[House Hearing, 106 Congress]
[From the U.S. Government Publishing Office]



 
         ENFORCEMENT OF THE ENDANGERED SPECIES ACT IN CALIFORNIA

=======================================================================

                             FIELD HEARING

                               before the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                               __________

                    JULY 9, 1999, HEMET, CALIFORNIA

                               __________

                           Serial No. 106-49

                               __________

           Printed for the use of the Committee on Resources



                               


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                                 ______


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                         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                   CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania          DONNA MC CHRISTENSEN, Virgin 
RICK HILL, Montana                       Islands
BOB SCHAFFER, Colorado               RON KIND, Wisconsin
JIM GIBBONS, Nevada                  JAY INSLEE, Washington
MARK E. SOUDER, Indiana              GRACE F. NAPOLITANO, California
GREG WALDEN, Oregon                  TOM UDALL, New Mexico
DON SHERWOOD, Pennsylvania           MARK UDALL, Colorado
ROBIN HAYES, North Carolina          JOSEPH CROWLEY, New York
MIKE SIMPSON, Idaho                  RUSH D. HOLT, New Jersey
THOMAS G. TANCREDO, Colorado

                     Lloyd A. Jones, Chief of Staff
                   Elizabeth Megginson, Chief Counsel
              Christine Kennedy, Chief Clerk/Administrator
                John Lawrence, Democratic Staff Director



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held July 9, 1999........................................     1

Statement of Members:
    Bono, Hon. Mary, a Representative in Congress from the State 
      of California..............................................     2
    Calvert, Hon. Kenneth, a Representative in Congress from the 
      State of California........................................     3
    Chenoweth, Hon. Helen, a Representative in Congress from the 
      State of Idaho.............................................     5
    Hunter, Hon. Duncan, a Representative in Congress from the 
      State of California........................................     5
        Prepared statement of....................................     6
    Pombo, Hon. Richard, a Representative in Congress from the 
      State of California........................................     1
    Thomas, Hon. Bill, a Representative in Congress from the 
      State of California, prepared statement of.................   268
    Young, Hon. Don, response to questions by Mr. Rogers, Acting 
      Director, Fish & Wildlife Service..........................   340
        Young, Hon. Don, response to questions by Mr. Thomas O. 
          Melius, Assistant Director, Fish & Wildlife Service....   340

Statement of Witnesses:
    Bragg, Mark, Palm Springs, California........................    13
        Prepared statement of....................................    15
    Evans, Doug, City Manager, City of Palm Springs..............   211
        Prepared statement of....................................   214
    Fife, Don, National Association of Mining Districts..........   248
        Prepared statement of....................................   250
    Fuentes, Lorrae, Vice President of Education, California 
      Native Plant Society.......................................   252
        Prepared statement of....................................   254
    Hewitt, Hugh, Esq, Irvine, California........................   130
        Prepared statement of....................................   133
    Hollingsworth, Dennis, Riverside County Farm Bureau..........   188
        Prepared statement of....................................   192
    Kading, Randy, Field Superintendent, C&H Framing.............   255
        Prepared statement of....................................   257
    Libeu, Lawrence M., Director of Legislative Affairs, Eastern 
      Municipal Water District...................................     8
        Prepared statement of....................................    10
    Moore-Kochlacs, Reverend Peter, Director, Environmental 
      Ministries of Southern California..........................    31
        Prepared statement of....................................    32
    Moser, Dennis M., Vice President, Kelwood Development Company   175
        Prepared statement of....................................   178
    Rosen, Judith I., President, Murrieta Valley Unified School 
      District...................................................    18
        Prepared statement of....................................    20
    Sauls, Edwin G., The Sauls Company and Building Industry 
      Association of Southern California.........................   235
        Prepared statement of....................................   237
    Silver, Dan, M.D., Coordinator, Endangered Habitats League...   128
        Prepared statement of....................................   129
    Spear, Michael, Manager, California/Nevada Operations Office, 
      Fish and Wildlife Service, accompanied by Ken Berg, Field 
      Supervisor, and Sean Skaggs, Counsel to the Assistant 
      Secretary..................................................   143
        Prepared statement of....................................   145
    Tavaglione, John, Supervisor, Riverside County...............   205
        Prepared statement of....................................   208
    Turecek, Bruce, Jacumba Valley Ranch.........................   115
        Prepared statement of....................................   118
    Woolfolk, Virgal, JMAW Environmental Service Group...........    34
        Prepared statement of....................................    37
    Zappe, David P., General Manager-Chief Engineering, Riverside 
      County Flood Control and Water Conservation District.......   167
        Prepared statement of....................................   170

Additional material supplied:
    Bear Valley Mining District, letter to Mr. Pombo.............   332
    Big Bear Valley Preserve News, extract.......................   333
    Brown, Howard, Pluess-Staufer (California) Inc., ``Limestone 
      Endemic''..................................................   310
    California Legislature, letter to Mr. Babbitt................   327
    Kern County Water Agency, prepared statement of..............   323
    Salt Water Contractors, letter to Mr. White from Steve 
      Macaulay, General Manager..................................   325
    Shadowrock, Shadowrock Development Environmental History and 
      Mitigation Proposal........................................   270
    State Water Contractors, San Luis & Delta-Mendota Water 
      Authority, letter to Mr. Babbit etc........................   329



        ENFORCEMENT OF THE ENDANGERED SPECIES ACT IN CALIFORNIA

                              ----------                              


                          FRIDAY, JULY 9, 1999

                          House of Representatives,
                                    Committee on Resources,
                                                 Hemet, California.
    The Committee met, pursuant to call, at 9:39 a.m., in Room 
305, East Devonshire, Simpson Center, Hemet, California, the 
Hon. Richard Pombo presiding.
    Member present: Representative Pombo
    Mr. Pombo. [presiding] Let's get started. I would like to 
ask everybody to please fill in the seats. There are several 
seats up here in the front, if I could have you come forward 
and fill in any of the empty seats, please. We need to have 
everybody take a seat to the extent possible. Even to the 
extent, take the witness seats up here in the front row if need 
be.

 STATEMENT OF HON. RICHARD POMBO, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Pombo. Good morning. I want to welcome all of you to 
this hearing of the House of Representatives Committee on 
Resources. I am Congressman Richard Pombo from Tracy, 
California.
    Chairman Don Young has asked me to chair this hearing today 
on his behalf and sends his regrets that he could not be here.
    I represent California's Congressional District 11, and I 
am very happy to be here at the invitation of my Southern 
California colleagues, Congresswoman Mary Bono, Congressman Ken 
Calvert, Congressman Duncan Hunter, and Congressman Gary 
Miller.
    Southern California is fortunate to have some of the most 
effective, hardest working Members of Congress.
    We are also joined this morning by Congresswoman Helen 
Chenoweth of Idaho, my colleague on the Resources Committee.
    I particularly want to thank the good people of Hemet, 
California for their hospitality in hosting this hearing and to 
the Simpson Center for allowing us to use this wonderful 
facility.
    The Committee on Resources is here today to receive 
testimony from the citizens from Southern California who have 
experienced first hand how the Endangered Species Act is 
enforced and implemented.
    I have become increasingly concerned that the ESA is no 
longer the national law that Congress intended it to be when it 
was originally enacted in 1973. Instead, it is increasingly 
used as a tool to stop growth and economic development in only 
certain areas of the country, particularly here in the West.
    We are seeing increasing evidence that this law is used 
very selectively, not to truly save endangered species or 
threatened species, but as a means to allow Federal agencies to 
dictate Federal policies to local communities on everything 
from urban sprawl to land use policies.
    In some areas of the country species are protected and 
recovery is achieved using cooperation and common sense. You 
just don't hear about conflict over the ESA in the Northeast or 
Midwest because Fish and Wildlife Service offices in those 
regions focus their efforts on helping people protect wildlife 
using cooperation rather than confrontation. They do not 
require the set-aside of thousands of acres of private land or 
the payment of millions of dollars in mitigation fees.
    I believe that the ESA can achieve its goal without 
conflict and confrontation and without infringing on the rights 
of private property owners. I believe that we can have an ESA 
that does not destroy jobs in local economies. I believe that a 
common sense approach that appeals to our national desire for a 
more beautiful world can work.
    However, as long as the real agenda is to stop growth, 
eliminate jobs, and take private property for public use 
without payment of just compensation, then both people and 
wildlife will continue to suffer.
    Again, I thank you for allowing this Committee to come to 
your community and for your warm and courteous welcome.
    I would like at this time to recognize my colleague from 
this district, Ms. Bono.

STATEMENT OF HON. MARY BONO, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF CALIFORNIA

    Ms. Bono. Thank you, Mr. Chairman.
    I would like to take this opportunity to welcome my 
colleagues to the beautiful City of Hemet in the 44th 
Congressional District in California. I really appreciate your 
giving up a part of your vacation time to be here.
    One of our goals today is to come up with ideas on how to 
make the Endangered Species Act work for everyone. For several 
years Southern California has been at an impasse in terms of 
how to balance our growth and economic prosperity with saving 
the many unique species residing here. To sacrifice one for the 
other is not an option.
    The Inland Empire is one of the fastest growing areas in 
the United States. People want to live here because they can 
make a good living and relish Southern California's unrivaled 
surroundings. Right now our standard of living is in jeopardy 
because we do not have a consistent method of applying the 
Endangered Species Act.
    I believe there is a willingness to comply by most property 
owners. All they ask for is some certainty to the process.
    I hope the hearing will provide our constituents with an 
understanding of how they can comply with the law as it applies 
equally to everyone.
    Mr. Chairman, before I close, I would also like to thank 
the City of Hemet, the Hemet Police Department, and the 
Director of the Simpson Center for giving us such a wonderful 
venue.
    Thank you, and I yield back the balance of my time.
    Mr. Pombo. Thank you.
    I would like to recognize the gentleman who first 
approached me about holding this hearing, Mr. Calvert.

STATEMENT OF HON. KENNETH CALVERT, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Calvert. Thank you, Mr. Chairman.
    And I am happy to be here in Hemet. I have got to tell you 
a quick story. My mother met my father here in Hemet. She was a 
nurse at the Hemet Hospital, and my father had a rock and sand 
business up in Idyllwild and got hurt, and if it was not for 
that, I would not be here.
    [Laughter.]
    Mr. Calvert. So some of you probably wish that never 
occurred, but it did.
    As many of you who are here today are aware, as the Fish 
and Wildlife Service certainly is aware, I have recently become 
very concerned about the implementation of the Endangered 
Species Act, especially by the Fish and Wildlife Service's 
Carlsbad office.
    The impetus for my actions is the accelerated rise in the 
number of complaints from my constituents. In the six years 
since I was first elected to represent western Riverside 
County, the number of complaints my office has received about 
the Carlsbad office and their implementation of ESA has 
literally skyrocketed, and keep in mind that is only counting 
the people who have been willing to come forward.
    Fish and Wildlife has been accused of creating an 
atmosphere of intimidation in everyone, from landowners and 
developers to farmers and homeowners and public agencies.
    In response to the rising number of complaints, I have 
requested a GAO audit of the service operations with my friend 
and colleague House Resources Chairman, Don Young, and I am 
happy to say that all of the California members on this panel 
today have signed that letter, along with a total of 26 members 
of the California delegation in support of this, both 
Republicans and Democrats.
    The Carlsbad office frequently laments that they are under 
staffed and under budget. An independent audit will hopefully 
determine where the problems are located.
    A shared theme in all of the complaints I have received is 
that the policies of the Carlsbad office lack common sense, and 
in my opinion, the office has made themselves an easy target 
due to some of the their demands.
    For example, a hospital in San Bernardino moved 250 feet at 
a cost of $4.5 million to save eight flies. A Fish and Wildlife 
biologist recommended shutting down the I-10 freeway during 
August and September, at least slowing it to 10 to 15 miles an 
hour so that fewer flies got caught on windshields during the 
mating season.
    [Laughter.]
    Mr. Calvert. I do not make this stuff up, folks.
    [Laughter.]
    Mr. Calvert. Demanding retroactive mitigation for ongoing 
uses that have taken place for 30 years, including trimming 
trees at the end of the Corona airport runway, a safety measure 
that is mandated by the FAA. I think someone found out I used 
to be a pilot.
    Originally demanding $32 million in mitigation for a $20 
million interchange project because a biologist from the 
Carlsbad Fish and Wildlife office apparently believed that a 
fly was located nearby, but no one had ever seen one.
    Producing a map that shows the Quino checkerspot butterfly 
habitat in all but the most industrial areas of Southern 
California.
    Now, those are just a few examples. I am sure that we will 
hear many more, and if the ramifications were not so serious to 
property owners and the endangered species alike, the 
statements coming out of that office would almost seem 
laughable, and that is part of the problem. These are just 
statements, not even policy.
    If endangered and threatened species are going to be truly 
protected for future generations, our Federal agencies must 
have credibility and deal in good faith with all citizens.
    I am also extremely concerned about reprisals and 
intimidation. Whether directly or indirectly through 
consultants against our witnesses today and others with whom 
this Committee will speak in the future, this is something that 
will not be tolerated, and I will monitor this situation 
closely, as I am sure the Chairman will and the rest of this 
panel.
    It is my hope and expectation that I do not hear any abuse 
of power in the future.
    That said, I have several goals I hope this hearing can 
accomplish.
    One, any person who applies for a Section 7 or 10(a) permit 
will have the trust and confidence that the Fish and Wildlife 
Service keeps its commitments.
    Two, mitigation must be done with equal habitat value per 
acre as determined by the applicant survey biologist and the 
Fish and Wildlife Service.
    Three, only sound and legally obtained science can be used 
to obtain habitat.
    Four, that the policies are consistent.
    Five, that the office advocate alternative ways in which 
economic development can go forward while going through the 
formal stages of the permitting process.
    My colleagues and I are here today because the Federal 
Government must find a way to logically and fairly address the 
situation and reach a solution that does not put the rights of 
the species before the rights of people.
    I want to emphasize I recognize Southern California is the 
most densely populated region in the United States and one of 
the fastest growing, which has resulted in growing pains that 
include additional stress on habitat. Riverside County's first 
encounter with ESA problems was the fringe toed lizard. This 
was followed by the Stephen's Kangaroo Rat, which took eight 
years to complete at a cost of $42 million.
    But the Carlsbad employees have not consistently dealt with 
us in good faith. When a deal is made, as in the case of San 
Diego and the Fish and Wildlife office and its employees can no 
longer be relied upon, the problem becomes that the community 
loses trust in the agency and, in part, loses trust in the 
United States Government, and that is not a good thing.
    Southern California, especially Riverside, San Bernardino, 
San Diego, and Orange Counties, have shown an enormous 
commitment, not only to protect endangered and threatened 
species, but also to establish a strong working relationship 
with Fish and Wildlife and other conservation agencies.
    I am hopeful that we can one time again return to a strong 
working relationship, and I look forward to hearing the 
testimony of today's witnesses, Mr. Chairman.
    And I thank you.
    Mr. Pombo. Thank you.
    [Applause.]
    Mr. Pombo. I would like to recognize the gentle woman from 
Idaho, Mrs. Chenoweth.

STATEMENT OF HON. HELEN CHENOWETH, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF IDAHO

    Mrs. Chenoweth. Thank you, Mr. Chairman.
    I want to thank you and our hostess, Mary Bono, for this 
opportunity to delve into an issue, the Endangered Species Act, 
that obviously from the comments of Congressman Calvert and 
from our knowledge in working back there in the Congress, the 
Endangered Species Act has been totally misused.
    It is an Act that has not succeeded in saving species, but 
has succeeded in dimming down the enthusiasm for a productive 
economy and a vibrant and growing society that is growing in 
the right way, not necessarily growing out as far as people are 
concerned, but the continued vibrancy that really has built 
this country.
    So, again, thank you very much for inviting me to the 
hearing, and I look forward to hearing from the witnesses.
    Mr. Pombo. Thank you.
    I would like to recognize Mr. Hunter.

 STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Hunter. Thank you, Mr. Chairman.
    And I want to thank my colleagues, our host, Ken and Mary, 
for hosting this hearing, and you for coming such a long way to 
make it a reality, and Helen, of course, for her great 
contribution.
    You know, Southern California used to be a place where you 
could dream, where a young couple could get married, and they 
could have children, and they could have a dream, and they 
could pursue that dream, and in many cases achieve it.
    And a centerpiece of that dream was home ownership, and my 
reason, Mr. Chairman, for being here is because I think that 
that dream is disappearing rapidly, and I can see it very 
clearly in the facts and figures we're going to put up in a few 
minutes when we have testimony from some of our witnesses.
    But, you know, the average home in San Diego County today 
is $265,000, and the estimates are that as a result partly of 
Fish and Wildlife in Carlsbad and other factors--there are 
other agencies that are involved--that 265, $270,000 median 
priced home in San Diego County is about 35 percent higher than 
it needs to be, and that money does not go to profit for 
developers. It does not go to the construction crews, the 
people that carry the lunch buckets and build the homes. Those 
are actually fairly low costs. They are basically in line with 
the rest of the country.
    Plywood and two-by-fours cost the same across the country, 
but what makes our homes so expensive is the cost of 
regulation, and so that dream is becoming unachievable. Today 
you have to make about $70,000 a year to be able to qualify for 
the median priced home in San Diego County, and that means that 
our young couples are not able to buy homes.
    And most of our growth now is coming from people who are 
having families in our districts. It is not coming from outside 
folks coming into San Diego and Riverside Counties. So we have 
a real problem. The American dream is slipping away.
    And part of the answer is going to be brought about, I 
think, by this hearing because we are going to listen to some 
people who would have been able to have built those homes, and 
I think home building is a very honorable profession, Mr. 
Chairman. They would have been able to build those homes for a 
lot less money, sell them for a lot less money, and that young 
couple would not have been paying 7 or 7\1/2\ percent interest 
on an additional 30 or $40,000 per home for the next 30 years 
if government had acted reasonably.
    And I have said this before, Mr. Chairman. This may be a 
little strong, but I talked to one person who actually took a 
photograph of one of the bumper strips on one of the Federal 
employee's cars at the Carlsbad office that said essentially, 
``Home Builders Can Go to Hell.'' Now, I thought about that.
    What if you were a veteran and were going into the 
Veteran's Affairs Office to try to get your veterans check and 
you saw the car, happened to see the car of one of the people 
who was supposed to wait on you and serve you, and it said, 
``Veterans Can Go to Hell. That's my attitude,'' or what if you 
were a senior citizen going to the Social Security 
Administration and you saw a bumper strip that said, ``Senior 
Citizens Can Go to Hell''? What kind of service would you 
expect when you walked in those doors?
    Unfortunately, Mr. Chairman, I think that that attitude has 
largely been manifested in real action by some members of the 
Carlsbad Fish and Wildlife office. I've been admonished by Mary 
Bono, a very reasonable and good person, that we should be 
optimistic that we can solve these problems, and I hope we can 
solve them. I think some positive recommendations will come 
forth today.
    But let's make this hearing contribute to that most 
important goal for Southern California, and that is, once 
again, making the dream of home ownership achievable.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Hunter follows:]

Statement of Hon. Duncan Hunter, a Representative in Congress from the 
                          State of California

    Mr. Chairman, I appreciate the opportunity to be here in 
Hemet, California today to participate with the House Resources 
Committee to discuss the operations of the Carlsbad office of 
the U.S. Fish and Wildlife Service (CFWS). In addition, I would 
like to commend our friend and colleague, Congresswoman Mary 
Bono, for convening this hearing to explore what I believe to 
be questionable behavior by CFWS.
    Today, Mr. Chairman, this Committee will hear testimony by 
a wide array of witnesses, some of whom being just ordinary 
citizens, who will highlight a consistent pattern by CFWS of 
misusing the Endangered Species Act (ESA). We will hear from 
private developers, local officials and even a construction-
site foreman, all of which will detail how the misapplication 
of the ESA has impeded growth and development in Southern 
California. I believe that it is important, however, to 
emphasize that most of our witnesses will not necessarily be 
advocating the rescinding or minimizing of the ESA, but will 
instead only call for the appropriate implementation of this 
law.
    As all of us know, the ESA was passed to ensure that 
endangered or threatened animals, plants and fish are protected 
from human activity so as to avoid their ultimate extinction. 
While I believe that the goal of this law is commendable and 
certainly well-intentioned, the overly broad discretionary 
powers it gives to the enforcers of the ESA, specifically CFWS, 
have created an atmosphere in Southern California where our 
landowners and developers are routinely forced to meet 
redundant, time-consuming and very expensive ESA compliance 
requirements before any construction can begin. Mr. Chairman, 
it is my earnest hope that today's hearing will provide CFWS 
the insight and incentive to pursue a more compromise-oriented 
approach when administering the ESA.
    Among other witnesses, this Committee will receive 
testimony from a number of individuals from my home area of San 
Diego County. These good people represent an even larger number 
of San Diegans who have absorbed the impacts associated with 
burdensome and costly environmental compliance. The impacts 
that I have referenced, speak to the built-in, artificial 
expense factored into housing costs for home buyers. In fact, 
in San Diego County, roughly 30 percent of the cost associated 
in purchasing a home is the direct result of the developer 
having to finance the environmental compliance efforts. I think 
that everyone here will readily agree that inordinately high 
home costs were not the intent of Congress when the ESA was 
enacted into law.
    As many of us are aware, San Diego County is expected to 
realize an increase of 1.5 million new citizens within the next 
10 years. Unfortunately, estimates show that new housing 
construction is woefully behind in meeting this expected 
influx, with many of our young, new families having to live in 
high density apartment and condominium complexes. While I 
cannot overemphasize the importance of protecting the 
environment for our future generations, this effort must be 
pursued in a reasonable and realistic fashion if we are to 
provide sufficient housing for the multitudes of expected new 
residents.
    Mr. Chairman, one of our initial witnesses will be Mr. 
Bruce Turecek, who is currently seeking to develop part of his 
property in eastern San Diego County. After three years, 
thousands of dollars and numerous consultations, Mr. Turecek 
has conclusively determined that his property is devoid of any 
endangered species. Unfortunately, CFWS will not provide Mr. 
Turecek with a definitive plan to as to whether or not his 
efforts will suffice and allow for the development of his 
property. Instead, CFWS has repeatedly engaged in a practice of 
only providing critiques of his biological surveys and vague 
directions to Mr. Turecek. I would submit that this behavior 
legitimately can be interpreted as a conscious effort to delay 
and ultimately derail his project. Sadly, the circumstances 
surrounding Mr. Turecek's situation are too often the norm 
rather than the exception in our region of California. We must 
work to rectify the situation before Mr. Turecek and others 
like him can no longer build homes that average, working 
families can afford to buy.
    Finally, I would remind the Committee and our audience that 
Southern California used to be a place where one could work 
hard and save their money and achieve the American dream of 
owning their own home. Unfortunately, because of the outrageous 
costs associated with exhaustive environmental compliance 
requirements, this dream is rapidly becoming a thing of the 
past in our area. Recognizing that this costly and burdensome 
practice has become the standard by which CFWS operates, I am 
hopeful this hearing will provide the insight and incentive 
necessary to rectify the problems that I have already 
referenced.

