfers of water rights,
changes in use or point of diversion of water resources, and
use of water saved through efficiency, conservation, and reuse.
As part of the process for conducting a transaction permitted
by the waterbank, the holder of a water right will relinquish
an established fraction of the water right for deposit in the
State's instream flow trust account. In this way, the State and
the County will provide incentives for holders of private water
rights to rebuild instream flows through efficiencies and
changes in use that are voluntarily implemented by private
interests. This method of rebuilding instream flows serves the
desired biological objective without regulatory ``cat and
mouse'' or other means beyond the authority and financial
resources of the State and County. The waterbank promises to
deliver biological results more promptly and with less
controversy and cost than general adjudication of water rights,
enforcement actions, or regulatory mandates.
The County strongly believes that the waterbank jointly
developed by the County and the State should serve as the basis
for a Habitat Conservation Plan (``HCP'') and programmatic
incidental take permit issued by the Services under Section 10
of the ESA. In principle, when a holder of a private water
right relinquishes part of that right to assist in the
restoration of instream flows beneficial to ESA-listed salmon,
he or she should receive the benefit of assurance that the
exercise of the remaining water right is lawful under the ESA
for the duration of the incidental take permit. By granting
such an assurance, the United States is able to create a strong
incentive to restore instream flows that does not require an
appropriation of funds or compensation to the holder of the
water right.
A waterbank HCP is a programmatic solution that minimizes
litigation and legal conflict while providing the correct
incentives for private interests to take voluntary action to
efficiently use water, conserve and restore ESA-listed fish,
and comply with the ESA. Such an HCP makes more effective use
of the Services' resources by promoting broadscale voluntary
compliance and conservation efforts instead of case-by-case
enforcement. In addition, participating landowners and
irrigation ditches covered by the incidental take permit will
no longer require separate review and conditioning under
Section 7 consultation where a Federal authorization is
involved. This will add efficiency and savings for other
Federal agencies such as the Forest Service, which is currently
embroiled in consultation issues involving special use permits
in the Methow Valley. Finally, a successful waterbank HCP will
provide a model that may be replicated in other watersheds
throughout the range of West Coast salmonids listed under the
ESA, and throughout the United States where water rights are in
conflict with instream flows and ESA-listed fish.
IV. Barriers and Recommended Solutions:
Changing ESA Implementation Without Changing the Law
Early discussions indicate that NMFS is highly skeptical
concerning the conservation benefits of the proposed Methow
Valley waterbank. Specifically, NMFS demands that any
conservation plan guarantee that specific instream flows will
be achieved within a specific time frame. See Exhibit 5 (April
27, 1999 Letter from NMFS to Okanogan County Commission). It is
the County's view that the guaranteed increase of instream
flows within a guaranteed period of time is not possible under
state law. Most of the water that is required to satisfy NMFS's
fundamental condition is the property of numerous third
parties. Neither the County nor the State can make the
commitments required by NMFS. To bridge this gap, NMFS will
have to exercise its discretion to exchange regulatory
assurances under an incidental take permit for voluntary
commitments that restore instream flows in an incremental
fashion. The County appreciates that NMFS has expressed its
willingness to work cooperatively with the community, but a
realistic recognition of the limitations on mitigation that can
be guaranteed by the County or State is essential to progress.
Otherwise, the opportunity to build instream flows through
voluntary, incentive-based action will be lost. To prevent such
a result, we recommend the following:
1. Accept that Immediate Regulatory Action to Build Instream
Flows and Guaranteed Biological Outcomes are Legally and
Biologically Impracticable: The Services, and particularly
NMFS, appear to insist that any programmatic solution for ESA
compliance offered by the County and State must provide
immediate and certain assurances that specified levels of
mitigation such as higher instream flows will be achieved. If
there is to be any hope of a cooperative relationship between
the Services, the State, and the County, the Services must
realize that the ESA does not command immediate regulatory
action by the State or County. The ESA must be implemented
through cooperation, recognizing the legal and financial
limitations that the County and the State must abide, just as
the Services are limited in their legal authority and fiscal
resources. Moreover, as biologists, the Services must accept
that biological certainties are impossible and, at best,
biological probabilities are the target. The ESA, itself, uses
standards based on biological probabilities. The Services
should feel comfortable in proceeding with cooperative efforts
that improve the probabilities that fish habitat will be
improved over time. Programmatic HCPs that provide incentives
for voluntary participation should not be ignored only because
they do not guarantee participation or biological outcomes.
2. Accept Voluntary Incentive-Based Programs That Achieve
Mitigation Objectives in Increments: The Services should
recognize the benefit of providing incidental take coverage for
voluntary actions that are sure to benefit listed fish, even in
the absence of a regulatory framework that commands action
beneficial to listed fish. While, in theory, a regulatory
approach to ESA compliance seems more certain to achieve ESA
conservation objectives, it requires overwhelming resources to
establish and enforce regulatory oversight and it often
requires a change in law. A voluntary approach is more likely
to be immediately accepted, and it is consistent with the basic
structure of the ESA, which requires voluntary compliance by
nonFederal entities. Indeed, the FWS has, in the past, approved
incidental take permits that are extended to third parties who
voluntarily commit to implementing the terms of a programmatic
HCP. Through a waterbank HCP, the County brokers ESA compliance
and mitigation for individual property owners that NMFS would
otherwise have to approach separately to obtain the same
commitments. The Services should embrace and build upon the
programmatic and voluntary approach rather than abandon it
based on unrealistic expectations.
3. Target Federal Funds for Salmon Restoration and Columbia
River Federal Power System Mitigation to Programmatic Efforts
Such as Waterbank HCPs: Okanogan County is aware of the fish
and wildlife mitigation program overseen by the Northwest Power
Planning Council in connection with the operation of the
Federal power system and dams in the Columbia Basin. Okanogan
County has also learned of Federal appropriations that have
been made or are under consideration for salmon recovery in
Washington State and along the West Coast. Okanogan County
urges that these substantial Federal funds for salmon recovery
be used, in part, to support programmatic long term solutions
such as the waterbank HCP proposed by Okanogan County.
4. Encourage the Environmental Protection Agency to Integrate
Clean Water Act Compliance Objectives and Assurances with
Waterbank/Watershed HCPs that Address Water Quality Issues Such
as Low Flows and Temperature: Many of the issues addressed in
water resource planning are also issues of water quality. Where
a water resource planning mechanism, such as a waterbank HCP,
addresses water quality issues such as low flows and high
temperatures, regulatory assurances from the Environmental
Protection Agency and state-delegated Clean Water Act program
should also be extended to the permittees. Although many agree
with this principle, the Federal family of agencies has yet to
work out a means by which the ESA and Clean Water Act can be
integrated through the same mitigation and compliance efforts.
Integrated compliance under the ESA and Clean Water Act should
be a top priority in Federal regulatory innovations.
V. Requested Action
1. A Commitment from the Services to Work Cooperatively on a
Waterbank HCP: The County will soon prepare a waterbank HCP
conceptual proposal that it will share with the Services and
the State of Washington. The County hopes that the Services
will be encouraged to treat the waterbank HCP as a serious
proposal, and will commit through a memorandum of understanding
to provide the resources and attention necessary to work
together with the County and the State to build a model
waterbank HCP.
2. Mitigation Credit for Immediate Action In Advance of HCP
Development and Approval: The County will move forward with the
State in conducting watershed planning and establishing a
waterbank. The County hopes that the Services will give the
County full mitigation credit for these early efforts and will
confirm that position in a memorandum of understanding with the
County for proceeding with an HCP.
3. Financial Support: The County requests that Federal
funding be made available through the Federal Columbia River
mitigation program or other federally-funded salmon restoration
initiatives to assist rural counties such as Okanogan County
with the development and implementation of programmatic HCPs
for the benefit of the broader public and ESA-listed fish.
4. Interim Action and Relief: While the County and State of
Washington work to complete watershed planning and establish a
waterbank, the legal requirements of the ESA continue to impact
and threaten the stability of Okanogan County. The County
recognizes that the Services must enforce the ESA, but several
interim measures should be considered to minimize ESA impacts
on the community.
First, it appears that 1999 will be an exceptionally high
water year in the Methow Valley. As such, it would be
appropriate for the Services to permit irrigation diversions
affected by consultation to proceed pending the completion of
biological opinions because the diversions will not be
irreversible or irretrievable commitments of resources. The
Services have provided some relief to a few irrigators under
Section 7(d) of the ESA, but many Methow Valley water users
remain hamstrung by incomplete consultation.
Second, it is essential that the Services expressly disclose
in biological opinions issued for the Methow Valley in 1999
that those opinions are based on incomplete information that is
likely to be revised in the future in accordance with better
data that will be forthcoming through the State-County
watershed planning process. To discourage unfounded citizen
suits, it would also be helpful if 1999 biological opinions
explained that reasonable and prudent alternatives or terms and
conditions set forth in an incidental take statement should not
be used as a presumptive standard for take in connection with
the use of water resources by other parties who are not subject
to the consultation.
Third, it is recommended that the Services consider working
cooperatively with irrigation ditches to research the effects
of ditch operations on stream flows and fish and provide the
irrigators with incidental take permits for cooperative
scientific research under Section 10(a)(1)(A) of the ESA.
Information collected in this fashion would be helpful to the
County's watershed planning process and to the development of a
waterbank HCP.
Mr. Pombo. Thank you.
Mr. Bruton.
STATEMENT OF VINTON CHARLES BRUTON, NORTH CAROLINA DEPARTMENT
OF TRANSPORTATION, RALEIGH, NORTH CAROLINA
Mr. Bruton. Yes, sir. Mr. Chairman, Committee members, my
name is Charles Bruton, and I am the assistant manager for the
Project Development and Environmental Analysis Branch for the
North Carolina Department of Transportation.
Today, I take great pride in telling you about the most
recent effort we have undertaken to protect the habitat of an
endangered species, the red-cockaded woodpecker, in North
Carolina. The most recent endangered species mitigation project
funded by the North Carolina Department of Transportation is
the acquisition of a tract of about 10,000 acres in rural
Tyrrell County on the Albermarle Sound in eastern North
Carolina. This $16.3 million real estate transaction took place
on April 28, 1999 with funds provided by the North Carolina DOT
to the Conservation Fund, a Maryland non-profit corporation.
The Conservation Fund, which conveyed a conservation easement
to NCDOT, used the proceeds to purchase the tract from the
Prudential Insurance Company of America operating as Pru-
Timber.
The idea for this acquisition was conceived back in October
1997 when the U.S. Fish and Wildlife Service expressed in
writing their intent in NCDOT purchasing the Pru-Timber tract.
The Service's letter stated that the tract is rich in
biological diversity containing federally listed species. The
letter further stated that there is excellent potential for
NCDOT to receive mitigation credits for wetlands as well as
red-cockaded woodpeckers.
In February 1998, the Environmental Defense Fund sent a
letter to North Carolina secretary of Transportation, Norris
Tulson, urging his department to increase its efforts to avoid,
protect, and mitigate habitat for endangered red-cockaded
woodpeckers in its highway construction program. The tract,
which borders the Alligator River, is to be known as the
Palmetto-Peartree Wildlife Management Area and is now under
protection. The site also has some potential for wetland
restoration and preservation.
The voluntary partnership forged between NCDOT, the
Conservation Fund, and the U.S. Fish and Wildlife Service will
protect one of North Carolina's largest populations of red-
cockaded woodpeckers, containing 18 active clusters. A
memorandum of agreement dated April 22, 1999 was executed by
U.S. Fish and Wildlife Service, the Conservation Fund, and
NCDOT to allow for the tract to be managed as a red-cockaded
woodpecker sanctuary. The parties to the agreement anticipate
that good management of the sanctuary will actually increase
the number of active clusters over the existing 18.
The NCDOT intends to use mitigation credits generated from
the management and development of the preserve as a means of
red-cockaded woodpecker mitigation for future highway
construction projects throughout the coastal plain of North
Carolina. NCDOT has estimated that over the next seven years,
five highway construction projects in the coastal plain, which
potentially impact the red-cockaded woodpecker, will have a
combined cost of $450 million. The management area will be
utilized in the future as needed when NCDOT can demonstrate to
the satisfaction of U.S. Fish and Wildlife Service that there
are no available or potential red-cockaded woodpecker avoidance
and minimization alternatives.
In addition to its mitigation value, the management area is
planned to be a primary destination on the North Carolina Bird
Trail which is modeled after the successful Texas Bird Trail.
Managed by the Conservation Fund in cooperation with Duke
University's Nicholas School of the Environment, the sanctuary
is expected to increase year-round, nature-based tourism in
eastern North Carolina and generate valuable year-round
economic benefits to the area. The Conservation Fund will
manage the sanctuary for an agreed period of time, after which,
it will be turned over to the U.S. Fish and Wildlife Service or
if the Service is unwilling to accept the land, to the State of
North Carolina or an agency thereof.
Furthermore, the sanctuary will compliment the soon to be
constructed Walter B. Jones Center for the Sounds in Tyrrell
County which will include an environmental education center and
the U.S. Fish and Wildlife headquarters for Pocosin Lakes
National Wildlife Refuge.
Mr. Chairman, in closing, the NCDOT is pleased to work
cooperatively with the U.S. Fish and Wildlife Service toward
enhancing and protecting the environment through initiatives
like the one just presented for Tyrrell County. We urge all
individuals and agencies in this process to facilitate the
means and methods to allow similar environmental initiatives in
a manner that allows flexibility in infrastructure development
as well as mitigation. We believe that the best method of
providing sustainable development and an enhanced environment
is through partnership with multiple agencies, and we would
appreciate legislative support that fosters this inter-agency
corporation.
Thank you.
[The prepared statement of Mr. Bruton follows:]
Statement of Vinton Charles Bruton, Ph.D., North Carolina Department of
Transportation, Raleigh, North Carolina
Mr. Chairman, Members of the Committee, and Guests: Over
the past 25 years, Federal Legislation, Executive Orders and
related regulations have produced major changes in
environmental protection. As a result, the protection of
natural resources such as endangered and threatened species, as
well as wetlands, have become high priorities in North
Carolina.
The North Carolina DOT and the Federal Highway
Administration frequently encounter endangered species during
the process of locating and designing highway projects. In
North Carolina, one such species is the red-cockaded woodpecker
(Picoides borealis). Whenever impacts to this species' habitat
cannot be avoided, as is frequently the case with widening and
major new location highway construction projects in the coastal
plain of North Carolina, the use of mitigation measures is
required by the U.S. Fish and Wildlife Service.
Such measures are designed to enhance or preserve the
remaining habitat as a means of eliminating ecological damage
and preserving the species. Without such mitigation measures,
state highway construction projects such as the Fayetteville
Outer Loop (serving a major city and military base Fort Bragg),
the Wilmington Bypass (serving a major city port) and U.S. 64
in Tyrrell and Dare Counties (serving national and
international tourism to the Outer Banks and emergency
evacuation purposes) would not be authorized by Federal
environmental resource agencies to proceed to construction.
Thus, in order to avoid potential future project delays, the
North Carolina Department of Transportation believes that it is
important to acquire and manage valuable red-cockaded
woodpecker sites in advance of highway construction.
The most recent endangered species mitigation project
funded by the North Carolina DOT is the acquisition of a tract
of about ten thousand acres in rural Tyrrell County (see
Attachment 1), on the Albemarle Sound in eastern North
Carolina. This $16.3 million real estate transaction took place
on April 28, 1999 with funds provided by the North Carolina DOT
to The Conservation Fund, a Maryland non-profit corporation.
The Conservation Fund, which conveyed a conservation easement
to North Carolina DOT, used the proceeds to purchase the tract
from The Prudential Insurance Company of America, operating as
``Pru-Timber.''
The idea for this acquisition was conceived back in October
1997, when the U.S. Fish and Wildlife Service expressed in
writing their intent in North Carolina DOT purchasing the Pru-
Timber tract. The Service's letter, included as Attachment 2,
stated that the tract ``is rich in biological diversity-
containing federally-listed species, migratory birds, estuarine
and freshwater fisheries, diverse natural communities, and
various types of wetlands.'' The letter further stated that
there is ``excellent potential for North Carolina DOT to
receive mitigation credits for wetlands as well as red-cockaded
woodpecker (RCW's).'' In February 1998, the Environmental
Defense Fund sent a letter (Attachment 3) to North Carolina
Secretary of Transportation Norris Tolson, urging his
Department ``to increase its efforts to avoid, protect and
mitigate habitat for endangered red-cockaded woodpeckers in its
highway construction program.'' The U.S. Fish and Wildlife
Service again acknowledged its support in a letter dated August
7, 1998 (Attachment 4).
The tract, which borders the Alligator River, is to be
known as ``The Palmetto-Peartree Wildlife Management Area'' and
is now under protection. The site also has some potential
wetland restoration and preservation. A letter of support from
Tyrrell County is included as Attachment 5.
The voluntary partnership forged between the North Carolina
DOT, The Conservation Fund and the U.S. Fish and Wildlife
Service, will protect one of North Carolina's largest
populations of red-cockaded woodpeckers, containing eighteen
(18) active clusters. A Memorandum of Agreement number 1448-
40181-99-KK-005, dated April 22, 1999 (Attachment 6) was
executed between The U.S. Fish and Wildlife Service, The
Conservation Fund, and the North Carolina DOT to allow for the
tract to be managed as a red-cockaded woodpecker sanctuary. The
parties to the agreement anticipate that good management of the
sanctuary will actually increase the number of active clusters
over the existing eighteen. The North Carolin DOT intends to
use mitigation credits generated from the management and
development of the preserve as a means of red-cockaded
woodpecker mitigation for future highway construction projects
throughout the coastal plain area of North Carolina. The North
Carolina DOT has estimated that, over the next seven years,
five highway construction projects in the coastal plain which
potentially impact the red-cockaded woodpecker will have a
combined cost of about $450 million dollars. The Palmetto-
Peartree Wildlife Management Area will be utilized in the
future as needed whenever North Carolina DOT can demonstrate to
the satisfaction of U.S. Fish and Wildlife Service that there
are no available or potential red cockaded woodpecker avoidance
and minimization alternatives.
In addition to its mitigation value, the Palmetto-Peartree
Wildlife Management Area is planned to be a primary destination
on the ``North Carolina Bird Trail,'' which is modeled after
the successful Texas Bird Trail. Managed by The Conservation
Fund in cooperation with Duke University's Nicholas School of
the Environment, the sanctuary is expected to increase year-
round, nature-based tourism in Eastern North Carolina and
generate valuable year-round economic benefits to the area. The
Conservation Fund will manage the sanctuary for an agreed
period of time, after which it will be turned over to the U.S.
Fish and Wildlife Service or, if the Service is unwilling or
unable to do so, to the State of North Carolina or an agency
thereof furthermore, the sanctuary will complement the soon-to-
be constructed Walter B. Jones Center for the Sounds in Tyrrell
County, which will include an environmental education center,
and the U.S. Fish and Wildlife headquarters for Pocosin Lakes
National Wildlife Refuge.
Mr. Chairman, in closing, the North Carolina DOT is pleased
to work cooperatively with the U.S. Fish and Wildlife Service
toward enhancing and protecting the environment through
initiatives like the one just presented for Tyrrell County. We
urge all individuals and agencies involved in this process to
facilitate means and methods to allow similar environmental
initiatives in a manner that allows flexibility in
infrastructure development as well as mitigation. We believe
that the best method of providing sustainable development and
an enhanced environment is through partnership with multiple
agencies and we would appreciate legislative support that
fosters this interagency cooperation.
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Mr. Pombo. Thank you. Thank all the panel for their
testimony.
Ms. Clark, just to start off with, I would like to ask you
just more of a process question. After the witness list was
formalized and made public, a number of the witnesses received
phone calls from Fish and Wildlife Service inquiring as to what
the nature of the testimony that the witnesses would be giving
here today. Were you aware that that was going on?
Ms. Clark. Well, Mr. Chairman, I actually saw the final
witness list at about quarter to nine this morning. So, I was
still trying to figure out where I sequenced in on the panels.
I don't know specifically that there were conversations, but I
don't think it is unusual for conversations to occur among
folks that are going to testify, but I didn't--or people
voluntarily told me that they were testifying. I did hear from
some of the witnesses that either left me messages or with my
secretary suggesting that they were testifying at this hearing
today.
Mr. Pombo. In your testimony, you state that you do not
require mitigation as part of the section 7 consultation, and
yet the story that we hear is that it is required. How do you
square that?
Ms. Clark. Very carefully, Mr. Chairman. I actually had
significant conversations over the last few days about the word
``mitigation'' and what is meant by mitigation, and, as I tried
to summarize in my oral statement, it is very clear to me that
the term ``mitigation'' in the technical sense is used much
more loosely than is probably efficient, and we do take
responsibility for that. When we are dealing with a kind of
merging of the Clean Water Act, Endangered Species Act, all the
kind of planning responsibilities and trying to be most
efficient in addressing the needs of species and the needs of
economic growth, I believe sometimes the word ``mitigation'' is
used much more loosely than the technical or statutory term
would allow. Mitigation in the legal sense, the policy sense,
is truly only allowable in section 7 when it is part of a
reasonable and prudent alternative; that alternative that is
necessary to offset or avoid the jeopardy to a listed species.
But the term ``mitigation,'' the term ``minimization,'' the
term ``offset'' are used very loosely among all the parties
negotiating what is needed.
Mr. Pombo. What term would you use if someone was
developing a piece of property and they were told they had to
set aside a third of their property as habitat that would be
under control of either Fish and Wildlife Service or an NGO
that would be named, or if they had off-site mitigation and
they had to buy three acres of land for every acre they were
developing, what term would you use to describe that?
Ms. Clark. It would depend on the project, and it would
depend on the species, and to answer you directly, many of the
species that we are dealing with--let us just use California as
an example, since it is high on people's minds--many of the
species that are listed today in California are in dire shape.
They are highly endangered and some approaching blinking out or
extinction. And, so the notion of the status of the species,
many of them are very close to a jeopardy baseline. So, if in
fact we were dealing with a project that encompassed a large
part of those species' remaining range and it were through
section 10, we would be minimizing and mitigating. If it were
through a Corps of Engineers or an EPA or some other Federal
connection and the species would receive a jeopardy biological
opinion, a reasonable and prudent alternative would be some
form of mitigation. Otherwise----
Mr. Pombo. I don't know why we are going back and forth on
this. We can use whatever term you want to use. The Fish and
Wildlife Service routinely requires an exaction out of the
people that they are dealing with, whether it is development--I
mean, when we dealt with the floods in California two years
ago, there was a 5 to 1 mitigation, 5 to 1 exaction. I mean,
you required them to mitigate--you don't want to use the word
``mitigation''--you required an exaction out of them in order
to do that, and there has been a series of these exactions that
have been required, and in looking through the records and the
testimony that has been presented here today, it appears that
California, for some reason, is almost all the exactions that
are being required are being done in California. Very few are
being done outside of California proportionately. Even if you
are talking about similar species and similar topography, we do
not see the same kind of exactions that are being required in
California being required elsewhere, and that is one of the
reasons why a lot people begin to question the activity of Fish
and Wildlife Service in California, because they don't see it
in other places.
We had testimony about irrigation ditches and what the
exaction would be for them to be able to use their irrigation
ditches, and I am sure that--well, Mr. Gilchrest stepped out--
but I am sure Mr. Gilchrest his farmers don't have the same
kind of exactions in order to use their irrigation ditches. So,
that question is out there.
I have more questions, but I will pick them up on the
second round.
Would you like to respond to that?
Ms. Clark. Well, again, I can respond to it in summary, but
we will end up getting into a specifics discussion very
quickly. The longstanding work that has been done in California
has really set up some processes that blend all of the
environmental statutes, and it blends all of the involved
parties. So, the condition of the species, the projects that
are involved often dictate the terms and an attempt to be
equitable and an attempt to be efficient and an attempt to
streamline processes, oftentimes, these kind of negotiated
offset, mitigations, minimizations are arrive at. But what we
try very hard to do is not have a cookie cutter approach. So,
what may happen on the Eastern Shore of Maryland would not be
what is happening in Sacramento, California. It is species-
specific; it is project-specific, and it is negotiation-
specific.
Mr. Pombo. I am not necessarily asking for a cookie cutter
approach; in fact, you and I have had these discussions before.
Ms. Clark. Right.
Mr. Pombo. But with the elderberry beetle, there was not a
jeopardy decision that was issued. With the fairy shrimp, there
was not. It seems like you are just requiring exactions in
California every time that you come in on a section 7 or a
section 10, and that is one of the concerns.
Mr. Miller?
Mr. Miller. Thank you, very much, and thank you to the
panel. Ms. Clark, just so you don't feel like you were alone in
talking to members of the panel or prospective members of the
panel, many members of this Committee talked to members of the
panel and people who didn't want to testify and people who
wanted to testify and weren't allowed to testify, so it all
kind of washes out here.
Let me follow up--you know, obviously--and we will hear
from cities and developers and others--it is not easy to be a
city and not easy to be a developer, whether you are commercial
or residential or whether you are a city trying to expand its
infrastructure, and it seems to me that if you look at the
process in this country, at all levels of government, if you
are a developer, the school board goes to the city council and
says, ``We need new schools. This is going to be new
development. This development is going to have to take 100
percent responsibility for the capital costs, and they have to
develop a school.'' Somebody else says ``They are going to have
to pay for the increased capacity in the sewer plant, in the
waterworks.'' Somebody else says, ``Well, we need the roads
widened,'' so they are going to have to widen the roads, and if
you want to build a tall structure in an urban area, they say,
``We want setbacks'' from the property line so you don't block
viewsheds. I mean, this is a constant, constant practice of
extractions from people who want to develop their property,
whether it is under zoning or whether it is under neighborhood
mitigation or wildlife mitigation, in this particular case, the
client are species. But if the client is the school district or
the client is the community that says, ``Fine, we will accept
100 homes, but we want them to be transportation sensitive; we
want them to be mass transit-friendly; we want running trails
and hiking trails, and we want open spaces and parks, people
say, ``Yes, that is the way you create a community,'' and that
generally has the support of the people who are there. And then
somebody has to come in a advocate on behalf of endangered
species because we have made a national decision about
protecting and recovery of endangered species. So, I don't know
that this all terribly foreign to the people involved in it.
I think when we get to the species, however, there is more
ambiguity, if you will, or questions of whether it is listed or
whether there are jeopardy opinions that starts to drift over.
One of the witnesses later will testify about the effort to try
to protect soil, and soil is not part of that. After long
negotiations, finally, the admission was made, yes, really,
they didn't have the legal authority to protect the soil in
this case, and the entire nature of the mitigation was changed.
I think what I find as I deal with these from various
communities and developers and others is that you don't want a
cookie cutter approach; you want to customize to the needs and
the species and the nature of the property and the habitat, but
by the same token there really aren't very bright lines about
how to proceed, and I think that is why a lot of people hold
out hope for HCPs in the sense that you would then know on a
larger landscape area how you can proceed and on a timely
basis. But by the same token, we don't appear to have the
resources to develop the HCPs within the Service.
I mean, time and again, the witnesses here this morning and
the people who have come to my office and other Members of
Congress, there is a long timeframe of trying to process these,
and I just wondered if you could sort of tell us where you are
in intensive areas like the southeast or certainly in the State
of California in terms of matching up the demand and the
resources? Maybe we will learn this from the GAO report too.
Ms. Clark. And I do hope we do, because I think there is an
amazing story to tell.
The notion of advocating for species certainly is the
responsibility of the Fish and Wildlife Service and National
Marine Fisheries Service, and I will tell you, to add to your
list, it is not easy being a Fish and Wildlife Service employee
these days either. But the idea of trying to respond to an
increasing demand for economic growth and economic expansion--
which is a good thing--and the need to try to balance it with
species conservation needs--which is a good thing--is elevating
and increasing exponentially, and I have seen it in my career
in the Fish and Wildlife Service pretty dramatically.
We have had previous hearings where we discussed the
deployment of resources in the Fish and Wildlife Service, but I
am happy to have that discussion over and over again, because I
think it is instructive. We try to deploy our resources where
the biological hotspots, where the biological diversity, merges
particularly with elevated and increasing economic growth, so
it is not a surprise to see resources on the west coast,
resources in the Southeast, resources being sent to the
Southwest. That is where the biological hotspots are, and that
is where the fastest growing parts of our country are.
We continue to juggle workload ourselves, as do our
colleagues in the National Marine Fisheries Service, to address
technical assistance demands and technical assistance needs,
and when thing are going well, I don't tend to hear about them
here in Washington, but when somebody is not getting a permit
fast enough or negotiations are slowed down because we have
moved onto something else, you can best believe I hear about
it, and then we start sequencing and rearranging deck chairs.
But the workloads are increasing dramatically, which is why I
continue to go back to the President's budget request.
Over the past few years, our number one budget request has
been in the endangered species consultation arena. That is the
part of the budget that deals with technical assistance for
HCPs and compliance with section 7. It continues not to be met,
and we continue to stagnate in our ability to provide
accelerated response time, which is frustrating not only for
the applicants and the Federal agencies and the landowners, it
is very frustrating for us as we try to work out creating
landscape solutions. So, we continue to try to balance and to
try to address the most demanding needs as best we can in
hotspots around the country.
Mr. Miller. Thank you. Just quickly, Mr. Bruton--my time is
up--as I calculated, the mitigation costs for the Department of
Transportation was roughly about, what, 3 or 4 percent?
Mr. Bruton. Three and a half percent, sir.
Mr. Miller. Three and a half percent? Thank you.
Mr. Bruton. Yes, sir; that was those five projects that I
mentioned, and over the $16 million divided by the $450
million, roughly, is about 3.5 percent, I think.
Mr. Miller. Thank you.
Mr. Pombo. Mr. Calvert?
Mr. Calvert. Thank you, Mr. Chairman. Ms. Clark, you are
the one--I am one of those people you have been hearing from, I
suspect. I want to thank you for coming before the Committee
today to address some of our concerns with the enforcement of
the Endangered Species Act.
I last saw you in March at the hearing before the Fisheries
Subcommittee, and the Subcommittee sent some follow-up
questions to you back on March 3, and, unfortunately, we have
yet to see a response to those questions. So, I am hoping to
see a response to those questions sooner rather than later; in
fact, with the permission of the chairman, I would ask that we
insert them into the record.
Mr. Pombo. So ordered.
Mr. Calvert. With regard to the Corona case that the city
manager of Corona indicated, the Corps initiated a formal
consultation on May 20, 1998 and has yet to be resolved. This
is certainly well over a year ago, well beyond the 135-day
requirement under the Act. This appears to be a pattern. As you
know, I have a number of those type of issues before us,
especially around my district, which probably is impacted as
anywhere in the country. How often does the Service meet the
required deadlines?
Ms. Clark. We generally--I can't give you a specific
percentage, though I would be happy to tell you----
Mr. Calvert. How about just a general idea.
Ms. Clark. I would say, as a general matter, we meet it a
good bit of the time----
Mr. Calvert. Do you ever meet it in my area, in southern
California?
Ms. Clark. They tell me yes.
Mr. Calvert. Any particular instance where you can point
out that they have met that required deadline?
Ms. Clark. I will tell you what I can do: I can get back to
you a list of----
Mr. Calvert. Yes, why don't you give me an idea, a
percentage of the times in southern California you actually
meet the required deadline under the Act.
Ms. Clark. I would be happy to.
Mr. Calvert. Does the Endangered Species Act allow
retroactive mitigation on projects you have already permitted
as far as 30 years, as in the case of the city of Corona?
Ms. Clark. Retroactive mitigation----
Mr. Calvert. Retroactive mitigation on projects that you
want to have mitigated for 30 years of disturbance prior to
today's date.
Ms. Clark. Put the way you said it, Congressman, no. What
it does do is allow us to evaluate the environmental baseline
at the time that we are conducting the evaluation and address
the conservation needs based on the environmental baseline.
Mr. Calvert. So, the Endangered Species Act does not allow
retroactive mitigation on projects----
Ms. Clark. For something that has already occurred?
Mr. Calvert. For something that already occurred.
Ms. Clark. Not to my knowledge.
Mr. Calvert. Mr. Workman, in your section 7 consultation
for your maintenance projects, have the employees at the Fish
and Wildlife Service demanded or required any mitigation for
the take of species and what did they demand?
Mr. Workman. Well, I would refer to that letter of August
that I had mentioned earlier where the Corps has continually
demanded 3 to 1 mitigation and threatened 10 to 1 mitigation,
and what is interesting about all that is that our
conversations as well as the tenor and tone as related to this
long-term impact. A number of the discussions today have talked
about not wanting a cookie cutter approach to solving these
issues, but I would submit that we need a level playing field
across the country, running from Maine to California, in how we
deal with these things, and then, secondly, we need some sort
of certainty that there is going to be something that is going
to happen.
With your permission, I would like to give you another
quick illustration of the things with regards to litigation,
and in our particular case, we have an airport, a small
recreational airport, located in the Prado Basin that has been
there 35 years, and the FAA has continually told us we need to
cut the trees down to improve the safety of the pilots flying
into that airport. In contrast, the Fish and Wildlife Service
sends us letters as well as orally tells us that they don't
want any plane crashes there, because it hurts the environment.
Well, I have got one agency saying, ``Don't have any plane
crashes;'' another agency saying, ``Don't cut down the trees,''
which is Fish and Wildlife Service. ``And if you do cut down
the trees, Mr. Workman, it has to be on a 3 to 1 basis,'' not
three trees for every tree you cut down but three acres for
every acre. If there is one tree in a acre and it is cut down,
that relates to providing three acres of mitigation. So, if
there was an approach that we would hope the Committee would
take a look at and the Service would take a look at would be
some reasonableness. If you are cutting down one tree to meet
FAA regulations, that you plant another tree, and then we move
on instead of this 3 to 1 mitigation that really becomes
extraordinary.
Mr. Calvert. But in comment to that, as a former pilot who
used to fly in and out of that airport, I appreciate keeping
those trees trimmed to a certain level.
Thank you, Mr. Chairman.
Mr. Pombo. Mr. Doolittle--I am sorry--Mr. Udall.
Mr. Udall of Colorado. Thank you, Mr. Chairman. Good
morning, panel. We appreciate you taking time to join us here
in Washington.
Director Clark, I had a couple of questions for you. As you
know, in Colorado, we have been grappling with a listed
species, the Preble's Meadow jumping mouse, and in 1998, the
appropriations bill included $400,000 for the Service to work
with all these various entities to try and develop some
momentum in this area. And, in addition, I understand another
$400,000 has been appropriated for this year, but what I am
hearing back home is that the money hasn't reached the people
who need it, and, as you also know, recently I wrote you a
letter, and I was curious if you had any update on that
situation?
Ms. Clark. I did, in fact, Congressman, talk to the
regional director about that, and the response to your letter
should be coming very shortly, and I will check into that as
soon as I get back. But I know that there is a lot of effort
and energy being expended in a very collaborative fashion. We
have had folks out there from our Washington office to deal
with both Colorado and Wyoming on it, and my impression is that
the money that was appropriated is being allocated as it was
intended, but I will gladly respond to you with the specifics
of where the money is and where it went.
Mr. Udall of Colorado. I would really appreciate that.
[The information follows:]
Mr. Udall of Colorado. As you know, when these situations
arise, it looks like delaying and stalling is occurring when
instead there are very good intentions on the part of your
Service and other people to move this ahead. So, let us
continue to work together.
Ms. Clark. I will be glad to follow up.
Mr. Udall of Colorado. Let me move on to a related matter.
I think you know, last week, Secretary Richardson was in
Colorado. Congressman Tancredo and I and others were out at the
Rocky Flats Plant, and the Secretary set aside 800 acres there
for a wildlife preserve, and, as I understand, turned it over
to you all to manage part of this buffer zone around Rocky
Flats. Can you tell me a little bit about the timetable on
which you are operating? What kind of consultations you are
going to have with neighboring communities? What kind of
resources you may need to implement this agreement?
Ms. Clark. Sure. What Secretary Richardson announced at
Rocky Flats, along with our regional director, was a
cooperative effort whereby Energy has asked the Fish and
Wildlife Service for technical assistance in evaluating the
buffer areas of the Rocky Flats for their unique values and for
their appropriateness as a wildlife conservation area. We made
the commitment to Energy that we would conduct a biological
inventory of the Rocky Flats lands and provide Energy with a
sense of their richness. We did not make a specific commitment
to bring the Rocky Flats buffer area into the refuge system,
but we did make a commitment that we would evaluate it and
consider it, along with the Secretary of Energy. So, the MOU or
the commitment that was made is that we would work with Energy
in a public collaboration to inventory the biological richness
of the Flats area.
Mr. Udall of Colorado. Do you foresee any need for
legislative authority to move ahead in this regard?
Ms. Clark. Not to my knowledge, but I will be glad to go
back and check. I believe Energy and Interior both felt they
had what they needed to work across agency and within the
government to conduct the inventory.
Mr. Udall of Colorado. I would like to make another comment
on that particular site. I think it has been characterized to
be very effective and I think model ground-up, grassroots
effort where a lot of the local community citizen groups, other
stakeholders have been involved in creating a vision for Rocky
Flats and what it might look like after the post-cleanup. So,
the more you can participate in that, as you move ahead, I
think the better for all of us.
Ms. Clark. Great.
Mr. Udall of Colorado. Let me to another species--the
black-tailed prairie dog. I know you have begun a nine-month
process to evaluate the research and to consider whether it
should be listed. Can you talk again about that process and how
the public would be consulted and take part?
Ms. Clark. Sure. We responded positively to a petition to
list the black-tailed prairie dog throughout its range,
primarily due to habitat fragmentation and some other threats
to its existence. We, in the 90-day finding, suggested that we
would do a more detailed status review, and that is underway
right now in advance of ultimately a decision that will be made
whether or not to propose it for listing. The Fish and Wildlife
Service, along with the involved States and a number of the
conservation community folks and agricultural community, have
come together in a much more collaborative environment, bigger
than the black-tailed prairie dog, because there are a number
of species, like the black-tailed prairie dog, that are
beginning to disappear in that part of the country, like the
swift fox, like the mountain plover, and so they are looking at
a more holistic way of addressing the needs of the species
across that range. So, we are dealing with the petition process
for an individual species, while we are actually trying to deal
in a much more open landscape, public involvement restoration
opportunity for the habitat throughout that part of the
country.
Mr. Udall of Colorado. Mr. Chairman, I know my time is up,
but if I could make one last comment? I was out at the Rocky
Mountain Arsenal a few weeks ago and want to commend the Fish
and Wildlife Service for the work that is going on our there.
We are truly turning weapons into wildlife, and while I was
there, it was pointed out to me that the prairie dog, when you
look at the whole ecosystem profile, that there are 140 species
that are tied into the survival of the prairie dog. So, I think
at great risk do we ignore the fact that we need to preserve
this species.
Ms. Clark. Thank you.
Mr. Pombo. Mr. Doolittle.
Mr. Doolittle. Thank you. Mr. Weygandt, as your constituent
in Placer County, I am very happy to see you here today.
From your testimony, it seems as if Placer County has been
one of the more proactive jurisdictions in implementing much of
the Fish and Wildlife Service has been asking. Yet despite this
fact, it is troubling to me that the Sacramento field office
has made the approval of important public infrastructure
projects unnecessarily burdensome, and I just wondered if, for
the benefit of the Committee, would you explain how the Fish
and Wildlife Service's policy of service area impacts has been
an impediment to the timely approval of important public
infrastructure projects in Placer County?
Mr. Weygandt. Yes. There are three current public
infrastructure projects that are very important to the existing
development of the country from an economic perspective as well
as accommodating the growth pressures that we are experiencing.
There are two interchanges on a freeway, and one is a sewage
treatment facility expansion.
Again, the idea of service area impacts, or what in
California we refer to as cumulative impact, is not something
new to us. We also think that the notion has merit, but,
clearly, there needs to be clarification and improvement as to
the delivery of those policies as it relates to the Service.
In our experience, recently, beginning with the
interchanges, there was correspondence issued that related the
concerns about these cumulative impacts, but, in fact, when the
county became involved initially in the process, the original
discussions were simply a communication to the Service that the
service area impacts, the cumulative impacts, in the first
case, the Blue Oaks Interchange, were much more restrictive
than for the map that Fish and Wildlife Service had reflected.
In other words, we were collecting fees to build these
interchanges based on a region that was far smaller than the
large map that the Service had reflected in its letter. So, we
communicated that; we communicated the methodology by which we
had done the calculation of the fees, and we were able to make
progress in that communication, but there clearly is a learning
curve; there clearly was a delay in the project. The tenor of
the communication caused a huge amount of anxiety, I think, in
the community, and it is an area that in fact had already been
taken into consideration in the local review processes that
were necessary for that project.
And that is similar with the other interchange, the
Pleasant Grove Interchange, and also in the city of Roseville
Sewage Treatment Facility, it in fact was actually a regional
facility. There are phases of it. The first phase, which needs
to be initiated immediately, has included a huge amount of
environmental review, years of environmental review, a huge of
investment in that. And, again, that first phase is something
that is going to be necessary to serve entitlements that have
already been the through the review process. In the development
community, they call the public sector taking two bites out of
an apple for which they should only get one bite, and in fact I
think everybody would acknowledge that environmental quality
has a cost to it. What is incumbent upon those of us in the
public sector is to make sure that that cost provides value,
and if we are wasting costs by basically going through the cost
cycle twice, it decreases the value, and all of us that are
involved in the regulatory process, I think, needs to have
incentives in providing that value to the constituents at the
lowest cost, because that in fact is going to further
environmental quality.
Mr. Doolittle. How many months do you think you lost on
those three projects having to duplicate this analysis on the
service area?
Mr. Weygandt. I would say that on the one interchange, Blue
Oaks, with which I am most familiar, because it is also in my
supervisorial district, there, clearly, had processes been
different, were probably three months that were unnecessary in
terms of the timeframe that was used for the evaluation, and,
in fact, if the process was such that the Service plugged into
the review process in the very beginning, the evaluations could
have been done concurrently, and there would have been no extra
time or cost necessary.
In addition to that, politically, as the county was going
through our legacy process, the implementation of our open
space program, it created a huge amount of anxiety locally
amongst the cities of Rockland and a local development
community, which didn't even help us further the politics of
our legacy program, which has broad-based support amongst our
constituents and unanimous at the board of supervisor level.
So, there are other costs just in terms of time; it is politics
also.
Mr. Doolittle. My time is up, but is it only just three
months. Is that the only amount of time we are talking about or
was it a longer period when you consider all three of the
projects, as you discussed?
Mr. Weygandt. That is a good point, and it is not something
I guess I have the ability to definitively answer here. I know
that the first correspondence that I saw was issued in early
January. The Blue Oaks permits were received a couple of three
weeks ago, perhaps, and I understand that the permits on the
other two infrastructure projects were essentially completed or
received as of yesterday.
Mr. Miller. Would the gentleman yield just for a second? I
know you are yielding your time that has run out.
Mr. Doolittle. Well, yes, I will yield the time I don't
have. Go ahead.
Mr. Miller. On this point, Mr. Weygandt--because in the
meeting I had with some of the Roseville people, the
entitlements in phase 1 here were all agreed to and approved.
Is that correct?
Mr. Weygandt. It is my understanding that those are
correct, but that would have been a permit that was issued.
Mr. Miller. And this was negotiations over a change in the
footprint on the treatment facility?
Mr. Weygandt. That I don't know.
Mr. Miller. I think that is the case, and I think this is
sort of a little bit of a case--if I might make this point, Ms.
Clark--is that there really was no authority to turn down the
treatment plant and the phase 1, because it had been approved,
but then through a tiny, tiny modification on the footprint,
discussions were then leveraged into the phase 2 and what would
the city be prepared to do and what would the waste treatment
facility be prepared to do, which then started to threaten your
ability to get underway in phase 1 to meet your commitments to
developers, and I guess some commercial development or economic
development was also taking place.
Mr. Weygandt. That is correct.
Mr. Miller. And while there was no authority, you don't
want to upset the people who are then going to rule on phase 2.
So, you engaged in fairly protracted long discussions here
under the cloak of some legal authority, but it probably wasn't
really there, and I think that is what drives cities,
developers, and others kind of people crazy from time to time,
because a project that has, for all intents and purposes, been
approved, is now being held up to try to leverage some
discussions about future activities, because Placer County and
Roseville, as I understand it, has this legacy, and Roseville
is part of that, and this service area would be part of that,
although the county is much larger than that. And, so you are
kind of watching two scorpions dance here, and nobody wants to
upset the other person when, in fact, even in this case, I
believe the Service admitted, ``Well, yes, we know you can go
ahead, but we want to talk to you about this,'' and that is
where some of the delay came from in terms of, then, people
being able to time the development with the treatment facility
being able to take them on-line. And I just--you know, there is
nothing illegal about this, I guess--but it is this drift
sometimes where you are kind of leveraged into a position,
because you are talking to the regulator, and sometimes that
turns out to be real time and money for a city or for a
developer or for others.
Mr. Weygandt. And, in fact, if I may, in phase 1 on the
sewage treatment facility, not only was the permitting process
evaluated in the sewage treatment facility, itself, the
entitlements----
Mr. Miller. Which it was going to service.
Mr. Weygandt. [continuing] which it would still be serving,
have also gone through exactly the same exhaustive and
expensive review, and, frankly, in my opinion, there is
absolutely no need for any time delay at all, but it is a
function of the culture and the effectiveness----
Mr. Miller. And, as I understand it, the sewage treatment
is part of the larger HCP, but it was all leveraging them into
that decision. They could have gone alone on an individual
permit, and I understand that, and, as I understand it, this
thing, more or less, is going forward now, and it is okay, but
it is that kind of leverage, I think, that disturbs people. I
don't know--Director Clark might want to respond.
Mr. Weygandt. But then in addition to--with the Blue Oaks
Interchange, specifically, there is public financing and
bonding that was involved in a partnership between the city of
Rockland and the local development community. The timing of
that was very critical, and, again, the anxiety that drove the
local politics kept me busy for a while more than I wished I
would have been.
Mr. Doolittle. Mr. Chairman, if you would indulge us, could
we invite the Director to respond to the issues Mr. Miller and
I have raised?
Mr. Miller. I realize you don't have all of the facts, but
I think this is the drift that we, as Members of Congress, hear
all too often at the local level in terms of those who are
trying to process the applications for permits and do other
actions.
Mr. Pombo. This is the root of a lot of the problems that
we hear about all the time. Exactly in the way this question
and answer were laid out for you is the root of a lot of the
problems we hear. I mean, what Mr. Calvert laid out a few
minutes ago was a very similar problem. So, I think that I
would like to hear your response to it.
Ms. Clark. Well, I will respond, maybe not so much to the
specifics, but I get enough of the gist of the frustration that
I clearly endorse the frustration, and I can appreciate it on a
number of projects.
What it does is send a signal to me, very strongly, that
early involvement and early collaboration is key to success of
these projects, and when you have sequenced issues, like the
State CEQA process, that then is followed up by the Federal
Corps process; it then has a Clean Water Act provision; then
you have the Endangered Species Act, the county or the
landowner, or whoever is having to deal with the ``regulator''
are seeing bite after bite after bite at the apple, and they
think they have something figured out, and they think they have
a deal, and then in comes another piece.
And in this particular project, what I do know about it is
there was a lot of stop and start, and there was some confusion
over trying to understand the terms of the project and trying
to understand the specifics involved, and I think it is back on
course. But, I have talked with our folks, and we encourage
them to try to get involved earlier in the process, so that if
we resolve it during, for instance, the State CEQA process,
then, quite frankly, we have no business coming back and
tinkering and asking for more or asking for supplements. But,
oftentimes, it is an issue of deployment of resources. What
comes in the door first and just the shear demand for technical
assistance that we don't have the ability to kind of stick with
the process and get engaged in understanding the process
sufficiently to address the counties' or the landowners' needs.
But I believe a lot of this is and can be--without minimizing
the notion of communication and early involvement--can be
resolved if folks are working together simultaneously versus
sequentially, which happens in a lot of these projects.
Mr. Pombo. Ms. Clark, I don't think that with these two
projects, that either one was a surprise to Fish and Wildlife
or they didn't know it was happening; that they weren't in on
the process early; that they weren't completely and fully aware
of everything that was going on. It was not a lack of funds or
a lack of employees or anything. I think you basically had them
over a barrel, and you were going to get a little bit more.
Ms. Clark. Well, Mr. Chairman----
Mr. Pombo. Because you get to say yes or no, and they know
that, and that is how we end up doing hearings like this.
Ms. Clark. True, true. Well, this is, as I said in my
opening statement, it is projects like these that I am happy to
get personally involved in and look at with the regional
directors and the folks. I think there are different stories
and different perceptions here, from what I hear, but certainly
looking at it personally is something I am happy to do in
trying to keep these issues on track.
Mr. Pombo. Well, in my working with you, I know you have
been willing to do that, and, unfortunately, you will probably
have to move to California by the end of the hearing.
[Laughter.]
Mr. Gilchrest.
Mr. Gilchrest. That is not a bad thing.
[Laughter.]
Thank you, Mr. Chairman. Well, I am from Maryland, and my
district is both sides of the Chesapeake Bay. This was not one
of my original questions, but I will bring it up. I would like
maybe some of the Fish and Wildlife people from California to
move over here to my district, some of the enforcement people,
because we are about ready to dump dredge material overboard
into the bay that we have seen and the Corps of Engineers has
concurred with us that it is going to equal the amount of
nutrients that you get from the sewage treatment plant from the
city of Annapolis as far as the ammonia and phosphorus release
is concerned, and the Feds and the State don't require a permit
for that release of nutrients. So, we are fighting that, and so
if you have anybody from Fish and Wildlife in California who
wants to move over here and enforce that in my district, we
will accept them, and we can send a guy here over there. He is
a nice fellow, but the fellow here is okay, and he has been
helping with this.
Some of the inconsistencies of the application of
regulations is pretty amazing.
Mr. Doolittle. If the gentleman will yield, I believe
California has 193 out of a total of 345 nationwide.
Mr. Gilchrest. And the Chesapeake Bay has four. But,
anyway, the early collaboration, I think, is really crucial on
people that are able to feel that their opinions are respected
to resolve some of these issues.
We have an issue, Ms. Dalton, that you are probably
familiar with--it is a State issue, more or less; deals with
the States, and it is Menhaden. Menhaden in the lower
Chesapeake Bay does not need any management plan. You can catch
as much fish as you want, and we are seeing a decline of a
whole range of other species and problems as a result of
overfishing of Menhaden.
So, we got a group of people together over a series of
meetings--Fish and Wildlife, National Marine Fisheries Service,
local Department of Natural Resources, charter boat captains,
fishermen, all kinds of people--and we decided that the
management plan for Menhaden has to be a certain amount for the
charter boat captains, for the fishermen, for a range of other
people that want those fish for economic reasons, plus, enough
has to be set aside for rock fish to eat. They need, in order
for the ecosystem to work, a certain number of Menhaden.
And the third thing that was important, among many other
things, was that Menhaden are filter feeders. At certain
stages, they eat zooplankton and they eat phytoplankton, and
they filter the bay to make it cleaner, like oysters. And, so
the bay depends on a certain number of Menhaden to do that
particular job.
And, so, basically, what everybody did, through a series of
meetings, almost coming to a successful conclusion, is
understand, literally, the complexity, the virtual infinite
number of variations and the mechanics of natural processes,
and I think we have reached a stage of our development as human
beings since the frontier is gone, our resources are being
diminished, the population is increasing, and all we have left
in all these communities is the democratic process and the
character of the people engaged in that democratic process.
And, so we really need to respect the motivations of other
people; let them be heard; have a collaborative effort at the
very beginning, and then move on, but understanding human
beings have activities that impact the natural processes and
not in the same way as Menhaden and rock fish used.
Agriculture is the biggest industry in my district, and we
have seen improved management practices, so that not only is
the bay coming back because of greater buffer strips, the grass
is coming back and a whole range of other things. The whole
region is becoming more prosperous for a lot of reasons--
tourism is up and things like that--and I didn't mean to talk
my whole five minutes.
The point is that--and I am not too--these guys will attest
that my too crazy--Ken will attest it; Rick may not attest it--
--
[Laughter.]
[continuing] Jim Hansen--I am not too crazy, but,
basically, we are marooned here on planet Earth. We are
marooned here; this is it. We have the planet; we have our
community. The children depend on responsible adults to
collaborate and find out the best kind of information. I didn't
know that Menhaden were filter feeders. I didn't know the
reason large numbers of rock fish were dying of starvation was
because they didn't enough to eat in certain portions of the
bay. We got everybody together, and we stopped fighting, and we
stopped arguing. We said, ``How can we hold on to the resources
that we have; manage what is left, because they are being
diminished?''
Anyway, I think everybody up here has given fine testimony.
You have each picked out a piece of the problem, and I think
all of us together can help solve it.
Mr. Pombo. Mr. Sherwood.
Mr. Sherwood. Thank you, Mr. Chairman. I want to thank the
panel. It has been very illustrative for me today to get into
the depths of some of these issues, and, Ms. Clark, I would
like to explore white-tailed deer with you a little more; that
is an area of interest to me.