    Mr. Pombo. Thank you.
    [Applause.]
    Mr. Pombo. I would like to call up our first panel, Mr. 
Lawrence Libeu, Mr. Mark Bragg, Ms. Judith Rosen, the Reverend 
Peter Moore-Kochlacs, and Mr. Virgal Woolfolk.
    If you would join us up here at the witness stand, and if 
you could remain standing just momentarily. If I could have you 
raise your right hand.
    [Witnesses sworn.]
    Mr. Pombo. Let the record show that they all answered in 
the affirmative.
    Please join us at the witness table.
    Now, for those of you unfamiliar with the process, your 
entire written statements will be included in the record. We 
like to keep the oral testimony to five minutes. There is a 
light bar sitting at the table there, and it is green, start; 
yellow, hurry up; and red means stop, and just like a traffic 
light.
    [Laughter.]
    Mr. Pombo. We have a cop sitting in the back of the room. 
He's going to watch me drive out of here.
    [Laughter.]
    Mr. Pombo. But if you could try to keep your oral 
statements to the five minutes, we do have a very long hearing. 
It would be appreciate by the Committee.
    Mr. Libeu, if you are ready, you can begin.

    STATEMENT OF LAWRENCE M. LIBEU, DIRECTOR OF LEGISLATIVE 
           AFFAIRS, EASTERN MUNICIPAL WATER DISTRICT

    Mr. Libeu. Thank you, Mr. Chairman and members of the 
Committee, for allowing us this opportunity to be heard.
    My name is Larry Libeu. I am Director of Legislative 
Affairs for the Eastern Municipal Water District, known as 
EMWD, as well as the California Director on the Natural Water 
Resources Association, known as NWRA, and I am the President of 
the Western Coalition of Arid States, known as WESCAS.
    EMWD is a water and waste water agency serving about 
420,000 people in a 555 square mile area of Riverside County 
where this hearing is being held today. As you no doubt 
observed and probably already surmised, much of our district is 
open space and potential habitat.
    As noted earlier, population is exploding in our region, 
and one way we are able to stretch our available fresh water 
supply to meet this burgeoning demand is through the extensive 
use of recycled water from our five waste water treatment 
facilities and the responsible management of our local 
groundwater basins.
    Other efforts we undertake to stretch our water supply 
include aggressive and comprehensive conservation program, 
water harvesting, brackish desalination of groundwater basins, 
and rehabilitation of contaminated wells.
    Despite all of these efforts, however, our success and the 
success of other water agencies within this region will depend 
on our abilities to comply with the often too subjective, 
locally interpreted, and increasingly complex and expensive 
environmental regulations at the state and Federal level. Let 
me just offer a few examples.
    Over the past eight years, EMWD has developed a seasonal 
storage and recovery project to recharge a vast groundwater 
basin underlying the San Jacinto River, which is an ephemeral 
stream. To implement this project, we will utilize imported 
water, surplus imported water when it's available.
    The project is good for the environment and will reduce the 
demand for imported water in the future for this area, but the 
Fish and Wildlife Service is insisting that we restore long 
disturbed portions of the river bed to their original 
condition, primarily for the benefit of a recently listed 
subspecies known as the San Bernardino kangaroo rat. The 
restoration requirement will require us to set aside at least 
three times the land area of the recharge project, and that 
land will have to be set aside for mitigation.
    As a further price for the recharge project, we expect the 
Fish and Wildlife Service will require us either to abandon or 
set aside another large area of land upstream from the recharge 
project as mitigation for maintenance of an upstream diversion 
which we have had in operation for over 35 years.
    Secondly, in order to reliably, even safely serve our 
customers, we must maintain our facilities, including those 
that are in outlying areas. Fish and Wildlife has now begun 
referring to these sites, many established for decades and 
devoid of endangered species, as degraded habitat, and we 
perceive their goal to be the requirement for further 
mitigation of lands.
    Thirdly, the Santa Ana sucker is a fish that is about to be 
listed as threatened, and I say about to be. During excessively 
wet weather, EMWD must occasionally discharge recycled water 
into the Temescal wash, which is a tributary to the Santa Ana 
River. Past experience indicates that Fish and Wildlife Service 
may well require year round flows in order to support the Santa 
Ana sucker. Such a requirement would consume a huge portion of 
our recycled water, thus defeating the reason for putting that 
water to beneficial use within our district.
    We believe the following changes need to be made to the 
Endangered Species Act in order to achieve its expressed goals 
without causing undue harm in other ways.
    First, greater consistency and predictability are essential 
to administrating the Endangered Species Act. These values must 
be based on not only greater objectivity in the rules and 
guidelines, but on the regional economic impacts.
    Second, a revolving loan fund should be established to help 
local governments cope with the increasingly expensive 
requirements of habit conservation plans.
    Next, the no surprises policy must be codified to prevent 
imposition of additional mitigation after the fact.
    Fourth, basic safety, maintenance, and repair work on 
existing utility facilities serving the public must be exempted 
from ESA requirements.
    And finally, the administration's safe harbor policy should 
be expanded to include habitat created by either historical or 
prospective water discharges.
    In conclusion, Mr. Chairman, it must be noted that water in 
the West is a valuable resource which is growing more scarce 
daily. Continued parochial interpretation and implementation of 
ESA further exacerbates this situation.
    We in the water industry in the regulatory arena need to 
come together to foster working partnerships which will bring 
to closure the uncertainty of this interpretation, as well as 
create positive results for both sides as we move into the 21st 
century.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Libeu follows:]

   Statement of Lawrence M. Libeu, Director of Legislative Affairs, 
 Eastern Municipal Water District, Director, National Water Resources 
 Association Board of Directors, President, Western Coalition of Arid 
                                 States

INTRODUCTION

    Good Morning. I am pleased to be here today on behalf of 
Eastern Municipal Water District (EMWD), to express its views 
with regard to implementation of the Endangered Species Act 
(ESA) and to present recommendations for changes. In addition 
to being the Director of Legislative Affairs at EMWD, I am a 
director on the National Water Resources Association Board of 
Directors, and president of the Western Coalition of Arid 
States.
    EMWD is a water and wastewater agency serving a population 
of 420,000 in a 555 square mile area. The District is located 
in Southern California in the western part of Riverside County. 
Our service area includes the communities of Hemet, San 
Jacinto, Moreno Valley, Perris, Sun City, Murrieta, and 
Temecula, portions of four other cities, and unincorporated 
areas of Riverside County.
    EMWD was formed during the 1950's with the primary mission 
of delivering a secure supply of supplemental water to this 
region. As time progressed, EMWD added sewage collection and 
treatment and water recycling to the services offered to its 
customers. EMWD is a member agency of the Metropolitan Water 
District of Southern California (MWD), which supplies Southern 
California with imported water from the Colorado River and from 
Northern California via the State Water Project. EMWD currently 
purchases approximately 75 percent of its water supply from 
MWD.
    Development and population within EMWD's service are 
increasing at a rapid rate. Water demand by residents, 
businesses, agriculture, and other interests is growing and is 
straining available water supplies, and the threat of future 
water shortages is very real. Increased population and water 
use also bring along increased wastewater flows. EMWD's goal is 
to reuse 100 percent of its wastewater for agricultural, 
landscaping, and groundwater recharge uses.
    EMWD will continue to depend upon imported water from MWD, 
but the availability of this water is dependent upon many 
factors. These factors include: environmental water demands at 
the point of origin, the structural adequacy of delivery 
systems, competing needs for water in Southern California, and 
drought. To deal with these challenges to the reliability of 
its imported water supply, EMWD is actively implementing 
programs to optimize the use of all available water resources 
within its service area. These programs include: extensive use 
of recycled water, comprehensive water conservation, water 
harvesting, brackish groundwater desalination, rehabilitation 
of contaminated wells, and proper management of local ground 
water basins. The success of these programs, as well as other 
innovative water management programs throughout California, 
depends upon the ability of water agencies to comply with 
increasingly complex, expensive, often subjective, and locally 
interpreted environmental regulations mandated by State and 
Federal agencies for the protection of threatened and 
endangered species. Unless modified, these regulations could 
have a crippling impact on the ability of water agencies to 
meet the future water supply needs of the citizens of this 
state. The result will be significantly restrictive growth 
rates for all urban communities of the state.

BACKGROUND

    EMWD believes species conservation, like other issues such 
as clean water and clean air, is necessary and vital for our 
lifestyles. However, meeting increased demands for water and 
finding ways to reuse the corresponding wastewater will 
challenge EMWD. First, by balancing future water demands, and 
second, by complying with the ESA in its current form. Clearly, 
the ability to address water supply and wastewater management 
problems in the future is hampered by the arbitrary 
interpretation and implementation of the ESA by the U.S. Fish 
and Wildlife Service (FWS).
    EMWD is a member of the National Water Resources 
Association, also known as NWRA, a water industry association 
representing agricultural and urban water agencies seeking to 
promote water supply reliability through its activities with 
Federal agencies and regional and national legislators. The 
NWRA is the oldest and most active national association 
concerned with water resource policy and development. Its 
strength is a reflection of the tremendous ``grassroots'' 
participation it has generated on virtually every national 
issue affecting western water conservation, management, and 
development.
    EMWD is also a member of the Western Coalition of Arid 
States (WESTCAS), an organization formed by a group of western 
water and wastewater agencies concerned about the manner in 
which water quality and water resource management issues are 
being addressed in states throughout the arid and semi-arid 
West. WESTCAS is dedicated to developing appropriate and 
practical water quality regulations, policies and laws that 
would be more responsive to the unique ecosystems found in the 
arid and semiarid regions of the western states.
    The West is a region of the country where many federally 
listed threatened or endangered species call home. NWRA and 
WESTCAS members are intimately involved in multiple facets of 
species identification and conservation including habitat 
protection. It became clear, as NWRA and WESTCAS members shared 
species conservation experiences, that regulations and policies 
implementing the ESA are either restricting, or increasing the 
cost of water resource management strategies and wastewater 
treatment operations without any substantial benefit to the 
species those policies and regulations were designed to 
protect.
    NWRA and WESTCAS members are experiencing substantial 
impacts as a result of the listing of several terrestrial 
species. These include delays to projects, unclear or 
unrealistic mitigation requirements, and significant additional 
costs borne by our ratepayers. Listings of aquatic species and 
the involvement of FWS in the establishment of water quality 
criteria will impact our future. Examples of recent and future 
impacts of the ESA on EMWD include:

San Jacinto Seasonal Storage and Recovery Project

    EMWD has proposed a seasonal storage and recovery project 
to recharge the San Jacinto River aquifer with up to 3,000 
acre-feet of surplus water annually. The San Jacinto River is 
an ephemeral stream that flows only in response to intense and 
prolonged rainfall. This project will benefit the environment 
by allowing storage of surplus water locally, thereby reducing 
demand on other sources of water from the Colorado River and 
the Bay Delta system in Northern California. The recharge site 
will be constructed on about five acres in the disturbed 
portion of the San Jacinto riverbed. The FWS is concerned 
because it perceives indirect adverse impacts on the habitat of 
the San Bernardino Kangaroo Rat (SBKR), a federally listed 
endangered species.
    The FWS initially required EMWD to develop mitigation 
actions for this project. After submitting our recommendations, 
FWS has the discretionary power to accept or reject EMWD's 
proposals for arbitrary and capricious reasons. If they reject 
our suggestions, we must submit new mitigation recommendations 
for approval. The process of proposing and negotiating 
recommendations for mitigation may continue for years, delaying 
implementation of this environmentally beneficial project.
    During consultations with FWS on this project, it became 
clear to EMWD staff that the goal of the FWS was to restore 
that portion of the San Jacinto River Basin inhabited by the 
SBKR to its natural condition. The impression received was that 
to get approval EMWD would have to allow another project, our 
groundwater recharge ponds located upstream, which has been 
operating for over 30 years, to revert to its natural state. We 
believe this is an unreasonable and unjustifiable request 
because of the significant loss of a local water supply to the 
San Jacinto Valley. It appears that this recommendation has 
little to do with whether the SBKR will be ultimately helped 
and more to do with a particular biologists view of what the 
San Jacinto River and its habitat should look like.
    So far, this project has been delayed over a year resulting 
in a lost savings to our customers of at least $300,000. As 
this project continues to be delayed, our lost savings will 
increase. Without this project, we will not be able to meet the 
groundwater basin demands of the area and we will be forced to 
supplement our water supply with lower quality water. This will 
reduce the quality of our wastewater and will hinder our 
ability to meet our discharge limits mandated by the Regional 
Water Quality Control Board.
    It was also apparent that the FWS is looking for EMWD to 
become the agency to take the lead in a Habitat Conservation 
Plan (HCP) for the entire San Jacinto River Basin. EMWD has 
agreed to addressing mitigation actions relating directly to 
its project and in our service area, in fact our Board of 
Directors 2 months ago authorized the purchase of 87 acres in 
the San Jacinto River at a cost of $88,000 to enhance EMWD's 
ability to provide future mitigation offsets in the river. 
However, for us to be held responsible for developing and 
managing habitat conservation over the entire 1,000 acre range 
of the SBKR in the San Jacinto River, where we do not have 
management responsibility, is clearly not appropriate for a 
public water district. Letting the existing groundwater 
recharge ponds revert to their natural state and taking the 
lead in HCP development is not equitable mitigation for this 
type of project.

Searl Tank

    EMWD has 78 water storage tanks in its service area. As the 
population increases, either additional tanks must be built or 
existing tanks must be expanded to provide adequate service to 
our customers. EMWD is currently expanding an existing tank 
site located in an area that is habitat for the California 
Gnatcatcher, a federally listed endangered species. This 
project is located on a parcel of land that is less than one 
acre in size. No gnatcatchers were actually detected onsite. 
EMWD was informed that appropriate mitigation would be the 
purchase of land or credits at a 3 to 1 ratio to mitigate our 
project. We do not argue with this requirement. What we do 
argue, however, is during informal consultation FWS also 
indicated EMWD would have to address the ``growth inducing 
impacts'' of the project. Such a request is not within the 
intent of the ESA or the charter of the FWS. EMWD's mandate as 
a water agency is to provide existing and future customers with 
safe and reliable water. EMWD has no control over land use 
development. That is the purview of cities and counties. EMWD 
must provide service when it is needed.

Maintenance

    Another problem we have with ESA implementation is the 
ongoing maintenance of our water and wastewater facilities. 
These activities may involve the upkeep of existing access 
roads to facilities, removal of encroaching vegetation, 
repairs, or safety modifications to our facilities. These 
routine activities are necessary to ensure smooth operation of 
our water and wastewater facilities, to provide safe drinking 
water that is sufficient to meet our customers needs, and 
provide water quality to meet the recycled water requirements 
within the service area. Because these facilities already 
exist, there are few, if any, impacts to species or their 
habitat. FWS has begun referring pejoratively to some of these 
areas as ``degraded habitat'' with a perceived goal of 
requiring mitigation for lands that have not been occupied by 
any endangered species for many years. EMWD maintains that we 
should not be mandated to mitigate on a retroactive basis or 
for routine maintenance activities.

Aquatic Species Impacts

    The FWS is currently considering listing the Santa Ana 
Sucker, a small freshwater fish that feeds on algae, as a 
threatened species. This fish is native to several Southern 
California rivers, including the Santa Ana River. EMWID's goal 
is to recycle all of its treated wastewater, however there will 
be times during wet weather when discharges will occur into the 
Temescal Creek, an ephemeral stream tributary to the Santa Ana 
River. The listing of the Santa Ana Sucker will have 
significant implications for dischargers like us. Past 
experience demonstrates that additional water quality 
regulations could be required, but more importantly, water 
quantity could be regulated. The flow might be required year-
round instead of seasonally, and at a higher level in order to 
support habitat for the Sucker. This could preclude us from 
sending recycled water to other points of use for other 
beneficial uses including wildlife habitat enhancement and 
agricultural water supply--thus defeating the reclamation 
purpose of the recycled water program in the first place. 
Forcing the continued discharge of recycled water will create 
artificial habitat at the expense of native habitat. Recycled 
water use offsets the need to export water from native 
watersheds, leaving more water in the state's rivers and 
streams. In the arid southwest, water recycling is vital to 
reducing demand for imported water. Mandating wastewater flows 
removes much of the incentive for dischargers to contemplate 
environmentally beneficial recycled water projects while having 
far reaching regional impacts on existing communities of these 
states.
    Looming in the future is the involvement of FWS in the 
development of the Environmental Protection Agency's (EPA) 
water quality criteria, state water quality standards and 
permits, and Total Maximum Daily Loads. This will affect all 
wastewater dischargers, not just EMWD. Very briefly, under the 
Clean Water Act, EPA has the authority to establish national 
water quality criteria, and it has done so for the past 27 
years. However, under the ESA, the EPA must consult with the 
National Marine Fisheries Service and the FWS before approving 
water quality standards to determine whether they might impact 
listed species. The FWS has no experience in this area. The 
opinions of FWS biologists regarding various water quality 
constituents, including those on the national criteria list, 
are based on limited experience with a limited number of 
species under very limited circumstances. Consultation on the 
national criteria will provide FWS biologists with an 
opportunity to broadly apply their limited data in order to 
overturn the scientific process for establishing national 
criteria which EPA has refined over a period of many years.
    FWS involvement in these areas provides the opportunity for 
economic impacts on wastewater discharge permit holders. These 
impacts may involve multi-year biological studies and research, 
bioassessments, requirements for provision of habitat, 
including water resources, etc. These measures are often very 
expensive.

ISSUES AND RECOMMENDATIONS

    To remedy what we perceive as shortcomings to the current 
implementation of the ESA, we provide the following list of 
issues and recommendations for your consideration.
    ISSUE 1: The FWS has too much discretionary power and 
requires mitigation based upon ill-defined or non-existent 
goals for habitat protection and species recovery.
    RECOMMENDATION: In consultation with state and local 
governments, the FWS should develop scientifically based 
procedures, guidelines, and criteria subject to public review 
and comment to ensure consistency and predictability in the 
implementation of the ESA. This regulatory framework should 
include deadlines for FWS to provide information and decisions 
and require mitigation ratios to be defined in Habitat 
Conservation Plans (HCPs). Adequate funding must be provided to 
FWS to develop these needed elements.
    ISSUE 2: ESA implementation places an unfair economic 
burden on local governments.
    RECOMMENDATION: A revolving loan fund should be established 
to help local governments prepare regional HCPs that address 
both the habitat needs of species and human development needs.
    ISSUE 3: There is no assurance when developing an HCP that 
additional mitigation will not be required at a later date.
    RECOMMENDATION: Codify the ``No Surprises'' policy for HCPs 
and expand it to non-Federal parties participating in the 
implementation of recovery plans under ESA section 7 
consultations.
    ISSUE 4: The ESA makes preventive or emergency maintenance 
extremely arduous.
    RECOMMENDATION: Exempt preventive or emergency maintenance, 
repairs, and safety modifications of existing water and 
wastewater projects from ESA requirements.
    ISSUE 5: The ESA as currently implemented could remove the 
incentive for wastewater dischargers to consider 
environmentally beneficial water recycling projects.
    RECOMMENDATION: Expand the ``Safe Harbor'' Policy that 
provides incentives for non-Federal property owners to restore, 
enhance, or maintain habitats for listed species to include 
habitat created by either historical or prospective discharges 
of water or wastewater to otherwise dry or ephemeral streams or 
washes.