But one of the things that I am not satisfied with what we
have done here today is I think you very frankly told us that
you didn't think mitigation for prior--retroaction mitigation
was in the law, and yet as I heard Mr. Workman's testimony, I
am afraid your two statements are inconsistent, and I would
like to explore that just a little more, because sometimes we
don't see the facts the same, and I am not sure exactly what
they are, but I have been trying to listen to both sides, and I
think your position and maybe your office's position or Mr.
Workman's testimony of your office's position are at odds, and
I think that is one of the areas we need to run down, because
there is a perception around that we all want the same goals. I
think we all want the same goals that are the goals of the Fish
and Wildlife Service, but we often hear that the ends to those
goals create a lot of obstacles, and I think this is a good
example of that, and I would like to explore that a little
further.
Ms. Clark. Be happy to. I was carefully listening to the
testimony of the other panelists to see if I could isolate some
specific challenges. The notion of retroactive mitigation, the
notion of requiring something for something that has been
already approved is an issue that I need to look into more
specifically given specific projects and the policy that I
believe.
But, again, I am convinced that some of this might be an
issue of communication and perception and that some of this is
related to--you have a project. Either the project changes or
something changes, and there is a requirement for an additional
permit, and when our folks are evaluating the environmental
effects, they are looking at the baseline of the species; they
are looking at the environmental condition of the cumulative
effects of everything that has gone on before or they are
looking at the baseline of the species and its habitat at the
time they are evaluating the impacts of the additional
extension, expansion, whatever is on the table before them. And
it is based on that that they are making the recommendation of
the decision on what is appropriate for mitigation and
minimization.
So, as I was leaning back and talking to some of the
California folks, I think it is entirely appropriate that the
question is being asked and that we consider in detail some of
these cases and see if in fact we do have a policy, which I am
not clearly prepared to admit, or we have a mechanics,
communication issue, and I would be glad to get to back you
once I have had some more, kind of, detailed involvement in
some of these projects.
Mr. Sherwood. Thank you. Mr. Workman, you made the
statement about 30 years of mowing ballfields. Now, I would
like to know specifically why you used that phrase? Is that a
phrase that came from Fish and Wildlife or is that your
interpretation of what they are doing?
Mr. Workman. That is an illustration. When we talk about
maintenance activities in the Prado Basin. In the Prado Basin,
we have a variety of things that are going on--recreational
activities, such as the airport I mentioned, the ballfields; we
have a sewer treatment plant; we have drainage facilities; we
have roads that serve the public. And that cumulative impact
over 30 years has been with us, and we have dealt with it. We
have worked effectively on a number of projects with the Fish
and Wildlife Service, but in this particular case, in this
Maintenance Manual, which is basically for not new construction
but for things that are currently in place and what things we
need to continue to maintain, whether it be drainage ditches or
the ballfields, that is something specific that our staffs have
discussed and looked for in terms of what that mitigation is
going to be, and in making notes to myself here, I continue to
think of things through this mitigation process and just to do
these maintenance types of things.
They are also requesting that I hire a full-time patrol
position in the Basin, so I have the means to respond quickly,
quickly control any fires, environmental contamination spills,
and the like to protect the environment. Well, this Basin is
acres and acres and acres, and I would have to hire another
fire department and police department to do what is being
requested here.
So, when I use the term ``ballfield,'' that is just one
part of the things that are going on in the Prado Basin and
that we are willing to talk about mitigation and very willing
to mitigate for things, but 30 years of mowing ballfields and
30 years of cleaning ditches and 30 years of running airplanes
in and out of an airport, that becomes difficult for us to
understand.
Mr. Sherwood. Thank you.
Mr. Pombo. Mr. Gibbons.
Mr. Gibbons. Thank you very much, Mr. Chairman, and as I
sat here today listening to this panel and their presentation,
my recommendation would be that we hold one of these hearings
on the endangered species every week so that we can bring the
administration to the table with many of the constituents in
all our districts to have them hear some of the same horror
stories, and I appreciate their patience with us today.
Mr. Chairman, of course, I represent most of Clark County,
Nevada, which has the infamous desert tortoise, a species now
which has accumulated over $30 million toward its restoration.
I am curious just exactly how much money it is going to restore
this species? If there is a time deadline, how many golden
habitats do we have to build for the desert tortoise at this
rate to achieve a significant recovery plan? How many more
millions are we going to have to spend on this species?
Ms. Clark. Well, I am assuming that is directed at me?
Mr. Gibbons. Yes, ma'am.
Ms. Clark. I can't give you the specific answer about what
it is going to cost to recover a species. I could go into a
long biological litany that our species didn't get to the
status that they are overnight, for sure, and that there is a
lot of development that has gone on that has affected them. But
the desert tortoise actually does have a very comprehensive
recovery plan that lays out a series of action tasks and
responsibilities and implementation tasks that will ensure its
recovery and ultimately delisting, and, from what I understand,
it has been a pretty involved process and a pretty
collaborative process that involves academia, even, in
assessing the biological status and biological needs of the
species.
Mr. Gibbons. Could you give us an update what the status is
today with the desert tortoise? Whether it is recovering? What
your predictions are as far as having it recovered?
Ms. Clark. I would be glad to get back to you for the
record. I don't have the specific information.
Mr. Gibbons. Let me go off on another area. I noticed from
these special funds, which--of course, the desert tortoise has
a Desert Tortoise Public Lands Conservation Fund, which we have
just talked about--which has over $30 million in it. That is
for one endangered species in Nevada, and yet I see Hawaii on
the list here with 298 endangered species with no section 10
permit requirements, no habitat conservation plans. Can you
tell me how many special funds there are in Hawaii for these
298 endangered species at the present time?
Ms. Clark. I don't know if there are any special funds, but
I can tell you a little bit about the difference between Hawaii
and Nevada.
Mr. Gibbons. Well, I think everybody in this room can tell
you the difference between Hawaii and Nevada, but I think it is
the species we are after. Why the difference between Hawaii,
which has 298 endangered species, doesn't have any section 10
permits, doesn't have any habitat conservation plans, and why
aren't there special funds for these?
Ms. Clark. What I was referring to, Congressman, I was
trying to get at, was the difference between the State laws,
and the State of Hawaii, until very recently, had a State
endangered species law that prohibited the take of species,
which was actually much more stringent than the Federal ESA,
which allowed for permits to take species. So, the State law
often trumped the Federal law in protective capabilities and
protective oversight of the Hawaii listed species. Unlike
Nevada, which tracks much more closely to the Federal law that
allows for mitigation, allows for incidental take of listed
species. It was very recently that Hawaii relaxed, if you will,
or clarified their law to allow for incidental take, and in
fact we are engaged with the State and private landowners in
habitat conservation planning and consultations to permit the
take of listed species.
Mr. Gibbons. So, in the future, we will see the same
habitat conservation plans enacted in Hawaii, the same special
funds for species recovery?
Ms. Clark. You very well may see--and I would expect you
would--habitat conservation plans developed for species in
Hawaii in accordance with State and Federal laws.
Mr. Gibbons. The same type of mitigation requirements in a
3 or 10 to 1 offset?
Ms. Clark. Again, it would be species-specific and project-
specific, so I can't dictate or project the--predict the
outcome of these negotiations, but it would be done according
to the species and individual needs of the project.
Mr. Gibbons. One final question, Mr. Chairman, to parallel
your first question that you asked Ms. Clark, did you initiate,
request, or direct yourself or anyone on your staff to question
the panelists on what their testimonies would be?
Ms. Clark. No, sir; I did not.
Mr. Gibbons. Thank you. Thank you, Mr. Chairman.
Mr. Pombo. Mrs. Chenoweth.
Mrs. Chenoweth. Thank you, Mr. Chairman. Director Clark, I
wanted to ask you, does your agency or, Ms. Dalton, does your
agency issue incidental take permits to people who are fishing
in the ocean for the salmon--commercial fishermen?
Ms. Dalton. Basically, the way that we have dealt with
ocean fishing is through a fishery management plan. For
example, we just had a fishery that was opened up for hatchery-
raised Coho Salmon, and what they will do is manage it, in
part, under an incidental take statement pursuant to a
Biological Opinion rather than a section 10.
Mrs. Chenoweth. Under this plan, is there mitigation
required for replacement of the take, like 5 to 1, like we have
heard testimony?
Ms. Dalton. Well, the fishery, itself, is directed entirely
on hatchery-raised and released fish, so there is no mitigation
required. Fishers are required to release any non-fin-clipped
salmon that they catch, and those are generally released alive.
Mrs. Chenoweth. Director Clark, what is being done about
the problems with the terns at the mouth of the Columbia that
are taking thousands and thousands of salmon through predation?
Ms. Clark. Our folks are working, along with National
Marine Fisheries Service and others, I believe the Corps of
Engineers, to look to phase the terns off of the island and to
try to move this colonial nesting colony to other islands. So,
we are actively engaging with the other Federal agencies in the
State to try to move the terns. It is only part of the
solution, for sure, but we have not stood in the way of either
National Marine Fisheries Service or the Corps in trying to
phase these birds over into some other historic nesting
habitat.
Mrs. Chenoweth. There is something wrong with this picture.
We just heard Commissioner Schulz testify that because of the
listing of three anadromous fish they can't turn their water
out to their ditches, and their farmers are not able to
irrigate, and yet we have massive taking in the oceans through
commercial fishing; we have massive taking through predation,
and both Services are imposing unbelievable restrictions on
Okanogan County, and, frankly, I strongly suggest that there is
no jurisdiction for the agencies to do this.
Mr. Schulz, I think your testimony was utterly shocking. In
light of a recent Supreme Court decision, Bennett v. Plenner,
the court ruled unanimously that humans are within the zone of
interest to plead for their damages, and in your testimony, you
have set forth four terms that you would like for us to
cooperate with you on. One of the terms is, you would like some
financial support, and I can understand why; your county is
drying up. Your mining has gone down; your timbering has gone
down, and now they are going after your farmers, and your
farmers aren't able to get their water. And you come to the
Congress and request that Federal funding be made available
through the Federal Columbia River Mitigation Program, hoping
that a few crumbs will trickle down to Okanogan County.
Well, Commissioner, I want to suggest that what the
Services are doing is taking the property, and you ought to be
in this Congress demanding with your property owners--who,
without that kind of production on their property, your tax
base shrinks--you ought to be demanding from this body the full
restitution for the take. Now, the President has been sent
numerous times, most recently with the new world mines where
the taxpayer ponied up $66 million for the taking of a mine.
I suggest to Mr. Schulz, I am just furious that by
mitigation when the agencies say, ``We don't want to do away
with the hope of cooperative agreements,'' they get the county
to sit down and mitigate an HCP plan on waterbanking, and the
county becomes involved in an agreement where they accept
liability. The State, your watermasters in Idaho--I mean, in
Washington, also, work directly for the State, not for the
county, and so the county has become involved in an agreement
and accepting liability for something the Federal Government is
imposing, and the recent Supreme Court decision, such as
Bennett v. Plenner, such as Page v. U.S.--Bennett v. Plenner
was a Supreme Court decision; Page was a court of claims or a
claims court decision. It is instructive out there; they have
no jurisdiction in your ditches, and I would just encourage the
county--excuse me, Mr. Chairman; I would like just one more
minute--I would--one more minute? I would encourage the county
to protect your property rights, protect your water, because
the way things are going, the county is being set up for a
liability that you shouldn't have to assume. The Feds have to
be asked for permission to sue, but you don't.
So, I just think that you need to take another legal look
at what is happening out there in Okanogan County with the
whole line of Supreme Court cases and water cases are on your
side, and I would encourage your ditchmasters and watermasters
to open those head gates and let that water flow, and if the
Federal Government doesn't like it, they can try to stand on
your line of cases that have stood with the irrigators in the
States. Your testimony was startling, and I wish you luck, sir.
Mr. Schulz. May I briefly comment?
Mr. Pombo. Yes.
Mr. Schulz. I have been involved in the planning department
for 17 years and 7 years now as a commissioner. So, 25 years,
we have worked very hard in Okanogan County to protect the
environment. We are very concerned about the environment. On
the PDs, that is the plan year development--we have very tough
zoning laws--we allowed a development, a very small one of
eight units to go in, and that individual put 97 percent of his
land in open space for our key and critical and all our
different species. He gave up 80 percent of his water right for
in-stream flow, and I was told last week that is not enough.
They will shut him down completely, because there is not enough
water in his in-stream flow.
Mr. Pombo. I have got to interject. Who said it is not
enough?
Mr. Schulz. The National Marine Fisheries Service.
Mr. Pombo. But they don't require mitigation, so----
Mr. Schulz. They are working on that now.
Mr. Pombo. Mr. Tauzin?
Mr. Tauzin. Thank you, Mr. Chairman. Let me, first, make a
couple points, and then I will get some responses. We are
seeing several trends associated with mitigation, which is one
of the reasons we are so concerned about the way it may be
inappropriately used in the ESA cases. One of the trends, of
course, is good on the one hand, it is the development of
mitigation banks, such as has been described to us in North
Carolina. Other States are developing mitigation banks.
Landowners are putting their lands in mitigation banks, in some
cases, and making a killing, however, because the ratio of
mitigation keeps going up--1 to 1, 2 to 1, 5 to 1, 10 to 1. We
have a case in Louisiana where there is now a 2,200 percent
increase in the rate of valuation of mitigation required in
wetlands cases--2,200 percent increase in a couple years. Some
landowners who are lucky enough to be in that mitigation bank
are making a killing.
The problem is, is that it has to do with two things.
Number one, there is no apparent legal definition of what the
ratios ought to be, so that somebody ends up having
discretionary power to decide whether it is going to be a 2 to
1, 5 to 1, 10 to 1, or 2,200 to 1 ratio in mitigation, because
Congress has never defined what is appropriate in terms of a
formula to decide what is proper mitigation. Somebody out there
has the power of King John or King Richard who walk around the
land deciding, on an individual case, who is going to
contribute how much to the general fund depending upon their
particular view of the situation out there. How many chickens,
how many eggs, how many cows have to be slaughtered to satisfy
the King today? And there is no law governing, no protection
for the citizen, but there is a limit on that individual. The
problem with the mitigation banks, which have been generally
regarded as good features on the landscape, is that very
wealthy applicants keep raising the bar for everybody else. On
the one hand, they enjoy the relative bargaining power, because
they may have some ability to bargain better with the agency on
what is going to be required of them in a mitigation
circumstance. On the other hand, because they have such good
resources at their disposal, they are building a big
development project or it is an oil company that is going to
spend a ton of money to develop a property for mineral value or
a coalminer or whatever it is, a mineral mining company, that
they raise the bar. They agree to these large percentage
mitigation requirements, and all of sudden that becomes the
standard for every small landowner who doesn't have that kind
of bargaining power--the farmer down the street; the family
that wants to build on a one half acre plot of ground, build a
home for their kids. The bar gets established and all of a
sudden they all have to meet it, because that is what is
required. You have got to contribute to the mitigation bank,
and if there is a 2,200 percent increase this year, so be it,
even though Congress never enacted a tax to that degree for the
purposes of conducting whatever protection we want to conduct
in this country.
And individuals working for your agencies end up making
those decisions. We hear from the testimony and from the
evidence presented to this Committee, that biologists are going
around requiring mitigation under section 7 when the agency
says it is most inappropriate to do so. I guess, we have sort
of turned the Fifth Amendment on its head. The Fifth Amendment
says you are going to be compensated when the government takes
your property. That is now been turned on its head, and the
government, through a biologist, can tell you how much you have
got to pay to use your property, and they can determine how
much that is going to be on a given day. And the rich in our
society are setting the bar for the poor. This is becoming a
real ugly mess, and it is not creating a world where landowners
are cooperative agents in preserving species. They are becoming
enemies, and we ought to be working together for a common
cause. We have got to do better.
Let me ask this--I just want to get one answer from each
one of you, Ms. Dalton and Director Clark. If you catch your
biologist requiring mitigation when you testify it is
inappropriate, what is your responsibility? What are you
supposed to do in those circumstances? Either one of you.
Ms. Clark. Let me try and clarify your question. If----
Mr. Tauzin. If you are presented with a case where your
biologists out there are requiring or pressuring or leveraging
the power of the government to insist on mitigation, either on-
or off-site, when you have testified and your agency policy
says that it is inappropriate to do so, what is your obligation
under those circumstances, each one of you?
Ms. Clark. Well, certainly, my obligation--if I believe
that the mitigation or minimization doesn't match the project
design, my obligation, as Director, is to correct it, and----
Mr. Tauzin. How about where it is not required at all, and
it is being required, what is your obligation?
Ms. Clark. Well, I think it falls under the same category.
If in fact I have not seen--in the earlier part of the
discussion in this hearing, we talked about the confusion over
the term ``mitigation'' and the fact that mitigation is tied to
the specific projects and the specific species, but, certainly,
if indeed anybody in the agency, including myself, has made a
call that could have been different, could have been better,
then I think we are obligated to correct the call and to fix
the decision.
Mr. Tauzin. Which means to undo the requirement of
mitigation?
Ms. Clark. If that is the issue. I have not seen----
Mr. Tauzin. Ms. Dalton, is that your responsibility too?
Ms. Dalton. As an agency we probably have had less
experience with this. Most of it has been in the area of
endangered salmon. My understanding is that we do have a fairly
standard practice when there is riparian habitat that is
eliminated or lost in the course of an activity. We have a 3 to
1 replanting requirement.
Mr. Tauzin. Who decided that it was 3 to 1?
Ms. Dalton. From the biological standpoint, what we
estimate is that if they replant the area in a 3 to 1 ratio,
the net productivity that they get out of the final product----
Mr. Tauzin. Could you change it to four tomorrow if you
wanted to? If you decide--your biologists tell you to move it
to 4 or 5 or 10 next week, if they wanted to?
Ms. Dalton. It would be incumbent on us, I think, to use
the best biological information we have available.
Mr. Tauzin. But you could do it, couldn't you?
Ms. Dalton. Sure.
Mr. Tauzin. Yes. Thank you, Mr. Chairman.
Mr. Pombo. Yes, we are going to do a second round.
Mr. Workman and Mr. Weygandt, both--you both talked about
accumulated impacts with this service area or whatever. How do
you mitigate for accumulated impacts? So, let us say,
activities over the past 30 years, if you have a new
development or new activity coming in to your city or county
and Fish and Wildlife says that you have mitigate for
activities over the past 30 years, how do you pay for that?
Where does the money come from?
Mr. Workman. Well, one of my areas of expertise is
governmental finance, and I always use the term ``it is a
mandated cost,'' either from the State of California or from
the Federal Government, and I don't have a way to pay for that,
particularly for it being a public use in the Prado Basin that
we are talking about. There is a long-term lease from the
Federal Government, so I can't go back and charge anybody for
the types of things that are going on there.
Mr. Pombo. In a current law, you can't charge a developer
for accumulated impacts. You can charge him for his impacts.
Mr. Workman. I imagine I can charge him for his impacts,
but, again, in the city of Corona's case, I would be charging
myself and charging the citizens of Corona----
Mr. Pombo. So, there would have to be a general obligation
bond for the city of Corona.
Mr. Workman. Obligation bond or raise the property tax or
divert money from other areas that are very important to the
city.
Mr. Pombo. Mr. Weygandt?
Mr. Weygandt. Pretty similar answer. One of the benefits I
think that we have at our disposal in Placer County is that as
we start this NCCP process or HCP process or whatever it ends
up being, if that ends up being a constructive effort on our
part, we feel that we are a good 20 years before being in a
crisis situation, so the cumulative impacts, especially as it
relates to endangered species, are something that we some
management flexibility in. But, again, in the context of
economics, obviously there is a cost of those mitigations. From
the private sector it, in our county, is born by the developer,
which essentially passes it on to the consumer.
Mr. Pombo. But you can't charge the developer for anything
more than his developments impact.
Mr. Weygandt. That is correct. There is the nexus rule, so
there has to be a strict correlation between that project's
impact and what is extracted from them with regards to traffic
or whatever else there is. But, if, for example, in their
negotiations with other agencies, those mitigations are
different, then obviously that cost is borne by them and the
result is on the consumer. If it is a public works project, the
cost is borne by the residents who live there in the same way.
And as it relates to ratios, one of the--as this
technology, if you will, develops, we, again, have a mitigation
bank in our county, and I am a proponent of that notion. Our
bank, because it has been effective, has the ability to sell
credits down to--I am sure it is at least one-tenth of an acre;
it could be one-hundredth of an acre, I am not certain. So,
getting pretty good at that science and the question of ratios
and the resulting costs are, again, another area that certainly
could be reviewed and visited upon as it relates, again, to the
economics or the context of all of this.
Mr. Pombo. And you entered into this habitat conservation
plan, countywide habitat conservation plan, in an effort to
satisfy Fish and Wildlife?
Mr. Weygandt. We had multiple incentives for doing it. The
county, again, in its general plan has a ``no net loss''
policy, and there is a lot of policy articulation with regards
to protection of habitat and specifically endangered species,
so part of what I am saying is that we have incentives that are
local that reflect those goals. The NCCP component of Legacy
which, again, is only a component of it, is desired for a
couple of reasons. One is, we want to maximize local control
over that process, so if we can negotiate an agreement with the
Service and the Army Corps of Engineers and essentially be the
permit-issuing entity at the local level, especially as it
relates to economic development programs, for example, when a
company, like HP, looks in our area--and we are fortunate to
have some very quality manufacturers in South Placer--they need
a very quick timeframe by which to typically make their
decisions to do a site location. So, if we can even streamline
that process at the county, there is huge benefit to it.
Mr. Pombo. Now, let me ask you this question: after you
have this set up and in your effort to satisfy the Federal
agencies, in your effort to meet your own general plan
objectives, if there is a new endangered species that is listed
and Fish and Wildlife revokes your ability to mitigate your
impact by using this and you have to go back to the drawing
table, you have to go back to the negotiating table with Fish
and Wildlife, what kind of position does that put you in for
the future?
Mr. Weygandt. It could potentially be devastating, so we
will be going through those processes. Again, the cost is
tremendous.
Mr. Pombo. You would be starting all over again.
Mr. Weygandt. We would be, and we are going forward under
the notion that--the theory of ``a deal is a deal'' is going to
be honored by both sides as we complete those negotiations.
And, again, that is also a policy issue, but we are working
hard to have our policies based on good science which not only
considers our existing endangered species but, in total, the
habitat and the county and potentially any likely to come
listings but also the context of just good management for those
resources.
Mr. Pombo. According to a recent report, the Fish and
Wildlife Service plans to add a new twist to ``no surprises''
rule that they would allow the HCPs to be revoked if they are
found to jeopardize species.
Mr. Weygandt. And, again, those--we will be going through
those negotiations, but----
Mr. Pombo. Then they are telling you a deal is not a deal.
Mr. Weygandt. Well, and if that were true, it would be
potentially devastating to our negotiations.
Mr. Pombo. Mr. Miller?
Mr. Miller. Thank you. I want to revisit--Director Clark, I
want to make sure that we are properly interpreting your
answer. When we talk about retroactive mitigation, your answer
to that when asked was about reviewing the baseline, and that
is obviously you take the habitat or the species in the
condition in which you find them and then the question of
whether or not a use of the property is going to cause further
degradation of that species or habitat, then it has to be dealt
with on that property. And, so one of the problems I find is
that it is sort of the last person through the door pays the
heaviest price, and I think that is why a lot of developers and
others like the idea of an HCP, so you can spread it out across
the landscape. In one form or another, more or less, you are
dealing with a degradation of species and habitat because of
prior uses of the land and decision that have been made in the
local community. Is that a fair statement?
Ms. Clark. That is a fair statement.
Mr. Miller. I don't see--I guess we keep treating this as
somehow foreign or unique, but there is a lot of landowners
today that have 30-foot or 60-foot setbacks on their property,
because of traffic loads that are already in the community, and
other people on their property had 10-foot setbacks, and I
appreciate that there is a nexus--we all like to pretend there
is a nexus--but I think the local planning commissions and city
councils and boards of supervisors stretch the nexus sometimes
the way we are critical of Fish and Wildlife stretching the
nexus.
I know developers that have to build child care centers
that far exceed the capacity of their subdivision. I know
developers that have to build a school that far exceeds the
capacity of their subdivision, and I know people who can move
into that community in an older home with seven kids and don't
pay anything, but they are going to send their kids to that
school. We have made a decision that we are going to load all
of these costs on a new development. Every city council, every
board of supervisors does that time and again. If we are
pretending that the only obligation to the developer is for the
burdens of the subdivision, it just isn't so, because there is
a lot of developments that are designed for people whose
families are more or less grown, have very little burden on the
school system, but they still have to meet a square foot tax on
bedrooms or however it is to meet the obligations the
obligations of the local communities. That would be retroactive
mitigation; in some cases, futuristic mitigation beyond even
that development.
So, I am not sure that this is all so unusual as cities
plan, as counties plan, and as Fish and Wildlife or National
Marine Fisheries requires. Mitigation in ocean for example, you
were asked by Mrs. Chenoweth about this. People in California
have had their seasons shortened. They lost 10 fishing days or
20 fishing days. The sizes move from 31 inches to 35 inches. If
you are a party boat owner or you are a commercial fisherman,
that is big time mitigation, and that is true--we have done
that just as we do for recreational fishermen; For hunters, we
limit the number of ducks; we limit the kinds ducks; we limit
the number of days you can hunt; For fishermen, we limit the
number days you fish, what you can take, what you can't; some
streams, people decide are barbless or not barbless or catch
and release or not catch and release. That is all mitigation. I
mean, that is sort of the glue that holds this together as a
society is that different people make a series of different
decisions that have a cumulative impact, and if you don't do it
right, then the people take into their own hands, like they are
doing in the congressional district next to mine where we have
four initiatives on the ballot that say if you want to develop
more than 10 houses, you have got to go to the people in a
direct initiative.
If you think developers are unhappy with mitigation, try
ballot initiatives. That is why I think they now want to sit
down and talk about having an HCP in Contra Costa and Alameda
Country, because they would rather have one HCP than have to go
to every community on a ballot initiative. Those ballot
initiatives are probably going to pass this fall. Now, you are
talking about serious mitigation when you have to run a
campaign every time you want to develop your property. So, let
us not pretend like this is a one-way street.
I have got 20 seconds left here. Let me just ask you a
question. When we talk about resources, Director Clark, if HCPs
seem sort of what county government is looking forward to doing
for getting certainty--Mr. Tsakopoulos will testify later as a
major developer in the Sacramento area. The HCPs make sense,
developers in my area think so, counties, the cities. Is there
a way or should we be thinking about putting additional
resources available to you for the development of these HCPs,
because you seem to be sort of doing that on one hand and then
trying to do the individual permits on the other hand? You have
got the plates and the sticks going pretty well here, and then
somebody suggested we have a hearing a week, so you can put
that plate on a stick and do it, and the we are going to send
you some subpoenas, and you can do that.
But on the question of HCPs, does it make sense to try to
talk to the Appropriations Committee about putting additional
resources so that we can get some of these landscapes done,
because one of the things I have heard from other counties is,
``Yes, we would love to have that, but there is really no
benefit in the timeline to getting that or getting individual
permits.'' There is all the benefits that are outlined in this
book in terms of certainty, in terms of public participation,
and all these other things that take place between individual
permits and HCPs, but it takes so long to get to the end of the
HCP where then you have the certainty you are looking for.
Again, time is money in this world. Does it make any sense
for us to look at whether or not, for these projects, whether
that would make sense in our region so we could get these HCPs
done? I think in your county you said you are waiting approval
of the one in San Joaquin, and everybody is watching to see if
that will really work.
Ms. Clark. Well, certainly, it makes great sense to get any
support this Committee is willing to----
Mr. Miller. But can you segment your workforce like that?
Ms. Clark. Pardon?
Mr. Miller. Can you segment your workforce for people that
would do HCPs?
Ms. Clark. Well, we can segregate. In fact, that has
happened to some degree in California, and, as I said earlier,
our number one demand for Fish and Wildlife resources is either
in the section 10 HCP or the section 7 consultation arena, and
that--California is a much greater scale of what is happening
nationwide. It is our number one budget request for the
Endangered Species Program in 2000. So, any support the
Committee would give us or National Marine Fisheries Service
would be welcome.
Mr. Miller. Well, that is a good question. This is all sort
of a roll of the dice.
Mr. Pombo. We were just talking--yes, this is a roll of the
dice, because you are being challenged on your HCPs in court,
and what happens if all these developers and counties all go
into HCPs, and we put more money into developing HCPs, and you
lose in court?
Ms. Clark. Well, there are challenges, Mr. Chairman, on a
number of fronts. We are very proud to stand with the
applicants on the deals that are made for the HCPs that have
been approved by us. We are being challenged in areas that are
very concerning to the Fish and Wildlife Service. Certainly,
the ``no surprises'' issue continues to be challenged, but we
are working very hard on that issue. We are being challenged in
areas like whether or not we are following through on the
monitoring requirements and the effectiveness evaluations of
the HCPs that we have already approved. We don't, quite
frankly, have the resources to go back and evaluate whether the
terms of these HCPs that have been approved, negotiated and
approved, are actually being carried out. So, we have folks out
there that are coming to us or filing suit suggesting that the
deals that we made or the deals that we entered into in fact
aren't being evaluated, and we are getting challenged for not
enforcing the Endangered Species Act, so to speak. But,
clearly, the deals that we have made, if followed and
implemented according to the terms of the agreement, are ones
that we feel very confident can withstand any challenge.
So, where we are being challenged is not necessarily,
though, in some cases, are on the substance, and we are happy--
I am happy to put any of our biologists on the stand to debate
what they ultimately negotiated and whether or not they believe
it is appropriate for the species, because I know them well
enough to know they wouldn't enter into a deal they didn't
believe in.
Mr. Pombo. But the bottom line is you are being challenged
on the very ability of Fish and Wildlife Service to enter into
HCPs.
Ms. Clark. No, we are being----
Mr. Pombo. Because those HCPs, in order for them to work,
have to include the ``no surprises,'' have to include the other
things you are being challenged on, and if those provisions are
thrown out, then the HCP crumbles.
Ms. Clark. Well, you are right, but the ``no surprises''
policy, regulation, is under challenge. Our folks feel very
confident that we are going to withstand that challenge, and we
have a lot of folks working hard at that and solicitors and the
Justice Department.
Mr. Tauzin. Will the gentleman yield?
Mr. Pombo. Yes.
Mr. Tauzin. Is part of the defense of the ``no surprise''
policy that you can surprise the landowners, nevertheless?
Aren't you proposing a change in the rules that would say that
the biologist who enters the HCP can later on determine that
because of so-called unforeseen circumstances the ``no
surprise'' is avoided? I mean, that is the argument you made in
court. I am reading from an article in the Endangered Species/
Wetland Report: ``The Fish and Wildlife Service plans to add a
new twist to `no surprises' rule, which would allow''--the
argument in court is that under very narrow circumstances, they
would in fact revoke the incidental take permits despite the
``no surprises'' agreement.
Ms. Clark. I don't know what you are specifically referring
to, Congressman, but I believe what this issue is all about
what we have been asked on a number of occasions: Is a deal a
deal? And in the event unforeseen circumstances come up and the
species is in jeopardy, what would we do? Would we stand by the
terms of the deal and allow the species to go extinct or would
we step in and address the permit? Both Secretaries have said
on numerous occasions, as have we, in negotiating these deals
that we believe there are adequate Federal authorities to step
in before a species would reach jeopardy, but it is----
Mr. Calvert. Would the gentleman yield?
Mr. Tauzin. The Chair has the time. If I could just
finish--would the gentleman yield further, just quickly?
The story goes on to indicate that the Assistant Secretary
of Fish and Wildlife and Parks, Don Barry, he signed a final
rule on this matter on March 22; expected in the Office of
Management and Budget and cleared for publication. So, there is
a new rule coming out saying that the ``no surprises''
agreements can be voided at the discretion of the biologist?
Ms. Clark. There is a rule jointly between our agencies
that clarifies the jeopardy issue. This isn't new; it never has
been new, and the issue of jeopardy to a species has always
been inherent in all the negotiations. What Assistant Secretary
Don Barry has also testified to, we had to clarify what
jeopardy means for the regulation, but we also feel very
confident that there are enough incentives; there are enough
other authorities, and there are enough other opportunities to
address the species' needs that would continue to decline
through no fault of the implementation terms of an HCP, such
that jeopardy would not be arrived at. It has never happened
yet, and we intend for it not to happen through our
negotiations.
Mr. Pombo. Mr. Calvert.
Mr. Calvert. Thank you, Mr. Chairman. Isn't it true that
San Diego County has an HCP?
Ms. Clark. Yes, it is.
Mr. Calvert. What happened recently with the Quino Checker
Spot Butterfly? Would you say that that is a violation of the
``no surprise'' letter? Since the Quino Checker Spot Butterfly
was added--since it was not on the list of species, supposedly;
it was entered into under the original HCP. Somebody mistakenly
had forgotten that particular species. Haven't you, in effect,
obliterated the HCP process in San Diego County?
Ms. Clark. No, Congressman, we haven't. The ``no
surprise''----
Mr. Calvert. What would you call it to the landowners in
San Diego who are unable to develop their property; who went in
good faith to put together an HCP; who are now, in effect,
being held in jeopardy, whether you want to call it that or
not, because they can't get permits to develop their property?
Ms. Clark. ``No surprises'' is a policy and is a part of
the deal that is made under the terms of an HCP, but the ``no
surprises,'' ``a deal is a deal'' is extended to those species
that are covered by the deal. The Quino Checker Spot was not
covered by the deal.
Mr. Calvert. Well, if you mistakenly--there is, as you
know, the process of putting together this list, and nobody, I
guess, foresaw the Quino Checker Spot Butterfly. I understand
in Orange County--the gentleman from Louisiana pointed out--
where wealthy people can tend to make deals, there are two or
three landowners that own most of Orange County, were able to
enter into an HCP by concentrating density of development in
certain areas and putting up the rest of the property as open
space. They are frantically looking through their list right
now wanting to amend their HCP process because certain
environmental groups are coming on saying that the HCP is not
enforceable, because there is going to be species added to--
that are endangered that are not on that list, and isn't it a
fact that you can then, if they are added to the list, that you
can stop development within those areas even though they have
an HCP?
Ms. Clark. Species that are not covered by the terms of an
HCP that we or the applicant haven't anticipated are not
covered by the ``no surprises'' regulation, but----
Mr. Calvert. Okay, and, furthermore, in the Agua Mansa
industrial area in Mira Loma where the developer was required
by the lender to go out and get a clearance letter from Fish
and Wildlife who picked the biologist and showed the property
clear of endangered species. And then went ahead and put $60
million worth of infrastructure, and then down the road Fish
and Wildlife finds the Flower-Loving Delhi Sand fly and stops
development in the Agua Mansa industrial area. Wouldn't you say
that that is a violation of the ``no surprise'' letter?
Ms. Clark. I don't know the specifics of that case. I would
have to look at it.
Mr. Calvert. I just wanted to point out to the chairman and
to the Committee that there are some problems with the HCP
process that we are going to have work out, because at
Riverside County, we are--as you know, we are trying to put
together an HCP, and we are trying to work with the landowners,
the developers in good faith, but at the end of the process, we
must know that we have an agreement; that we are not going to
be back here in three months or six months or two years and
revisit this issue in an area such as southern California where
we are always going to have conflicts.
Thank you, Mr. Chairman.
Mr. Pombo. If the gentleman would yield for just a second,
this is the problem with the agency doing something and
Congress never authorizing it, because it is a habitat
conservation plan, not a species conservation plan, but it is
being adopted as a habitat conservation plan but being
implemented as a species conservation plan, and Congress has
never laid out the ground rules that they are supposed to play
by, and this is why when we try to look at reauthorizing the
Endangered Species Act that these issues need to be addressed,
because these guys are going to lose their habitat conservation
plans before this is over with.
Mr. Tauzin. I just want to make a point. I know the
gentleman from California earlier made the point that somehow
mitigation is all around us, and it is natural in the order of
things. The courts have said otherwise, Mr. Chairman. The
courts have said very clearly that where agreements are
designed for the good of all the parties who are subject to the
agreement, that no taking under the Fifth Amendment occur, such
as zoning agreement, building codes, standards that are
developed, laws in which we agree to operate under in a
community that benefit all those in a community. They said very
clearly many decisions that where something is done by
government for the general good of the population, such as
species preservation but a very few people in our society end
up bearing the burdens for carrying out that policy, that a
taking can and often does occur for which compensation should
be provided.
The city of Tigard is a good example of that. It was a case
where in fact a property owner, a business, was being told by
the government, ``You have to give up some of your property for
a green space and we are not going to pay you for it.
Otherwise, we are not going to give you a building permit.''
And the Supreme Court said ``You can't do that.'' They
basically said under that case that government can extort from
individuals money and obligations that the Constitution says
the government take from them in order to do something for the
general good.
I was just thinking about the way this mitigation stuff is
working. It is literally like the government, through a
biologist, going to a single landowner and saying, ``The job
you are doing is not as clean as the job somebody else is
doing. We like accountants; they do clean work. We don't like
plumbers; they do dirty work. So, we are deciding that plumbers
are going to have to pay an 80 percent income tax, and
accountants will only pay a 20 percent income tax.'' We
couldn't do that constitutionally, but that happens in
mitigation. Biologists decide that somebody in our society is
going to have to put up an 80 percent tax, a 2,200 percent tax
in Louisiana, and somebody else, on the other hand, is only
going to have to put a 10 percent tax, a 20 percent tax, or no
tax at all.
I know my friend from California likes to make that broad
analogy about all of us in government agreeing to mitigate our
activities, mitigate our obligations or our responsibilities to
one another. That is generally true, but the courts have
clearly said that when it comes to exacting from landowners
obligations for the general good, that takings occur for which
compensation should be provided. There are limits to this
stuff, and the problem we have got is that because we haven't
spoken on what the limits of an HCP are, what the limits of
mitigation ought to be, and what the ratios ought to be--we
haven't spoken; we have left it up to bureaucrats to make those
decisions and to tax people at different levels and at their
own discretion and that should not pertain in our society, and
that is probably why, Mr. Chairman, we, at some point, are
going to have try to legislate as to what is a proper
mitigation? What is a proper taking? What is a proper
obligation of some of us in this society for the good of all of
us in species preservation? And until we do that, we are going
to continue to have great problems with agencies that do this
on their own and do it so subjectively
And, Mr. Miller, let me make one other point about his
comment: It is true that government often extorts from
individual obligations, and individuals yield to that
extortion, because they want a permit so badly. Mrs. Dolan, her
husband could have yielded. Instead, he filed a suit that went
to the Supreme Court. He died in the process of that suit. His
wife carried it on. She could have given up any step of the
way; most people do. Most people say, ``Here, take that
property. I am not going to the Supreme Court to defend my
rights.'' But she fought it all the way, and she established
something for the rest of us.
So, there are limits to this stuff. Yes, we want to
preserve species; that is for the good of all of us, but you
simply can't keep asking a few individuals in America to bear
all that cost at the discretion of a biologist. That is
inappropriate, and it is our fault if we don't settle this
somewhere. If we leave it to bureaucrats to make those
decisions on a case-by-case basis, and if we can't, in this
Congress, define what an HCP is and give it the authority of
law, you betcha, it is going to constantly come under attack;
you betcha, it is going to be invalidated, because, in the
future, some biologist will say, ``Oops, we made a mistake; it
doesn't count anymore.'' Surprise, surprise. Mr. Chairman, it
is our fault if we don't clear this mess up, and we ought to
try.
Thank you, Mr. Chairman.
Mr. Pombo. Mr. Doolittle.
Mr. Doolittle. Director Clark, I want to get back to
something Mr. Workman was talking about with the trees. What is
your reaction to the idea that if one tree needs to be cut
down, why can't we just replant another tree, and that would be
the end of it? How do you react to that idea, instead of having
apparently three acres of mitigation occur as a result of that
one tree being cut down?
Ms. Clark. Certainly, Congressman, given the facts of the
case, which is--what you just said is all I know, it makes
sense on its face, but I don't know the specific facts of the
case, and I would hesitate to try to engage without knowing the
species involved and the specifics of the term, but I am happy
to look into it.
Mr. Calvert. Would the gentleman yield for a moment?
Mr. Doolittle. Yes, I will yield.
Mr. Calvert. You know, at some point, sometimes you make
this easy on us as critics. Don't you think at some point there
is some common sense--in the issue that the city manager
brought up, this is in front of a runway--airplanes take off--
don't you think it is common sense that those trees have to be
cut off a clearance zone at the end of the runway, which has
always been there, and then all of sudden someone changes their
mind and says, ``Look, we have to mitigate for keeping an area
clear of trees and obstructions for the safety of the pilots?''
Don't you think that is just common sense?
Ms. Clark. I absolutely do think it is common sense----
Mr. Calvert. Thank you.
Ms. Clark. [continuing] to get obstructions out of the way,
but I can't dictate the terms not knowing the specifics of the
case, but, certainly, I imagine it is a safety issue.
Mr. Pombo. But they don't require mitigations, so it is
voluntary.
Mr. Doolittle. Well, let me--I have to raise two or three
issues with you, Director, and, frankly, I am encouraged to
hear your willingness to meet, and I am going to ask, if I may,
that you and I meet specifically on the situation I am about to
bring up, but I would like to briefly describe it to you, so I
can understand a little bit more about it.
I have a very fast growing district in the foothills, and
one of these counties, El Dorado County, has a severe problem.
Seven years ago, legislation was passed through here allowing
several jurisdictions--and this being one of them--to take more
water out of Folsom Reservoir. I guess, under the NEPA process
it is required that different affected Federal agencies be able
to sign off on that.
Now, it so happens, this county, they discovered five rare
and endangered plants that only grow in a certain type of soil,
and that happens to be in this county. The water that we seek
to take really has nothing to do with the plants at all, but it
has been the non-jeopardy opinion to be issued has been held
up, and the strong suggestion has been given that they are not
going to get the non-jeopardy opinion until they set aside
thousands of acres of plant preserve.
Now, they have put together a $12 million preservation plan
for the plants, but now Fish and Wildlife has issued a draft
recovery plan for the species, and it is projected to--in order
to meet the requirements of that plan, it is going to cost up
to $50 million. This is really a semi-rural developing county.
We would just literally bankrupt the county to do that.
I just don't understand why should two unrelated issues--it
doesn't seem right to me, and I don't think the law should
allow for the Fish and Wildlife Service to hold up giving their
sign-off so that the Bureau of Reclamation can execute a
contract with El Dorado County for the water, because they are
trying to make something else happen that has no relationship.
Have I given you enough of the flavor of this that you could
respond in any way?
Ms. Clark. You have given me enough of the flavor to know I
need to meet with you.
[Laughter.]
Mr. Doolittle. Okay.
Ms. Clark. And I would be glad to do that. I would like to
go back and talk with the California folks and get some of the
specifics and then answer you in a----
Mr. Doolittle. All right. Well, I would welcome that
opportunity, and we will get in touch with your office.
Let me just ask you this: If you could explain to me, the
Service's current policy in evaluating the economic impacts of
its decisions, do you believe that that policy is being carried
out uniformly?
Ms. Clark. Evaluating the economic effects of its
decisions.
Mr. Doolittle. Yes. Well, of its decisions on the affected
area.
Ms. Clark. Let me answer your question in a general way,
because I am not sure I get the specifics.
Mr. Doolittle. Sure.
Ms. Clark. It depends on where in the Endangered Species
Act you are talking. We do not factor in economics when we are
determining whether or not to list a species. That is a
biological decision.
Mr. Doolittle. Yes, I do understand that.
Ms. Clark. By policy, when developing recovery plans, we
look at multiple ways to achieve the recovery and ultimate
delisting of the species, and, by policy, we work to minimize,
along with stakeholders and partners, minimize the social and
economic impacts associated with species recovery. So,
certainly, in developing recovery plans and implementing
recovery tasks, we look for ways to minimize the effects on
constituents and local communities----
Mr. Doolittle. I guess I am----
Ms. Clark. [continuing] while achieving the biological
goals of recovery.
Mr. Doolittle. All right. Are there specific criteria that
exist under this? I guess, it is just a policy that you have,
right?
Ms. Clark. Yes, sir.
Mr. Doolittle. Do they exist in writing?
Ms. Clark. Yes. There is a policy that was drafted in 1994
that talks about minimizing social and economic impacts of
recovery planning and implementation. I will be glad to share
that with you.
Mr. Doolittle. Did you believe this in your mind that that
policy is being carried out uniformly by Fish and Wildlife
throughout the country?
Ms. Clark. I believe there is a misconception of what is
usually contained in recovery plans. In recovery plans, we
often have a series of recovery tasks and menus of recovery
tasks of implementation strategies that, if followed in some
form, will ultimately result in recovery. People often mistake
it as a all-inclusive, everything adds up, and everything needs
to be incorporated, which is how a lot of times we get these
huge price tags. But I do believe across the board that our
folks are working very hard to minimize the effects of
achieving species conservation, which is their responsibility,
and effects on the economy.
Mr. Doolittle. Well, let me just say, I do thank you for
appearing before the Committee today. I am going to thank all
the members of the panel.
Director, the interaction between your Sacramento field
office and my constituents is very important to me, and I just
want to say that I, along with Senator Feinstein and others,
are going to be looking very closely at what goes on with the
expectation that we can get a fair and reasonable and
expeditious resolution to these difficult issues that seem to
exist to a greater degree in our region and Mr. Calvert's than
in many others, and I am encouraged by the comments I have
heard from you today, and I will look forward to meeting with
you personally.
Ms. Clark. Thank you.
Mr. Doolittle. Thank you.
Mr. Pombo. If there are no further questions--Ms.
Chenoweth, did you have further questions?
Mrs. Chenoweth. No.
Mr. Pombo. If there are no further questions, I will
dismiss this panel. Thank all of you for--thank you for your
testimony. There will probably be further questions that will
be submitted to you in writing. If you could answer those in
writing for the Committee. Ms. Clark, I understand that there
are people from your agency who have agreed to stay throughout
the hearing in case there are further questions?
Ms. Clark. Yes, Mr. Chairman. Mike Spear, our Operations
Manager for California-Nevada is here. He is the ranking
official here and will back me up as I have to leave for
another appointment.
Mr. Pombo. All right. Thank you very much, and I will
excuse this panel.
I would like to call up the second panel--Mr. Angelo
Tsakopoulos, Mr. Edward Weinberg, Mr. Dwight Worden, Mr. James
Johnston, and Mr. Michael Bean.
Thank you. If I could have this panel stand and take the
oath for just a minute. Raise your right hand.
[Witnesses sworn.]
Let the record show they all answered in the affirmative.
Thank you very much, and I appreciate your patience. Mr.
Tsakopoulos, we will begin with you.
STATEMENT OF ANGELO K. TSAKOPOULOS, AKT DEVELOPMENT
CORPORATION, SACRAMENTO, CALIFORNIA
Mr. Tsakopoulos. Thank you, Mr. Chairman, and good
afternoon, members of the Committee. My name is Angelo
Tsakopoulos. I am a farmer, builder, and developer of
masterplan communities in California's beautiful Central Valley
in the Sacramento area. Over the last three decades, our
company has helped to develop projects that are now home or
will soon be home to over 100,000 people and 20 million square
feet of businesses.
Throughout these years, our team has worked in close
coordination with the communities where we live and develop
land. Our projects take many years to plan and to complete.
They involve public-private partnerships with the cities, the
counties, original officials, close coordination with community
and neighborhood groups, and the identification of and
mitigation for possible impacts to the environment as required
by the California Environmental Quality Act.
But with the extending role of the U.S. Fish and Wildlife
Service and the U.S. Army Corps of Engineers, the development
process has become unnecessarily difficult. I would like to
summarize one example. In 1993, we obtained a permit from the
Army Corps for the fill of 2.8 acres of vernal pools for now a
520-acre Stoneridge project, which is located in the city of
Roseville.
On April of 1998, after a 10-year planning process and 60
public hearings, Stoneridge was approved, but, by this time,
the Corps permit had expired, and we were forced to reapply to
fill the wetland. When the Service issued their biological
opinion, they stated that there may be fairy shrimp living in
that 2.8 acres, and this potential shrimp may have evolved
differently from those living nearby, because the soil was
different. As a result, we could not mitigate but would have to
create a preserve in the center of the project. I should note,
we already had a 117-acre preserve on-site which was mandated
by the city of Roseville, which included other wetlands but not
these wetlands, not these 2.8 acres. This new preserve would
have to take the site of key infrastructure improvements and
the elementary school. The estimate cost for this mitigation
measure was approximately $14 million; that is for 2.8 acres of
vernal pools.
We just now appeared to have resolved the situation but
only after involving the offices of Senators Feinstein, Boxer,
and Representatives Doolittle and Matsui who questioned the
need for such expense. So, it is a result, but even this
solution will cost us $2 million to $3 million; more like $3
million for a solution that a few years earlier we would have
had to pay nothing.
This example and others are described in our formal
submission to the record in our letter to the Committee and all
point to the fact that the process is broken and needs fixing.
To help do this, we suggest you consider the following
recommendations: individual Service staff has a great deal of
latitude to interpret their ESA mandate. There must be
increased oversight to ensure consistency in the implementation
of ESA as well as equal treatment among permitees. For
instances, President Bush's mandate in 1991 was for ``no net
loss'' of wetlands, but in our area, we are required to
mitigate at an arbitrary rate of a 3 to 1 ratio instead of
President Bush's 1 to 1, and, in some cases, a lot more than 3
to 1.
Two, Service staff must state under consideration the
economic impacts of its decisions. The President and the Vice
President, again and again, have stated that our ecology and
our economy should co-exist. The Service should take that under
consideration.
Three, Service staff often use the permitees as
adversaries. They look at us as enemies rather than as
partners. They must be directed to work together with the
permitees, with the private sector to determine what to
implement--to determine and implement efficient and effective
solutions. We have got to work together.
Four, permits, once issued, should not be able to expire.
Once the mitigation has been carried out, it is totally unfair
to get a permit, to mitigate for that permit,and then have the
Service come back at a later date and ask for additional
mitigation.
Five, prohibit double-dipping. Service staff use these
loopholes and minor inconsistencies in validly issued permits
to extract additional mitigation or to stack mitigation on top
of mitigation.
Six, require recovery plans to be developed
contemporaneously with the listing of species. Let the
regulated public know in that sense what the regional staff
expects to accomplish for each species listed under the
Endangered Species Act.
Seven, encourage the preparation and timely implementation
of habitat conservation plans--and this is very important--by
providing sufficient funds for such activities. I feel if we
give them the funds, they must perform. They would not have
anymore excuses, hopefully. But be sure to establish and
require strict adherence to timeliness to prevent the process
from experiencing undue delay.
To the greatest degree possible, standardize HCPs, so that
each jurisdiction is not forced to reinvent the wheel.
I hope my comments and written submission are of use to the
Committee in its deliberations on this important matter. I
welcome questions or comments. I thank you for the opportunity
to appear before you.
[The prepared statement of Mr. Tsakopoulos follows:]
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Mr. Pombo. Thank you.
Mr. Weinberg.
STATEMENT OF EDWARD R. WEINBERG, NATIONAL ASSOCIATION OF HOME
BUILDERS, WASHINGTON, DC
Mr. Weinberg. Chairman Pombo and members of the Resources
Committee, thank you for the opportunity to appear today before
you and share my experience regarding implementation of the
Endangered Species Act.
My name is Ed Weinberg. I am president of EW Consultants,
an environmental consulting firm that regularly practices in
the field of Endangered Species Act regulation as well as an
associate member of the Florida Homebuilders Association.
I am here today on behalf of the 197,000-member firms of
the National Association of Home Builders to discuss reform of
the ESA and its mitigation requirements. As a professional
biologist and a conservationist, I am a firm believer in the
goals and principles of the Act. Unfortunately, in my
experience, there are two fundamental areas that the Act is
falling short of those goals in its day-to-day application.
First, many species continue to be in decline, because the
recovery planning and critical habitat designations mandated by
the Act are not being completed in a timely or scientific
fashion.
Second, the implementation of the Act places an inordinate
burden of protecting listed species on private property owners,
especially in the building industry. Builders and developers
are consistently forced to provide expansive and expensive
preserves to which the public benefits without any such burden
or responsibility.
To help understand some of these day-to-day problems that
are occurring with the Act, I would offer the following
example: in the early 1990's, I was a consultant to a landowner
on a 500-acre residential development in Brevard County,
Florida. The project secured an Army Corps of Engineers
wetlands permit in 1991. In February of 1992, the Fish and
Wildlife Service informed the landowner that the property may
provide habitat for the Florida scrub jay, a threatened
species. Over the next 16 months, the landowner was required to
reapply for a new Corps permit, including a section 7
consultation through the Fish and Wildlife Service. The permit
was ultimately issued in June of 1993 and required 14 acres of
scrub jay mitigation land to be purchased outside the project
area with an additional $1,000 per acre to fund perpetual
management of the mitigation. Later, in 1993, an individual
that was not affiliated with the project reported to the
Service that he had observed scrub jays on the construction
site. Based on this report, the Service sent a letter to the
landowner advising that all construction and lot sales cease
immediately or he would be in violation of the Endangered
Species Act. This was on a site that had already been reviewed
and permitted through the Service.