Conclusion

    The implementation of the ESA must be based on 
scientifically derived data, that provides for protection and 
recovery of endangered and threatened species while fully 
recognizing the social and economic realities of 
implementation. Southern California and the and West are 
dynamic regions with vast and varied natural resources and a 
rich biological diversity. The consequences of implementing the 
ESA are serious and significant. The consequences of 
implementing the ESA arbitrarily and capriciously are 
devastating. If these fundamental issues associated with ESA 
implementation are not resolved, the associated regulatory 
burdens threaten to outstrip available financial resources and 
will impact public agencies' ability to serve their customers 
and severely impact the economic stability of Southern 
California. Thank you.

    Mr. Pombo. Thank you.
    Mr. Bragg.

       STATEMENT OF MARK BRAGG, PALM SPRINGS, CALIFORNIA

    Mr. Bragg. Mr. Chairman, members, the Endangered Species 
Act is not about animals. The Endangered Species Act is about 
money and power. It has given the U.S. Fish and Wildlife 
Service unprecedented power to seize the private property of 
law abiding American citizens, while also giving them the 
authority to extort money from us.
    Protecting endangered species is a laudable public goal, 
but if it's important to public policy, then it should be a 
public responsibility to preserve habitat. If a piece of 
private property is that important to the preservation of the 
species, then condemn it and buy it.
    Instead the ESA has made this public imperative into a 
nightmare for private property owners who have had our land 
seized by power mad bureaucrats who also demand tribute to 
allow us to use the remaining property. Ours is the case of 
Shadowrock Resort in Palm Springs.
    This project originally covered 1,100 acres. It is approved 
through the city entitlement process and the California 
Environmental Quality Act for the construction of a golf course 
and a club house, a hotel and adjoining town homes, and 
approximately 126 single family homes.
    The project will create more than 600 construction period 
jobs, 300 permanent jobs, and approximately $10 million in 
annual state and local tax revenue.
    Our original intent was to cooperate with the various 
levels of government in order to be responsible as developers. 
We voluntarily contributed all of our mountain land to 
permanent bighorn sheep habitat, in case they come back one 
day, which reduced the project from 1,100 acres to 358 acres.
    Now comes the U.S. Fish and Wildlife Service in Carlsbad, 
along with the Army Corps of Engineers and other governmental 
agencies that often work in tandem with each other. They 
demanded that we reduce our project to 150 acres, and that we 
pay them $500,000 for the right to use our remaining land.
    We have refused. We will not allow them to seize our land, 
and we have refused to pay their extortion demands. Unlike 
Slobodan Milosovic, who sent in his army to seize the land of 
the Kosovars, we believe this is America and the government 
cannot seize our land through regulation or any other unlawful 
taking.
    They also cannot take our money in order to give it to 
their friends in the biological community who agree with them. 
By the way, they do not give funds to people who disagree with 
them.
    In addition, we do not believe it was ever the intent of 
Congress to permit this kind of seizure and extortion. From the 
time of the Magna Carta it has been the right of free men and 
women to use their land productively without unreasonable 
interference from government bureaucrats.
    However, we also know that the only freedoms we can 
continue to enjoy are those that we are willing to defend. We 
have, therefore, rejected the authority of the U.S. Fish and 
Wildlife Service to impose such demands on us. If they insist 
on trying to take our land and extort money, we will stand firm 
as the government agents come to take us away in chains, but we 
will never ever give up our rights to the power hungry 
bureaucrats.
    I offer the attached letter. You will find it in the 
booklet that we provided yesterday under Section 1, which we 
entitled ``Demand for Payment, Notice of Intent to Seize 
Property.'' I offer the attached letter as evidence of the high 
handed tactics of the United States Government against its own 
taxpaying, law abiding citizens.
    In the past, developers agreed to demands like this because 
it's simply too expensive to fight the U.S. Government. We have 
decided to fight.
    [The prepared statement of Mr. Bragg follows:]

           Statement of Mark Bragg, Palm Springs, California

    The Endangered Species Act is about money and power. It has 
given the U.S. Fish and Wildlife Service unprecedented power to 
seize the private property of law-abiding American citizens 
while also giving them the authority to extort money from us. 
Protecting endangered species is a laudable public goal. But if 
it is important to public policy, then it should be a public 
responsibility to preserve habitat. If a piece of private 
property is that important to the preservation of a species, 
then condemn it and buy it. Instead, the ESA has made this 
public imperative into a nightmare for private property owners 
who have had our land seized by power-mad bureaucrats who also 
demand tribute to ``allow'' us to use our own property. Ours is 
the case of Shadowrock Resort in Palm Springs. This project 
originally covered eleven hundred acres. It is approved through 
the city entitlement process and the California Environmental 
Quality Act for the construction of a golf course and club 
house, a hotel and adjoining townhomes and approximately 126 
single family homes. The project will create more than 600 
construction-period jobs, 300 permanent jobs and approximately 
$10 million in state and local tax revenue.
    Our original intent was to cooperate with various levels of 
government in order to be a responsible developer. We 
voluntarily contributed all of our mountain land to permanent 
bighorn sheep habitat in case they come back one day, which 
reduced the project to 358 acres. Now comes the U.S. Fish & 
Wildlife Service Carlsbad office along with Army Corps of 
Engineers and other government agencies that often work in 
tandem with each other. They demand that we reduce the project 
to 150 acres and that we pay them five hundred thousand dollars 
for the right to use our remaining land.
    We have refused to allow them to seize our land and we have 
refused to pay their extortion demands. Unlike Slobodan 
Milosovic who sent his Army to seize the land of the Kosovars, 
we believe this is America, and the government cannot seize our 
land through regulation or any other unlawful taking. They also 
cannot take our money in order to give to their friends in the 
biological community who agree with them. By the way, they 
don't give funds to people who disagree with them.
    In addition, we do not believe it was ever the intent of 
Congress to permit this kind of seizure and extortion. From the 
time of the Magna Carta, it has been the right of free men and 
women to use their land productively without unreasonable 
interference from government bureaucrats. However, we also know 
that the only freedoms we can continue to enjoy are those that 
we are willing to defend. We have, therefore, rejected the 
authority of the U.S. Fish & Wildlife Service to impose such 
demands upon us. If they insist on trying to take our land and 
extort money, we will stand firm as the government agents come 
to take us away in chains. But we will never, ever give up our 
rights to the power hungry bureaucrats. I offer the attached 
letter as evidence of the highhanded tactics of the United 
States government against its own, taxpaying, law-abiding 
citizens. In the past developers agreed to demands like this 
because it is simply too expensive to fight the U.S. 
Government. We have decided to fight.

[GRAPHIC] [TIFF OMITTED] T0463.001

[GRAPHIC] [TIFF OMITTED] T0463.002

    [Applause.]
    Mr. Pombo. Thank you.
    Ms. Rosen.

   STATEMENT OF JUDITH I. ROSEN, PRESIDENT, MURRIETA VALLEY 
                    UNIFIED SCHOOL DISTRICT

    Ms. Rosen. I am here today as the President of the Murrieta 
Valley Unified School District.
    School districts are unique among the participants here 
today because we do not create growth, but we are mandated to 
accommodate growth.
    Our school district is a K-12 district. It is on 125 square 
miles. In 1989, we had 500 students in a single school. Today 
we have 11,280 students. We have grown at a rate of 6 to 15 
percent per year since 1992, and our greatest growth is 
occurring at the high school, the single high school we have, 
and our two middle schools.
    This year we have added 200 new students to our high 
school. It was built to accommodate 2,475 students. We have 
also added 16 portables, nine of them in the teachers' parking 
lot.
    It takes three to five years to build a high school. So the 
earliest we can deliver the second high school is 2003. By that 
time we will have probably 3,300 to 3,400 students at that 
school.
    This exacerbates safety issues, and it is a very grave 
concern for our community.
    Our middle schools are also in very great need, and that is 
really why I am here today.
    The property that we have, that we can build a high school 
on, that we have been looking at and working on within the 
community and was a key component to getting a GO bond passed 
in 1998 is owned by the City of Murrieta. It is part of a 250 
acre site, and one of the really wonderful things about it is 
that in purchasing property, they were able to buy it for 
$15,000 an acre as opposed to the $100,000 an acre we get 
charged with, or have our sites appraised for, in the rest of 
the district.
    We need about 50 to 55 acres for a school site and 20 acres 
for a middle school site.
    In 1998 a survey was done on the site, and there were three 
areas where Gnatcatchers were found, none of them where the 
schools were proposed, and on three different occasions, ten 
butterflies, Quino checkerspot butterflies were seen. One 
butterfly was seen near the boundary of the high school site.
    The city and school district worked hard and finally were 
able on March 25th of 1999 to meet with the Carlsbad office to 
talk to them about the 250 acres because they want to do sports 
complex, open space, et cetera; the service looked at it and 
said, even though the biology report says that the species are 
limited in habitat to 70 to 80 acres, that they deemed the 
entire 250 acres as habitat.
    Since that time, we have determined that the middle school 
site is rendered almost unusable because of what we would have 
to go through in order to build a school. We perhaps can get 40 
acres cleared for a high school site. We would have to go off 
site, buy an additional 17 acres at $100,000 an acre from an 
owner who has a commercial property next door, but that 
property hasn't been surveyed for butterflies yet. It cannot be 
until next spring.
    So our dilemma really has several aspects. First of all, as 
a school district, we are not in a position to take risks with 
time and money. We are not in this for profit. The uncertainty 
of how long, if ever, it may take to obtain approvals to 
develop the site makes it extremely difficult for the district 
to proceed with planning and designing a high school.
    If the district purchases a school site without a clearance 
on environmental issues, the state does not have to reimburse 
the district its 50 percent share through the state school 
building program. The high school will cost about $45 million 
without a pool or a stadium.
    The district is not in the development business. Its focus 
is educating the children of Murrieta. This entire process is 
costly, filled with land use risk, and beyond our area of 
expertise. We are very good at working with the complex state 
school building program, and we are a neophyte in the Federal 
arena. None of our consultants can tell us definitively if you 
do this, you can have a school.
    School sites cannot go just anywhere. We are constrained by 
airports, traffic, utility availability. We ask the following: 
that the U.S. Fish and Wildlife be mandated to recognize school 
projects as a public priority, and that these projects be fast 
tracked with specific time lines for processing; that clear, 
concise information be provided to school districts by the 
service to assist the districts in obtaining approval to build 
schools; require that the Federal agencies offer solutions, 
provide options, and seek resolutions of identified problems 
during this fast tracking.
    The Murrieta district must be assisted in obtaining 
environmental clearances to build a school on the city site. We 
want to use 55 acres and pay $15,000 an acre. We want to do 
one-to-one mitigation ratios or create a bank or buy land 
somewhere else.
    Our district at build-out will have about 300 acres. We 
need about 200 acres more. We would like to do a district-wide 
approach to mitigation and work with the service. We want the 
service to be mandated to work with us in a cost effective, 
timely fashion within a six month process, and we want the 
entire site to be looked at as a joint use land project for the 
city and the schools.
    In closing, our values in our school district are learning, 
respect, community, communication, and accountability. We would 
like to think we could work with the Federal Government in the 
same way.
    Thank you.
    [The prepared statement of Ms. Rosen follows:]

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    Mr. Pombo. Thank you.
    [Applause.]
    Mr. Pombo. Reverend.

   STATEMENT OF THE REVEREND PETER MOORE-KOCHLACS, DIRECTOR, 
        ENVIRONMENTAL MINISTRIES OF SOUTHERN CALIFORNIA

    Rev. Moore-Kochlacs. Hello. I am Peter Moore-Kochlacs, and 
I am the Director of Environmental Ministries.
    To begin with, I want to share a story from the Talmud. Two 
men were fighting over a piece of land. Each claimed ownership 
and had papers to prove their claims. To resolve their 
differences, they agreed to put the case before the rabbi.
    The rabbi listened, but could not come to a decision. 
Finally he said, ``Since I cannot decide to whom this land 
belongs, let us ask the land.'' He put his ear to the ground, 
and after a moment straightened up. ``Gentlemen, the land says 
it belongs to neither of you, but that you belong to it.''
    We six billion humans, along with countless other species, 
belong to the land, to the habitat, to the web of creation, to 
God. The Psalmist is very clear. ``The Earth is the Lord's.'' 
[Psalm 24.]
    In our human arrogance, greed, lust for power, and desire 
for ownership, we forget our divinely appointed role. This role 
is one of trusteeship and stewardship. It is a call of a parent 
to serve and protect the land, the garden, the planet we dwell 
upon and not oppress it.
    Isaiah, the prophet, critiqued the oppressive ways of 
humans in his time. He said, ``Ah you, who join house to house, 
who add field to field, until there is room, for no one, but 
you, and you are left, to live alone, in the midst of the 
land.''
    Ezekiel pronounced, ``Ah, you shepherds of Israel, who have 
been feeding yourselves! Should not, shepherds, feed the sheep? 
. . . Is it not enough for you to feed on the good pasture, but 
you must tread down with your feet the rest of your pasture? 
When you drink of clear water, must you foul the rest with your 
feet? And must my sheep eat what you have trodden with your 
feet and drink what you have fouled with your feet?''
    The question for us is: does our human heritage today have 
to be so oppressive to other humans and to creation? My answer 
is no.
    As irony, or God's great mystery of life would have it, 
next year is the great Christian celebration Jubilee 2000, the 
2000th anniversary of Jesus' birth, as well as Earth Day 2000.
    Recall Jesus' announcement of the new Jubilee of freedom in 
Luke 4:18. ``The Spirit of the Lord is upon me because he has 
anointed me to bring good news to the poor. He has sent me to 
proclaim release to the captives and recovery of sight to the 
blind, to let the oppressed go free, to proclaim the year of 
the Lord's favor.''
    Doesn't this Jubilee remind you a little of our original 
4th of July experience?
    Both religious and secular organizations have taken up the 
ethical call of Jubilee 2000. It is a call to grant debt relief 
to impoverished nations that they might be freed from the 
oppressive burden of international debt.
    These hearings that you are holding on the Endangered 
Species Act give us a unique opportunity to take this Jubilee 
2000 vision a step further by incorporating it with the vision 
of the approaching Earth Day 2000, a vision to bring healing, 
wholeness, and greater harmony to our planet, to God's 
creation; a vision of freedom that calls a halt to and a 
Sabbath rest from the onslaught of human unsustainable actions.
    With Earth Day 2000, the 30th anniversary of Earth Day, 
falling during Holy Week 2000, between Good Friday and Easter 
Sunday, I wonder if God is asking us this question about the 
future of our world. Do we want the earth to be a Good Friday 
world of crucifixion and death for our habitat, biosphere, 
endangered species, and humans? Or do we seek for our home 
planet Jubilee, freedom, resurrection, new life, restoration, 
and renewal?
    The United Methodist Church in June of 1996, at Redlands, 
California, answered yes to the question of restoration of 
God's creation. The question now for you Congressmen and women 
is: do you have the faith and the moral courage to affirm the 
goodness of the whole of God's creation by truly focusing on 
species protection, or will you perpetuate a Good Friday world?
    Thank you.
    [The prepared statement of Rev. Moore-Kochlacs follows:]

    Statement of Rev. Peter Moore-Kochlacs, Director-Environmental 
                               Ministries

    I want to thank you for the opportunity to participate in 
this hearing. I have been an ordained United Methodist minister 
for 25 years. Currently I am appointed to the position of 
Director of Environmental Ministries of Southern California. 
The network's goal is to encourage congregations of faith to 
see that earthkeeping, habitat and endangered species 
protection, and the public health threats caused by toxics and 
pollution are, for all of us, real scriptural and moral 
concerns, concerns so important to God that they need to be 
among the highest missional priorities, the church, and other 
religious communities have as we move into the new millennium.
    A second priority we have is to educate, train, and 
advocate for public policies that serve and protect God's Good 
Creation. To begin, I want to share a story from the Talmud, 
the collection of Jewish law and tradition dating back 1600 
years ago. ``Two men were fighting over a piece of land. Both 
claimed ownership and had papers to prove their claims. To 
resolve their differences, they agreed to put the case before 
the Rabbi. The Rabbi listened but could not come to a decision. 
Finally he said, `Since I cannot decide to whom this land 
belongs, let us ask the land.' He put his ear to the ground and 
after a moment straightened up. `Gentlemen, the land says it 
belongs to neither of you--but that you belong to it.' ''
    Yes, we six billion humans, along with countless other 
species, belong to the land, to the habitat, to the web of 
life, to God. The Psalmist is very clear--``The Earth is the 
Lord's'' (Psalm 24:1). In our human arrogance, greed, lust for 
power, and desire for ownership we forget our divinely 
appointed role. This role is one of trusteeship and 
stewardship. It is a call, a vocation to serve and protect the 
land, the garden, the planet we dwell upon (Genesis 2:15).
    Instead of earthkeeping we press and oppress other people, 
the land, water, and air, and endanger all the other creatures 
who look to us for compassion and justice, because they are 
without human voice and standing. The Metropolitan of the world 
Christian Orthodox Churches recently labeled this unjust 
behavior sinful.
    Isaiah the prophet critiqued our oppression in this way--
``Ah, you who join house to house, who add field to field, 
until there is room for no one but you and you are left to live 
alone in the midst of the land!'' Jeremiah echoed, ``I brought 
you into a plentiful land, to eat its fruits and its good 
things, but when you entered you defiled my land and made my 
heritage an abomination.'' (Jeremiah 2:7) And finally Ezekiel 
pronounced, ``Ah, you shepherds of Israel who have been feeding 
yourselves! Should not shepherds feed the sheep? You eat the 
fat, you clothe yourselves with the wool, you slaughter the 
fattlings, but you do not feed the sheep . . . . Is it not 
enough for you to feed on the good pasture, but you must tread 
down with your feet the rest of your pasture? When you drink of 
clear water, must you foul the rest with your feet? And must my 
sheep eat what you have trodden with your feet and drink what 
you have fouled with your feet?''
    The question is, does our human heritage today have to be 
so oppressive to other humans and to creation? No!!!
    As irony, or God's great mystery of life would have it, 
next year is the great Christian celebration, Jubilee 2000--the 
200th anniversary of Jesus' birth--as well as Earth Day 2000! 
Recall Jesus' announcement of the new Jubilee of freedom in 
Luke 4-18 (based on Isaiah 61-2). ``The Spirit of the Lord is 
upon me because he has anointed me to bring good news to the 
poor. He has sent me to proclaim release to the captives and 
recovery of sight to the blind, to let the oppressed go free, 
to proclaim the year of the Lord's favor!'' Doesn't this 
Jubilee remind you a little of the original 4th of July 
experience?!
    Both religious and secular organizations have taken up the 
ethical call of Jubilee 2000. In our time it is a call to grant 
debt relief for the impoverished nations that they might be 
freed from the oppressive burden of international debt and 
enabled to feed, educate, care for, employ their people, and 
hopefully care for their natural environment.
    These hearings that you are holding on the E.S.A. give us a 
unique opportunity to take this Jubilee 2000 vision a step 
further, by incorporating with it the vision of the approaching 
Earth Day 2000. A vision to bring healing, wholeness and 
greater harmony to our planet, to God's Creation! A jubilee 
vision to call a halt to and a sabbath's rest from the 
onslaught of our human unsustainable activities and actions.
    With Earth Day 2000, the 30th anniversary of Earth Day, 
falling during Holy Week 2000 between Good Friday and Easter 
Sunday, I wonder if God is asking us this question about the 
future of our world. Do we want the earth to be a Good Friday 
world of crucifixion and death for our habitat, biosphere, 
endangered species, and humans? Or do we seek for our home 
planet Jubilee--freedom, resurrection, new life, renewal, and 
restoration?
    The United Methodist Church in June of 1996 at Redlands, 
California, not far from here answered ``yes'' to the question 
of the restoration of God's Creation. They passed by a large 
majority vote a resolution asking you, the Congress, to 
reauthorize a stronger, not a weaker, endangered species act. 
The resolution follows on the next page.

 CALIFORNIA-PACIFIC CONFERENCE 1996 UNITED METHODIST CHURCH RESOLUTION 
                                  #95

SUBJECT: Reauthorization of the Endangered Species Act of 1973

SUBMITTED BY: Conference Board of Church and Society

WHEREAS Noah was directed by God to save every kind of animal 
in order to keep them alive (Genesis 6:19 and 20);
WHEREAS the Social Principles (Section 1 The Natural World) 
affirm the preservation of animals now threatened with 
extinction (par70C) and supports regulations designed to 
protect plant life (par70A);
WHEREAS the Endangered Species Act (E.S.A.) of 1973 is will 
come before Congress to be in 1996 1996/1997;
WHEREAS the E.S.A. has been a successful tool in saving several 
endangered species, including the American Bald Eagle and the 
California Condor;
WHEREAS human health and welfare depends upon the gene pool of 
all species, down to the single cell plankton, to preserve the 
balance of nature, so that it may continue to sustain life;
THEREFORE, BE IT, RESOLVED that the California-Pacific Annual 
Conference support the reauthorization of a strengthened 
version of the Endangered Species Act of 1973 by forwarding 
this resolution to congressional representatives within the 
bounds of the Annual Conference;
BE IT FURTHER RESOLVED that the churches of this Annual 
Conference continue their studies of the issues of biodiversity 
and the need to protect and steward all of God's Creation;
BE IT FURTHER RESOLVED that the California-Pacific Annual 
Conference inform our California State legislatures that we 
support a strong California Endangered Species Act.
    Adopted by the Annual Conference as amended-Plenary 6-June 
16, 1996
    The question now for you Congressmen and Congresswomen is 
do you have the faith and the moral courage to affirm the 
goodness of the whole of God's Creation by focusing on species 
protection or will you perpetuate a Good Friday World?!