Fish and Wildlife Service data indicated that approximately
110 acres of the site were inhabited by scrub jays. The
scientific surveys that I conducted personally at the
landowner's expense concluded that only 28 acres were actually
inhabited by scrub jays. Nearly two year after being shut down,
a section 10 permit and HCP was issued that required 80 acres
of land to be purchased off the project site for scrub jay
mitigation and $20,000 in cash for perpetual management of that
property. There was little, if any, scientific relationship
between the 80 acres of mitigation and the 28 acres of scrub
jay habitat.
In addition to the landowner's direct costs, the time delay
he experienced was onerous. The time consuming bureaucratic
delays included the Fish and Wildlife Service conducting a
section 7 consultation with itself to determine whether the
section 10 permit was consistent with the Act. Redundant
regulatory requirements like this cause delays to landowners,
and they divert the Service's staff and resources away from
actually protecting listed species.
I am not one to identify problems without offering a
solution. I believe the Act can minimize these kinds of
problems in the future by incorporating a clear, concise, and
scientifically-based regulatory framework. This should include
research-based methodology for providing landowners with
certainty about the presence of listed species or habitat
within their property. There should be scientifically-based
recovery plans available to landowners in a timely fashion so
that appropriate conservation measures can be planned for
rather than applied on an ad hoc basis. When mitigation is
required, it should reasonably reflect the project scope. And,
finally, the Act should include meaningful incentives that
create a desire for stewardship on the part of landowners
rather than an atmosphere of uncertainty about listed species.
If the Act can provide this kind of predictability and
certainty to landowners, they will become your partners in the
process of protecting and recovering the national treasure that
our listed species represent.
Thank you.
[The prepared statement of Mr. Weinberg follows:]
Statement of Edward R. Weinberg, The National Association of Home
Builders
I am an environmental consultant, President of EW
Consultants, Inc., practicing primarily in the State of
Florida, and regularly in the field of Endangered Species Act
(ESA) issues. I have conducted field surveys, documentation,
and permit negotiations under both Section 7 and Section 10 of
the ESA on behalf of public entities such as municipalities, as
well as private landowners and builders. I am here today on
behalf of the National Association of Home Builders' (NAHB's)
197,000 members, to discuss the reform of the Endangered
Species Act including mitigation under the Act. Throughout my
experience, I have encountered a variety of situations and
circumstances where applicants have been unnecessarily delayed,
landowners have felt they were not treated fairly, and resource
decisions that are not in the best interest of listed species
have been made. As a result of these experiences, I have
prepared this written statement, as well as presenting oral
testimony as to how the ESA could be improved so that these
types of experiences are kept to a minimum.
As a biologist and conservationist, I am a firm believer in
the goals and principles of the ESA. It is incumbent on all of
us to do our part to protect and preserve these species.
Unfortunately, as noble as the principles and goals of the ESA
are, there are many instances where we are falling short of
achieving those goals. Federal agencies are holding private
landowners to unpredictable and often unreasonable mitigation
standards to address conservation needs for listed species. In
addition, sufficient scientific data is often lacking when
establishing the mitigation requirements.
In my experience, there are two fundamental areas that the
ESA and its present form of implementation have not achieved
their desired or intended goals. First, there are a variety of
species that continue to be in decline, and additionally there
is a long list of species that are candidates to become listed.
Although there have been several well-publicized delistings or
changes from endangered to threatened status, there are more
species being added to the list than there are being removed.
One of the basic principles that the ESA is based on is the
creation and implementation of recovery plans with the goal of
delisting species because they are no longer threatened with
extinction, rather than because they have become extinct. It is
my understanding that the Senate is currently addressing this
issue as it pertains to establishing reasonable timelines for
developing recovery plans and designating critical habitat.
The second fundamental shortfall is that the present form
of implementation of the ESA often places inordinate burden on
select groups of individuals, especially private property
owners in the building industry. All citizens have the
opportunity to benefit equally from the protection and recovery
of listed species. However, not everyone is sharing equally in
the responsibility for protecting these species. Often, a
landowner that is honest and forthright enough to point out the
presence of listed species on his property is required to
establish large preserve areas and/or participate financially
in mitigation programs to protect and manage the species. The
adjacent owners and the public at large all benefit from the
protection provided at the expense of this individual or group,
but they are not shouldered with any of the burden of affording
that protection.
Certain existing mitigation requirements offer little
incentive to the private property owner to preserve species and
their habitat, in fact, the threat of mitigation requirements
can do the opposite. For example, in my home state, the Florida
scrub jay is a listed species that is well adapted to human
contact, and often able to coexist with low-density residential
development. Their status as a listed species, as well as the
implementation of protective measures for their habitat through
the ESA have led individual homeowners to remove and replace
their landscaping with vegetation that does not attract scrub
jays. In this case, the uncertainty as to the repercussions of
scrub jays on private property has led landowners to reduce
habitat opportunities for scrub jays and further hamper their
recovery. Reasonable incentives are necessary to preserve
habitat rather than an approach that penalizes private
landowners without tangible benefits to the environment.
Application of ESA and Justification for ESA Reform
The preceding discussion hinted at several areas where the
practical application of the ESA has not met its stated goals
and purpose. The following example is from my own personal
experience as a consultant to landowners that worked through
the process. My experience is limited primarily to the
southeastern U.S. and Puerto Rico, however discussions with
professionals practicing in this field elsewhere in the U.S.
indicate that there are similar occurrences throughout the
country. An example from my experience follows.
In the early 90's, I worked on a residential project called
Cypress Creek in Brevard County, FL. The project covered an
area of approximately 500 acres, and was divided into three
phases. As part of the approval process for the project, an
Army Corps of Engineers Section 404 permit was necessary, and
was issued in 1991. Subsequently in February 1992, the U.S.
Fish and Wildlife Service (USFWS) informed the landowner that
the property may provide habitat for the Florida scrub jay, a
threatened species. Site surveys were conducted and scrub jays
were determined to be present. Over the next 16 months, the
landowner was required to re-apply for a Corps permit and
conduct a Section 7 consultation through USFWS. The permit was
ultimately issued in June 1993, and required provision of 14
acres of off site preserve (purchased by the applicant) and
$1,000/acre funding for perpetual maintenance and management.
In August 1993, a field scientist that was not affiliated
with the project entered the site, observed scrub jays, and
reported to the USFWS that up to four families of scrub jays
were present in Phase I of the project, which was under
construction. This was subsequent to having had the site
surveyed and permitted by USFWS. A letter was sent to the
landowner from USFWS advising that all construction activity
cease immediately or the landowner would be in violation of the
ESA. The field information from the scientist that initially
observed the scrub jays indicated that approximately 110 acres
of the 155-acre Phase I area was occupied by scrub jays. In
January 1994, the landowner entered into the Section 10
permitting process, and collected field data approved by the
USFWS indicating that approximately 28 acres of Phase I were
occupied by scrub jays. More than 21 months after being
instructed to cease construction activity, a Section 10 permit
was issued to the landowner. It required purchase and
preservation of nearly 80 acres, donation of the land to
Brevard County, and a cash payment to the County of nearly
$20,000 for management of the property. The combination of on-
going uncertainty for the private landowner, insufficient
scientific data, and lack of predictable mitigation
requirements placed an unreasonable burden on this landowner.
There was little, if any scientific basis for requiring 80
acres of mitigation land and $20,000 in cash to replace 28
acres of occupied habitat.
One of the unique characteristics in this particular
situation was that there were a number of lots within the
subdivision that had been sold prior to the requirement by
USFWS to cease construction. Although several of these lots
fell within the area that was ultimately determined to be scrub
jay habitat, the owners of the lots were allowed to proceed
with construction of their homes as long as scrub jay nests
were not present. The logic that was the basis for this was
that it would somehow be unfair for a single lot owner who was
not aware of the presence of scrub jays to bear the burden of
protecting them on these single lots. There was little if any
technical difference between habitat on ``sold'' lots and those
lots that had not yet sold. Although this approach was
certainly helpful to those individual lot owners, it allowed
for differing levels of protection for scrub jays, and put the
entire burden for their protection onto the project landowner.
This example provides a number of instances where the
application of the ESA fell short of its goals and principles.
Perhaps the most important concern in this situation was that
it took more than three years from the first time the USFWS
addressed the presence of scrub jays on the site until the
issue was finally resolved. This kind of delay and hold up is
enough to bankrupt many landowners and/or builders. Fortunately
in this case, the landowner had not borrowed money to construct
the project; thus he was not in a position of making payments
without revenue. Under different circumstances, this project
may have ended up in foreclosure, with a bank holding listed
species habitat as their collateral.
In this case, the delays are directly attributable to the
lack of clear and concise habitat requirements and evaluation
for scrub jays. Throughout the process, there were examples of
areas that did not meet the habitat requirements for scrub jays
that initially were not required to be surveyed, and ultimately
were required to be protected in an effort to ``err on the side
of the species.'' The initial habitat delineation of 110 acres
that was relied upon by USFWS was nearly 80 acres more than the
28 acres that was scientifically determined to be habitat at
the landowners expense. According to all of the published
literature, much of which formed the basis of the listing for
this species, there should not have been scrub jays in this
area. Although the occurrence of scrub jays here made for an
interesting academic discovery, it created an intractable
circumstance for the landowner. The landowner had proceeded in
all good faith, secured all necessary permits, coordinated
directly with the USFWS, set aside mitigation and provided for
protection of scrub jays, and none the less was shut down in an
area that was not considered habitat.
The implementation of the ESA on the Cypress Creek project
was a ``learn as you go'' process for all involved. Clearly
this placed an undue burden on the landowner who was on hold
while new information about the habitat tolerances of the
Florida scrub jays were discovered on his property. I am not
personally aware of the sum total of the data and information
that was used to determine that scrub jays should be listed.
However, it appears that either some information was not
available, or it was not provided in a readily accessible form
such that USFWS staff, practicing professionals, and the
general public could make use of it in evaluating decisions
regarding property and regulation. In this case, if the habitat
tolerances of scrub jays are much wider than what was assumed
in the basis for the listing, perhaps the listing was premature
or unnecessary.
When I look back on this experience, what strikes me most
is the amount of public and private resources that were
expended in this effort. There were hundreds and hundreds of
hours of my time, the landowner's time, and perhaps most
importantly USFWS staff time committed to this particular
project. Much of that time was the result of attempting to
resolve the technical issues in a regulatory framework that is
at best ever changing. The ESA's provisions for understanding
and protecting habitat rather than species are very sketchy,
and result in reinventing the wheel on a regular basis. The
rules appear to be made up as you go along, and there are a
variety of bureaucratic hurdles that extend the process
interminably.
The best example that I can remember from this process is
this. The permit issued in this case was an incidental take
permit under Section 10 of the ESA. It authorized taking of
scrub jays incidental to the project construction and required
mitigation through habitat protection. You would think that
would be a sufficient authorization for the project to
continue. However, according to the ESA, the USFWS was required
to conduct a Section 7 consultation with itself to determine
whether the ``Federal action'' of issuing the Section 10 permit
was consistent with the ESA. Every hour spent by USFWS staff
meeting circular regulatory requirements such as these is one
less hour spent actually protecting listed species.
Although I take great professional pride in having worked
through the process described above, and achieving a successful
resolution in this case, I would like to think that things
could be done much more efficiently and provide more stable
protection for listed species. In this case there was constant
negotiation and compromise that resulted in a permitted
solution under the rules that existed and their implementation.
However, within the same project area, scrub jays on single
lots were afforded less protection than those on lots still
held by the project landowner. Further, the mitigation program
that was ultimately agreed to will provide habitat for scrub
jays, but there is no scientific understanding of whether that
habitat or those scrub jays will contribute in any way to the
long term recovery and stability of this species.
Unfortunately, the decisions seem to have been made in a vacuum
from the perspective of achieving the goal of delisting this
species. The results of the regulatory program were that at
least a backward step was not taken. However, until the ESA can
make forward steps toward recovery in its regulatory program,
it will be more and more difficult to recover our listed
species.
Opportunities for ESA Reform
Although the information I have provided may seem critical
of the ESA and its implementation, the intent is to try to
develop solutions that can eliminate these concerns in the
future. Identifying these concerns provides the framework for
developing the solutions that can make the ESA successful in
achieving what the Act intended, recovery of our listed
species.
First, the ESA needs a clear, concise, and scientifically
based regulatory framework that consists of a predictable set
of scientific criteria for determining the presence of listed
species. There are a variety of publications and generic
information, however, no comprehensive research based
methodologies for providing a landowner with certainty about
the presence, or absence of listed species. The result is that
these discoveries are often made ``after the fact,'' which
precludes the ability to plan for and accommodate these species
where and when they occur. By requiring that the appropriate
scientific data and criteria be made available at the time of
listing and in recovery plans, the burden is no longer placed
solely on the private landowner. With the availability of
sufficient scientific data early in the process, ESA
stakeholders are able to identify appropriate conservation
measures and predictable, reasonable mitigation.
Finally, the ESA needs to include a set of meaningful
incentives to create a desire for stewardship on the part of
all landowners. It is the uncertainty of the ESA requirements
for conservation measures and mitigation that causes landowner
concern. This uncertainty could be eliminated with incentives
that codify ``No Surprises,'' Candidate Conservation
Agreements, and Safe Harbor Agreements. In addition,
uncertainty is reduced when timelines are established for
developing recovery plans and designating critical habitat. But
most importantly, landowners should be ensured that they are
able to proceed with desired land use when appropriate measures
have been taken to reduce the threat of land use activities on
listed species and reasonable mitigation has been identified.
If we can provide the necessary predictability and
certainty to landowners both small and large, we can harness
the power of all our citizens to join in protecting the
national treasure that our listed species represent.
Mr. Pombo. Thank you.
Mr. Worden.
STATEMENT OF DWIGHT C. WORDEN, BRONDI DEVELOPMENT,
INCORPORATED, FAIR OAKS, CALIFORNIA
Mr. Worden. Chairman Pombo, Resources Committee, my name is
Dwight Worden, and I live in Fair Oaks, California, and I am a
corporate government liaison for Brondi Development Corporation
in Santa Rosa. It is an honor to be here, and I wish I had more
time to say all that I know, because I have been living this
problem for two years that you are trying to legislate. So, I
find it possible to make, through this Committee, possibly,
Fish and Wildlife more accountable.
My testimony is on requirements for mitigation, which the
Department of Interior and Secretary Babbitt, Fish and Wildlife
Service Director Jamie Clark are directly responsible, but they
refuse to answer specific regulatory and policy questions. And
other staff screened my attempts to contact them directly, and
I don't get any responses because of their screening.
Now, we have a prior use of land, which is a former air
base, Army air base, back in the World War II area. It has got
ammunition dumps, nerve gas buried, equipment buried. It is a
non-jeopardy, a non-critical habitat, low-quality land, but we
have got problems, and they go something like this: The Corps,
Army Corps in San Francisco issued an individual permit with
conditions for mitigation based upon Fish and Wildlife's
programmatic formal consultation which was produced on 17 July
1998. It was developed by the Fish and Wildlife Service and
utilized by both the Fish and Wildlife Service and the Corps,
but they became opponents, non-flexible, unfair, and
unreasonable in their carrying out this particular
programmatic. This was not in accordance with a White House
Executive Order Flexibility Act and other Executive Orders that
are related.
One of the things that was a problem was that there was no
mechanism to implement it, and the Fish and Wildlife Service's
programmatic, which is attached to your copy of this testimony,
is based on flawed, federally funded task force information,
and the mitigation ratios are unreasonable and unworkable. The
preservation mitigation is misleading and non-functional,
because the congressional intent is not practiced in using
policy.
Now, the President's wetlands plan, 1993, clearly
emphasizes the implementation of the Clean Water Act and the
Endangered Species Act based upon a goal of ``no overall net
loss.'' The ``no overall net loss'' was trimmed down in words
to ``no net loss,'' and in practice is used as a cookie cutter
approach. In fact, not all mitigations are the same, but Fish
and Wildlife wants to treat everyone the same, and that is the
problem.
Resultantly, an excessive amount of power was assumed and
exercised and abused in consultations with this corporation
which turned into dictatorial demands on the Corps and the
applicants and permitees, and Director Clark was contacted but
refused to answer. I have contacted Secretary Babbitt; no
answer. He did get an answer when I had to go to the extent of
having a letter delivered to him through the Cabinet at a
Cabinet meeting. It was the only way I could get it to him, and
the Office of the Inspector General, Donald Berry, refused to
answer me. The White House called and asked his staff to
contact me, and they refused to contact me or to deal with this
matter; on and on.
But one of the things that came out of this is that a
permit with special conditions was issued for endangered
species, goldfields in this particular instance, and we had to
have what they call seeds and soil, and when we had these seeds
and soil of this endangered species, we had to collect it and
store it, but it turns out that this programmatic didn't have
any means of implementing it. So, we ended up keeping it for
nine months instead of the Fish and Wildlife taking care of it
within a six-month period. So, the Fish and Wildlife Service
resisted and refused and delayed. It still hasn't been
completed like it should have been. It has cost us some
$300,000 for something that should have cost maybe $10,000.
We have a new application, and I asked for a section 7
consultation, and we had meetings, but nothing was done. They
don't understand the regulations. They don't understand ``no
overall net loss'' policies, and that is a problem. If they
would use the ``no overall net loss'' goal, then they wouldn't
have to issue a permit for every mitigation consultation--for
every permit that would be applied for.
Thank you for my opportunity to contribute to the
Committee's efforts, and I am ready to answer any questions
that you have.
[The prepared statement of Mr. Worden follows:]
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Mr. Pombo. Thank you.
Mr. Johnston.
STATEMENT OF JAMES R. JOHNSTON, COUNSEL, FOUNDATION FOR HABITAT
CONSERVATION, SEATTLE, WASHINGTON
Mr. Johnston. Thank you, Mr. Chairman, members of the
Committee. My name is Jim Johnston. I am here from Seattle. I
serve as counsel to the Foundation for Habitat Conservation,
and I am here today on their behalf as well as a similar
organization, the Coalition for Habitat Conservation, which is
based in southern California.
The foundation that I represent is comprised primarily of
forest landowners. We have about 800,000 acres currently
committed under successfully operating HCPs. We are working on
about two million acres more worth of forest land HCPs.
The Coalition's members are primarily members of a
development community in southern California and have been
deeply involved in the community conservation planning projects
in southern California.
I am pleased, also, to say that the American Forest and
Paper Association has endorsed our comment today.
My focus is on HCPs, and the Coalition and the Foundation
sent me here to tell you four things. One, we believe that HCPs
are very good things. We believe that they are good for
landowners; we believe that they are good for species. Some of
the very best science being done today on threatened and
endangered species is a direct outflow of the habitat
conservation planning process. Second, I am here to tell you
that the ``no surprises'' rule is a critical component of
successful habitat conservation plans. Third, there are issues
related to section 7 consultations that I believe Congress must
address if we are to sustain a successful HCP Program. And,
finally, we are here to help. Our two organizations are
actively engaged in conversations with both Services. Some of
the members of the foundation met just last week with Secretary
Daly and Secretary Babbitt, and we are pleased with their
cooperation and support for the multi-species and single-
species HCPs.
Now, about HCPs, I look at them from three perspectives--
the landowner, the species, and then from the government's
perspective. From the private landowner's perspective, if I
have got an endangered species on my property or I think I do,
I have the section 9 take prohibition that I have to deal with.
Either I have to run risks or I have to find ways to find
greater certainties. The HCP process, frankly, is the best game
in town for me to find a reasonable level of certainty for the
future, so that I can support the kinds investments in both the
business side, financially, as well as the conservation
measures that are going to be benefiting the species. Without
certainties, the process simply won't work.
One of the key things is to be able to cover unlisted
species. The multi-species plan is very critical. It avoids
some of the problems of getting a plan, making some
commitments, and finding out a year later that you have got a
whole other species to deal with.
The last thing about conservation planning that is the most
important, perhaps, is that it is in fact voluntary. I do not
have to do an HCP. I can choose to live with the regulatory
structure; that is the landowner's choice.
From the species perspective and with the incidental take
permit issuance, I have an opportunity to manage my land in a
way where I am not constantly worried about section 9. Section
9 is a disincentive. How can I allow habitat to grow on my
property if it is going to attract a species that later
precludes me from using my property? The HCP takes that away;
it removes the disincentive. The very process of doing an HCP
educates the landowner. The landowner is only going to be a
better steward of his or her land if you know what the needs of
the species living on your land are.
It also provides the opportunity for protection of unlisted
species. Section 9's take prohibition simply doesn't apply to
them. A multi-species HCP plan gives them advanced protection,
and, hopefully, if there are enough of them and they are
successful, we won't have as many new listings.
From the government resources standpoint, what are the
options? You can enforce section 9 individual species-by
individual species, beak-by-beak, and member-by-member or you
can try to collect things into an HCP, whether it is a
statewide or a regional plan. We have a successful
opportunity--or so far a successful opportunity--in Washington
State on a statewide plan covering eight million acres that
will ultimately lead, if it is successful, to a statewide HCP
providing coverage for large and small landowners for the whole
forest products sector.
The ``no surprises'' policy is an essential component of
any HCP. We would urge that the ``no surprises'' policy simply
be made part of the Endangered Species Act. We are confident
the Services will be successful in defending the lawsuit, but
this is a cloud that should be taken away.
Finally--and I realize I am at the end of my time--I want
to talk for a moment about section 7 consultations. Section 7
consultations, as interpreted by one of the district court
judges in northern California, precludes the irreversible
commitment of resources during consultation by an HCP
applicant. In this case, as it applied in the situation of the
PALCO HCP, the judge said that no timber harvest could occur
while consultation was underway and also said that consultation
means all consultation, all discussions with the Services. That
would be the ultimate sacrifice a landowner would be asked to
make; to have to shut your entire operation down while you are
in consultation. So, section 7(d) should simply be made not
applicable to permits issued under section 10, and in fact one
could argue that I think with a great amount of force that
section 7, itself, is largely, if not completely, redundant
when applied to HCPs. Some of the resources that are being
spent on section 7 now for HCPs could be redirected elsewhere.
Thank you for the indulgence in running over my time, and I
would be happy to answer any questions.
[The prepared statement of Mr. Johnston follows:]
Statement of James R. Johnston, Foundation for Habitat Conservation and
The Coalition for Habitat Conservation
Introduction
My name is Jim Johnston. Thank you for the opportunity to
testify.
I serve as counsel to the Foundation for Habitat
Conservation, based in Seattle. I also come to you with the
background of having worked with several landowners on habitat
conservation planning efforts.
I am testifying today on behalf of both the Foundation and
a similar organization--The Coalition for Habitat
Conservation--headquartered in Laguna Hills, California. I am
also pleased that the American Forest and Paper Association,
the national trade association of the pulp, paper, paperboard
and wood products industry, has endorsed our statement today.
I am pleased to appear before the Committee today to
discuss the Endangered Species Act. The specific focus of my
testimony is the habitat conservation planning (HCP) program
under Section 10 of the ESA.
The Foundation and Coalition strongly support viable
voluntary habitat conservation planning under the Endangered
Species Act (ESA). It is a very valuable tool for private
landowners, and for preserving species and their habitat. HCPs
will remain viable only if HCPs provide reasonable certainty at
a reasonable cost. To succeed, an HCP must mesh scientific
credibility with business sensibility.
The Foundation and Coalition commend the agencies for their
support of the HCP program. The recently issued joint directive
of Secretaries Babbitt and Daley documents the agencies
commitment to HCPs. Yet, both the Coalition and Foundation see
challenges facing landowners (and the agencies) that, left
unchecked--will significantly reduce the incentives for
voluntary private contributions to species preservation.
Specifically, for HCPs--and all the good they can do--to
remain viable, the No Surprises Rule must be protected and the
ESA Section 7 problems fixed.
The Foundation for Habitat Conservation
The Foundation for Habitat Conservation (www.habcon.org) is
a not-for-profit (501 (c)(6)) organization formed in April of
1998. The Foundation's purpose is to ``research, communicate,
and support the workings, role, and benefits of habitat
conservation plans and related, incentive-based private
conservation initiatives.'' The Foundation has participated in
a number of forums discussing HCPs and ways to improve them.
The Foundation's members include a number of landowners
that either hold HCPs, are developing HCPs, or both. At
present, the members of the Foundation have over 820,000 acres
of land in operating HCPs in three states, and have HCPs in
various stages of development on over 2 million additional
acres in a total of seven states. Foundation members own
timberland and focus mainly on forestry HCPs, while Coalition
members develop property covered by current and proposed
regional HCPs. Some of our members have also been very active
supporters of a collaborative state-private-Federal effort to
put a statewide regulatory plan in place in Washington state
under which a programmatic HCP will be used to address the
needs of salmon and other species on over 8 million acres of
private land. The plan, called ``Forests and Fish'' was
approved by the Washington State Legislature last week.
The Coalition for Habitat Conservation
The Coalition for Habitat Conservation is a group of
Southern California property owners and public utilities that
together own more than 300,000 acres of land in Orange,
Riverside and San Diego counties. It was formed in 1991 as a
501(c)(6) corporation to pursue the mutual interests of its
members in finding solutions to endangered species issues that
are sound environmentally and economically.
The Coalition has supported California's Natural
Communities Conservation Planning Act as a vehicle to create
large-scale HCPs that protect multiple species, and has
promoted these plans in forums throughout the region. Coalition
members have participated in several HCPs that involved the
creation of habitat preserve systems totaling more than 210,000
acres in Southern California, and are currently participating
in the development of plans that will cover significant
additional acres. A signature of these plans is that, while
landowners make large contributions of private lands to the
HCPs, others participate as well. In the case of the Orange
County Central & Coastal Natural Communities Conservation Plan,
for example, 21,000 acres were contributed by a private
landowner and 17,000 acres were contributed by a transportation
authority, state and local jurisdictions, all of whom are
dedicated to the success of the plan.
The Value of Habitat Planning under the ESA
HCPs provide incentives for voluntary, private contributions to
species.
In many parts of the country, significant populations of
threatened and endangered species are found on privately owned
lands. Section 10 of the ESA is the only mechanism currently
available that gives incentives to the private sector to
voluntarily provide extensive land and resources to protect
threatened and endangered species. Without the ESA-related
certainty that the government can offer a private landowner
through the HCP program, few if any landowners could afford or
justify to make the kinds of commitments that have and are
being made in the context of HCPs. And, for the agencies, the
alternative is a regulatory enforcement program that must be
implemented on an ``individual-by-individual'' basis. From the
standpoint of agency resources and landowner participation,
HCPs are advantageous.