    Mr. Pombo. Thank you.
    [Applause.]
    Mr. Pombo. Mr. Woolfolk.

 STATEMENT OF VIRGAL WOOLFOLK, JMAW ENVIRONMENTAL SERVICE GROUP

    Mr. Woolfolk. Good morning. My name is Virgal Woolfolk, and 
I am the senior managing partner of JMAW Environmental Science 
Group. We are a disabled veteran minority business.
    Rather than read something to you, I am going to tell you a 
story. A couple of months ago we were hired by a home builder 
called Pacific Community, itself a minority owned business, to 
come out and do an assessment on some property down in Murrieta 
to determine if, in fact, based on the greater permits 
requirement from the City of Murrieta, if they needed to do any 
additional work.
    We began the process. We did an assessment, and we found 
that, in fact, there were three plants particularly an erected 
that was located in the southwest corner of the property. We 
reported this back to our client, and we made up a plan to go 
and speak to Fish and Wildlife Service to try to see what we 
needed to do to mitigate the situation.
    Now, before I started my own company, I worked at Easton 
Water District. In fact, one of the projects that Mr. Libeu 
talked about with the San Bernardino kangaroo rat, we had 
worked out an agreement with Fish and Wildlife before I left. 
There was a solid agreement, and then, in fact, they have broke 
that promise now I find out as well.
    So we went down; we talked to them; and we told them the 
assessment of the property; that, in fact, the habitat was of a 
low grade; that, in fact, we believed that because we had kind 
of missed the survey season because they had kind of kept the 
public off balance, they said that they might extend the survey 
period for the Quino because the weather was kind of cool, and 
then all of a sudden they decided at the last moment not to.
    So we went down, and we spoke to one of their 
representatives. She met with us, said, ``We agree with you the 
habitat is such that we agree with your mitigations to kind of 
keep five acres around the plant until we can find out what 
happens next year.''
    We thanked them. We left. We informed the city of the 
process. We informed our client of that. I then sent a letter 
back to the city seeing the Fish and Wildlife Service saying 
that all we agreed to.
    Then about a week later I get a call from the City of 
Murrieta, and they are saying, ``Virg, we have got a problem, 
Fish and Wildlife Service saying everything you wrote here is 
not true.''
    I said, ``Wait.''
    So I called down and nobody would return my call. So I 
finally called again, and I spoke to this lady named Ms. Cramer 
who, in fact, was the person who stopped it. She, in essence, 
told me that because she was not at the meeting and she felt 
that she should

have been at the meeting, she had stopped the project, but they 
never informed us of it.
    I then began to ask her why she did this, and she said 
that, again, she controlled what happened in the Murrieta area, 
quote, unquote.
    And so I said, ``Well, in essence, lady, you have told me 
that what I wrote was a lie here, and you put me in a bad 
position.''
    And she said, ``Well, I do not have time to deal with you 
now,'' in essence, and she hung up the phone.
    And at that point, I basically said it is on now, and so I 
sat down, and I started calling, and I started writing a 
letter, and I talked to my partner, and I said, ``If we do not 
fight these people and stand up and fix the problem, we cannot 
operate any further, and my business may be in jeopardy, but we 
need to do the right thing.''
    So we took them on, and I went back down, and we began to 
talk to them, and basically they kind of let me know that they 
are the only game in town and that is just how it was going to 
be.
    We even attempted to try to mitigate for the K. rat and pay 
a fee and say, ``Okay. We agree that it is on the property. 
Let's do that.''
    And they said, ``No, there is just no way to mitigate it.''
    And then what was most important was that they refused to 
come out to the site to help us make a decision. We wrote 
letters giving them a five-day turnaround, asking them for 
their help. Nobody responded.
    So I called Portland. At Portland, I spoke to a lady there 
named Ms. Finn. She was very upset at what they did and 
basically said, ``I am of the opinion that if Fish and Wildlife 
Service makes an agreement, they should keep their word,'' but 
then no one did.
    We called Mike Spear, never got a return call. Six weeks 
later, after I made some calls to Washington, DC, I got a call, 
and they decided to come out on site, and we visited the site, 
and we have it on video where one of the representatives said, 
``We do not believe that the Quino butterfly is on the 
property, but you still have to do a study because we found a 
butterfly across the street. So because we found the butterfly 
across the street, you have to do this.''
    The problem that we have is that when we try to find 
solutions to the problem and working with them, it just was not 
there, and I have worked with Fish and Wildlife Service for 
over 15 years, and what I have seen is a total degrading of 
their ability to work with the public.
    In fact, I had a conversation just the other week with 
Cheryl Brown. She is the editor of Black Voice Newspaper. Many 
of you know her, and she is also on the Planning Commission of 
San Bernardino, and when I brought this issue up, she said, 
``Those people are just rude to us no matter what we do.''
    So then we met with them the other week, and they said, 
``Well, we will let you mitigate this. You have to go buy 
credits at a mitigation bank.''
    We tried to do that, and there is no program. So we are 
really

frustrated about this process and hope that this will kind of 
bring some attention to it.
    Thank you very much.
    [The prepared statement of Mr. Woolfolk follows:]

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    [Applause.]
    Mr. Pombo. Thank you.
    I would like to recognize Mr. Calvert for his questions.
    Mr. Calvert. Thank you, Mr. Chairman.
    Ms. Rosen, I am certainly very interested in your 
testimony. Let me get this straight. You acquired a 250 acre 
site in Murrieta to build a high school site and another school 
site. Your biologists looked over and found 70 to 80 acres of 
habitat, which you are apparently willing to give up, and Fish 
and Wildlife told you that they wanted the entire 250 acres.
    Ms. Rosen. Yes, sir. The site was actually acquired by the 
City of Murrieta. So it is a joint use project with the city 
and the school district, and, yes, that is correct.
    Mr. Calvert. Did they give any reason why they wanted the 
250 acres other than the fact that they believed that it was 
all apparently important habitat?
    Ms. Rosen. No. Basically it was that they deemed it to be 
all habitat, and nothing else was forthcoming.
    Mr. Calvert. When you say ``they,'' when your biologists 
say 70 to 80 acres were suitable habitat, did they give you any 
scientific information to prove----
    Ms. Rosen. The biologists?
    Mr. Calvert. I mean from their point of view, Fish and 
Wildlife's point of view. Did they give you any background 
information to show why they wanted the entire 250 acres of 
property?
    Ms. Rosen. No, sir.
    Mr. Calvert. They just said they wanted the entire 250 
acres?
    Ms. Rosen. Yes, sir.
    Mr. Calvert. Mr. Woolfolk.
    Mr. Woolfolk. Yes, sir.
    Mr. Calvert. You have been dealing with Fish and Wildlife, 
you say, for the last 15 years?
    Mr. Woolfolk. I started out working with them when I was in 
the Navy, working some projects for them back then in the 
1980s.
    Mr. Calvert. Have you dealt primarily with the Carlsbad 
office or did you deal with other offices?
    Mr. Woolfolk. Well, back in those days when we first 
started, their office was in Laguna Miguel.
    Mr. Calvert. Right, right.
    Mr. Woolfolk. And then over the last couple of years, they 
are now in Carlsbad.
    Mr. Calvert. But basically the same people.
    Mr. Woolfolk. The same group.
    Mr. Calvert. So would you say that the operation has 
changed over the last 10 years?
    Mr. Woolfolk. Yes, sir. What I see is the folks that 
originally used to be there, they looked at for hunting and 
fishing and kind of looked at the whole environment overall.
    Now we have a group of folks that are just these biologists 
that want to protect these species, but what really concerns me 
most of all is that it appears that environmental groups have 
manipulated the system so that these people cannot make 
decisions, and their relationships with them are so tight here 
that they are not open minded and balanced about making these 
decisions for overall people.
    I thought that when they picked the people who were on the 
committee for this Quino butterfly, it was only picked by one 
guy up in Sacramento. He picked basically all of these 
scientists that they know.
    My concern with that is as a business who is specializing 
in this area, we as a disabled veteran business cannot bid on 
these jobs because they pick folks who they want to do the 
contract. So if you start looking at who do they give business 
to, you never see any other people besides these certain people 
always getting the contracts.
    Mr. Calvert. You indicated, too, the attitude of the 
employees that you are talking to.
    Mr. Woolfolk. That is correct.
    Mr. Calvert. They are not treating you with any courtesy at 
the desk or when you are on telephone calls.
    Mr. Woolfolk. Their attitude is, ``We will get to you when 
we get to you.'' You walk in there, and it is like, ``Well, we 
will call you later,'' or they do not return phone calls. That 
is the biggest issue. They just do not return phone calls.
    And we are the American public. We pay their salaries. I 
think that must be very, very, very clear, and right now we 
have the President kind of walking around the country talking 
about that we need to invest in minority communities and do 
things and that aspect, but when we have this agency who is out 
there that can basically stop you from doing that, then how are 
we going to get this turn-around? It is really important that 
be address this issue because it has great economic impacts.
    I sit on the Work Force Development Board for Riverside 
County. I was the assistant board on that, and one of the 
issues that we tried to address was that issue. We cannot get a 
development here in this area and new economic enterprises if 
they are going to be stopped every time they start a project.
    Mr. Calvert. Thank you.
    Thank you, Mr. Chairman.
    Mr. Pombo. Ms. Chenoweth.
    Mrs. Chenoweth. Thank you very much.
    I wanted to address some of my questions to the pastor or 
to the Reverend.
    Reverend, I was looking over your disclosure statement. 
Have you pastored a church?
    Rev. Moore-Kochlacs. Yes. In fact, I pastored the Redlands 
United Methodist Church, and a couple of the water people here 
were members of my congregation.
    Mrs. Chenoweth. And are you still pastoring that church?
    Rev. Moore-Kochlacs. No. My wife is a district 
superintendent for the San Diego district of the United 
Methodist Church. She oversees about 50 churches in San Diego 
County and Imperial County, and when she got the promotion, her 
husband followed her.
    Mrs. Chenoweth. You are a real '90s man, aren't you? But I 
can imagine you have a lot to talk about in your relationship. 
That is commendable.
    You are head of the Environmental Ministries of Southern 
California or Director?
    Rev. Moore-Kochlacs. Yes, I am the Director, yes.
    Mrs. Chenoweth. And does the Methodist Church pay you for 
that position or are you paid by someone else?
    Rev. Moore-Kochlacs. No, the bishop appoints me without a 
stipend, and so I have to raise my own funds for that position, 
and I manage to come up with about $5,000 per year.
    Mrs. Chenoweth. And those funds usually come from?
    Rev. Moore-Kochlacs. Individuals.
    Mrs. Chenoweth. From individuals?
    Rev. Moore-Kochlacs. Right.
    Mrs. Chenoweth. I notice that they were not on your 
disclosure statement, the funds.
    Rev. Moore-Kochlacs. Well, when you get 50--I did not know 
that for each 50 and $100 contribution I needed to put down who 
those persons were who had contributed.
    Mrs. Chenoweth. You know, as a man of the cloth, you said 
some pretty startling things, and one thing is that in our 
human arrogance, greed, lust for power, and desire for 
ownership we forget our divinely appointed role.
    Rev. Moore-Kochlacs. Yes.
    Mrs. Chenoweth. And I wonder if you can help me understand 
what you mean, our greed and lust and desire for power. Can you 
give us more specifics?
    Rev. Moore-Kochlacs. Sure. I think that as we focus on both 
the development of the land and as we have become so focused on 
our corporate development, those that lose out are those 
without a voice, and the church has always been for those 
without a voice. It seeks to speak for those.
    And that part of our neighborhood, those neighbors of ours 
who are without voice right now in the majority are the 
endangered species, and so it is our sense of overlooking them; 
it is our sense of being so anthropocentrically focused that we 
lose sight of the biocentric world that God has created and 
called good.
    And so that is where the arrogance comes in. We become so 
species focused, so human focused that we lose our regard for 
those species about us who are without voice.
    Mrs. Chenoweth. And did I hear you say that one of the 
purposes of the church is to speak for the species? Did I 
understand that?
    Rev. Moore-Kochlacs. Yes. Yes, you did.
    Mrs. Chenoweth. I see. Hum.
    [Laughter.]
    Rev. Moore-Kochlacs. If you would look at Genesis 2:15 you 
would read that we are called to be stewards and protectors of 
the garden, to till and to tend, which is the first commandment 
in a sense that we find, and that call of to till and to tend 
means to protect and serve in Hebrew, and what are we called to 
protect and serve? The bounty.
    If you read Genesis, you find that at each point, each 
stage of creation God looks out and calls it good, calls it 
blessed, calls us to stewardship.
    Mrs. Chenoweth. I think he does call us to stewardship, and 
I find it interesting, and in all due respect, if you look at 
Genesis 2:5, it concludes God's peopling of the earth and 
putting all of the animals and plants together and the herbs 
and so forth, and then the last part of that verse says, ``And 
there was no man to till the soil, and then God created Adam 
from the dust of the earth.''
    I think that God did create us to be productive and that 
His creation is very orderly and that humans are part of that 
order, and, Reverend Kochlacs, I would just love to invite you 
to come to Idaho or the northwestern states and look at the 
forests that have become utter natural disorder because of the 
management of the endangered species and management of our 
natural resources under the Endangered Species.
    The chaotic and catastrophic fires that occur I do not 
believe are in God's plan for order and productivity in this 
earth, and in all due respect, I would love to be able to sit 
down and talk to you, learn from you, and be able to share with 
you some of my concerns.
    Thank you very much.
    Rev. Moore-Kochlacs. I would be glad to do that.
    [Applause.]
    Mr. Pombo. Mr. Miller.
    Mr. Miller. Thank you.
    Jesus said something interesting that is really refreshing 
to me right now, that no prophet is a private interpretation of 
the Scriptures, and based on what you had presented in your 
comments there actually baffles me because the Scriptures I 
read deals with man's relationship to God and how God created 
the earth, and basically man is in charge and oversight of 
that.
    And when man moved away from God, it is amazing what God 
did. He spoke to a man named Noah because of his anger, and he 
told him to build an ark, and he told him to take two of each 
kind of animals and more of others that they would eat and 
place them on that ark. Then he caused rain to fall and killed 
everything, except he put man with some animals and moved them 
somewhere else.
    Now, if we had to go through that today, it would be a 
nightmare. I would like to read you a little cute story.
    [Laughter.]
    Mr. Miller. And I would like you to listen to this, and if 
Noah was alive today, just think of this.
    And the Lord spoke to Noah and said, ``In six months I am 
going to make it rain until the whole earth is covered with 
water and all of the evil people are destroyed, but I want to 
save a few good people and two of every kind of living thing on 
the planet. I am ordering you to build me an ark.''
    And in a flash of lightning, he delivered the 
specifications for the ark. ``Okay,'' Noah said, trembling in 
fear and fumbling with the blueprints.
    Six months later and it starts to rain. Thundered the Lord, 
``You had better have my ark completed or learn to swim for a 
very long time.'' And six months passed. The skies begin to 
cloud up. Rain began to fall. The Lord saw that Noah was 
sitting in the front yard weeping, and there was no ark.
    ``Noah,'' shouted the Lord, ``where is my ark?'' A 
lightning bolt crashed to the ground next to Noah.
    ``Lord, please forgive me,'' begged Noah. ``I did my best, 
but there were big problems. First I had to get a building 
permit for the ark's construction project, and your plans did 
not meet code. So I had to hire an engineer to redraw the 
plans. Then I got into a big fight over whether or not the ark 
needed a fire sprinkler system.''
    [Laughter.]
    Mr. Miller. ``My neighbors objected claiming I was 
violating zoning by building the ark in my front yard. So I had 
to get a variance from the City Planning Commission. Then I had 
a big problem getting enough wood for the ark because there was 
a ban on cutting trees because of the spotted owl. I had to 
convince U.S. Fish and Wildlife that I needed the wood to save 
the owl, but they would not let me catch any owls. So no 
owls.''
    [Laughter.]
    Mr. Miller. ``Then the carpenters formed a union and went 
out on strike. I had to negotiate a settlement with the 
National Labor Relations Board before anyone could pick up a 
saw or hammer. Now I have 16 carpenters going on the boat and 
still no owl.
    ``Then I started gathering up animals and got sued by an 
animals rights group. They objected to me taking only two of 
each kind. Just when I got the lawsuit dismissed, EPA notified 
me that I could not complete the ark without filing an 
environmental impact statement on the proposed flood. They did 
not take kindly to the idea that you had jurisdiction over your 
conduct and you were the supreme being.
    ``Then the Army Corps of Engineers wanted a map of the 
proposed new flood plain.''
    [Laughter.]
    Mr. Miller. ``Right now I am still trying to resolve a 
complaint from the Equal Employment Opportunity Commission over 
how many Croatians I am supposed to hire, and the IRS has 
seized all of my assets claiming I am trying to avoid paying 
taxes by leaving the country, and I just got a notice from the 
state about owing some kind of use tax. I really do not think I 
can finish your ark for at least another five years,'' Noah 
wailed.
    Then the skies began to clear. The sun began to shine. The 
rainbow arched across the sky, and Noah looked up with a smile. 
``You mean you are not going to destroy the earth?'' Noah asked 
hopefully.
    ``No,'' said the Lord sadly. ``The government already 
has.''
    [Laughter and applause.]
    Mr. Miller. You know, the individual to the right of me----
    Rev. Moore-Kochlacs. Do I have a chance to respond?
    Mr. Miller. No, you do not. I heard enough of your 
hypocrisy on the use of the Scriptures.
    Rev. Moore-Kochlacs. Well, that is not true because the 
endangered----
    Mr. Miller. I believe I have the floor.
    [Applause.]
    Rev. Moore-Kochacs. Because the Noah story is the first----
    Mr. Miller. This individual to your right--Mr. Chairman, 
I----
    Rev. Moore-Kochlacs. [continuing] Endangered Species Act, 
and every creature was protected by that rainbow.
    Mr. Miller. I do not believe anybody----
    Rev. Moore-Kochlacs. And so your presentation of the 
story----
    Mr. Miller. Sir.
    Rev. Moore-Kochlacs. [continuing] is a distortion of the 
biblical story.
    Mr. Miller. I do not believe anybody interrupted you when 
you were making your presentation. Please be a gentleman and 
allow me the same courtesy.
    This individual to your right, or you left, my right, is 
the one who is impacted because of your desires. In fact, I am 
submitting a bill, and I hope my colleagues will support me, 
that says if the Federal Government desires to list an 
endangered species on the list, that the government should buy 
the property of those that are impacted because they want to 
set aside habitat for endangered species, not put the burden on 
the property ownership or somebody who inherited the property 
just because a species decided to move there.
    If government wants to preserve habitat, I think that is 
good, but government should bear the burden, and agencies of 
the government should not----
    [Applause.]
    Mr. Miller. [continuing] lose sight of what the intent is, 
and that is to represent the people of the United States who 
vote us into office and to hire them to serve for their 
betterment.
    And it is a shame that government has got so far out of 
control. The original Constitution in its draft said ``live, 
liberty and property.'' Now, because of slavery, it was changed 
to ``live, liberty and the pursuit of happiness,'' because the 
Founding Fathers in their wisdom realized that they did not 
want the southern states to start thinking of the concept that 
black people were property and they had a constitutional right 
to own them. That was a wise move on their part.
    However, in the process, the concept of property rights and 
the rights of individuals owning property and the kind of 
government now placing his will and his wants on those property 
owners was lost and has been lost over the years, and it is 
really sad.
    It is a worthwhile endeavor to say we need to preserve 
those that are endangered, but I was reading an article 
yesterday, and it talks about some dinosaur bones they are 
still digging up, and I do not believe humans had anything to 
do with their extinction. In fact, we know very little about 
them.
    But we need to do what we can to protect endangered 
species. I do not argue that, but in our effort, we should not 
create an unfunded mandate that is placed on property owners 
and private citizens that they should bear the cost of that 
preservation.
    God, in His wisdom, had the intelligence to pick those 
animals up and move them, and when we talk about doing that, 
people think we are mean and mean spirited.
    The burden should never fall on the individual who cannot 
defend himself from government. Government is supposed to 
create an environment where the individual is defended, and I 
think that is what we are trying to do, and some government 
agencies are out of control, placing an intent on individual 
property owners as a burden and a mandate, and they have gone 
far beyond, far beyond what we consider reasonable.
    And I believe many of us are here today to discuss that and 
to talk about issues that are important, and I hear this 
constant saying of separation of church and state when it comes 
to prayer, but then you want to beat property owners over the 
head with the Bible when it comes to saving endangered species, 
and you should be ashamed of yourself.
    [Applause and boos.]
    Mr. Pombo. I am going to have to ask the audience to please 
refrain from responding to the statements, if possible.
    Mr. Hunter.
    Mr. Hunter. Thank you, Mr. Chairman.
    Mr. Chairman, one point that has come out that I would like 
to pursue is the ratio of taking, and I do not know, Mr. Bragg 
or Mr. Woolfolk, if you have comments on this, but one thing 
that bothered me is that we have a mixture, obviously, as all 
counties do in San Diego County of public and private property, 
and we have got huge national forests. The Cleveland comes down 
almost to the Mexican border in my district and also state 
reserves, state parks, tens of thousands of acres of military 
land that will never be developed, and it for practical 
purposes amounts to a refuge for species.
    And then mixed in among that we have private property, and 
every time I talk to somebody who wants to use their property 
and they will say, ``I finally got permission from Fish and 
Wildlife to use three acres, but in return for that, I had to 
go out and buy nine acres,'' a ratio of three to one, or, ``I 
had to buy 50 acres,'' and the ratio is always skewed in favor 
of government. If government lets private people use one acre 
of their own land, they always get a multiple of that for 
government use.
    And one thing that I am concerned about is the amount of 
money or the amount of land that is being acquired by 
government, taken over by government as a result of this 
mitigation.
    So I would like to ask Mr. Bragg and Mr. Woolfolk could you 
comment on that, on the ratios of taking or of exchange.
    Mr. Bragg. I will defer to Mr. Woolfolk.
    Mr. Woolfolk. Yes, sir, if I may. There have been at least 
five different projects that I have worked on, but this 
particular project, we met with Fish and Wildlife this week to 
try to come up with some mitigation for this, and they referred 
us to this mitigation banking, those three options that they 
gave us.
    One of them was BLM land that they have that is being 
operated through the county of Riverside. So I went up and 
spoke to Brian Low yesterday, and he is the Director of the 
Multi-species Plan, and Brian has 40 acres on BLM land that we 
might be able to purchase and then be able to degrade our 40 
acres here, but it is one to one.
    But during my time working at Easton, I have worked on some 
projects where Fish and Wildlife wanted eight to one, 12 to one 
in one case for the Senihoy Spotted Flower. So really when you 
start trying to equate the species and get some information, it 
is kind of hard.
    One of the things that always concerned me is when we look 
at governmental land that is available, they never want to look 
at that land. No studies, to my knowledge, have been done like 
we do on private property to go out and see if there is the 
same species or habitat on these government lands and these 
parts in the BLM land that can be used to kind of offset this. 
So that is one of the issues that I have with it.
    Mr. Hunter. Okay. Mr. Libeu, you may have a comment on that 
or Mr. Bragg also with respect to the ratios. So you have seen 
ratios as high as eight to one.
    Mr. Woolfolk. And 12 to one.
    Mr. Hunter. Eight to one and 12 to one. Mr. Libeu and Mr. 
Bragg, do you have any comments on that?
    Mr. Libeu. Earlier in this decade in the '90s we had 
projects that Mr. Woolfolk could talk about where the ratio was 
between 11 and 12 to one for vernal pool and this spotted horn 
flower that he's talking about.
    The project that I identified today in my testimony, we do 
not know the exact set-aside, but we know the minimum is going 
to be at least three to one. Our project encompasses about 50 
acres. That means Fish and Wildlife, the U.S. Government, will 
need at least 150 acres to mitigate the project, and again, 
that is just an open door right now. We do not know the exact 
answer, and that is one of the problems that all of us here at 
this table face, is that there is an open ended uncertainty to 
the actual finality of whatever the Fish and Wildlife is going 
to decide.
    Mr. Hunter. Is there any relationship--go ahead, Mr. Bragg, 
and then I will ask a follow-up question.
    Mr. Bragg. Well, in our instance, we started out with 1,100 
acres, and we voluntarily contributed close to 600 of those 
acres to permanent open space habitat, and the authority of the 
Fish and Wildlife Service here, by the way, you should 
recognize comes from the identification of this property as 
waters of the United States.
    Mr. Hunter. Maybe a staff member could hold that where 
everybody can see that, including the panel and the audience, 
Mr. Chairman.
    Mr. Bragg. Waters of the United States, as defined in the 
Clean Water Act, is what triggered the Section 7 consultation 
around endangered species. Now, unfortunately it is not 
highlighted very well there, but the area in blue, and by the 
way, it is in Section 5 of the book that we provided to 
everybody; in that map, you can see the area outlined in blue 
was our original property, and the area outlined in yellow on 
this map is what the Fish and Wildlife Service has designated 
as the reasonable and prudent alternative.
    The problem is about 50 acres of that does not even belong 
to us. So it has got to be eliminated. It reduces us down to 
about 150 acres, and that----
    Mr. Hunter. So you started with 1,100 acres, and when they 
are finished paring you down, you will have 150 usable acres?
    Mr. Bragg. Well, we cannot build the project on 150 acres. 
It is not reasonable or prudent, but the multiple is correct. 
We have got about maybe 12 percent of our original land 
remaining in the project.
    Now, the Reverend--I would like to refer to part of what 
was said there. My father used to always tell me that broad 
generalizations are always bad, including this one. However, 
the broad generalization that was presumed here is that all 
corporate development is bad somehow, and I just do not agree 
with that.
    We are attempting to do a responsible, reasonable 
development that benefits humans and in the process benefits 
the bighorn sheep that were federally listed in the middle of 
our project, and as a consequence, we are not out there being 
motivated by greed and corruption. We are being motivated by 
producing a positive result for everybody concerned.
    Mr. Hunter. I agree with that totally. In fact, there was a 
gentleman who is a fairly central character in the Bible who 
did a little home building himself. He is referred to on 
occasion.
    You know, I think the Reverend would agree with this. You 
know, I do not think anybody agrees with the idea that you do 
not return phone calls. I do not think anybody agrees with the 
idea that you tell people that you are the boss, and if you 
were not in a meeting even though your office issued a 
particular position, that position is revoked because you were 
not there.
    And to go back to the multiple, the fact that to get to be 
able to use an acre of your own land you have to give either in 
fee and give a deed in this mitigation or you have to 
perpetuate it as open space, which for practical purposes is 
giving it to the government, although you get the right to pay 
taxes on it for the rest of your life; the idea that that is 
always a multiple that accrues to the benefit of the government 
bothers me. It is always three to one, four to one, ten to one.
    You cannot go on doing that forever. I have seen a lot of 
the private land now in San Diego county that is now owned by 
Uncle Sugar, even though Uncle Sam has 25,000 acres in Miramar. 
He has got millions of acres in the national forest that extend 
from the Mexican border north. They are taking that private 
property, and it is always in a large multiple.
    So I wanted to ask you one other question, Mr. Woolfolk, 
Mr. Bragg, and Mr. Libeu, and then I will move on, but simply 
when the determination is given that you have to give a ten to 
one or a 12 to one or a three to one, do you get to appeal 
that? How does that work?
    Mr. Woolfolk. Sir, that is one of the things that I wrote 
in my letter, that there is no appeal, and here is an example 
of how this works. If we can accept Mr. Chen, who is back 
there, if you can stand for a second, we attempted to get some 
biologists to come out and say that the mitigation that we had 
established, which was basically five acres around these 
plants, were adequate.
    So then I went up, and I spoke to professors at UCR that I 
have known ten years, biologists that I have worked with for 
ten years, and nobody would come out and do this survey because 
they were afraid that if they did, Fish and Wildlife would not 
give them their certification next year, and they would not be 
able to work.
    So, therefore, there is no way to appeal this. Even if we 
went out and tried to get experts to come and say this 
mitigation is out of line of three to one, eight to one, 12 to 
one, but for the Quino butterfly, particularly, then everybody 
is afraid to do it because they may not get their certification 
next year.
    So there is no way to appeal this system. It is really, in 
my view, a very corrupt and this process is very corrupt, and 
it is thievery. This is thievery, and though I am not a 
minister, but I guess I hand around Jesse Jackson enough to be 
one. There is a Scripture that says the birds have their nest, 
right? You know, the sinner man has nowhere to lay his head.
    Clearly, this property is to build homes for people who can 
afford them, and also I want the pastor here to know that I 
work on church development projects. We have a project in San 
Diego in your area where a church bought property. We are 
talking about $2 million, and went out and was getting ready to 
build, and the Fish and Wildlife came in and said they could 
not. Now the church is in holy--everybody has left, they cannot 
build, and they have got a $2 million bill.
    So this is how this is happening in church communities. I 
want him to know that as well. I do that. So we really have a 
problem here.
    Mr. Hunter. Okay.
    Mr. Bragg. There is no rationale in the demand made of us 
for $500,000 to use our land. It was going someplace where we 
knew not. We do not have a clue where they are going to take 
$500,000, what they are going to do with it. So the 
accountability for the, quote, mitigation, unquote, needs to be 
addressed.
    We have asked the Inspector General of the Department of 
the Interior to audit where that mitigation, so-called, goes 
and to whom it is paid and probably more importantly, to whom 
it is not paid because selective benefactoring of biologists 
who agree with the Fish and Wildlife Service we think is 
rampant.
    Mr. Pombo. Thank you.
    I would like to recognize Ms. Bono.
    Ms. Bono. Thank you, Mr. Chairman.
    Before I start, I would first like to thank all of the 
witnesses who are here before us and remind us all that each 
and every one of them is here because they are respected by 
their peers. I think they have something to add to this, and I 
just want to say I appreciate your being here.
    But with that my first three or four questions are for the 
Reverend, and if I could ask for a simple yes or no in the sake 
of brevity, I would appreciate it.
    In the third paragraph of your statement, you say, ``In our 
human arrogance, greed, lust for power, and desire for 
ownership, we forget out divinely appointed role.''
    So in reference to that, a simple yes or no, please. Again, 
do you own a home?
    Rev. Moore-Kochlacs. No.
    Ms. Bono. You do not own a home.
    Rev. Moore-Kochlacs. No.
    Ms. Bono. So you rent a home?
    Rev. Moore-Kochlacs. Yes. In a sense, yes.
    Ms. Bono. Does your wife own a home?
    Rev. Moore-Kochlacs. No. It comes with the job.
    Ms. Bono. It comes with the job. Okay. Do you use public 
utilities?
    Rev. Moore-Kochlacs. Oh, yes.
    Ms. Bono. And you use public transportation, public roads 
to get here?
    Rev. Moore-Kochlacs. Yes.
    Ms. Bono. Thank you. I know it's a simple question, but big 
to me.
    Moving on to Mark Bragg, I have to be truthful with the 
audience. I know this developer quite well. He is in my 
district. I have driven by this project for 15 years now, and 
it is something that when Sonny ran for mayor in 1988, he 
believed wholeheartedly was going to be the salvation of Palm 
Springs. Realizing that tourism is the number one economic base 
in the City of Palm Springs, this gateway to Palm Springs was 
of vital importance to the continued growth and, if you would, 
even rebirth of Palm Springs.
    So this is something that I have been interested in 
watching for a number of years, and I want to let you all know 
that beforehand. This is something that I believe in.
    I want to ask Mr. Bragg: excluding the land, how much has 
this process cost you?
    Mr. Bragg. Excluding the cost of the land, about six and a 
half million dollars.
    Ms. Bono. Six and a half million dollars on what?
    Mr. Bragg. Well, we have been dealing with the Fish and 
Wildlife Service since 1992. We approached them early on in the 
process to try and find out what it was that would make sense 
in our relationship because it was our interest, and it was in 
our interest, we thought, to be cooperative with government 
agencies.
    Of course my opinion of that and my advice to other 
developers has changed dramatically in the last seven years, 
but between legal fees, carrying costs, the cost of continuing 
our operation, the cost of redesigning this project four times 
to satisfy the Fish and Wildlife Service is a significant cost.
    We were told in 1996 that if we would eliminate some of the 
upper holes on the project that the service would then allow us 
to go forward. We went back and spent three months and about 
$170,000 redesigning the project and came back to the next 
meeting with the Fish and Wildlife Service, and they said they 
had changed their minds.
    So the waste of our resources and the indifference to what 
the costs, we have approximately 2,000 small, small investors, 
many of whom have their life savings involved in this project, 
and to have them treated with such disdain has just been 
difficult, but that is the cost to this group of people.
    Ms. Bono. Thank you.
    Just a simple question. In Palm Springs, throughout the 
Coachella Valley, I think we use the symbol, the statue of the 
bighorn sheep throughout. I think we use it to promote tourism. 
We know that it is something that only enhances our area.
    Do you believe that if actually there were a proliferation 
of the bighorn sheep near your project that it would actually 
help your project?
    Mr. Bragg. Sure. We have done everything we can think of to 
do to try and encourage the rebirth, the reemergence of bighorn 
sheep as a viable population.
    Unfortunately there are so many factors working against 
them that have nothing to do with us that we have not done 
anything. So it does not have anything to do with us that the 
population has declined.
    It probably has declined to the point where it may not be 
salvageable, but that really is not for us. I think that is 
probably for the Lord to decide.
    Ms. Bono. Thank you.
    Thank you.
    Mr. Pombo. Mr. Bragg, I reviewed with some interest your 
letter that you presented as part of your testimony from Fish 
and Wildlife Service. We had testimony I believe it was about 
two months ago at a hearing in Washington, DC, where Fish and 
Wildlife Service testified and Department of Interior testified 
that HCPs and mitigation were voluntary and that it was the 
official position of Fish and Wildlife Service that----
    Mr. Bragg. Is this the U.S. Fish and Wildlife?
    Mr. Pombo. Yes.
    [Laughter.]
    Mr. Pombo. I was somewhat surprised at the time during the 
hearing when they testified to that, but it is their official 
position that these agreements are voluntary and that 
individual property owners, school districts, cities, water 
districts that enter into these, voluntarily entering into 
that, that it is not an extortion, but it is a voluntary 
payment.
    And in reviewing this particular letter, it appears that 
they outline how much land you will have to give up, and it 
also appears that they give you a range of between a half a 
million and three quarters of a million dollars that you will 
have to pay to them in order to use your property.
    You began to answer this earlier, and I would just like for 
clarification. Do you know what they were going to do with the 
half a million dollars that you would pay them?
    Mr. Bragg. Nothing that I would approve of.
    [Laughter.]
    Mr. Pombo. What would they do? Do you have any idea?
    Mr. Bragg. I have no idea, sir. This was an arbitrary 
number that was arrived at through a mysterious process, and I 
have no clue where they were going to send that money.
    But if it was voluntary, I respectfully decline.
    [Laughter.]
    Mr. Pombo. Are you aware of other developments within your 
area that have paid similar fees?
    Mr. Bragg. Yes, I am.
    Mr. Pombo. Do you know what they have done with that money?
    Mr. Bragg. I have no idea.
    Mr. Pombo. Is there anything apparent in terms of activity 
that is occurring in your area that would bring the bighorn 
sheep back or you have seen them putting in a lot of guzzlers 
or doing propagation?
    Mr. Bragg. No, absolutely not.
    Mr. Pombo. Or doing anything that is bringing the sheep 
back?
    Mr. Bragg. Nothing at all.
    Mr. Pombo. I am somewhat familiar with the area. I have not 
seen your project specifically. I am somewhat familiar with 
that area. I do know that a very large percentage of the land 
in that surrounding area is government owned currently.
    In fact, for the record, over 50 percent of the State of 
California is owned by the government, and most of that land is 
set aside with a conservation easement of some type under 
Federal law, whether that be wilderness, national park, 
conservation areas. The vast majority of that land is set aside 
in some kind of conservation status, as is most of the land 
within this entire region.
    And it is somewhat troubling that we are here discussing 
endangered species and you are testifying that you have seen 
very little, if any, activity to bring back endangered species.
    Mr. Bragg. There is activity. I do not mean to say that 
there is no activity at all. There just is no activity on the 
part of the U.S. Fish and Wildlife Service that I am aware of.
    Mr. Pombo. Well, that is specifically what I am talking 
about, is on the part of Fish and Wildlife.
    Mr. Bragg. From Palm Springs to the Mexican border there is 
approximately 10,000 square miles of bighorn sheep habitat that 
is largely unpopulated by anyone, including bighorn sheep. 
There are only 280 animals remaining of the herd.
    Our science says that there is no genetic difference 
between this allegedly endangered species that has caused all 
of this difficulty now. There is no difference between them and 
the species that thrives in other areas of the Southwest.
    So this particular herd has been designated as an 
endangered herd. It is not an entirely endangered species.
    Mr. Pombo. It is a subspecies?
    Mr. Bragg. Well, according to our information and the 
science that we have seen, which I think the Fish and Wildlife 
Service has chosen not to look at, it is basically the same 
species, genetically identical to the rest of the species in 
the Southwest, perhaps not all of the Southwest, and there are 
other species of bighorn sheep in the Southwest, but this 
particular one is not literally an endangered species. It is an 
endangered herd.
    Mr. Pombo. That is the word I was looking for, distinct 
population safety.
    Has that information been provided to Fish and Wildlife 
Service?
    Mr. Bragg. Many times, yes.
    Mr. Pombo. Well, thank you.
    My time has expired. I want to thank this panel for your 
testimony, all of you for your testimony. Particularly I would 
like to thank those of you that have projects before Fish and 
Wildlife Service for your courage of coming forward. I know 
that it was a difficult decision for many of you and many of 
our witnesses that we will have today whether or not to make 
the effort to come forward, and I do appreciate you having the 
courage to come forward and share your experiences with us.
    I am going to dismiss this panel and call up the second 
page. Thank you very much.
    Our second panel, Mr. Bruce Turecek, Dr. Dan Silver, Mr. 
Hugh Hewitt, and Mr. Michael Spear.
    Thank you for joining us. If I could have you all stand and 
take the oath. For those of you who are testifying, if you 
could raise your right hand.
    [Witnesses sworn.]
    Mr. Pombo. Let the record show they all answered in the 
affirmative.
    Thank you for joining us today. I think you all heard the 
explanation of timing and process. Your entire statements will 
be included in the record.
    Mr. Turecek, we will begin with you. Pull the mike right up 
to you there. Thank you.

        STATEMENT OF BRUCE TURECEK, JACUMBA VALLEY RANCH

    Mr. Turecek. Thank you, Mr. Chairman and members of the 
Committee.
    I appreciate this opportunity to----
    Mr. Pombo. You need to pull it a little bit closer.
    Mr. Turecek. A little closer, yes, sir.
    Anyway, thank you for having me here today.
    I hope all of you have a copy of the statement that I 
prepared.
    Mr. Pombo. We do.
    Mr. Turecek. First, I did want to mention that it was very 
difficult for me to be here today because I have been in fear 
of reprisals and repercussions because my project is still 
pending, and it was a choice that I had to make because there 
are problems, and I want to see something made right, and that 
is the reason I am here, because there are difficulties that do 
need to be corrected.
    I am going to dive right on into a couple of statements 
that were made in the documentation of the Fish and Wildlife 
Service letters that they have done in response to the 
environmental impact report that we have prepared, and I want 
to try to get a point of clarification.
    Number one of those statements, in a letter from 1997 is 
the proposed Jacumba--oh, by the way, I represent the Jacumba 
Valley Ranch. I am not a consultant. I am not an attorney. 
Basically I am a business manager. Straightforwardly and 
directly, I am a rancher. I have a 1,250 acre ranch out in the 
southeast corner of San Diego County.
    One of the first comment letters from Fish and Wildlife 
Service is the proposed Jacumba Valley Ranch project will 
result in the direct loss of native wildlife and their habitats 
on nearly all of the 1,250 acre site, with likely significant 
indirect and cumulative adverse impacts to the surrounding 
area. That was the letter from 1997.
    The more recent letter from 1999, the statement is 
included. The proposed Jacumba Valley Ranch project will 
directly impact and eliminate all of the habitat on site except 
for the 229.9 acres proposed of natural open space.
    In rebuttal to that particular statement, I want to explain 
exactly what this habitat that they are talking about is, and I 
did bring an aerial photograph that I would like to have you 
have a look at. I have got a better copy of it here. I did 
include a short, small one in the portfolio that I put together 
for the members of the panel.
    This is the habitat that they are discussing, and if you 
will notice, those are plowed agricultural fields.
    [Laughter.]
    Mr. Turecek. Okay. Similarly, these are the same fields, 
1940.
    This is a photograph of the entire ranch, again, era about 
1940. This particular was originally put together as a dairy 
and constructed in 1927.
    Once again, a photograph of 1940. This property has been in 
ranching or agriculture. I have been able to date it all the 
way back to about 1927, with what crops were grown on which 
fields all that period of time.
    That is basically what I wanted to point out, back to the 
statement of we are going to eliminate 1,250 acres of natural 
habitat.
    Mr. Hunter. Was the entire acreage under farming?
    Mr. Turecek. No, part of it was under grazing. It is 
probably 600, 650 acres that can be tilled and raise crops. The 
rest of it is pasture land. In that it originally was a dairy, 
there were 500 cows being milked continuously. Traditionally or 
historically it was known as the Mountain Meadows Dairy.
    Congressman Hunter kind of beat me to the punch a little 
bit earlier, but I did want to point out one other important 
aspect of this, and this is the generalized ownership map that 
was prepared by SANDAG, San Diego Association of Governments, 
and what is reflected is if it has got a color on it, it 
already belongs to the government or is already controlled by 
the government.
    And what you are seeing here is essentially two thirds of 
the eastern half of San Diego County is already controlled by 
the government.
    Now, if you will turn it back around for me one second, I 
wanted to point out to the panel my ranch is this little part 
right here. I have got the Anzo Borego Desert here. I have got 
the national forest over here. I have got government lands all 
around me.
    Finally, there is a map or an aerial photograph that I have 
got that was actually taken by the Mexican government, and it 
is an excellent aerial photograph, and it shows how much 
natural habitat actually surrounds. All of this is natural 
habitat. There is my ranch.
    So that is the first problem I have got, is the Fish and 
Wildlife Service has mislabeled what my project is. If you are 
to read their letter, it sounds like I am going to go out and 
cut down the Redlands or something like that. I am going to 
eliminate habitat.
    The letters, the way they have put them together, are 
basically designed to confuse the issue and weaken the text of 
the documents that I have submitted, and by weakening it, it 
makes it more subject to legal challenge, and I do want to 
address that aspect of it.
    Specifically, and I have included it in my notes, the word 
that they have used in their letters of comment, and I have got 
to find it myself, is often the word ``inadequate,'' but they 
never say what is inadequate. How many hundreds of hours does 
it take surveying this property before it has been adequately 
done?
    ``Likely.'' They say it likely contains species. However, 
and this is a very important point, to date with all of the 
biological surveys that have been done on our property, we have 
no endangered species on our property whatsoever. Therefore, 
the Fish and Wildlife Service, if I am not mistaken, has no 
authority to control us, but they do not ever acknowledge that. 
It is keep working; do another survey. All right. You did a 
survey for a toad. Well, we have got new information. They have 
actually said that: well, there is new information. We want you 
to do another survey for a frog or for the toad. I almost got 
to the frog. I will get to the frog.
    The endangered California red legged frog species was taken 
from the vicinity of the ranch back in 1928.
    Mr. Pombo. Sir, your time has expired, if you could wrap it 
up, please.
    Mr. Turecek. Sure. From the Federal Register, it appears 
that the frog is not there. The same thing with other species, 
yet they still have not acknowledged that, and they have not 
acknowledged that any of the what I feel a qualified biologist 
who has done this work is acceptable; yet these biologists are 
experts in their field.
    Thank you.
    [The prepared statement of Mr. Turecek follows:]

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    Mr. Pombo. Thank you.
    Dr. Silver.