For example, in my home state of Washington, through the
historic ``Forests and Fish'' Agreement, owners of 8 million
acres of forestland have committed to a massive overhaul of
riparian management practices under a proposal that will lead
to statewide HCP coverage for all forest landowners. Over 2
billion dollars of timber and tree growing capacity is being
set aside to achieve greatly increased streamside buffers. This
unprecedented and voluntary commitment would not have been
possible if not for the ability (and willingness) of the
National Marine Fisheries Service (NMFS) and U.S. Fish &
Wildlife Service (FWS) to offer long-term certainty to
landowners regarding fish and a number of amphibians that are
or might become listed under the ESA. The extensive and long-
lasting benefits of such a program cannot be seriously
questioned. Nor can I envision another mechanism whereby the
government could obtain--in one fell swoop--covering 8 million
acres with carefully considered and negotiated conservation
measures.
A good measure of the value of HCPs is to compare results
under them with results in their absence. Under the ``no take''
rules, circles around owl or gnatcatcher nests are protected
but landowners are left to harvest or develop other areas
effectively preventing the development of new habitat over
time. The ``take'' prohibition creates a powerful disincentive
to ever allow non-habitat to grow into habitat. Under the
Simpson HCP in Northern California some incidental take is
allowed but the HCP is devised to allow habitat to grow and
increase over Simpson's ownership over time, because of the HCP
removed the disincentive. Owls have prospered on that ownership
and owl habitat will increase significantly over the life of
the HCP with Simpson carrying out a successful timber
operation. The HCP made success for the owl and for Simpson
possible. Southern California's Central & Coastal NCCP provides
protection for rich habitat areas and creates links between
these areas, while allowing development in poor habitat areas.
The net effect is better habitat capable of supporting greater
numbers of threatened and endangered species--while still
allowing the development necessary to meet the needs of a
growing human population.
Multi-species plans offer especially important opportunities.
Multi-species plans are a particularly valuable part of the
HCP program, as they are most likely to focus management or
development of property from the broadest possible wildlife
perspective. And, by covering unlisted species, they provide
certainty to long-term land managers that investments today are
likely to result in meaningful returns. From the perspective of
wildlife, multi-species plans also provide tangible benefits to
species that are not yet listed and for which no regulatory or
``take'' restriction exists.
Single or limited species plans must remain a viable option as
well.
On the other hand, single-species or focused plans (e.g.,
fish only) are equally appropriate in some settings, either
because of landscape-specific circumstances, landowner and
agency priorities or simple landowner preference. Single-
species planning is particularly conducive to development of
mitigation banks, where private landowners have additional
incentives to create and maintain habitat.
No Surprises Rule
The No Surprises Rule is the heart of the HCP program. It
represents the primary guarantee of certainty essential for
voluntary conservation planning by a landowner. It also
represents certainty on the part of the wildlife agencies that
the plans have a sound design, and are, in effect, low-risk
propositions. Yet, the No Surprises Rule is under heavy attack.
Public and legal challenges have sought to erode its strength
over time. Without the No Surprises Rule, voluntary HCP
commitments will cease, and the superior species protections
afforded by large-scale HCPs will terminate. Both the Coalition
and Foundation believe that Congress should codify No Surprises
as the most important element to ensure HCPs' success.
From the standpoint of business, the reasonable certainty
afforded by No Surprises is needed to attract and sustain long-
term investments. For businesses affected by listed species,
HCPs are the best mechanism that Congress has provided to
attain certainty. HCPs, quite simply, are the only game in
town, and No Surprises is the most important player in that
game.
Adaptive Management
Certainty for landowners under HCPs is, of course, not
boundless. Both the Foundation and Coalition recognize that
adaptive management provisions are appropriate elements of many
long-term HCPs. Adaptive management--through appropriate
monitoring and a focused feedback mechanism--can result in more
efficient and effective management techniques. This can result
in the HCP performing more effectively as we learn more--by
improving results without increasing burdens on the HCP holder
beyond that incorporated into the adaptive management
provisions established during development of the HCP.
Of course, adaptive management must be based on something
measurable. Information to drive adaptive management comes from
monitoring the HCP results, from new research discoveries, or
both. It is not appropriate to require HCP holders to perform
or fund research. Reasonable monitoring requirements are
appropriate, but should be focused on events that occur.
Adaptive management is a tool that can be very valuable if
it is used in the context of the ``best science available.''
Some of the best science being done today is in conjunction
with HCPs. However, adaptive management can be misused if it is
a substitute for a reopener clause to force new mitigation
techniques which undermine certainty. It is also inappropriate
if the agencies insist on very stringent restrictions--using
``worst case'' assumptions--and then require landowners to use
expensive research to ``prove'' the worst case scenario
incorrect. On the other hand, adaptive management can also be
very valuable if it is used as a method to resolve questions of
science that could delay development of the HCP and ensure that
mitigation will provide the intended benefits, which start with
reasonable operating assumptions, and allow for appropriate
adjustments. Finally, while adaptive management works both
ways, it must have some bounds, or it will subsume all notions
of certainty. Those bounds must be set during HCP development,
as they are but one part of the ``package'' of commitments a
HCP holder is making.
HCP process concerns and ESA Section 7
Of course, for all their good, HCPs must be affordable and
``doable'' within a reasonable time frame. The HCP process must
be streamlined so applicants can move through it at a
reasonable pace and cost, thus allowing timely protection of
resources. Foundation members and others have been meeting with
the agencies to discuss this. Last week, the joint directive of
the Secretaries of Interior and Commerce committed the agencies
to measures that should help them do a better job managing the
HCP ``process.'' We will continue to work with them to make the
HCP program a success.
Other than an adverse outcome in the current lawsuit
challenging the No Surprise Rule, Section 7 of the ESA
currently poses the biggest single risk to the continued
viability of the HCP program, and one that Congress can and
should fix. Section 7(a)(2) requires that all Federal agencies
``consult'' with NMFS or FWS, as appropriate, prior to issuing
a permit or funding an activity whenever the agency believes
that such action ``may adversely affect'' a listed species. The
agencies construe Section 7 consultation as applying to their
issuance of an incidental take permit upon approval of an HCP.
Accordingly, the agencies ``consult'' with themselves before
approving an HCP.
The purpose of consultation is to determine whether the
proposed agency action ``is not likely to jeopardize'' the
continued existence of any listed species or result in the
adverse modification of critical habitat. As elucidated in
NMFS/FWS regulations, if the determination is ``no'', then the
agency action can proceed. If the determination is ``yes'',
then the consulted agency must propose reasonable and prudent
alternative measures that would mitigate the likely jeopardy.
The agency then must consider the jeopardy opinion, the
alternatives, and decide for itself whether it believes
jeopardy is likely. The applicant will then decide how it
wishes to proceed. Of course, in the context of an HCP, where
NMFS or FWS is consulting ``with itself'' (or themselves), the
jeopardy opinion is conclusive, and the action cannot proceed
unless an alternative is found.
Is consultation on HCPs appropriate?
There is a legitimate argument, based on careful review of
the ESA and its history, that Section 7(a)(2) consultation on
HCPs was not intended at all and that Section 7 consultation
standards are redundant with the Section 10 HCP approval
standards. In developing an HCP, the applicant and agencies are
engaged in the focused consideration of how to minimize and
mitigate the impacts on the species to the maximum extent
practicable. An activity cannot pass muster under the HCP
standard of ESA Section 10 and still be found to pose jeopardy
to the species. If the consultation concept is believed to
``add value'' to the HCP process, we believe that it should be
incorporated into the Section 10 HCP development and evaluative
processes.
The impact of ESA Section 7(d).
Section 7(d) of the ESA provides that after initiation of
``consultation,'' neither the agency nor the applicant may make
any:
irreversible or irretrievable commitment of resources with
respect to the agency action which has the effect of
foreclosing the formulation or implementation of any reasonable
and prudent alternative measures which would not violate
subsection (a)(2).
An interest group has argued--and one court has recently agreed--
that under this subsection, an HCP applicant cannot continue to engage
in everyday management practices that alter habitat because such
alteration--otherwise an entirely legal activity--would foreclose a
possible alternative that called for that particular habitat to be left
unaltered under the HCP. This came up in the context of a forestry
HCP--under the logic of the ruling, no harvest activity could occur
during consultation. Moreover, the court construed ``consultation'' as
including the entire time period that the applicant and the agencies
are working together. Thus, under such an interpretation, an HCP
applicant who was engaged in consultation would have to cease all
operations on the land covered by the HCP. This interpretation and the
potential erosion of the No Surprises Rule are the most serious clouds
over the HCP program today. No prudent manager would risk the expense,
uncertainty, and disruption if such a suit might succeed.
Arguably, the Section 7(d) problem goes beyond the HCP approval
stage. That is because under agencies' regulations, a completed
consultation may be ``reinitiated'' when certain circumstances are
present (where agency discretion or control over the HCP holder is
retained, and some new information or issue arises). While one court
has (correctly) held that as a general matter, having an HCP does not
give an agency general discretion or control so to cause reinitiation
of consultation just because a new species (not covered by HCP but
arguably present in the area) was listed, there are circumstances under
many HCPs where some agency discretion is retained. A good example of
this is adaptive management, where in ongoing HCP negotiations the
agencies are seeking approval functions as a part of the process. Under
this view of Section 7(d), every time adaptive management was underway
the HCP holder could be forced to shut down the whole operation.
A relatively easy fix for this problem is possible. Either a
different standard should be articulated for HCP holders, or, more
simply and effectively, Section 7(d) should not apply to incidental
take permits applied for or issued under Section 10 of the ESA.
Recovery of a species is not an appropriate requirement of an HCP
applicant.
While, under the ESA, recovery is clearly not the responsibility of
the private landowner, HCPs offer the most constructive way for private
parties to contribute to the ultimate goal of recovery while meeting
their requirements to mitigate for the privilege of obtaining an
incidental take permit. While recovery is the government's
responsibility, care must be taken not to let that overall governmental
goal become translated into the standard for HCP approval.
ESA Section 10 requires landowners to minimize and mitigate the
impacts of any taking of covered species the landowner would cause--and
to do so to the maximum extent practicable. In other words, the
mitigation burden imposed on each landowner in the HCP process is
intended to be dependent upon the impacts of taking that would be
caused by the landowner's future activities. We believe that ESA
Section 10 is consistent with the Supreme Court's Dolan decision--the
burden imposed on the applicant must be proportional to the impacts
that would be authorized by the incidental take permit.
If landowners are asked in the HCP context to assume responsibility
for--and agree to correct--all landscape conditions that are believed
to be inadequate, including conditions not caused by the applicant,
then this proportionality concept is lost. Under a ``properly
functioning habitat'' standard, applicants are asked to ensure that
their ownerships will develop the same ``ideal'' habitat conditions,
regardless of the extent of the impacts on covered species the
landowner's future operations would actually cause or the pre-existing
conditions of the property. By definition, there is no proportionality
under the properly functioning habitat standard.
The Role of ``Science'' and How to Measure Success.
Of late, much has been said about the role of science in HCPs. HCP
opponents raise the battlecry that ``HCPs are not based on science.''
For starters, this ignores the important concept that HCPs are more
than scientific documents. They are also business plans. The Foundation
and Coalition agree that available scientific data should be used in
developing the HCP measures. We do not believe that it serves a useful
purpose that every HCP becomes a written compendium of every known fact
about a species. That adds unnecessary cost and delay. Science should
play an important role in formulating an HCP, but ultimately the plan
must balance the minimization of impacts with the notion of
practicability. It is a balance.
We also do not support the contention of some that where there are
significant gaps in science, an HCP may be inappropriate. There are and
always will be gaps in our knowledge, and how significant our gaps are
is not even known until after the fact. There are at least two reasons
that denial of HCP coverage in the face of uncertainty is
inappropriate. First, we adhere to the tenet that if the agencies knew
enough to list a species, they know enough to cover it in an HCP.
Second, even if significant species-specific data is not available,
often there is data concerning the general habitat requirements of
other, similar species, and the HCP can be crafted to move management
into the realm of what is likely to be required. Those situations could
also be candidates for reasonable adaptive management provisions.
The ``success'' of any HCP must be judged by a blend of both
scientific and business criteria, tempered by practicability. Any
purely ``biological'' or ``scientific'' review of HCPs misses a good
deal of the equation. Perfection can be the enemy of the good.
HCPs should not be measured based on whether they ``guarantee''
achievement of certain population recovery goals. First, private
landowners by law have no responsibility to ``recover'' a species.
Second, HCPs can only cover a portion of the landscape. The actions of
others, including government, can profoundly affect a species' status.
All HCP holders can do is provide or protect habitat. Third, most
species can move in and out of the HCP area. Whether members of a
species actually use the habitat that the HCP holder provides or
whether the species continues to be adversely impacted by other
causative agents--natural or human-induced--is often outside the
control of the HCP holder. For example, if an HCP holder provides
habitat for salmon, but fish are not (?) returning to the HCP area due
to passage restrictions, poor ocean conditions, predation by marine
mammals, unnatural congregations of birds, or over-fishing, that HCP
should not be held accountable for fish populations. That
responsibility can only be the government's, as only the government has
the power to influence all pertinent factors.
The Solutions
Make No Surprises the law.
Fix the Section 7 consultation--and the Section 7(d)
problem in particular. Section 7(d) should not be applicable to
HCPs. Consultation for HCPs should be streamlined and
incorporated into Section 10.
Bolster support for multi-species plans. We commend
Secretaries Babbitt and Daley, along with leadership in the
agencies, for their support of such plans.
Keep HCPs affordable and available in a timely manner.
Prevent adaptive management, which is also vital to
the HCP process, from swallowing No Surprises.
Mr. Chairman, both the Coalition and Foundation are working on
solutions to these issues, and stand ready to assist you in whatever
manner we can. Thank you for the opportunity to testify today.
FOLLOWUP AND SUMMARY SHEET
U.S. House of Representatives Resources Committee on May 26, 1999 on
behalf of Foundation for Habitat Conservation and Coalition for Habitat
Conservation
Witness:
James R. Johnston
Perkins Coie LLP
1201 Third Avenue, 40th Floor
Seattle, WA 98101-3099
tel. no. 206-583-8626
fax no. 206-583-8500
email: [email protected]
Outline of Testimony:
The Value of Habitat Planning under the ESA
No Surprises Rule
Adaptive Management.
HCP process concerns and ESA Section 7
Recovery of a species is not an appropriate requirement of an HCP
applicant.
The Role of ``Science'' and How to Measure Success.
Make No Surprises the law.
Fix the Section 7 consultation--and the Section 7(d)
problem in particular. Section 7(d) should not be applicable to
HCPs. Consultation for HCPs should be streamlined and
incorporated into Section 10.
Bolster support for multi-species plans.
Keep HCPs affordable and available in a timely manner.
Prevent adaptive management, which is also vital to
the process, from swallowing No Surprises.
Mr. Pombo. Thank you.
Mr. Bean.
STATEMENT OF MICHAEL J. BEAN, SENIOR ATTORNEY, ENVIRONMENTAL
DEFENSE FUND, WASHINGTON, DC
Mr. Bean. Yes, thank you, Mr. Pombo--Mr. Chairman and
members of the Committee. It is a pleasure to have a chance to
testify before you today.
I am Michael Bean, and I am representing the Environmental
Defense Fund for which I work. The Environmental Defense Fund
is an environmental organization, but I want to point out to
the Committee that we have worked closely with a number of
landowners in developing HCPs and addressing other issues that
have arisen under the Endangered Species Act. Most recently,
for example, we worked closely with International Paper Company
in developing its HCP for its forest practices affecting the
red-cockaded woodpecker. We have worked with Westvaco
Corporation in South Carolina, but we have also worked with
some very small landowners and small business interests. We
worked, for example, with the North Carolina Pine Needle
Producers Association. These are, literally, people who make
their living by raking pine needles off the forest floor in the
Sandhills area of North Carolina, and we worked with them in
putting together the first habitat conservation plan that
embodies a safe harbor agreement.
In the testimony I want to give this morning, I don't
pretend to speak for any of those landowning interests, but I
do think that the experience I have had working with those
different landowners has informed my conclusions about this
topic of mitigation. I have just a few points I want to
emphasize. First, we unfortunately know very little about the
efficacy of mitigation, and we need to know much more about
that. I think Mr. Weygandt, this morning, in the first panel,
said that if we are incurring costs, we have to know that we
are getting value back, and the unfortunate reality is that we
often don't know how well mitigation is working. The only way
to find out, frankly, is to do the monitoring of the efficacy
of that. That will require resources, and I would like to echo
what Mr. Tsakopoulos and others, this morning, have said about
the need for giving the agencies resources to do those sort of
tasks.
The second point I want to make is that to measure the
efficacy of mitigation, you need to have some articulated and
measurable goals that mitigation is to serve, and those goals
need to be set with reference not to whether particular actions
are taken but whether those particular actions have an
anticipated benefit or impact on affected species. In setting
those goals, the question then becomes what kind of standards
should guide them? It seems to me very clear that what
mitigation should try to accomplish is that the combined effect
of the permitted action coupled with its mitigation measures
should not diminish the viability of the species that we are
concerned about.
You brought up, Mr. Pombo, in your opening statement this
morning, the Supreme Court's decision in the City of Tigard v.
Dolan. That case articulated the rule of proportionality; that
is the exactions or the mitigation requirements imposed on
landowners should be proportional to the impact they cause to
public goods; in this case, endangered species impacts.
Frankly, from my perspective, if we could achieve
proportionality and if mitigation did offset or mitigation did
improve the prospects of survival by an amount roughly equal to
which development and other projects are diminishing prospects
of survival, we would be much better off than we currently are.
The fourth point I want to make is that compliance with
mitigation cannot be simply assumed. Indeed, my testimony cites
the results of one study carried out in Florida a few years ago
that found widespread non-compliance, and in some cases total
non-compliance with mitigation requirements. There is a need to
monitor implementation of mitigation and that, too, will
require resources which the agencies largely lack at the
present time.
The fifth point is I think that certain types of mitigation
should be strongly discouraged. I have identified in my written
testimony the practice that has occurred in the Southeast for
several red-cockaded woodpecker HCPs of requiring landowners to
pay a sum that is then used to manage Federal lands; in most
cases, to manage Federal lands in ways that those lands should
be managed anyway, and it seems to me that is shortchanging a
species to mitigate in that manner.
A final point I want to make is that we need to be creative
with mitigation requirements and create incentives for
landowners to do beneficial things for species conservation,
and in saying that, I think I am echoing what many members of
these two panels have said this morning already. Mr. Weygandt
of Placer County talked about the need for market-based
approaches; Mr. Schulz emphasized the need for incentives, and
the gentleman from the North Carolina Department of
Transportation gave an example of using the marketplace to
design effective mitigation strategies.
I want to emphasize to you one of the recent HCPs with
which we worked that I think embodies exactly that--and I will
wrap up here very quickly. The International Paper HCP creates
an incentive for that company to do better on a parcel of land
that it is managing for mitigation purposes than it has to,
because if it does better, it can then earn mitigation credits
that it can then sell to third parties, those third parties
that are in need of mitigation. That, I think, is a very
creative approach. Many of the mitigation banks that have been
established in California about which you have had some
testimony this morning were the response to Governor Wilson's
initiative in 1995 to encourage those banks, and, by and large,
that is a market-based, incentive-driven instrument that I
think can play a useful role in endangered species
conservation.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Bean follows:]
Statement of Michael J. Bean, Chairman, Wildlife Program, Environmental
Defense Fund
In 1982, Congress relaxed a nearly absolute prohibition
against taking endangered species. It did so by authorizing the
U.S. Fish and Wildlife Service and National Marine Fisheries
Service to issue permits allowing the taking of endangered
species ``incidental to . . . an otherwise lawful activity.''
Previously, the Services could issue permits authorizing the
taking of protected species only for scientific research and a
few other, very limited purposes. As a result of the 1982
amendments, however, private landowners and other non-Federal
parties secured a means of avoiding the prior prohibition
against any action that incidentally took an endangered
species. To receive such a permit, however, the statute
provides that a permittee must ``to the maximum extent
practicable, minimize and mitigate'' the impacts of the
authorized incidental taking. Absent such mitigation, no permit
may issue. This mitigation requirement, embodied in section
10(a)(2) of the Endangered Species Act, is the primary focus of
the testimony that follows. A secondary focus is on the
requirements that attach to private land activities requiring
some other type of Federal permit and therefore subject to
review under Section 7 of the Endangered Species Act.
Three principal conclusions can be drawn from the
experience to date with mitigation under these provisions.
First, the goals that mitigation measures are intended to serve
need to be explicitly stated. Second, the Fish and Wildlife
Service has sometimes inappropriately used the mitigation
requirements of the Endangered Species Act to shift onto
private landowners some of the costs of managing Federal lands
in accordance with the requirements of that same Act. Third,
and perhaps most important, some recently approved mitigation
strategies offer the salutary potential to improve the survival
prospects of imperiled species while at the same time creating
economic incentives for private landowners to become active and
willing partners in conservation efforts. These new strategies
thus may be capable of making the Endangered Species Act both
less onerous for landowners and more effective for rare
species. Each of these conclusions is developed in more detail
below.
The goals that mitigation measures are intended to serve need
to be explicitly stated.
Mitigation under the Endangered Species Act has the same
purpose as it has under the Clean Water Act, the Fish and
Wildlife Coordination Act, the National Environmental Policy
Act, and other laws. In its ordinary, dictionary sense,
mitigation refers to the ``abatement or diminution of something
painful, harsh, severe, afflictive, or calamitous.'' It is, in
other words, a means of making a bad thing less bad, of neutral
consequence, or even beneficial. In a variety of environmental
contexts, mitigation refers to the efforts undertaken to reduce
or offset the negative environmental consequences of activities
that are permitted to occur, notwithstanding their negative
impact.
In the endangered species context, the reason that
mitigation requirements must be imposed when the incidental
taking of an endangered species is permitted is quite
straightforward: in general, any taking of a species already
facing a high probability of extinction increases that
probability and thus runs directly counter to the law's goal of
achieving the recovery of such species. Mitigation, if
effective, is a means of accommodating non-conservation
objectives by allowing otherwise prohibited activities to go
forward without necessarily reducing an imperiled species'
likelihood of survival.
Unfortunately, very often the biological goals that
mitigation requirements are intended to achieve are never
clearly stated. With a clear statement of goals, one can at
least determine whether the particular mitigation requirements
imposed one project worked sufficiently well to impose them
again on another similar project. Without a clear statement of
goals, the most that one can determine after the fact is
whether the mitigation requirements were carried out, not
whether they actually accomplished anything useful to
conservation. Surprisingly, sometimes the mitigation
requirements are not even carried out. A 1990 Fish and Wildlife
Service review of the implementation of quite simple and
inexpensive mitigation requirements associated with permits
authorizing the construction of fourteen marinas in areas
occupied by endangered manatees found widespread noncompliance.
The review found that--
77 percent failed to supply a required manatee education
display board;
62 percent did not post required manatee warning signs;
38 percent failed to establish slow-speed zones near the
marina;
three failed to comply with any manatee permit conditions; and
only two complied with all manatee permit conditions.
These findings underscore the need to ensure that Federal
conservation agencies have sufficient resources to monitor
compliance with permit conditions. The failure of some
permittees to carry out their mitigation responsibilities will
only make it more likely that later permittees will face even
more stringent mitigation requirements or even permit denial.
The Fish and Wildlife Service has sometimes inappropriately
used the mitigation requirements of the Endangered Species Act
to shift onto private landowners some of the costs of managing
Federal lands in accordance with the requirements of that same
Act.
The Endangered Species Act's prohibition against taking
protected species applies broadly to all parties, both Federal
and non-Federal. In addition, however, the law imposes special
duties on Federal agencies. They must avoid actions that
jeopardize the continued existence of any listed species and
they must affirmatively use their various authorities to
further the conservation of listed species. These affirmative
duties have special significance for Federal land managing
agencies. Because of their land ownership and broad management
authority, they can create, restore, enhance, and manage
habitat so as to further the goal of recovering listed species.
To the extent they actually carry out such affirmative
measures, they can lighten the burden that private landowners
may otherwise bear.
In fact, however, mitigation requirements imposed under
Section 10(a)(2) have sometimes had the effect of shifting to
private landowners the cost of carrying out the very
affirmative Federal land management that Section 7 requires. At
least five habitat conservation plans approved in the Southeast
require private landowners to mitigate for the impacts of
timber harvest on red-cockaded woodpeckers by paying specified
sums to Federal land management agencies to enable those
agencies to carry out affirmative habitat management on Federal
lands. Other habitat conservation plans elsewhere follow
similar strategies of exacting payments from private landowners
that will be used to fund beneficial management on Federal
lands.
Arrangements such as these shortchange the species they are
intended to protect. The actions that these mitigation payments
buy are actions that Federal land managing agencies ought to be
undertaking anyway, pursuant to their obligations under Section
7, and with their own appropriated dollars. Moreover, it is
often impossible to ascertain what management actions were
bought with these mitigation payments and what other actions
were carried out with the agencies' own appropriated funds.
Thus, it is impossible to determine whether the mitigation even
worked. Finally, the practice of allowing endangered species
mitigation to take the form of payments to Federal agencies for
actions that such agencies are supposed to undertake anyway is
fundamentally inconsistent with the U.S. Fish and Wildlife
Service's own recent draft policy disallowing most wetland
losses elsewhere to be mitigated on National Wildlife Refuge
lands, precisely because those sorts of improvements are
supposed to occur there anywhere.
Though I am strongly critical of the above practice, let me
be clear that the blame does not rest entirely with the Fish
and Wildlife Service. The reality is that Congress has often
failed to appropriate sufficient funds to enable land managing
agencies to do the beneficial management that Section 7
requires. In doing so, Congress has been penny wise and pound
foolish, effectively forcing the agencies to look to mitigation
payments from private landowners as a source of funding for
beneficial management practices on Federal land. If Congress
consistently gave Federal land managing agencies the resources
to restore, enhance, and beneficially manage habitat for
endangered species, many species would be further along on the
road to recovery, and the need to exact significant mitigation
requirements from private landowners would be reduced.
Some recently approved mitigation strategies offer the
salutary potential to improve the survival prospects of
imperiled species while at the same time creating economic
incentives for private landowners to become active and willing
partners in conservation efforts.
Because many endangered species mitigation requirements
have been onerous from the landowner's perspective and
ineffective from the conservationist's perspective, there is a
clear need to explore new strategies. There are, in fact, some
recent models that offer the potential of being simultaneously
more effective at producing conservation benefits and more
attractive to the landowner. These are deserving of more
widespread use.