STATEMENT OF DAN SILVER, M.D., COORDINATOR, ENDANGERED HABITATS 
                             LEAGUE

    Dr. Silver. Thank you. Good morning, honorable members.
    Since 1991, the Endangered Habitats League has been a 
stakeholder in efforts to protect endangered species and 
resolve economic conflicts in Los Angeles, Riverside, San 
Bernardino, San Diego, and Orange Counties.
    Early on, it became clear to us that project by project 
application of the Endangered Species Act, like you have been 
hearing today in all of these examples, was ineffective for 
species conservation and costly and inefficient for landowners.
    We saw this with the California gantcatcher in San Diego, 
and we see it today, for example, with the Delhi Sands fly in 
San Bernardino. Given the number of threatened species in 
Southern California, there has to be a better way, and indeed, 
there is.
    Large scale, multiple species plans, comprehensive habitat 
plans are in place today in Orange and San Diego Counties. They 
are working reasonably well. Riverside County is moving forward 
with theirs.
    The benefits to wildlife is obvious. With local government 
as a partner, implementation comes much easier. Furthermore, 
and this is crucial, these programs allow the public at large 
to contribute its fair share to the process.
    The benefits to landowners are summed up by the concept of 
streamlining. There is one stop shopping for local ordinances, 
California laws, and the Endangered Species Act. Certainty is 
an important byproduct.
    From the local government perspective, based on the San 
Diego experience, the effects of such planning on the overall 
supply of housing, commercial, and industrial land is not 
significant.
    Planning is not easy though. Scientific credibility is 
difficult to obtain, and negotiation on an individual project 
basis is unfortunately still necessary for those projects which 
are well advanced.
    Please do not underestimate the difficult of the job the 
U.S. Fish and Wildlife Service faces in these instances. 
Because local governments often have neglected the mandates of 
the California Environmental Quality Act, the need to avoid or 
mitigate impacts to habitat often does come up very late in the 
process, regrettably so. And in the absence of ready 
acquisition funds, the service from our point of view often 
tries too hard to strike a balance and errs against the species 
and gives away too much.
    Environmentalists have been highly critical of the results 
of many projects. San Joaquin Hills tollroad, Dana Point 
Headlands, Las Montanas, Carmel Mountain, Forster Ranch. I 
could go on, but we have found the agency steadfast in these 
outcomes, despite the results.
    Nevertheless, we recognize the commitment the service has 
made to the success of multiple species planning, and my 
organization shares that commitment. This is, indeed, the best 
hope for endangered species, and it also achieves other 
community goals.
    Consider Riverside County where we are today. If natural 
open space can be maintained between communities, what makes 
Riverside County beautiful and unique and attractive to 
residents and businesses alike will be maintained as future 
growth occurs. Thus, from the long term perspective, if we can 
get over these initial hurdles, there really is no conflict 
between the Endangered Species Act, human communities, and 
economic competitiveness, but indeed, there is a symbiosis.
    How can we do better? My first recommendation is for all 
parties to emphasize accurate and unambiguous communication. I 
am struck by the frequency and seriousness of 
misunderstandings.
    Secondly, the Federal Government, and indeed, it is 
Congress that holds the purse strings, the Federal Government 
needs to step forward with funding for both agency, staff, and 
for land acquisition. Substantial acquisition funding early in 
the process is essential, and leverage is state and local 
contributions, as well as reasonable private mitigation.
    This funding is the single most important thing that you 
can do to make preserve creation equitable and successful.
    I would like to close by thanking many members of the 
Committee for your past record of support for habitat planning, 
for making these programs in Southern California work. It not 
only solves problems, but it is part of the foundation for a 
high quality of life in the future.
    Thank you very much.
    [The prepared statement of Dr. Silver follows:]

 Statement of Dan Silver, M.D., Coordinator, Endangered Habitats League

    Honorable Chair and Committee Members: The Endangered 
Habitats League is dedicated to ecosystem protection, improved 
land use planning, and collaborative conflict resolution. Since 
1991, we have been stakeholders in efforts to protect 
endangered species and resolve economic conflicts in Los 
Angeles, Riverside, San Bernardino, San Diego, and Orange 
Counties.
    Early on, it became clear to us that project-by-project 
application of the Endangered Species Act was ineffective for 
species conservation and costly and inefficient for landowners. 
If one's goal is to create win-win solutions, such solutions 
are often impossible one parcel at a time. We saw this with the 
California gnatcatcher in San Diego, and we see it today with 
the Delhi Sands flower-loving fly in San Bernardino and 
Riverside Counties. Given the number of threatened species in 
Southern California, there has to be a better way.
    Large scale multiple species plans, often called Natural 
Community Conservation Plans, are in place in Orange and San 
Diego Counties. Riverside County is moving forward on theirs. 
The benefits to wildlife are obvious, as the larger scale of 
planning allows consolidation of large blocks of habitat and 
the maintenance of connectivity. With local government as a 
partner, implementation becomes far easier. Furthermore, and 
this is crucial, these programs allow the public at large to 
contribute its fair share to the process.
    The benefits to landowners are summed up by the concept of 
streamlining. ``One stop shopping'' is produced for local 
ordinances, the California Environmental Quality Act, and state 
and Federal Endangered Species Acts. Certainty is an important 
by-product. From the local government perspective, if the San 
Diego experience continues, the effects of such planning on the 
overall supply of housing, commercial, and industrial land is 
not significant.
    Planning is not easy, though. Not only is scientific 
credibility challenging to attain, but negotiation on an 
individual project basis is still necessary for those projects 
which are already well-advanced. Do not underestimate the 
difficulty of the job the U.S. Fish and Wildlife Service faces 
in these instances. Because local governments may have 
neglected the mandates of the California Environmental Quality 
Act, the need to avoid or mitigate impacts to habitat comes up 
late in the process. In the absence of ready acquisition funds, 
the Service often tries too hard to strike a balance, erring 
against the species. Environmentalists have been highly 
critical of the results of many projects. To name a few: San 
Joaquin Hills tollroad, Foothill-Eastern tollroad, Dana Point 
Headlands, Fanita Ranch, Las Montaflas, Carillo Ranch, Carmel 
Mountain, Forster Ranch. We have found the agencies steadfast 
in these outcomes, despite the results.
    Nevertheless, we recognize the commitment of the Service to 
the success of multiple species planning in Southern 
California, a commitment my organization shares. Not only is 
this the best hope for endangered species, but it achieves 
other community goals. Consider Riverside County, where we are 
today. If natural open space can be maintained between 
communities, then what makes Riverside County beautiful and 
unique, and attractive to residents and business alike, will be 
maintained as growth occurs. Thus, from the long-term 
perspective, there is no conflict between the ESA, human 
communities, and economic competitiveness, but a symbiosis.
    How to do better! My first recommendation is for all 
parties--business interests, agency staff, local officials--to 
emphasize accurate and unambiguous communication. I am struck 
by frequency and seriousness of misunderstandings. Second, the 
Federal Government needs to step forward with funding for 
adequate agency staff and for land acquisition. Substantial 
acquisition funding early in the process is essential, and 
leverages local and state contributions. This is the single 
most important thing you can do to make preserve creation 
equitable and successful.
    I would like to close by expressing my appreciation for 
your record of support for Southern California habitat 
planning. It not only solves problems but it is part of the 
foundation a high quality future for this region. Thank you.

    [Applause.]
    Mr. Pombo. Thank you.
    Mr. Hewitt.

       STATEMENT OF HUGH HEWITT, ESQ, IRVINE, CALIFORNIA

    Mr. Hewitt. Thank you, Mr. Chairman and members of the 
Committee.
    My name is Hugh Hewitt. I am a partner in the law firm of 
Hewitt & McGuire, with offices in Irvine, California, and 
Portland, Oregon.
    At the outset I would like to thank you for your interest 
in this issue. I would also like to recognize and thank you for 
the efforts of your staff, which have been professional and 
thorough, especially Congressman Calvert's staff, Linda and 
Dave, both here in the district and back in Washington. Ms. 
Meginson, as well, Chief Counsel to the Committee, has been an 
extraordinary help to landowners who are buffeted by the 
Carlsbad office.
    For the past ten years I have practiced in the area of 
endangered species law in California, Nevada, and Hawaii. Prior 
to that time, I served for nearly six years in the Reagan 
Administration in a variety of posts, including Assistant 
Counsel in the White House; Deputy Director and General Counsel 
of the National Office of Personnel Management; and General 
Counsel of the National Endowment for the Humanities.
    I have served as a member of the Administrative Conference 
of the United States, and I teach at Chapman Law School in the 
area of constitutional law and Federal administrative law.
    I reference this experience to assure the Committee that I 
am not inexperienced in the operation of Federal agencies and 
the requirements of Federal administrative law. In fact, my 
frustration with the Carlsbad office of the U.S. Fish and 
Wildlife Service grows out of my understanding of the Federal 
Administrative Procedures Act and my belief that Federal 
agencies are obliged to always act in accord with its 
guarantees of openness and procedural fair play.
    I appear today to urge the Committee to press ahead with 
its request on the General Accounting Office to understand a 
systematic and thorough review of the services of the Carlsbad 
office. If GAO undertakes the audit that you have requested, I 
believe that the record it compiles will prompt the Congress to 
address systemic problems in the administration of the 
Endangered Species Act.
    I would specifically urge you to ask the GAO to consider 
four things, among many.
    First, the refusal of the Carlsbad office to conduct 
Section 7 consultation in accord with the ESA regulations 
promulgated pursuant to the ESA. The Carlsbad office routinely 
refuses to initiate Section 7 consultation citing incomplete 
information. This novel interpretation of law allows the 
service to deny landowners rapid consideration of the merits of 
their proposed land uses, while at the same time placing them 
in a legal limbo that courts will be hesitant to review due to 
the doctrine of the failure to exhaust administrative remedies.
    Second, the promulgation of species, survey guidelines, and 
protocols without any notice and comment rulemaking. The most 
recent example of such illegal, and it is illegal, rulemaking 
is the promulgation of the Quino checkerspot butterfly survey 
protocols.
    Number three, the increasing tendency of the Carlsbad 
office to require biologists surveying for listed species in 
noninvasive ways, that is, naturally harming, harassing, or 
touching the species, first obtain a Section 10(a)(1) permit 
from the Carlsbad office. These permits are written so as to 
require that all survey data generated on private property be 
turned over to the service, and they are also written so as to 
enable the Carlsbad office to revoke or not renew the permits 
of biologists without appropriate judicial safeguards or checks 
upon this power. It is the equivalent of an administrative star 
chamber, for those of you who are familiar with legal history.
    Finally, and just for emphasis purposes--this list could go 
on for quite some time--the refusal to process Section 10(a) 
permit applications in a timely fashion. Lockheed Martin 
Corporation, for example, a client of mine, filed such an 
application on May 8th, 1996. More than three years later, the 
service has taken no action on this permit application. It has 
not responded to repeated phone calls and letters requesting 
that it simply process it to a finality even if that were to be 
denial. That would perfect our administrative record.
    Now, we all know congressional hearings are useful in 
generating interest. I have spent some uncomfortable hours in 
front of you in various capacities when I was in the Federal 
Government. Congressman Sikorsky looms in my mind from the old 
days, but genuine reform requires painstaking work of data 
collection, review, and analysis.
    I can recall quite clearly the seriousness and the 
efficiency with which the GAO went about its work at OPM when I 
was its Deputy Director. I can only hope that the Congress will 
consider the Southern California region of the service as 
sufficiently important to warrant the allocation of major GAO 
resources here.
    As Samuel Johnson said, it concentrates the mind 
wonderfully when the prospect of hanging is in front of you.
    I have some additional materials to submit for your review, 
and I have provided copies to the Committee. I am providing 
only one specific file, one that my colleague Andrew Hartzell 
has been handling for a number of years, but that is very 
illustrative of the many, many, and I underscore ``many,'' 
horror stories concerning operation of the Carlsbad office.
    We believe that it is vital that the GAO be allowed to 
investigate carefully such accounts. This one concerns Lauren 
Development. The details will shock you.
    There are many other similar stories. I compliment you for 
your interest, and I thank you for your time.
    [The prepared statement of Mr. Hewitt follows:]

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    [Applause.]
    Mr. Pombo. Thank you.
    Mr. Spear.

    STATEMENT OF MICHAEL SPEAR, MANAGER, CALIFORNIA/NEVADA 
 OPERATIONS OFFICE, FISH AND WILDLIFE SERVICE, ACCOMPANIED BY 
  KEN BERG, FIELD SUPERVISOR, AND SEAN SKAGGS, COUNSEL TO THE 
                      ASSISTANT SECRETARY

    Mr. Spear. Mr. Chairman, members of the Committee, I 
appreciate this opportunity to discuss how the Fish and 
Wildlife Service implements the Endangered Species Act across 
the country and specifically in Southern California.
    I am joined by Sean Skaggs, Special Counsel to Secretary 
Don Berry, and Ken Berg, supervisor of the Carlsbad office.
    Let me first reiterate the major point Director Jamie Clark 
stated at the May 26th hearing in Washington on this issue. The 
service is working aggressively to improve the efficiency and 
effectiveness of ESA. The bold reforms we instituted in recent 
years can serve the species and provide flexibility and 
certainty to business and private landowners.
    The service is committed to streamlining and improving the 
consultation and habitat conservation planning components of 
the Federal endangered species program throughout the country. 
We are working with many partners to develop recovery plans for 
listed species.
    In addition, we have instituted 256 incidental take permits 
to habitat conservation plans and more than 200 HCPs are in 
some stage of development. Of these, 55 HCPs are in California 
ranging from San Diego, MSCP in Southern California to Pacific 
Lumber or Headwaters HCP in Northern California.
    Just as we are providing certainty for species and 
landowners, we are also insuring that development does not stop 
because of endangered species. The U.S. economy has never been 
stronger, and this is particularly true in Southern California. 
The American public has demonstrated they want to preserve our 
natural heritage while allowing economic development to 
continue. We are achieving that goal through the ESA.
    To continue making progress in implementation of the ESA, 
an increase in funding for an endangered species program is 
necessary. As of June 30th, 1999, there are 1,186 domestic 
species on the list of endangered and threatened species. This 
represents a 30 percent increase in just five years.
    For California, the listed species numbers have doubled in 
five years. Consultations, HCPs, recovery work loads increased 
tremendously as a result of these new listings, and that is 
specifically true in California.
    The service anticipates that approximately 500 HCPs will be 
in some stage of development or implementation by fiscal year 
2000. More than 40,000 Federal projects will be reviewed under 
Section 7 in fiscal year 2000.
    The service's capability to meet the demand is critical to 
completing reviews in a timely manner.
    The President's fiscal 2000 budget request for endangered 
species is essential to allow the service to provide greater 
technical assistance to private landowners and to expedite 
consultation and permitting actions throughout the nation.
    In California, the need for more resources to provide a 
timely response to landowners is great. One of the biggest 
complaints we hear from constituents, and we have heard it this 
morning, when we serve is that the time it takes to get an 
approved permit is too long. Time is money for applicants.
    We appreciate their needs and try our best to fulfill the 
growing demand for technical assistance, permit approval, and 
information. However, without increased funding in California 
and across the country, people will continue to be frustrated 
by our inability to respond quickly to their needs.
    I urge Congress to adopt the President's budget request for 
endangered species for fiscal 2000. The House and Senate 
Appropriations Committees last week passed Fish and Wildlife 
Service's budget and included some increase for endangered 
species program above 1999 levels, but did not provide the 
increases we requested in the President's budget to fully 
address increased work load demands and the land acquisition 
needs that are essential for HCPs.
    In our May 26th testimony, Director Clark gave a detailed 
explanation of how the service implements sections 7 and 10 of 
the ESA throughout the country. I would like to refer you to my 
written statement for a summary of these remarks and examples 
from around the country of how we are implementing the law.
    I would like to focus the remainder of my time on the 
Committee's concerns about California. As of June 30th, 1999, 
California is currently home to 260 listed, 18 proposed, and 11 
candidate species, many of which are narrow endemics restricted 
to small remnants of their former range.
    The needs of the rapidly expanding human population in 
California created many resource conflicts. These conflicts are 
magnified by the booming economy and resulting development 
pressures.
    The service does not believe that conservation of imperiled 
species and a healthy economy are mutually exclusive. However, 
the successful meshing of these two objectives will require the 
service to continue working with the business community to 
develop solutions.
    Our hard working service staff in California, particularly 
Carlsbad, works also closely with the California Fish and Game 
to provide one stop shopping to the extent possible.
    The nature and extent of resource conflict in California 
challenge our ability to make the ESA work. It is especially 
difficult in offices like Carlsbad where we do not have the 
staff to meet the demands. There are many entities seeking 
immediate assistance in project planning related to listed 
species, wetlands, and other resource issues.
    The demands for information and assistance in Carlsbad are 
high and likely to increase. We believe that in Carlsbad, as 
well as in the rest of California, the only hope is for county-
wide type landscape level multiple species plans. Working with 
local land use authorities, we can do the most for species 
while local entities deal with project by project development 
under a multiple species framework.
    In addition to this, the Carlsbad staff is responsible for 
overseeing the implementation of 20 already approved HCPs 
covering 1.4 billion acres. In other words, our work has not 
stopped just in signing that habitat conservation plan. This 
involves dedicated staff working with local jurisdictions to 
insure timely implementation.
    Despite this challenging task, we administer the ESA to the 
best of our ability, focusing conservation of the species, but 
providing for development.
    The Director and I have spoken many times about the 
concerns raised by the Committee that we in California 
administer the ESA differently than other parts of the country. 
We have provided testimony and answered questions about this 
issue many times in the past and will continue to work with the 
Committee to clarify and address your concerns.
    I want to reiterate what the Director testified to on May 
26th. The service is intent on administering ESA fairly and 
consistently throughout the country. Different needs dictate 
different solutions. However, we have a nationwide program, and 
we intend to implement it in that fashion.
    Mr. Chairman, that concludes my prepared testimony. I will 
be pleased to respond to any questions.
    [The prepared statement of Mr. Spear follows:]

     Statement of Mike Spear, Manager of the California and Nevada 
 Operations Office, U.S. Fish and Wildlife Service, Department of the 
                                Interior

    Mr. Chairman and members of the Committee, I appreciate 
this opportunity to discuss how the U.S. Fish and Wildlife 
Service implements the Endangered Species Act (ESA) across the 
country and to address the Committee's concerns that we 
implement the law differently in California than in other parts 
of the country.

Introduction

    Let me first reiterate the major points Director Jamie 
Clark stated at the May 26 hearing in Washington, DC on this 
issue. The Service is working aggressively to improve the 
efficiency and effectiveness of the ESA. The bold reforms we 
instituted in recent years conserve species and provide 
flexibility and certainty to businesses and private landowners. 
The Service is committed to streamlining and improving the 
consultation and permitting components of the Federal 
endangered species program throughout the country. We are 
working harder than ever to achieve species conservation and 
recovery. We are also improving our efforts to promote and 
achieve cooperation, rather than confrontation, when working 
with the many entities that have a vital role in species 
recovery.
    Over the past 7 years, we have developed partnerships with 
the States, tribal governments, local communities and 
individual landowners to provide flexibility and certainty in 
the way we administer the ESA. Our reforms are paying off. We 
are working with many partners to develop recovery plans for 
listed species. In addition, we have issued 256 incidental take 
permits through 246 Habitat Conservation Plans (HCPs) and more 
than 200 HCPs are in some stage of development. Of these, 55 
HCPs (65 permits) are in California ranging from the San Diego 
MSCP in southern California to the Pacific Lumber HCP in 
northern California. HCPs are a tool under the law to provide 
certainty to landowners while managing species conservation for 
the long term. We provided a list of all the approved HCPs to 
the Committee when Director Clark testified on May 26.
    Just as we are providing certainty for species and 
landowners, we are also ensuring that development does not stop 
because of endangered species. The U.S. 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 natural heritage 
while allowing economic development to continue. We are 
achieving that goal through the ESA.
FY 2000 Budget Request

    To continue making progress on implementation of the ESA, 
an increase in funding for our endangered species program is 
necessary. As of June 30, 1999, there are 1,186 domestic 
species on the List of Endangered and Threatened Species; this 
represents a 30 percent increase in just 5 years. 
Consultations, HCPs and recovery workloads have increased 
tremendously at the same time that the Administration has been 
working to streamline and expedite the consultation and HCP 
processes. The Service anticipates that approximately 500 HCPs 
will be in some stage of development or implementation by 
fiscal year 2000. More than 40,500 Federal projects will be 
reviewed in fiscal year 2000. The Service's capability to meet 
the demand is critical to completing reviews in a timely 
manner. Furthermore, the interest among private landowners in 
two new conservation tools, Safe Harbor Agreements and 
Candidate Conservation Agreements with Assurances, is already 
great and is expected to grow. The demand for these new types 
of voluntary conservation agreements and the tremendous growth 
in the number of HCPs has combined to generate a significant 
increase in workload pressures.
    While trying to deliver all of the Administration's reforms 
and to respond to this increased workload, the Endangered 
Species Program's budget experienced a decrease in fiscal year 
1996 and only modest increases in fiscal years 1997, 1998 and 
1999. The Administration recognizes that increased funding 
support is essential to continue our successful record of 
reform. The President's fiscal year 2000 budget request for 
endangered species is essential to allow the Service to provide 
greater technical assistance to private landowners and to 
expedite consultation and permitting actions throughout the 
nation.
    In California, the need for more resources to provide a 
timely response to individual landowners is great. One of the 
biggest complaints we hear from the constituents whom we serve 
is that the time it takes to get an approved permit from us is 
too long. Time is money for many applicants. We appreciate 
their needs and try our best to fulfill the growing demand for 
technical assistance, permit approval and information. However, 
without increased funding in California and across the country, 
people will continue to be frustrated by our inability to 
respond quickly to their needs. At the May 26 hearing, a common 
theme from a number of the witnesses who testified was the need 
for the Service to have more money to provide better service.
    I urge the Committee to address the needs of your 
constituents and urge Congress to adopt the President's budget 
request for the Endangered Species program for fiscal year 
2000. The House and Senate Appropriations Committees last week 
passed the Fish and Wildlife Service's budget and included 
general increases for the Endangered Species program above 1999 
levels but did not provide the increases we requested in the 
President's budget to fully address increased workload demands.
    In her May 26 testimony, Director Clark gave a detailed 
explanation of how the Service implements Section 7 and 10 of 
the ESA throughout the country. Let me summarize her remarks 
and provide examples.

Section 10

    Section 10(a)(2)(A) of the ESA requires an applicant for an 
incidental take permit to submit a Habitat Conservation Plan 
(HCP) that specifies, among other things, the impacts that are 
likely to result from the project and the measures the permit 
applicant will undertake to minimize and mitigate such impacts. 
One of the statutory requirements for obtaining an incidental 
take permit is that applicants minimize and mitigate the 
effects of their actions to the maximum extent practicable. 
Section 10(a)(1)(B) of the ESA outlines the other criteria and 
process for issuance of incidental take permits to non-Federal 
parties.
    Minimization and mitigation requirements can take many 
forms depending on the habitat needs and 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, and because we try to be flexible in meeting the needs 
of applicants, we don't use a cookie cutter approach in 
developing HCPs. The law does not specify HCP minimization or 
mitigation standards but gives the Service the flexibility to 
work with applicants to develop the best plan appropriate to 
the project. Minimization and mitigation can include 
restoration and creation of habitat, preservation of habitat, 
research, and/or public education programs.
    For example, part of the mitigation associated with the 
Washington County, Utah HCP includes fees to acquire and manage 
land and implement an education program regarding desert 
tortoise conservation. The Service uses the best scientific 
information available during the development, review, and 
monitoring of HCPs and ensures that the minimization and 
mitigation strategies of a plan are as effective as possible. 
This is reflected in the Service's new 5-point policy proposal 
for HCPs that improves the process even further. Our purpose is 
to help the applicants comply with the law and conserve listed 
species while allowing development to occur. We've done that 
successfully throughout the country.
    There are a number of tools or strategies that landowners 
may use to minimize and mitigate the impacts of their actions. 
In the southeast, International Paper is establishing a 
mitigation bank as part of their red-cockaded woodpecker HCP. 
International Paper will actively manage approximately 5,300 
acres of habitat for the red-cockaded woodpecker and has 
established a target population of 25-30 red-cockaded 
woodpecker family clusters. If the number of family clusters 
exceeds the number necessary for implementation of the HCP, 
International Paper will use those family clusters to support a 
private mitigation bank.
    Individual HCPs for the Florida scrub jay in Brevard 
County, Florida typically contribute to a larger preserve 
strategy and a management endowment based on the scope of the 
proposed project area. By providing applicants with this type 
of option of contributing to a large preserve strategy, the 
effort into developing and implementing their HCP is greatly 
simplified, without on-going responsibility for habitat 
maintenance.
    The Service provides assistance and support to applicants 
who are seeking an incidental take permit under the ESA. In 
many instances, the Service helps the applicant identify the 
actions that the applicant needs to undertake to reduce or 
offset adverse effects of a proposed activity on the species 
covered by the HCP. The Service encourages applicants to 
discuss their applications at the earliest time possible, so 
that we can help them design an HCP that will meet the permit 
issuance criteria and advise them on the permitting process. 
However, regardless of the extent to which an application 
incorporates Service input, if the application meets the 
issuance criteria, we will issue a permit.

Section 7

    Section 7(a)(2) requires Federal agencies to consult with 
the Service to ensure proposed Federal activities are not 
likely to jeopardize the continued existence of listed species 
or result in destruction or adverse modification of critical 
habitat. The Service encourages Federal action agencies to work 
with us early in the project development phase to ensure that 
discussions about the potential impacts of a Federal project or 
permit on listed species are addressed. In this way, we are 
able to identify potential problems and solutions without 
delaying projects unnecessarily. The action agency is 
responsible for determining the effects of a proposed action. 
If they determine that the action is not likely to adversely 
affect threatened and endangered species and the Service 
concurs in that determination, the section 7 obligation is 
fulfilled. In fact, during fiscal year 1998, 97.2 percent of 
the consultations across the country were completed at the 
informal stage (i.e., the proposed project was determined to 
have no effect or not likely to adversely affect).
    When a proposed project is likely to adversely affect 
listed species or critical habitat, the Service and an action 
agency enter formal consultation. During formal consultation, 
the action agency and the Service may work together to identify 
what steps may be incorporated into a proposed project or into 
the biological opinion to minimize effects on listed species or 
critical habitat. These steps are often minor adaptations to 
the project that the action agency and the applicant are 
willing to undertake in order to reduce the harmful effects, 
and in some cases provide benefits, to listed species. Action 
agencies and applicants often refer to these modifications as 
``mitigation.'' This is especially true when agencies and 
applicants are also complying with other statutes, such as the 
Clean Water Act and the National Environmental Policy Act, 
where mitigation is a key requirement. In this context, the 
term ``mitigation'' is broadly applied to include avoidance and 
minimization of adverse effects to listed species or critical 
habitat. Unfortunately, this has led to confusion over the 
difference between minimization and mitigation under section 7 
of the ESA.
    Mr. Chairman, let me clarify for the Committee that when 
working through the formal consultation process with the action 
agency and the applicant it may appear that the project will 
jeopardize a listed species early in the talks. When this 
occurs, we work with the action agency and applicant to 
identify changes to the proposed project that would avoid 
jeopardy. Alternatively, the action agency or applicant may 
develop their own measures to avoid jeopardy. If these or other 
appropriate changes are incorporated into the project, we then 
issue a non-jeopardy opinion. In most cases this process works 
well and is the best approach to ensure that the project 
proceeds in a timely manner and without significant adverse 
effects on the species. For example, the Prairie Du Chien 
consultation in Region 3 analyzed the proposed maintenance and 
on-going operation of the east channel of the Mississippi River 
(a side channel used for commercial barge traffic). Due to 
those impacts, we determined that the indirect effect of 
commercial barge-traffic would result in jeopardy. The Army 
Corps of Engineers and their applicant were involved with 
developing project changes, and as a result, the project was 
modified such that jeopardy was avoided. The Army Corps of 
Engineers and applicant were supportive of the results.
    When preparing a biological opinion, the Service is 
required by the ESA and its implementing regulations to include 
an incidental take statement that specifies reasonable and 
prudent measures and implementing terms and conditions to 
minimize the impacts of incidental take. Our Interagency 
Consultation Handbook clarifies that reasonable and prudent 
measures and implementing terms and conditions must minimize 
effects to the specific individuals that we anticipate will be 
incidentally taken and must not involve mitigation for the 
impacts of any anticipated take. The Service is committed to 
ensuring that we follow the policy direction in our handbook.

Demands in California

    Already the most populous state with over 36 million 
residents, or one out of every eight people in the United 
States, California continues to grow at an unprecedented rate. 
Reasonable estimates expect an additional 18 million residents 
by 2025. Much of the growth is expected to occur in southern 
California, which now has five of the six most populous 
counties in the nation, four of which are also the fastest 
growing. As one of the most ecologically diverse areas in the 
country, California is also home to a high number of unique 
species. Twenty percent of all federally listed species are 
found in California, more than any other state except Hawaii. 
Conserving California's natural resources, while accommodating 
the projected population growth, will require planning and 
cooperation.
    As of June 30, 1999, California is currently home to 260 
listed, 18 proposed, and 11 candidate species, many of which 
are narrow endemics restricted to small remnants of their 
former range. The needs of the rapidly expanding human 
population in California have created many resource conflicts. 
These conflicts are magnified by the booming economy and 
resulting development pressures. The Service does not believe 
that conservation of imperiled species and a healthy economy 
are mutually exclusive. However, the successful meshing of 
these two objectives will require the Service to continue 
working with the business community to develop creative 
solutions. Our hardworking Service staff in California work 
closely with California Fish and Game to expedite the 
permitting process to the extent possible and have approved an 
assortment of conservation programs and banking agreements that 
ensure conservation of listed species while allowing 
development projects to proceed.
    The nature and extent of resource conflicts in California 
challenge the Service's ability to make the ESA work. This 
challenge is especially difficult in offices like Carlsbad 
where we do not have the staff to address the demands from the 
many entities seeking immediate assistance in project planning 
related to listed species, wetlands and other resource issues. 
The demands for information and assistance in the Carlsbad 
office are high and continue to increase. For example, in 1998, 
the Carlsbad office worked on 57 formal consultations; provided 
205 informal consultations/technical assistance responses; 
prepared documents for the listing of 7 species (6 plants and 1 
mammal); issued 3 incidental take permits; finalized 6 
candidate conservation agreements; and prepared draft recovery 
plans for southern maritime chaparral species, peninsular 
bighorn sheep, carbonate endemic plants, Stephen's kangaroo 
rat, and alluvial fan scrub species. In addition, Carlsbad 
staff are responsible for overseeing the implementation of 20 
approved HCPs covering 1,367,946 acres. This involves 
dedicating staff to work with local jurisdictions to ensure 
timely implementation of the HCP. Despite this challenging 
task, we administer the ESA to the best of our ability, 
focusing on conservation of species but providing for 
development to go forward.
    The Director and I have spoken many times about the 
concerns raised by the Committee that we in California 
administer the ESA differently than in other parts of the 
country. We have provided testimony and answered questions 
about this issue many times in the past and will continue to 
work with the Committee to clarify and address your concerns. I 
want to reiterate what the Director testified to at the May 26 
hearing; the Service is intent on administering the ESA fairly 
and consistently throughout the country. Different needs 
dictate different solutions; however, we have nationwide ESA 
implementation policies and we intend to implement them fairly 
nationwide.
    We regret that we may have inadvertently and 
inappropriately confused members of the Committee or the public 
by using terms like ``mitigation'' in the context of ESA when 
we should have used the narrower definition of minimization 
which is required under Section 7 of the law. Again, this 
confusion may be the result of the Service working closely with 
the State of California and other Federal agencies to provide a 
streamlined process for applicants to receive Federal and State 
permits where other Federal and State laws requiring different 
standards and actions apply. These various Federal laws, such 
as the Clean Water Act and the National Environmental Policy 
Act (NEPA), often use the word ``mitigation'' and involve 
review and coordination from the Service. We appreciate that 
addressing the various requirements of the Clean Water Act, 
NEPA, and ESA can be complicated and be a source of 
misunderstanding between applicants and the Service. For 
example, wetland mitigation under section 404 of the Clean 
Water Act may also provide conservation benefits for listed 
species that occupy wetlands. Regardless of the reasons for our 
use of the wrong term, let me assure the Committee that we will 
redouble our efforts to be more accurate in our use of the 
correct terminology and to ensure that we do our part to 
provide the fair and consistent implementation of the ESA that 
the Director has promised.
    In closing, Mr. Chairman, the Service is making great 
efforts, with limited resources, to ensure that implementation 
of the ESA is scientifically sound, flexibly applied, and 
consistently enforced throughout the country. The Service, 
under this Administration, has endeavored to fairly protect 
landowners' interests in their land, while providing incentives 
to manage their lands in ways that benefit endangered species. 
The Service is fully committed to finding this balance between 
economic development and endangered species protection. Finding 
that balance requires early, open discussions between all 
parties involved in order to mesh the two needs, either through 
section 7 or section 10. I am confident that with full 
implementation of the Administration's reforms, the Endangered 
Species Act will continue to protect the most vulnerable 
biological resources of the Nation without imposing undue 
burdens on individual citizens.
    Mr. Chairman, this concludes my prepared testimony. I would 
be pleased to respond to any questions you might have.