An example of a recent innovative approach to mitigation is
contained in the recently approved habitat conservation plan of
the forest products company, International Paper. International
Paper worked closely with the Environmental Defense Fund to
develop a habitat conservation plan for the red-cockaded
woodpecker unlike any other that had been done for this
species. The essence of the plan is that International Paper
has committed to managing a part of its ``Southlands
Experimental Forest'' in Georgia with the goal of establishing
and maintaining up to 30 family groups of red-cockaded
woodpeckers there. Only three solitary males of this species
survived on this site when work on this plan began. If
International Paper succeeds in meeting the foregoing goal, it
will be permitted to take, incidental to timber harvest
operations, red-cockaded woodpeckers found elsewhere on its
operational timber lands in the Southeast. Although
International Paper has extensive land holdings in the
Southeast, only 16 family groups of red-cockaded woodpeckers
are known to persist in widely scattered remnants on its
operational land. Thus, if the population goal set for the
Southlands Experimental Forest is achieved, International Paper
will have created more woodpecker groups than currently exist
on all its land and it will be able to earn ``credits'' for the
excess that it may be able to sell to others as mitigation for
new highway projects or other developments in woodpecker
habitat. As a result, as International Paper's Craig Hedman
noted in The Charlotte Observer, ``[i]nstead of a problem to
overcome, you can view that species as an asset.''
On a smaller scale, another forest products company,
Champion International, has already accomplished exactly that.
It recently agreed to assume the mitigation responsibility for
another landowner's development project in Texas in return for
a substantial monetary payment. In its case, endangered species
habitat that the company has voluntarily enhanced with no
expectation of financial return has in fact produced a
substantial return.
What International Paper and Champion International have
recently done is closely akin to an idea that former California
Governor Pete Wilson championed with a formal 1995 policy to
encourage ``conservation banking'' for endangered species and
sensitive habitats. Pursuant to that policy, dozens of
conservation banks have been created in California, including
in Alameda, Kern, Riverside, Sacramento, San Bernardino, San
Diego, San Joaquin, Santa Barbara, Shasta, Sonoma, and Tehama
Counties. Many of these are the result of entrepreneurs
recognizing the potential to profit from investing in
conservation--entrepreneurs that range, by the way, from the
Bank of America to the Boys and Girls Clubs of East County
Foundation in San Diego County. They are, moreover, giving
other landowners who must mitigate development actions
elsewhere a choice that they would not otherwise have.
When Governor Wilson's policy was announced in 1995, Bank
of America Vice Chairman Martin Stein hailed it as ``a common
sense, market-based initiative that will help move development
forward while still providing a significant level of
environmental preservation.'' Other major companies that have
entered the conservation banking business include Chevron and
Arco, although most of the conservation banks established in
California are operated by much smaller interests. It is clear
that any conservation bank for endangered species must be
designed with considerable care and scientific rigor. Evidence
of successful restoration of endangered species must be clear
and unambiguous before the bank is allowed to earn and sell
credits. While the jury is still out on the success or failure
of the conservation banks currently in operation, they
represent a creative, positive response to the need to design
effective mitigation for authorized development actions. If
they work, they will have given landowners a choice they did
not otherwise have, they will have given rare species better
mitigation results than they have often gotten, and they will
have reduced the overall cost of achieving conservation goals.
Mr. Pombo. Thank you.
Mr. Johnston, you said something in your testimony about
HCPs being voluntary, and you brought up the PALCO situation.
If I remember correctly, when negotiations over the HCP began
to break down, there was a statement made by one of the Fish
and Wildlife agents--in fact, I have it here--it said that if
PALCO Pacific Lumber didn't come back to the table, a Federal
agent promised extremely stringent enforcement of the
Endangered Species Act beginning on Tuesday. Does that sound
voluntary to you?
Mr. Johnston. Well, I had heard--someone else had read me
that same quote before, and I wasn't involved in that
situation, so I don't have any first-hand knowledge, but it is
clear that the take prohibition exists, and the landowner has
to live with it. I mean, I guess, really, that goes to a
question of the discretion of the agency to enforce it, and in
some cases I suppose you could say that enforcement might be
used as stick. I think, perhaps, that is what you are
suggesting. Then, it is something less than voluntary. Well, I
guess, in one sense, if the take prohibition--well, the take
prohibition is a given; that is the starting point that every
landowner has to deal with. Now, as a landowner, I can make a
choice, and I could----
Mr. Pombo. You could make the choice to use your land and
enter into the HCP or not use your land.
Mr. Johnston. Well, I could use my land to avoid take, and
if it is impossible to use my--your question would only arise
when it was impossible to use my land, and I don't think, at
least in my experience, is usually the case. It is a question
of landowner----
Mr. Pombo. In your experience, you have dealt with HCPs
which are basically managing a landscape.
Mr. Johnston. Yes.
Mr. Pombo. And, Mr. Tsakopoulos, Mr. Weinberg, Mr. Worden,
in their cases, if they were to enter into and HCP, there is an
exaction from them. In Mr. Tsakopoulos' case, I believe it
was--he had to give up--what did you say, 170 acres in the
middle or----
Mr. Tsakopoulos. One hundred and seventeen acres.
Mr. Pombo. One hundred and seventeen acres in the middle of
his project.
Mr. Tsakopoulos. Mr. Chairman, that was not an HCP.
Mr. Pombo. But that was an exaction that came out of you in
order for you to use your property, and the point is, is that
there a huge difference between a timber company and an HCP
which is able to manage their holdings and manage their
landscape in a way that satisfies Fish and Wildlife and
National Marine Fisheries, in many cases, and someone else who
is using their land, that in order for them to use it for
development purposes, they either give up a large portion of
their property or they have to pay a substantial amount of
money into a fund. Mr. Gibbons brought up earlier Los Vegas. In
that particular case, they have raised in the last 4 years--I
believe it is--over $30 million. It is a per acre fee that is
going into a fund that every property owner has to participate
in if they want to use their land. That is not voluntary.
Mr. Johnston. Well, I do agree with you that there are
differences between different kinds of lands uses as you
approach the HCP process, and while a developer faces one set
of challenges, we face on the forestry side some others; that
being that we plan to manage the entire landscape over the
long-term, and the ``no surprises'' assurances and the ability
to have multi-species plans becomes critical for us.
Mr. Pombo. I am not saying you don't have problems. I am
very well aware of what has gone into the negotiations on a
number of the HCPs that have been entered into and how
difficult it has been to get from here to there, and in some
cases I didn't think it was going to happen, and it ultimately
did, and it is very difficult. But I do take somewhat issue
with you saying that they are voluntary, because they are
anything but voluntary, and Fish and Wildlife may take the
official position that they voluntary, but for people out in
the real world, they are not voluntary. It is either pay the
piper or you don't use your land.
Mr. Doolittle.
Mr. Doolittle. Mr. Tsakopoulos, in your written testimony,
you refer to a problem with Fish and Wildlife staff double-
dipping for mitigation. Could you briefly describe what double-
dipping is, and tell us your experiences with it?
Mr. Tsakopoulos. What I refer to is a particular project
that we had permitted. We went ahead and destroyed the wetlands
that we were permitted to destroy, and the project was
underway. We sold the portion of the property that was
permitted to be developed, and the contractor's agent--one of
the tractors did not see one of the posts and clipped one of
the vernal pools, 100 to 200 square feet. That was sufficient
reasoning for the Army Corps and Fish and Wildlife to come back
and declare that we should revisit or they should revisit the
whole permit, and they have requested--we still have not
settled that particular problem--they requested that we
mitigate for off-site indirect effects, and the indirect
effects are enormous. We already had mitigated, quite
substantially, for all the damages. This is the double-dipping.
They find an excuse to come back, and when they do come back,
they exact additional pounds of flesh, as we sometimes call it.
These people that worked at Fish and Wildlife--young people,
usually, who have tunnel vision and who believe that their
mission in life is to exact as much protection for the species
as they possibly can without regards to property rights or what
the law is or what is fair and just and prudent. This is why,
Mr. Doolittle, we very strongly recommend that the formation of
HCPs, similar to the one we have in North Natoma, prevent a lot
of this from happening. You know what the fee is and when they
set up the HCP, there is a lot of pubic hearings, and that
prevents Fish and Wildlife from asking too much. So, hopefully,
you come up with a fair agreement, and then everybody knows
what the rules are.
Mr. Doolittle. So, If I understand, in this particular
instance, you had already gotten all of the permits needed for
this; you sold off a part of it. The part you sold off, the
fellow clipped one of the vernal pools, and then the Corps
consulted with Fish and Wildlife, and Fish and Wildlife thought
it could get a whole new biological opinion and go back and now
seek mitigation for indirect effects? Is that what happened?
Mr. Tsakopoulos. Yes, that is correct.
Mr. Doolittle. Well, that sounds utterly arbitrary and
capricious.
Mr. Tsakopoulos. It is.
Mr. Doolittle. And it sounds like that is, frankly, your
concern with individual personnel; that you are not dealing
with any standard of certainty of having fairness involved. It
appears to be at the personal whim of the government official
who is assigned to the particular project.
Mr. Tsakopoulos. There is no question that the way the law
is today, Fish and Wildlife and Army Corps of Engineers is
together, they are the sheriff, they are the judge, the jury,
and the executioner as far as the private sector or whoever the
permittee is. They decide; they have such an extreme latitude
that they can make decisions that are not fair, that are not
just, and that are not prudent.
Mr. Doolittle. I guess I would just observe, Mr. Chairman,
this is exactly why our Founders gave us a written Constitution
and a separation of powers and a Federal system and a bill of
rights, so the power against a citizen by government officials
could not be used in a arbitrary and capricious fashion, and
yet it seems we have repeated examples of that displayed in the
testimony today.
I wonder, Mr. Tsakopoulos, based on your experiences with
the south Sacramento habitat conservation plan, if you could
explain to the Committee what you consider to be the single
biggest problem with the HCP process?
Mr. Tsakopoulos. I wish I could put my finger on the
biggest problem; there are quite of few of them. We started
working on the south Sacramento HCP approximately five years
ago at the request of Secretary Babbitt. We were hoping to
complete it within a year or year and a half. Five years down
the line it is not done, one of the reasons is that the staff
at Fish and Wildlife is overstretched. They don't have
sufficient people to put on this particular project to complete
it, and not only to participate but to give direction. We need
people that are knowledgeable with HCPs that would give
direction and work together with the county and the developers
to put it together. I know they ran out of money a couple of
times. The private sector agreed to provide a lot of the funds,
and we have done so, but the time is going by--five years have
gone by, and it is not done yet. Now, it appears that within a
year, we may be able to get that particular HCP done, but that
is why, Mr. Doolittle, if at all possible, if the funds can be
provided so that they can provide knowledgeable people from the
Service to make sure that they can give direction, proper
direction, to get the HCPs formed. The HCPs will be very
beneficial to the present and future requests for permits.
Mr. Doolittle. In reading your testimony, it sounds like
one of the biggest benefits you feel exists with HCPs is that
they are done in more of an impersonal, public forum where you
get more fairness and less arbitrariness, I guess, in the
decision-making. Is that a fair reading of your comments?
Mr. Tsakopoulos. Yes.
Mr. Doolittle. It is funny, as I have considered HCPs,
those things would never have occurred to me, and yet you have
dealt with it on this practical level, and it is interesting to
me to hear your comments.
Mr. Tsakopoulos. We at least hope that is what will happen.
There was a tremendous battle to get the HCP done in North
Natoma this year, but at least it is there, and we know what
the cost is; we have agreed to it, and we are moving. When we
were forming that HCP, it looked like we were paying way too
much. Looking at today, that was a good deal. We are happy with
it. Let us move on with it, because the time, to us, is
critical, and we cannot lose time in the development.
Mr. Doolittle. I guess, speaking as a developer, I would
assume time is always critical in that kind of a business,
isn't it?
Mr. Tsakopoulos. Yes, sir.
Mr. Doolittle. Mr. Chairman, I have a couple more
questions. I would be happy to yield back to you and go for a
second round.
Mr. Pombo. We can do a second round.
Mr. Doolittle. Okay.
Mr. Pombo. Ms. Napolitano?
Ms. Napolitano. Thank you, Mr. Chairman. The things I am
hearing from this panel--and I apologize for not being here,
but I had another committee that I had to sit in on--is that
there is a consensus that the HCPs are workable for both the
preservation of the habitat and also for the development of
land and working with the developers and its users. If the
HCP--and excuse me, I am not quite sure how the HCPs are set
up. Who asks for them? How do they begin to work for these
communities?
Part of the other question that I have--and I am hearing
and read some of the information--that a lot has to do with
either not enough personnel to be able to help work through the
project or on the HCP as well as possibly the funding to be
able to establish or expedite the process to be able to become
more timely on both sides of the fence, and I would like to Mr.
Johnston to address some of these, because I don't know what
timeframes that the agencies give the developers to be able to
begin the process of approving the projects, themselves, or
does it help to go through the HCP? Where would funding help to
be able to be to expedite the process to help both? I am
assuming both are in agreement that there is a way to work
together, and that is what we are--especially, in my case, I am
very interested in finding a way to be able to work together.
Let me start off with those.
Mr. Johnston. I am not sure I got them all, but I will take
a stab at what I think the salient ones were. In terms of the
process and the way I look at it and the way clients that I
work with individually look at it, is if we have an endangered
species issue, whether we have one on a piece of property or we
think we might or we have habitat that could support a species,
one has to make a decision or a judgment, an assessment, of
whether you want to go the pure regulatory route; that is
assume that you are going to have to live with the take
prohibition of section 9, or whether you think a planning
process might achieve a greater degree of certainty for you.
And if you, as a private individual, decide you want to go that
way, then, procedurally, either you develop the kinds of
measures or the kinds of mitigation features that you think
would be sufficient to meet the standards in section 10 of the
Act for issuance of an incidental take permit or you work
cooperatively, more typically, cooperatively with the Services,
or the Services, to try to develop what those measures might be
and how they might apply on your particular piece of property.
Now, once you have reached a basic agreement, then you
start the formal application process, and this is how it pretty
much works in the field. And that process, then, is taking the
written document that you have worked up and beginning the
process through the ESA approval and through National
Environmental Policy Act compliance.
One of the criticisms that has been expressed to me and
that we have heard here today is the timeliness issue. How long
does it take to process one of these things? Well, that has
been a concern of ours, as well, and, in fact, recently, the
Secretaries Daly and Babbitt have announced a commitment to
have their agencies sit down with the applicants at the front
end of the process and develop a timeline, and this was not
something that was typically done before. I think that is a
step in the right direction.
I think it is clear that specific devotion of resources for
the section 10 HCP Programs would be a step in the right
direction, and, as I said in my initial testimony, I think
there are some things that can be done to streamline it, and
that is what many of our members have been trying to work with
the Services on. We believe in the process. We think good can
come out of it. It has to be made more efficient than it has
been in some of the cases.
Mr. Tsakopoulos. I would appeal most of your questions to
Fish and Wildlife. They can tell you a lot better as to how it
is run; how it is formed. They are the experts.
What I can tell is that once the HCP is formed, it makes it
a lot easier for someone to get a permit to utilize their land.
Now, whether it is clear or not or whether we should paying as
much as we are, et cetera, those are things that have to be
discussed probably at different times. What we hope to do is to
make the process a little friendlier, and I think we can do
that.
Now, I know there are experts here from Fish and Wildlife
if they want to answer some of your questions.
Ms. Napolitano. We can do without the HCP background. I can
find that out essentially by contacting the Director or asking
staff.
But my concern is--and I hope no one takes offense--but I
found, not only at the State level but the Federal level, that
the agency bureaucracy sometimes is insurmountable and that you
go into a package that you have to contact your representative
or go beyond to try to get some faster solution or some sanity
to an issue that shouldn't be that hard, and while I wouldn't
say that all agencies are the same, sometimes that happens
because maybe from the administrative level there is not enough
information coming down to the people who actually handle the
caseloads to understand what the definition is of be able to
user-friendly. And I am using very basic terms, because that is
how people come at me and ask me for assistance and support in
getting projects looked at just for resolution, never mind
partisanship. We are trying to get things done, because they
want them done. I think it is just fairness.
Mr. Bean. Mrs. Napolitano, in my experience, frequently I
have had developers and development interests say to me that
because time is money to them, they would put far more money on
the table for conservation purposes if they could get a
resolution of these issues quickly. Now, unfortunately, they
can't get a resolution of these issues quickly. If the agencies
charged with processing these permit applications don't have
the resources to proceed more quickly----
Ms. Napolitano. That was my other point.
Mr. Bean. [continuing] we would be much better served and
conservation would be better served if these agencies had
resources commensurate with that task.
Mr. Tsakopoulos. I agree with the answer that was given,
that it appears that--there are two things that happen. One,
that we do not have sufficient upper management people that
understand the whole process that probably are willing to be
responsive to the public with this tremendous permit request.
Number two is that you have people who are trained into biology
that have tunnel vision only, and time is not important to
them, neither is the economic factor, and that tends to cause a
lot of problems.
Ms. Napolitano. Thank you.
Mr. Pombo. Mr. Doolittle?
Mr. Doolittle. Mr. Tsakopoulos, in your testimony, you said
that you believe the Fish and Wildlife Service must take
greater consideration of the economic impacts of its decisions,
and we did hear from the Director that the policy, which is a
written policy, that they try to implement. Do you feel that in
the Sacramento area that the Sacramento field office has done
an adequate job of considering the economic impacts of the
decisions it has made on your projects?
Mr. Tsakopoulos. I do not believe they have done a good job
considering economic factors.
Mr. Doolittle. Do you have any suggestions as to what we
might do or they might do to improve the situation?
Mr. Tsakopoulos. I do. We must remind them what the
leadership is saying again and again. I don't know if--I assume
the President and the Vice President mean what they say that
the economy and the environment must co-exist, and, my
goodness, it must. We live on this Earth, and we have got to
take care of it, because it has to be prudent and reasonable.
That is important. The possibility of having an ombudsperson--
do you understand me; ombudsman or ombudsperson--that is
neutral to check some of these decisions from time to time may
be a solution. Right now, there is no such person.
Mr. Doolittle. That is an interesting thought.
Mr. Chairman, I wonder, it was my understanding that there
is a Fish and Wildlife person here, even though the Director is
not here. I wonder if we could invite that person to come
forward and react to Mr. Tsakopoulos' comments?
Mr. Pombo. Yes. If you could join us at the table and
identify yourself for the record.
Mr. Spear. My name is Mike Spear. I am the Manager of the
California-Nevada Operations Office for the Fish and Wildlife
Service.
Mr. Pombo. Thank you. Mr. Doolittle?
Mr. Doolittle. Mr. Spear, you have heard the interplay
about the Sacramento field office and the concern about not
taking into account the economic impact. Could you share with
us your perspective on this?
Mr. Spear. Well, my perspective on the subject of the
panels, in general, I would certainly like to share, but
specifically to the question about economics brings in a
challenge in the law, itself, where the fundamental biology is
basically our direction. In recovery planning, there is, in the
way we prepare them these days where we have both a technical,
biological, scientific group as well as stakeholder community--
the idea being we get the best biology and then we develop
stakeholders to help design the best economical way to develop
that plan--is one way economics is brought in. It is brought in
also in the critical habitat determinations. Specifically, as
it relates to section 7 type analysis, which Mr. Tsakopoulos is
referring to here, a jeopardy determination, for instance, or
an analysis is very specifically a scientific, biologically-
driven determination.
I think a big element, though, that is within our
discretion that has a lot to do with economics, and that is the
pure concept of time is money, and speeding things up,
expediting the process, working with people early, coming to
conclusions, not revisiting them, et cetera--those are
principles that have economic consequences deriving from
biology and things which I subscribe to. I was listening to Mr.
Tsakopoulos' list of 10 points, and I found very little,
really, to disagree with.
If the chairman might indulge me a second, I would like to
make a couple comments about--what I would say, drawing from
the members and my own experience--I have had as much
experience, frankly, as anybody in the Service in preparing
HCPs, both forest types in the Northwest and urban types in San
Diego and Orange County and a big effort now in Riverside
County--let me just list some things about the HCP countywide
effort. The local government is in control. I tend to agree
with the Chairman's comments about how they are voluntary, and
I try not to use the word. I think it can be overused about the
voluntary nature of them, but when the county comes to us or a
group of local jurisdictions and says they would like to do a
multi-species plan, a countywide HCP or a large landscape--and
I would say 100 square miles or better--they are leading that
plan, and we see that over and over. Those plans cannot proceed
without them. I am working very closely with the board of
supervisors, for instance, from Riverside County; talk to them
weekly about developing a plan. There is wide participation
from all stakeholders.
The biology is reviewed, and there is peer review of that
biology for the purposes of making sure in the end that we
conserve the species and we can also defend against mitigation.
Nobody wants a plan that fails later on, but the key is
everybody sees the biology.
Mitigation ratios you talked about. Sometimes plans have
mitigation ratios. Those are a negotiated mitigation ratio
related to the biology and the specific circumstances, but
stakeholders, landowners, et cetera are part of that process.
San Diego has a series of mitigation ratios embedded in the
plan. If this happens, then everybody knows why they are there;
how they got there; what the biology behind them is. There was
differences, yes, but in the end this is the--the determination
was made. and now it is applied, and they are agreed to in
advance.
There is broad support when you get all done or else it
doesn't get done, quite frankly, because it usually has to be
voted by a city council or a board of supervisors. I attended
many meetings in San Diego, Orange County, Riverside County in
front of city councils and boards, and started ``From the
Federal point of view, here is what this plan is; here is what
we offer'' responding to their questions at the local level.
They are the land use entity.
It is efficient. From our point of view, it is efficient;
from the landowner's point of view, it is efficient, and from
the county's point of view, it is efficient, and that is, we
stay away from project-by-project review. We simply cannot, in
the State of California, conduct ESA project-by-project, and
that is part of the complaint we are hearing. We are
overwhelmed with the kind of development that is going on right
now and the ubiquitous nature of the species.
So, we have to move towards larger landscape level
countywide. I have taken this approach to the Secretary about
three weeks ago; briefed him on it; briefed many of the members
of the Department. There are 30 plus counties in the State that
really should be thinking that way. We are working with
probably half of them in some ways and some of them we have
very direct relationships--I mentioned Riverside and Placer
Counties, specifically--others, we are in more formative
stages, but there are probably 30 of them we ought to be
working with.
It is a great opportunity to spread the cost, because you
have the local decisionmakers who have taxing powers, that can
decide whether they want the last developer to pay or to spread
it throughout the community, and that is a decision they can
make, and, again, sometimes it has to be voted on. The public
sees, how did the costs get spread to these agencies?
And, finally, from our point of view, it is best for the
species. We get landscape type of plans that do a lot better
and are less expensive overall for the species. So, for all
those reasons, our direction, I think, has to point that way or
else we are going to have a lot of these sorts of issues you
have heard about today for many different reasons.
Thank you.
Mr. Doolittle. May I continue, Mr. Chairman, or what would
you prefer since my time is up?
Mr. Pombo. I will let you continue. I do have questions
that deal specifically with the way Mr. Spear just described
that, but I know you had specific questions, so go ahead.
Mr. Doolittle. I don't object--go ahead. My questions are
going to take an entirely different text, so go ahead and ask
your questions related to----
Mr. Pombo. One question I have for you, Mr. Spear, is why--
I understand Mr. Tsakopoulos wanting an HCP because of the
certainty. I made the comment earlier that you have to pay the
piper to use your land. Well, with him, he at least knows what
he owes them up front, and he is getting it out of the way up
front, and he has some certainty in being able to do that. And
that is if you accept the process that is in place as being,
number one, legal, and, number two, being necessary.
Why is it that in California we need large regional HCPs,
countywide HCPs; large property owners have to enter into HCP.
Throughout the entire region you are from or that you represent
here today, that it is necessary that we do that, and yet in
the rest of the country, they issue almost no section 10
permits. They don't go through large regional HCPs with the
exception of--I think it is Austin--Austin, Texas. They don't
have the large regional HCPs. They don't go through all of
this. They don't have the conflicts on a daily basis. The
congressmen that represent those areas don't have people in and
out of their offices every day complaining about the Fish and
Wildlife Service.
Why is that your region needs all of this, and the other
regions of the country don't? And I won't buy the bio-
diversity--the hotbed of bio-diversity that we have in
California, because there are similar hotbeds of bio-diversity
throughout the country where they don't have this.
Mr. Spear. I know in other hotbeds of bio-diversity, they
do have it, and you mentioned Austin, and we heard earlier
about Florida scrub jays; Washington County, Utah with their
desert tortoise problem. They are having a huge issue right now
in Tucson, Hema County, over an owl and I am not sure what
else, a cactus. The idea that this doesn't occur elsewhere is
just not correct.
Mr. Pombo. I am just going by the records that Fish and
Wildlife Service gave us as to where their HCPs were, where
their section 10 permits were issued. If they gave us
inaccurate information for this hearing, please correct it. I
will give you the opportunity to do that.
Mr. Spear. I know for a fact that there is a huge issue in
southeast Arizona right now over--it is in Hema County, largely
Tucson, over exactly these sorts of issues. I was involved in
the early days of the Austin HCP where when I was Regional
Director in Albuquerque, and that one has continued because
of--but the other factor, it is not just bio-diversity; there
has to be growth and change. Not all parts of the country are
expanding anywhere near some of the issues along the Southeast
or the Southwest or, in particular, California. We have up in
the Northwest, the forest issues, largely single landowner
HCPs. But that situation is changing because of the salmon
listing. The city of Portland, the city of Seattle, some of the
other cities up there are now seeing their urban landscape
affected by anadromous fish listings traveling through those
areas and finding out that some of the practices of cities, or
urban environments are going to affect it. So, you will see up
there, as well.
I won't try to use the bio-diversity, but I will indicate
to you that it is this notion--it is the element, also, of the
rapid development. To the extent that you have listed species
in most places, when somebody goes to develop--and that is the
difficult about habitat conservation planning. I tend to agree
with your argument about voluntary. If you don't do it
countywide, then you have to do it project-by-project, and if
we can't get it done project-by-project, the unfortunate thing
is it is not as if the problem doesn't still exist, because
then they face section 9 enforcement if they go ahead, and that
leave us in a terrible circumstance. We are in a situation
where we can say no to people, because they have no recourse,
then, but to face section 9.
I just have to indicate, Mr. Chairman, California is the
example, the poster child, for this issue. It is not the sole
area, but it is--there is more there than anywhere else.
Mr. Pombo. There is no question; it is not even close. And
if we compare other areas of the country that are experiencing
rapid growth--the suburbs of Washington, DC, which are
experiencing rapid growth, they don't have any regional HCPs
here.
Mr. Spear. I don't know if there is any endangered
species----
Mr. Pombo. There are endangered species. In fact, there is,
I believe, three in Washington, DC, itself. There is little or
no enforcement of the Endangered Species Act here. There are
next to no employees in this area, and there is almost zero
enforcement of the Endangered Species Act here. In the State of
Hawaii, which is probably as biologically diverse of any of the
States, why do they not have section 9 problems there? Why are
there not takes there? I mean, I was in Hawaii last year, and I
saw a new roadway that was built through the middle of a
rainforest, and they were talking about how fantastic this was
that they were able to have a new roadway through here so
people could see it, and it is a tourist thing. Why was there
no section 10 permit issues there? Why was there no section 9
problem with takes on that one?
Mr. Spear. Mr. Chairman, I can't speak to the specifics of
the road, but I--having been Regional Director prior to coming
to Sacramento, covering Hawaii--and Director Clark mentioned it
earlier, some differences--up until very recently, there was no
authority. They couldn't get State permits, so they were not
going to get a Federal permit for take when it wasn't allowed
by the State----
Mr. Pombo. I understand that, but they build the road. I
have got a road that they are building in my district that you
are holding up, because they have not sufficiently mitigated
their impact on the San Joaquin kitfox. It is an existing road
that they are widening and the Fish and Wildlife Service is
holding up the process of them doing that right now. They built
a road through the middle of a biologically diverse area. You
can't tell me that you don't have authority there in the State
of Hawaii, but you have authority in San Joaquin County,
California.
Mr. Spear. The primary problem in Hawaii is not the habitat
issue; it is the exotic species. The threat to most species is
the exotic plant, animals, insects that have altered the
landscapes of generally the species that are on the hillside.
This road is an obvious exception, but there is not the
immediate development impact on most of those species. The
problems come from the plants coming in, overtaking, changing
the habitat and not so much from a development issue. So, we
have a character change as to why things are affected. So, if
you didn't you find a jeopardy on the road----
Mr. Pombo. I will have to ask the Committee's indulgence on
this, because I believe this is extremely important.
I have, in my hometown, a developer who wanted to develop a
piece of property that had development on four sides. It was
700 acres; it had development on four sides of it, and he still
had to pay a 3 to 1 mitigation in order to develop that
property. It was not a change of landscape issue. It was an
abandoned railroad site. It had been used since the 1860's--
1865 of 1864--it had been used, and yet in order for him to use
that, he had to mitigate. The problem that we have got in
California is that it has become mandatory that if you are
doing anything with your property, you have to mitigate
regardless of the impact; regardless of the jeopardy decision;
regardless of anything else. That is why we have these regional
HCPs. That is why we have individual property owners who have
problems. It is because the official position in your region
has become that if you are doing anything, you have a mandatory
mitigation, a mandatory exaction from property owner who is
doing that.
The reason they don't have this in Hawaii or elsewhere
throughout the country is because they look at these cases,
case-by-case, or they don't look at them at all, and they don't
have a mandatory exaction from every property owner, and that
is the difference.
In your region of the country it is mandatory, and that is
why we are ground zero for these problems with mitigation is
because sometimes they just don't make sense. Sometimes it is
not necessary to mitigate; sometimes it may be, but sometimes
it is not necessary, and that is why we have so many problems
in California with this particular issue.
Mr. Doolittle?
Mr. Doolittle. Mr. Spear, you indicated that it was science
that was driving the determination of the Fish and Wildlife
Service on these issues, but you heard Mr. Tsakopoulos. I think
the idea has been implicit in the comments of--or the testimony
of many of the other witnesses. I mean, Mr. Tsakopoulos used
words like personal bigotries of the individual or unchecked
discretion, conveying the idea that there is a good deal that
is arbitrary, capricious, and subjective. Do those
characterizations give you concern that, perhaps, it isn't as
objective as it might be amongst certain people in your area?
Mr. Spear. I would say, of course they give me concern, if
that is the perception of the way our people operated. I think
that Mr. Tsakopoulos also went on to say that he thought that
we have got to get this to a more cooperative, user-friendly
basis, and I would totally agree with that, and I wouldn't
agree with his characterization that that is the way our people
operate in any sort of a general fashion. Could I sit here and
say that none of my people have ever acted in such a way that
they might appear arbitrary sometimes? No, I can't say that,
because we all know that people make statements at times that
you later regret. But, as a generalization, I certainly do not
agree--but I do agree that that is the way we ought to be
striving to.
I have spent a lot of time, I know, working with landowners
on these kinds of issues, particularly, as I say, with local
units of government trying to help wade through these problems,
and, frankly, sometimes I bring a broader perspective to bear
on an issue to try to break through logjams, but I increasingly
feel that our focus on California, as we have had experience
with this program--and, as I say, some of the--most of the
experience anywhere in the country, our people are--every day
they get better at being able to make sure that they can
deliver these kinds of programs to the public efficiently, with
sound advice, and to help move things through. I mean, the
difficulty is we just don't have enough people to deal with
enough people that want to talk to us at any one time. But they
are causing me concern, and I will continue to work on it.
Mr. Doolittle. I mean, you have got 55 people. Isn't that
the second largest office in the United States?
Mr. Spear. In Sacramento?
Mr. Doolittle. Yes.
Mr. Spear. It might be the largest.
Mr. Doolittle. Well, it looks like Carlsbad has that
distinction.
Mr. Spear. Okay, they are close. They are both big.
Mr. Doolittle. You know, I was just thinking about Mr.
Pombo's comments. We all lean back here, and we see what goes
on around here. This has got to be one of the most quickly
developing regions in the United States, and I think this is in
the Chesapeake Bay region, and they have got 4 as opposed to
our 55. Now, I know you are going to tell me the difference in
listed species, but I bet you if you gave them 55, they would
find a few more species around here, too.
I am going to share with you my opinion based on what I
hear through my office. It is almost impossible for me to go
anyplace in my district where I don't hear bitter complaints
about actions of the Fish and Wildlife Service. Now, I am not
in a position to know whether those are or are not well
grounded, but I do know that I hear a lot about it, and there
is a strong feeling that is a great deal of unfairness and a
great deal of abuse of power because of this life and death
power, at least financially, they have over people of what they
are going to do. And, so they will agree to all kinds of
extraordinary demands. It seems to me--and if you care to react
to this, I would be interested in hearing your reaction--but in
that example on the Silver Spring project that Mr. Tsakopoulos
talked about where some guy he sold a property to accidentally
clipped one of these vernal pools. For the Fish and Wildlife
Service person to go in and reopen up the whole thing about
indirect impacts when that had already been addressed once
before, is totally arbitrary, capricious, and absolutely
outrageous, in my opinion.
Do you want to react to that?
Mr. Spear. Yes, the circumstances that are indicated here
cause me concern, okay? And it is something I will look into
when I get back.
Mr. Doolittle. You know, I wish you would, and if you
wouldn't mind, I would appreciate an update, because it is
heartening that you and the Director, both, when you were made
aware of specific things, it seems like--I mean, you didn't sit
there and defend them--it seem like you were concerned, too,
and that gives me encouragement. If our government officials--
because you are the ones who manage these people, and if there
is--I mean, here is another way you have got that we didn't get
into too much specifically, but it is in his testimony, called
the Kramer Ranch project where they got permission to scrape
off the vernal pools, and they mitigated for these in another
place, and then Fish and Wildlife delayed it so long that
somehow the vernal pools reestablished themselves, and then
they were going to make them go through the whole ESA take
analysis all over again after they had gone through extensive
studies, original mitigations, and then, because of this delay
brought on by the Fish and Wildlife Service, itself, and the
puddle forms and fairy shrimp spring to life. All of a sudden,
they have got to go through this analysis all over again? I
mean, that it just ludicrous, I think. What do you think?
Mr. Spear. Well, I have learned that when these things come
up, you have got to look behind them and see. One of the things
that does occur is that you can get a listing--and I don't know
if that is the case here--where all of a sudden you go back and
if you were to say that, ``Well, we already did that before
even though we have had this listing in the interim and maybe
the permit has expired and you have to come back.'' The dilemma
is you leave the developer out there subject to third parties.
If you haven't dealt with the fact that there is a list of a
species and in some way made recommendations as to how to
handle it, come to some conclusion, if you just ignore it, then
nobody is served.
Mr. Doolittle. I mean, in this case, they knew about the
listed species. They got specific permission to scrape it all
off and reestablish somewhere else, and then because of the
delays of the Fish and Wildlife bureaucracy, these things
formed all over again on the land that had been scraped off. I
mean, that sounds--it just sounds unbelievable to me.
Mr. Spear. Well, frankly, it does to me, too.
Mr. Doolittle. Well, would you look into that and get back?
Mr. Spear, would you be willing to look into that and get back
to the Committee?
Mr. Spear. Yes, I would.
[The information follows:]
Mr. Doolittle. Okay, good. Thank you, Mr. Chairman.
Mr. Pombo. Ms. Napolitano?
Ms. Napolitano. Thank you. I think I will make mine real
brief. I think we have a vote to go after.
But I remembered Mr. Johnston made a point of saying that
Congress must address the section 7 issue, and I would like to
know why and what we can do with it?
Mr. Johnston. Thank you. Well, one of the requirements of
section 7--well, let me back up and start at the beginning--
section 7 consultation is required when the agencies take an
action, like issuing a permit, and in the issuance of a habitat
conservation plan or the issue of a permit for a plan, that is
construed as being such an action that is subject to section 7
where the Service will consult with itself, which is sort of an
interesting concept, but that is the way it has been
interpreted. So, they prepare the plan and then enter into a
consultation process that is specified in their regulations.
During that period, both the Services and the applicant are
prohibited from making any irretrievable or irreversible
commitment of resources--that is the phrase in section 7(d)--
while consultation is underway, you cannot make any commitment,
and now the court, at least one court, in the context of a
forestry HCP, that means you can't cut any trees, so you have
got to shut your operation down during consultation, and, by
the way, consultation means all forms of consultation, not the
formal 135-day consultation in the regulations, but once I
start talking to the Service, I am arguably subject to having
to shut my operation down. That is a pretty clear problem for
anybody looking at HCP given the opportunities for third
parties to bring a lawsuit, and that is also one that, frankly,
would be pretty easy for Congress to fix.
Mr. Pombo. We have a series of votes on the floor. Because
we are probably going to be over there for quite some time, I
am going to go ahead and adjourn the hearing.
I want to thank you all for your testimony----
Mr. Worden. Can I make one more comment, real quick?
Mr. Pombo. Yes, you can.
Mr. Worden. If there is a ``no overall net loss'' goal to
be used as a goal and Fish and Wildlife would stop using it as
a policy, I think it would solve all of these problems, because
you don't have to give a permit for every--in every instance,
and that is what the goal is. And if they would just read the
regs and do what Congress has mandated, it would solve--like
what you said, it is in place--if they would use it and follow
the ``no overall net loss'' goal instead of using it as policy,
it would work. I hope you can do something to make that come
about.
Mr. Pombo. Well, I agree with you, and I appreciate you
being here. I appreciate all of you being here and for sharing
your testimony with the Committee. Unfortunately, we do have to
run over to the floor, but thank you all very much, and the
hearing is adjourned.
[The information follows:]
[Whereupon, at 2:21 p.m., the Committee was adjourned.]
[Additional material submitted for the record follows.]
Statement of J. Mark Nielsen, Chairman, Board of Directors, El Dorado
County Water Agency
Dear Chairman Young:
On behalf of the El Dorado County Board of Supervisors,
sitting as the Board of Directors of the El Dorado County Water
Agency, I appreciate the opportunity to submit the following
testimony for the Committee's consideration. My testimony
addresses the role that the United States Fish & Wildlife
Service is playing in one of the most deeply divisive issues El
Dorado County has ever faced. It dramatically illustrates how
the demands of the Federal Endangered Species Act (the Act)
frequently create intractable dilemmas for both Fish & Wildlife
and local government.
A small region of unique soils in western El Dorado County
harbors five plant species listed as endangered or threatened
under the Act. The primary jeopardy to these species is the
destruction and fragmentation of their habitat resulting from
rural residential development in the fast-growing Sierra
foothills. Ironically, this means that many of the parties
responsible for pushing the species into listed status, having
completed their developments, cannot now be compelled to help
solve the problem they participated in creating.
Over the past decade, the County has struggled mightily to
define and shoulder its legal responsibilities to preserve this
habitat. The County's first step was to convene an expert
advisory committee and commission a professional study to
propose a rare plant preservation program, years before the
species were listed under the Act. This committee, which
included a representative from Fish & Wildlife, as well as the
state Department of Fish & Game, recommended that the County
adopt and fund a 3,500-acre system of five plant preserves,
spread among the north, central, and southern portions of the
plants' range.
At that time, however, the County agreed to designate only
four preserves, and took no funding actions. The fifth,
southern preserve was rejected as too expensive and
inappropriate, given the landowner's vociferous opposition and
its location on prime commercial and residential land in
downtown Cameron Park, just north of the main thoroughfare in
the county, U.S. Highway 50.
The County's rejection of the southern preserve and its
failure to establish funding mechanisms for acquisition and
operation of the preserve system were express factors in Fish &
Wildlife's subsequent decisions in 1994 and 1996 to propose
listing, and then to list, the plant species under the Act.
Significantly, Fish & Wildlife's listing action was also
prompted by the settlement of a citizens' lawsuit that alleged
it was neglecting its legal duties under the Act. Meanwhile,
others filed lawsuits to invalidate the County Water Agency's
and the County's water-supply and land-use plans, respectively,
in part because of the claimed inadequacy of the County's rare
plant preservation program.
Contemporaneously, Fish & Wildlife and the United States
Bureau of Reclamation (USBR) put the water purveyor to this
part of the county, El Dorado Irrigation District (EID), on
notice that the preservation of these plants would be a key
factor in EID's ability to increase--or even maintain--its
water supplies from Federal facilities such as Folsom and Sly
Park Reservoirs, via the ``Section 7 consultation'' required by
the Act in conjunction with the execution of water supply and
Warren Act contracts with USBR.
These factors prompted the County and EID to overcome their
prior reluctance and take the following actions, starting in
1997: they agreed to designate a southern preserve of several
hundred prime commercial and residential lands in downtown
Cameron Park; they spent a combined total of nearly $2.7
million dollars to help fund the immediate acquisition of that
preserve; and they imposed heavy building permit and water
hookup fees to fund the future costs of acquiring, maintaining,
and operating the entire $12 million, 3,500-acre, five-preserve
system previously recommended by Fish & Wildlife and all other
experts.
It is no exaggeration to say that these were perhaps the
most unpopular actions that these elected officials have ever
taken. The conservative citizens of this rural county simply
could not understand why their leaders committed $12 million to
rare plant preservation when so many other critical public
needs in the county were going unmet.
Nevertheless, these county entities struggled forward in
good-faith belief that these agonizing actions would meet their
legal responsibilities under the Act. As mentioned, the
preserve system and funding program they adopted met the prior
recommendations of the expert task force. Fish & Wildlife
willingly contributed $500,000 toward the acquisition of the
southern preserve. Further, the state Department of Fish & Game
issued a written endorsement of the County's program as
sufficient to avoid jeopardy to the plant species. Moreover,
the County's actions were consistent with the dictates of Fish
& Wildlife's own 1995 biological opinion for Central Valley
Project water contract interim renewals.
Unlike state Fish & Game, however, Fish & Wildlife declined
to take a position at that time on whether this locally funded,
five-preserve, 3,500-acre program was sufficient to avert
jeopardy to the listed species. Also, the Section 7
consultations related to EID's present and future water
supplies still loom on the horizon today, their outcomes
unknown. In the meantime, Fish & Wildlife has taken another
action required by the Act--the preparation of a draft Recovery
Plan for the listed species.
The purpose of a Recovery Plan differs from that of a
Section 7 consultation. A Recovery Plan prescribes ambitious
measures that will enable a species' condition to improve
sufficiently to ``de-list'' the species, while the modest goal
of a Section 7 consultation is simply to avoid putting a listed
species in jeopardy of extinction. The constant threat of
lawsuits from citizens who believe that Fish & Wildlife is not
sufficiently zealous in enforcing the Act, however, plunges
that agency into a dilemma that directly threatens El Dorado
County's economic well-being. Specifically, Fish & Wildlife
must aggressively perform its legal duty to prepare the
Recovery Plan, but then the Recovery Plan's ambitious program
will likely end up being converted into mandatory County
actions via the Section 7 consultation.
In other words, the Act itself, coupled with Fish &
Wildlife's desire to blunt environmental criticism, causes a
``raising of the regulatory bar'' that would in this case
impose new and unbearable burdens on the local governments and
citizenry of El Dorado County. Specifically, the County's
preservation program will be undone, broken under the weight of
some $50 million in costs--with the ironic consequence that the
listed plants will be in greater jeopardy than ever.
Understanding why this is so requires some sense of what
the Draft Recovery Plan calls for. Among other things, the plan
prescribes approximately 1,600 acres of additional preserves,
above and beyond what any expert has ever deemed appropriate
and what the County has adopted and funded. Rather than the
already onerous cost of $12 million, the Recovery Plan
estimates the price of its program at $50 million. A
substantial part of that $50 million cost arises from Fish &
Wildlife's call for additional acreage in the northern
preserve. If it becomes a mandate through the Section 7
process, however, this unrealistic feature of the Recovery Plan
will actually be counterproductive to the goal of plant
preservation.
The County's existing plan features an innovative,
pragmatic acquisition strategy: in exchange for being allowed
to build on several hundred less sensitive acres in the area,
two large developers would be required to donate, at no cost,
more than 1,000 acres of prime rare plant habitat. The
resulting preserve meets all prior expert recommendations. In
contrast, the Recovery Plan calls for all of this acreage,
including the developable portion, to become part of a northern
preserve much larger than has ever before been proposed. Of
course, doing so makes the developments infeasible, which means
that instead of receiving more than 1,000 acres of plant
preserve for free, the County would have to purchase
approximately 2,000 acres at full market value--at an estimated
cost of nearly $11 million.
The Recovery Plan identifies no funding source for this or
any other expense it would impose, and quite frankly, none
exists at the local level. The County's adopted $12 million
program stretches fiscal and political feasibility to the
limit, particularly for a rural county whose revenues have been
hit hard in recent years by declines in timber and other
resource-based industries, as well as state fiscal policies.
Without funding, this northern preserve acquisition simply
will not occur. The paradoxical real-world result is that
imposing Fish & Wildlife's plan on the County will yield some
1,000 fewer acres of plant preserves than the County's already-
adopted approach. We respectfully question which approach
serves the purposes of the Act, and the listed species at issue
here, better: an infeasible, unfunded $11 million paper
preserve, or an attainable no-cost preserve that, although
smaller, meets all prior expert recommendations?
We have similar concerns about all of the Draft Recovery
Plan's $38 million in unfunded preserve acquisitions. There is
simply no way that local sources can provide this level of
funding. Furthermore, the County's economic burden, whatever
its size, can only be spread among those who have yet to
develop. The County's dilemma is that past developments, which
are largely responsible for causing the listing and creating
these mandates in the first place, are now beyond the County's
regulatory power. Future developments are rightfully
responsible for only part of the problem, but they are saddled
with funding the entire cost of the solution.
Hence, the County faces the dilemma that any further
tightening of the regulatory screws will run the County into
fiscal realities and political backlash that will doom its
existing program to failure. Yet, failure to preserve the
plants will prevent the County from moving forward with the
economic development it wants. The County's adopted plan is
reasonable, expert-endorsed, and the product of a good-faith
effort to meet its legal duties under the Act. The irony is
that the Act itself, coupled with undue influence from outside
interests, is poised to obliterate that attainable preservation
program in favor of an infeasible and extreme ideal that may
look good on paper, but will only increase the jeopardy to
these plant species in the real world.
We all share the goal of providing effective protection to
endangered species, and the County has gone to the wall,
fiscally and politically, in pursuit of that goal. In a
rational world, that effort would be rewarded. Instead, we may
be on a collision course with ecological failure.
On behalf of my board, I appreciate this opportunity to
explain the dilemmas that Fish & Wildlife and the County find
themselves trapped within, and to illustrate how actions taken
in the name of endangered species preservation can
unintentionally produce quite the opposite results.
------
Follow-up Questions for Penelope Dalton, Assistant Administrator for
Fisheries, National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, U.S. Department of Commerce
On Implementation of the Endangered Species Act
1. A recent letter from the National Marine Fisheries
Service (NMFS) to the Washington Department of Ecology suggests
that the state agency and Okanogan County, Washington could be
liable under Section 9 of the Endangered Species Act for take
of listed fish species if immediate action is not taken to
curtail the exercise of private water rights and increase
instream flows in the Methow River Basin of Washington State.
Does NMFS interpret the ESA as requiring state agencies and
local governments to use the maximum extent of their authority
to enact regulations and ordinances to prevent potential take
by third parties?
The NMFS does not interpret section 9 of the ESA as a
command to states to regulate, but rather a generally
applicable prohibition on activities by states and others that
cause harm to listed species. However, NMFS encourages state
and local governments to implement laws and regulations to
prevent the taking of federally-listed species. With respect to
stream flows, we prefer that states take the lead in developing
water conservation measures to benefit listed species. In turn,
we will work with states to develop criteria to measure the
extent, necessity, and effectiveness of such measures.
2. Where state agencies or local governments do not have
sufficient authority under state law to prevent take by third
parties, does NMFS interpret the ESA to require a change in
state law?
NMFS does not interpret the ESA to require states to change
their laws. As stated above, section 9 of the ESA is not a
command to states to regulate, but rather a generally
applicable prohibition on activities by states and others that
cause harm to listed species. However, NMFS encourages state
and local governments to implement laws and regulations to
prevent the taking of federally-listed species.
3. Section 10 of the ESA provides that the Fish and
Wildlife Service and NMFS may issue an incidental take permit
to an applicant who prepares a habitat conservation plan that
describes, among other requirements, how the applicant will
minimize and mitigate incidental take to the maximum extent
practicable. In evaluating incidental take applications from
public entities, do the Services consider existing authority
under state law to be the ``maximum extent practicable'' or can
an applicant be required to obtain a change in state law to
obtain an incidental take permit?
NMFS has never required an applicant to obtain a change in
state law to obtain an incidental take permit. What an
applicant can do to minimize and mitigate the taking of listed
species to the ``maximum extent practicable'' is made on a
case-by-case basis. It may be considered practicable for the
applicant to seek state or Federal funding to assist in
implementing a Habitat Conservation Plan (HCP), and this
funding may require legislation.
4. Under Section 10 of the ESA, the Services have
previously granted incidental take permits based on
programmatic habitat conservation plans where certificates of
participation are issued to landowners who volunteer to provide
conservation commitments under the terms of the programmatic
HCP. Do the Services continue to be willing to grant incidental
take permits on the basis of programmatic HCPs where
conservation commitments by participating landowners are made
voluntarily rather than through a mandatory regulatory process?
Would the Services prefer to deal individually with landowners
rather than through a programmatic approach sponsored by state
or local government with voluntary participation by landowners?
NMFS supports programmatic approaches sponsored by state or
local governments with voluntary participation by landowners.
Specifically, we would have preferred a programmatic approach
for ESA compliance by the Methow Valley water users. Although a
plan was drafted, it was not implemented. Without an approved,
broad-based conservation effort from valley water users and
state agencies, NMFS had to focus on Federal actions in the
valley that affect salmon, including Forest Service special use
permits. That step galvanized state and local officials to
renew their efforts under the ``Chelan Agreement.'' In fact,
the agreement we are working toward now should result in a
programmatic approach to resolving ESA issues in the Methow
Valley.
5. What is the NMFS position on the use of a voluntary
water banking system to resolve conflicts such as those
testified to by the witness from the Methow Valley? Will the
NMFS allow the use of a water banking system in the Methow
Valley as a means of meeting the requirements of the ESA?
NMFS favors using a water banking system in the Methow
Valley to meet ESA requirements. However, a common incentive to
put water in a bank is the ability to sell a percentage of it
to someone else. This practice usually changes a seasonal
agricultural water use to a year-round domestic use which may
result in less water available when needed by species.
Therefore, to comply with the ESA, measures would have to be
taken to ensure that water conserved actually stays in the
river to benefit listed species.
6. What is being done in Okanogan County, Washington to
complete theSection 7 consultation begun over a year ago
regarding the special use permits from the Forest Service to
water users?
NMFS will be able to complete the necessary biological
opinions after the Forest Service completes the required
biological assessments, provided an agreement can be reached
with the state and county on preparing an HCP for the Methow
Valley. A section 7(d) determination is in effect which allows
all ditches with adequate screens to operate without the
opinions. The Biological Opinions will be completed in the near
future. The principle unresolved issue centers on the need for
the opinions to reference the agreement with the state and the
county to prepare an HCP. If an agreement is reached, the
parties, including NMFS, hope to be able to allow ditches to
operate later this summer, even when in-stream flows drop below
healthy levels.
7. Why wasn't a programmatic consultation conducted so that
you don't have to consult on each and every water withdrawal?
Wouldn't that save employee time and resources?
As stated in our response to Question 4, our preference
would have been to base ESA compliance for the Methow Valley
water users on a state-approved water allocation and
conservation plan.
NMFS spent nine months working with the Forest Service, the
State of Washington, and local authorities alerting them to the
need for water conservation measures that would enhance salmon
protection. Our initial goal was to address Methow water
withdrawals on a programmatic basis through implementation of
the Chelan Agreement negotiated between water users, the state
Department of Ecology, and the state Attorney General in 1994.
However, provisions of this agreement were never implemented in
the Methow Valley. In the absence of an approved, broad-based
conservation effort from valley water users and state agencies,
we had to focus on Federal actions in the valley that affect
salmon, including Forest Service special-use permits.
8. It appears that the Services may, in the context of
their Section 7 consultation process, be requiring an analysis
of the indirect and cumulative impacts of a Federal action that
arise from past, present, and future actions, including those
over which the Federal action agency has no discretion or
authority. Is the NMFS requiring such analysis, what is the
legal basis for doing so, and if the response to this question
is yes, please provide specific case examples in each of your
Regional offices where this has been required.
Federal regulations implementing section 7 of the ESA
require the Services (NMFS and U.S. Fish and Wildlife Service)
to consider the direct, indirect and cumulative impacts of
Federal actions that arise from past, present and future
actions. CFR Sections 402.14(g) and 402.02 (``effects of the
action'' definition) require the Services to evaluate the
direct and indirect effects of actions (including non-Federal
activities) that are interrelated or interdependent with the
Federal action.
We must also consider the past and present impacts of all
Federal, State or private actions or other human activities in
the action area. ``Cumulative effects,'' as defined by these
regulations, include the effects of future non-Federal
activities that are reasonably certain to occur in the action
area. This definition is consistent with Federal Appeals Court
case law, in particular, National Wildlife Federation v.
Coleman, 529 F.2d 359 (5th Cir. 1976). This analysis is
required of all Service personnel when writing biological
opinions.
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