    Mr. Pombo. Thank you.
    Mr. Calvert.
    Mr. Calvert. Thank you, Mr. Chairman.
    Mr. Spear, we have heard from a lot of witnesses today, and 
we are going to hear from a few more, and I think you can tell 
from the diverse nature of these folks, public agencies, school 
boards, developers, elected officials, it seems they all have a 
problem with the Carlsbad office.
    Do you believe there is a problem there? Do you think there 
is a pervasive problem with the policies and practices of that 
office?
    Mr. Spear. No, I do not believe there is a pervasive 
problem with the policies and practice of the office.
    Mr. Calvert. So it would be your opinion that the witnesses 
that are here today, both public and private, and the scores of 
others who are not here, are just exceptions to the rule?
    Mr. Spear. No, I think they have raised concerns that I 
think we must be attentive to, but what I am saying is that it 
does not represent some sort of pervasive problem. The Carlsbad 
office works hard to deal with the issues with the resources it 
has, and there is no doubt that within all it is difficult to 
administer the Endangered Species Act, that it affects private 
property; that these kinds of issues are going to surface. 
There is going to be disagreements over science. There are 
differences over terms of process.
    Mr. Calvert. Just regaining my time, let's talk about 
science. If you notice in the panel we have here today, we do 
not have any biologists. We could not get one biologist to 
agree to testify today. We asked a number of biologists. I do 
not know. The Chairman may have a number in mind, seven, eight, 
nine. I don't know. A number which would have liked to testify. 
They claimed that they had a fear of retaliation as one of the 
main reasons why they would not testify at today's hearing.
    Do you think there is a retaliation problem in the Carlsbad 
office?
    Mr. Spear. Absolutely not, and frankly----
    [Laughter.]
    Mr. Spear. [continuing] one of the comments that concerns 
me the most, and I, frankly, welcome the Committee in their 
comment this morning that said they would continue to be 
observant in this fashion, and so will I, and if it is ever 
detected, it will be dealt with.
    Mr. Calvert. And I am an old employer, in business most of 
my life. I like to think any phone call I get I return it the 
same day. It is just something my father taught me when I was 
in business. If I did not do it, he would probably fire me, 
even though he is my own father, and I would like to think that 
with my own employees. You know, if somebody calls, you return 
the phone call, even if you are going to get back to them the 
next day and you do not have a lot of time, but you return the 
phone call.
    And you treat people courteously, especially if we are a 
Federal agency. This is something that really bothers me. If 
that is a problem in that office, that ought to get fixed 
because when I heard that from one of the witnesses today, and 
I have heard that before, Mr. Spear, so I think you ought to 
look into that and make sure that the taxpayers and 
constituents of all of us are not being treated unfairly or 
without all due courtesy.
    Mr. Spear. That is a very fair comment, Mr. Calvert, and I 
am guilty of that I know at times, and I take that as very 
appropriate and something we will work on.
    Mr. Calvert. Now, you heard the testimony of the previous 
witness here today, Ms. Rosen, about the school site there in 
Murrieta, and Murrieta is a city that I represent, and 
obviously I am very concerned about Murrieta, about 250 acres 
of land. They get a biologist. They say 70, 80 acres is 
habitat, and Fish and Wildlife wants the entire 250 acres of 
property. Do you think that is reasonable?
    Mr. Spear. I do not think it is reasonable, and I do not 
think that is what we said. I got a briefing on this yesterday. 
There is no doubt that this school site is in an area which is 
an important, as far as a corridor, but I----
    Mr. Calvert. Okay. Are you saying--Ms. Rosen is here today, 
made a comment, and I asked her. She made her testimony, and I 
asked the question again. Is 250 acres required? And she said 
yes. Are you saying that Ms. Rosen is not being truthful to 
this Committee?
    Mr. Spear. I do not understand exactly what happened or the 
context.
    Mr. Calvert. I would say at the very least we have a 
communication problem here.
    Mr. Spear. I would say that is true. This is under 
negotiation now. My people were telling me yesterday how they 
are trying to work out. Clearly, the original plan that was 
presented was one that our people thought contained too much 
development on that site, but it is not my impression now from 
discussions I had yesterday that our people are seeking the 
whole 250 acres.
    Mr. Calvert. Well, how much do you want? Do you want 200 
acres?
    Mr. Spear. I do not know the exact number. They are trying 
to work out so we can have the school site. I am not here to 
have that level of detail to know exactly what that number is. 
I mean, my staff is dedicated----
    Mr. Calvert. Just between you and I----
    [Laughter.]
    Mr. Calvert. [continuing] do you think 200 acres is 
unreasonable?
    Mr. Spear. I do not think this is a good place to negotiate 
numbers.
    [Laughter.]
    Mr. Calvert. Thank you, Mr. Chairman.
    Mr. Pombo. Ms. Chenoweth.
    Mrs. Chenoweth. Thank you.
    Mr. Spear, by law Fish and Wildlife Service has 90 days to 
respond to petitions to list or de-list a species; isn't that 
correct?
    Mr. Spear. Yes, it is.
    Mrs. Chenoweth. Well, Riverside County Farm Bureau filed a 
petition to de-list the kangaroo rat in 1995. They received 
absolutely no response on that, and you are sitting here 
telling this body of Congressmen there is no problem, and this 
is just one example.
    What do you have to say for yourself?
    Mr. Spear. We have a listing priority guidance which we 
follow.
    Mrs. Chenoweth. I thought the law said 90 days.
    Mr. Spear. Well, we have established the listed priority 
guidance.
    Mrs. Chenoweth. So your listing priority guidance overrules 
the law?
    Mr. Spear. I will let the people in Washington who deal 
with the regulatory process determine exactly how that worked 
out, but there is a listing priority guidance that we have 
established through the regulatory process that sets the 
standards. We work with the courts as to how when we have 
limited funds we will work through the listing process.
    Mrs. Chenoweth. Limited funds? Comes on now. I mean, there 
is a major disconnect here, Mr. Spear, and you have heard 
startling testimony just as we have. I came into this hearing 
feeling fairly sanguine that this would be like any other of 
the number of hearings Mr. Pombo has held on the Endangered 
Species Act.
    As I sat here and listened to the testimony, I became 
utterly frustrated and shocked at what I am hearing. You heard 
the same thing.
    [Applause.]
    Mrs. Chenoweth. Do not give this body an answer that you 
need more money. What about the 43 biologists, some of whom may 
be having bumper stickers on their cars that say, ``Developers 
Can Go to Hell''? What do you have to say about that kind of 
activity on government property? Mr. Spear?
    Mr. Spear. I do not know that the allegation indicated that 
that was on a government vehicle, but----
    Mrs. Chenoweth. Then you did not hear Congressman Hunter 
then.
    Mr. Spear. I did not hear him say it was on a government 
vehicle. I do not.
    Mr. Hunter. Would the gentle lady yield?
    Mrs. Chenoweth. Yes, I will yield.
    Mr. Hunter. The photo that was taken of that bumper strip, 
that was on one of the government employees who works in the 
Carlsbad office on their car that they drive to work. So my 
point was if you are a veteran and you are going into the 
Veterans' Administration and you see Joe Smith's car and he is 
going to be your case worker and he has got a bumper strip that 
says ``Veterans Can Go to Hell,'' you probably cannot expect 
great service from that particular individual.
    And so if the gentle lady would yield, do you think that is 
a proper attitude for a government employee whose job is to 
process these permits?
    Mr. Spear. I will answer the question. I just wanted to 
clarify that I did not think that was on a government vehicle, 
but----
    Mr. Hunter. No, it was on a private car of a government 
worker.
    Mr. Spear. I will get to the specific question and answer 
your question. No, I do not think it is proper in terms of the 
image it sends and for exactly the reasons you have outlined.
    I am not sure what I can do about it other than pass on to 
the fact that it is inappropriate because of people's, you 
know, private rights.
    Mr. Hunter. Well, we did not offer it for the purpose of 
getting rid of the bumper strip. They took it off when they saw 
that somebody had photographed it and was taking a record of 
it.
    The point is the attitude that it represents is something 
that I think, Mr. Spear, you do not acknowledge exists, and you 
might look a little deeper.
    Mr. Spear. I think it is improper, and I will--I agree with 
you on that.
    Mrs. Chenoweth. Reclaiming my time, Mr. Spear, you asked us 
for more dollars, but let me say it does not take more dollars 
to return a telephone call, and I think you have a major mess 
on your hands in this Carlsbad office. It is peopled by 
people----
    [Applause.]
    Mrs. Chenoweth. [continuing] like the 43 biologists who 
have no respect for not only the rule of law, but the people 
that they are entrusted to work with, no respect, no common 
sense, and what we are seeing come out of this office is 
chaotic.
    I do want to say, Mr. Chairman, if I might just ask for a 
couple of minutes, unanimous consent for an additional two 
minutes.
    Mr. Pombo. Without objection, the gentle lady requests two 
additional minutes.
    Mrs. Chenoweth. In some correspondence from Jamie Clark, 
April 10th, 1998, out of concern that we have had all along for 
the mitigation that the Fish and Wildlife Service has been 
involved in, that letter from your Director states, ``While it 
has been the policy of the Service that it is not appropriate 
to require mitigation to offset incidental take, it was not 
explicitly stated in the 1994 Section 7 consultation handbook. 
Because the Service is aware that there occasionally has been 
an inconsistent application of this policy, it clarified the 
policy in its recently approved endangered species consultant 
handbook. The Service's new handbook clearly states that it is 
not appropriate to require mitigation for the impacts of 
incidental take.''
    And incidental take takes many forms, setting aside lands 
or restricting activities, and so forth, but also in a Supreme 
Court decision that came out of Oregon, Dolen v. Tiger, the 
Supreme Court held that governmental authority to exact such a 
condition as taking from developers was circumscribed by the 
Fifth and 14th Amendment.
    Under the well settled doctrine of unconstitutional 
conditions the government may not require a person to give up a 
constitutional right, here the right to receive just 
compensation when property is taken for a public use in 
exchange for a discretionary benefit conferred by the 
government, where the property sought has little or no 
relationship in its benefit.
    And now we have moved from 1998 to 1999, where in this 
office alone, they are imposing 31 regional HCPs, and one of 
the reasons that they are imposing the HCPs is to serve as a 
mechanism to address over arching social concerns, such as 
urban sprawl, transportation congestion, and open space 
planning, while enabling jurisdictions to keep their ESA 
obligations.
    It seems to me that this agency has suddenly taken upon 
itself to become the nation's land use planners, and this 
authority was never conferred on this agency by Congress.
    Yes, there is a major disconnect, and my major concern is 
that in spite of what the Constitution says, in spite of what 
even your handbook says, your agency continues to impact good, 
sound development with unreasonable requirements and requiring 
them to give up land in exchange, in mitigation.
    Henry Hyde said in his closing debate in the impeachment 
debate on the floor of the House that when we disregard the 
rule of law, it is a national tragedy, and it is up to us to 
catch that falling flag in time before we have utter tyranny 
and chaos.
    And, Mr. Spear, these agencies are running this country 
without a rule of law, and we are going to be running in to 
tyranny and chaos, and I do not think you want to end your long 
and distinguished career with that kind of legacy.
    We would ask that you get connected to what is happening in 
your Carlsbad office and make the necessary corrections in 
spite of what may be the politically correct thing of the day. 
The Fish and Wildlife Service and the relationship of agencies 
to the people need to go on in a manner that is productive and 
not destructive.
    Thank you.
    [Applause.]
    Mr. Pombo. Mr. Miller.
    Mr. Miller. No questions.
    Mr. Pombo. Mr. Hunter.
    Mr. Hunter. Thank you, Mr. Chairman.
    Mr. Spear, thank you for being with us, and I think it is 
good that you are appearing on the panel with some of our folks 
that have had some of the problems because it allows for a real 
connection.
    First, when we last had a meeting in Washington, DC, you 
told me that this butterfly breeding season for the Quino 
checkerspot butterfly would serve as a model for that 
particular survey protocol. Has that direction been given to 
the local folks?
    Mr. Spear. I am not sure I quite understand the question.
    Mr. Hunter. Well, remember you explained to you and you 
said there was concern in the field that at that time there had 
not been enough rain up by the March or April time, for this to 
serve as a model for the breeding season for the checkerspot 
butterfly, but that your determination was that it was.
    In fact, we had had some rain recently when we were meeting 
here, and that was that this would be the model. They would not 
have to wait for another year before they could do a survey.
    Mr. Spear. When we spoke back then, it was at the beginning 
of the season. The question back then was not whether or not it 
was going to be the only year, but whether or not you would 
count this year, and, yes, we did.
    Mr. Hunter. Yes.
    Mr. Spear. We were able to get a year in this year. We did 
have the appropriate seasonal conditions and were able to do 
the surveys this year, yes.
    Mr. Hunter. Okay. Let me ask you a couple of questions with 
respect to Mr. Turecek's project because I think it is 
representative.
    The information I have here is that he, and, Bruce, break 
in if I am wrong here, but you have done three separate 
biological surveys now that were required by the Fish and 
Wildlife Service. Do I take it you did those with people who 
were well credentialed and qualified biologists to do the 
surveys?
    Mr. Turecek. All of them permitted biologists.
    Mr. Hunter. How much did you spend on those surveys?
    Mr. Turecek. Up until 1996, the surveying took about 
$50,000 specifically just for the biologists.
    Mr. Hunter. Okay. Now, when you did those surveys, the last 
survey you did was the result of an eight page critique of the 
survey before that by Fish and Wildlife. So they did a critique 
of the survey and said, ``Here are the additional things we 
want you to look at''; is that right?
    Mr. Turecek. Unfortunately they did not do a critique. We 
requested a critique. All they gave was another three page 
complaint letter.
    Mr. Hunter. Okay.
    Mr. Turecek. However, I did have another biology firm that 
went out for approximately another $13,000 to resurvey the 
property. Following that, it required also an additional survey 
for the Quino checkerspot butterfly. That was an additional 
$18,000 on top of all the rest of that.
    Mr. Hunter. Okay. Have they ever found any endangered 
species on that property?
    Mr. Turecek. Never. I do have the butterfly adjacent to the 
property next door, and I do have a food source for the larvae 
on the property that I have dedicated off into open space. We 
planned for that to be an open space from the beginning.
    But as far as endangered species on the property, no.
    Mr. Hunter. Okay. Mr. Spear, I think this is one of our 
problems. Here you have got a landowner. He is a rancher. He 
has got, I presume, a limited amount of capital. He has put out 
a lot of cash, $50,000, to do three surveys, each of which is 
rejected by Fish and Wildlife even though they are done by 
credentialed biologists. They have never found any endangered 
species, and you tell us you need more money.
    Well, they have apparently spent a lot of staff time 
figuring out reasons to reject Mr. Turecek's request, and don't 
you feel that we are not bringing these cases to closure in a 
reasonable way? I mean that would be my instinctive reaction to 
listening to this chronology of surveys.
    And, Mr. Berg, if you can enlighten us, please jump in, 
too. We are not restricting it to Mr. Spear to answer the 
questions, but do you see what we are talking about here?
    Mr. Spear. Mr. Hunter, I think this is a good example we 
need to spend a couple of minutes on because whether or not 
this is a failure of communications as brought out earlier, 
there is a real misunderstanding of exactly what has happened 
so far in this project.
    First of all, there have been no Federal permits applied 
for at this stage. What has happened is the state and Federal 
resource agencies, Fish and Game and Fish and Wildlife Service, 
provided joint comments like we try to do so that we get up 
front a comment about what it is we believe needs to be stated 
in the documents to provide us the information to make the 
decisions. Okay? So that is where we are.
    Nobody has said that this was--let me read something in 
here that talks to something that was brought up by Mr. 
Turecek.
    Mr. Hunter. But first on that point, let's get this 
straight. Mr. Turecek wants to develop his land. So if he is 
doing these things gratuitously and he could just start 
building homes, I am sure he would love to do it.
    Mr. Spear. Oh, he is doing the right thing.
    Mr. Hunter. All right.
    Mr. Spear. But this is--let me just go----
    Mr. Hunter. But let me hold you up here because this is an 
important point. People being able to in an affordable way 
develop their property is an important factor here. You are 
saying he has spent 50 grand so far doing three surveys, and he 
has to do it before he can make the applications. I presume 
this guy is not made out of money, and my instincts are he 
probably will not have the legs or the financial endurance to 
get through this process, and I think part of your job is to 
make this process a reasonable one where average people with 
some money--I mean he has gone out and borrowed 50 grand and 
gotten it from someplace just to start the project--where 
average Americans can get through this process without being 
bankrupted.
    We never intended, we never said in the Endangered Species 
Act we want you to set up a regulatory process that will 
bankrupt the average citizen before he can get through. You 
agree with that. That is not part of the law.
    Mr. Spear. I agree.
    Mr. Hunter. And I think that part of the problem that we 
have here is that we have not made this thing user friendly 
where average folks can get through it. Don't you agree with 
that?
    Mr. Spear. Well, we have to have the information to be able 
to make a determination about the species that are listed.
    Mr. Hunter. But he has made three surveys.
    Mr. Spear. Yes.
    Mr. Hunter. And each one has been rejected.
    Mr. Spear. I do not think that is the case that we have 
rejected them.
    Mr. Hunter. But why has he----
    Mr. Spear. I guess I will let Mr. Berg speak at this stage 
about the details of that. I would like to get back to a couple 
of other points.
    Mr. Hunter. Okay.
    Mr. Berg. My name is Ken Berg. I am the field supervisor 
for the Carlsbad Fish and Wildlife office.
    It is my understanding that Mr. Turecek is applying through 
the county for a development permit that requires that he also 
prepare an environmental impact report under the California 
Environmental Quality Act. Our comments and the comments of the 
California Department of Fish and Game have been provided to 
the county so they can do the environmental disclosure through 
the California Environmental Quality Act.
    One of the issues that needs to be addressed under the 
California Environmental Quality Act is the presence of 
endangered species habitat. So our technical assistance has 
been trying to assist Mr. Turecek and the county in assuring 
that the environmental documentation is adequate to disclose 
the potential environmental effect of his proposed development 
on endangered species.
    And one of the things that is necessary to do a thorough 
job so that Mr. Turecek and the county is not vulnerable to 
citizen lawsuits about failure to comply with the California 
Environmental Quality Act is that he does adequate surveys for 
endangered species to determine whether or not they are 
present.
    Mr. Hunter. Mr. Chairman, I know we are going over our 
time, but this is the only case I am going to want to direct my 
comments to. Could I ask for a couple more minutes here just to 
follow this up and get to the bottom line here?
    Mr. Pombo. Without objection.
    Mr. Hunter. Thank you.
    Mr. Berg, as I understand it, he has got to get a basically 
clean bill of health, if you will, from Fish and Wildlife, and, 
Bruce, jump in if you want to here, in order to get permission 
to build from the state subdivision, which is the county; is 
that right? In other words, he is not doing this for fun. He 
is----
    Mr. Berg. We give advice to the county. The county does not 
have to follow our advice.
    Mr. Hunter. But they do.
    [Laughter.]
    Mr. Hunter. But my point is as a practical thing, he has to 
get a clean bill of health from you guys before the county--the 
counties will put as a condition you have got to pass the 
environmental or Endangered Species Act requirements before 
they are going to give him a permit.
    He is not spending this 50 grand because he wants to. He is 
doing it because he has to, right?
    Mr. Berg. He is doing it because the county is requiring 
that provide----
    Mr. Hunter. I understand.
    Mr. Berg. [continuing] further documents.
    Mr. Pombo. If the gentleman would yield, that is not 
exactly accurate. According to a Supreme Court case, the county 
can be held liable if they do not follow the advice of Fish and 
Wildlife Service. So for you to say that they are not----
    [Applause.]
    Mr. Pombo. And furthermore, if this gentleman has no 
endangered species present on his property, he does not need a 
Section 10 permit. What he needs to do is do the biological 
survey to determine whether or not he has endangered species on 
that. It is your responsibility to review those biological 
assessments, determine whether or not they are adequate. If 
they are adequate, then you give him a clean bill of health and 
say he does not have endangered species on his property, and he 
does not need a Section 10 permit.
    So you cannot use the law and use the county and use 
everything that is put in front of you to delay a project and 
put this gentleman in the position where he spends millions of 
dollars in order to meet your criteria and then stand back and 
put your hands up and tell this Committee that you had nothing 
to do with it.
    [Applause.]
    Mr. Hunter. Well, now, Bruce, where are you right now on 
this thing?
    Mr. Turecek. By the way, I wanted to clarify. The first 
survey was $50,000, and there is at least another $25,000 
beyond that.
    The problem I have is that the letters and the 
communication I get back always uses words ``inadequate,'' and 
never tells me why it is inadequate. If it is inadequate 
because of minimum number of hours or qualifications of my 
biologist, whatever makes it inadequate, my question is I want 
to find out why. I want to get to a completion. They never 
allow me to get to that completion.
    Mr. Hunter. Okay. Now, Mr. Spear, because I want this to be 
a constructive session, and I know you do, too, here is the 
problem. We have got an average citizen of the United States. 
He is not a big corporation which a lot of the environmental 
folks talk about. He is just a guy that has got some land out 
there in his county, and he has got a right to use his land. 
Presumably he has paid taxes on it. He has paid his mortgages. 
He has gone through rough economic times. He has got a piece of 
property in America, and he wants to use it.
    We have a structure that is built up so that he has not 
even gotten into the initial permitting process yet, and he has 
already spent $75,000. So what you are saying is we have built 
a structure that the average person cannot afford. That is not 
right.
    And what is not right, I think there is some fault here, 
Mr. Berg. If you have a system where an average guy cannot walk 
in and say, ``Tell me what I need. Tell me what I need. Sit 
down with me. Show me what I have got to do,'' and you cannot 
show him in a streamlined fashion, and this obviously is not an 
endangered species rich piece of property because you have 
never found a single one out there, but if you cannot show him 
for less than 75 grand what he needs to know, then the system 
is broken.
    If that was your aunt and she had willed this property to 
you or her resources to you and she only had $75,000 in her 
pocket and you walked out and said, ``Aunt, how is my 
inheritance going?'' and she said, ``Mr. Berg, I just gave it 
all to the biologists and yet we are not even a third of the 
way through the reports,'' you would be as mad as heck.
    And so I think, Mr. Spear, we have to develop a system that 
is user friendly for average Americans who own property to go 
down and learn in common language what they have to do and have 
the system a reasonable enough system so that you can get 
through it without having to make multiple reports, especially 
when you do not have the first endangered species found.
    Don't you agree with that?
    Mr. Spear. Mr. Chairman, we----
    [Applause.]
    Mr. Spear. Mr. Hunter, we do need to make it, and we 
certainly owe applicants not only the issue of what is needed 
in a survey, but also when something is provided and we have a 
problem, to be able to explain to him how to fix it. That 
technical assistance function is clearly ours, and we need to 
do it.
    There is a cost to being able to go through the survey 
processes in an endangered species rich area like Southern 
California. There is a cost to get this kind of information. I 
do not want to indicate to you today that we can figure out how 
to eliminate those costs. We need to make them as efficient as 
possible, et cetera, but in the environment we have down here, 
there is a certain amount of information that we need to get, 
and we need to figure out how to help people get that as easy 
as possible.
    Mr. Hunter. Well, I understand. I agree, but in this case, 
we have not found a single one of those species on his 
property. So it is not----
    Mr. Spear. Well, a survey is to determine that.
    Mr. Hunter. Well, Mr. Berg, can we make another stab at 
this Mr. Turecek's operation here? I would like to----
    Mr. Berg. It is my understanding that we had explained to 
him the kind of surveys that would be adequate, but if he--if 
we have not done that adequately, we will get back.
    Mr. Hunter. I would just ask that you engage with my 
constituent and give him the time and the attention so that he 
as an average citizen can learn how to walk through this 
process without bankrupting his family. If you could do that, I 
would appreciate it.
    Thank you, Mr. Chairman.
    Mr. Libeu. Mr. Chairman, may I have just one minute? Just 
one minute.
    Mr. Pombo. I will give you a minute of my time. Go ahead.
    Mr. Libeu. The problem that I have with the way that they 
have responded to my letters is now their letters have been 
used by others to generate comments letters to put me literally 
at suit, to sue me. In other words, now others are taking their 
letters as a basis and attempting to setting up the preliminary 
steps to put me at legal challenge. That is the problem I have 
with their letters.
    Mr. Pombo. Mr. Spear, would you respond to that, please?
    Mr. Spear. Yes, Mr. Chairman. This is a real Catch-22.
    [Laughter.]
    Mr. Spear. If we provide clear technical assistance and 
letters in response, try to give the information and provide 
them the assistance with the kind of detail and support, then 
you get the kind of problem perhaps that he is talking about.
    If you make them fuzzy so that they are unusable, then they 
are not helpful to him, et cetera. So I think this is a letter 
early on in the process, not a Federal process, under a state 
process, where we join with the state to provide the 
information as early as possible so that we are not coming 
around later and doing it at a later time.
    I mean, how to communicate clearly, officially, here is 
what we see, here is what we think is needed, without others 
being able to say, ``All right. I will use it one way or the 
other,'' I am not sure how we do that. I understand the 
dilemma, but I think we are also calling for clear 
communication.
    Mr. Pombo. I would like to recognize Mr. Miller.
    Mr. Miller. I mean this in a positive way, but I am 
listening to what you say, and it is like an individual going 
to court, putting themselves in the proper position, and you 
are assumed guilty until you can in some way prove you are 
innocent.
    I mean you used the words of ``endangered species rich 
environment'' of the entire State of California, and Mr. 
Turecek, I know exactly what he is saying. I have been involved 
in real estate for about 30 years now, and I have done a lot of 
the EIRs, and I have read many of your responses, and I have 
read many of your responses to EIRs that I know that have just 
been proposed, and you use words like ``it appears,'' the 
study, ``to be inadequate,'' ``it appears that this was not 
taken into consideration,'' even when a full EIR has been 
prepared and circulated, and you are to come back with 
comments. Your comments do not relate to what the study said 
that was generated in the EIR. You come back with words like 
``it appears,'' which the individual here is correct. Then an 
individual will take that letter to court and say, ``Obviously 
something was not done because the letter clearly says it 
appears.''
    And your responses in many cases, and I would like you to 
think about this because I think it is only fair, are based on 
your assumption that something is there even though there is no 
evidence before you that that exists, and that is the problem I 
have.
    And it angers people, and when you see individuals, and 
Congressman Hunter is exactly right. I have witnessed a lot of 
people lose property because they could not afford to carry it 
any longer because the lender would not extend the loan because 
it had been too long. It had taken too long for the process to 
occur for the individual to get entitlements on their piece of 
property, and they could no longer afford the process. They had 
indebted themselves trying to perform the process that we 
believe they are supposed to go through to insure that we are 
protecting the environment.
    And I believe this applicant here has done that. He has 
tried to insure that he has protected the environment. He has 
done what we require him to do based on what we believed should 
have been done when laws are passed. The problem is it is taken 
to a different degree when it is being applied, and we use 
words like ``appears.''
    And when you say ``appears,'' you have no basis for that 
because if there was an inadequacy in the EIR, you should say 
the EIR did not address these given areas, and they should 
address them.
    Now, you do that occasionally, yes. When you see an EIR has 
not adequately addressed an issue, you will state that, but 
then the response goes on with other language like ``the study 
appears to not address,'' and you have no evidence that it did 
not address it. It was not taken into consideration by the 
biologist, but that type of vague, ambiguous language creates a 
Catch-22 you spoke of earlier, and it puts that property owner 
in the situation where if he does finally get an entitlement, 
then he could end up in court because of your letter saying 
``it appears.''
    Now, if the county decides, well, you say ``appears,'' but 
we see no evidence that that is the situation and they go ahead 
with the entitlement, he is stuck in the situation where any 
individual or group that can afford an attorney can tie that 
individual property owner up in court for years, and that is 
the problem I have.
    When I built my house, I bought a lot and I graded it, and 
there was not a tree on my lot, and I planted 250 of them 
because I like the environment. I like trees. I like living 
with nature, but if I want to go out and cut some of those 
trees down on my hillsides and use them in my fireplace, I also 
want a right to do that, and I do not want to have to get a 
permit to do it.
    But I think we need to start looking at property owners and 
saying that is the person we work for, not them working for us, 
and if there is some inadequacy in an EIR, then address it and 
ask that they respond to it.
    But when we continue to use words like ``appears'' and ``it 
might be'' and ``could be,'' those are vague and ambiguous, and 
it puts the property owner in a situation where it could be 
very litigious in the long run, and I do not think we are 
serving anybody by doing that.
    [Applause.]
    Mr. Pombo. Ms. Bono.
    Ms. Bono. Thank you, Mr. Chairman.
    Boy, what a mess. I do not know where else to begin. Mr. 
Spear, you spoke about the necessity for clear communication, I 
think, being paramount here. You and I discussed this in 
Washington personally. Are you aware of one of your employees 
saying to one of my developers after I spent an entire morning 
with Mr. Berg in the Carlsbad office going over projects, 
discussing projects with you; are you aware that my developer 
was told, ``Going to your Congresswoman will not help you''?
    Mr. Spear. I have heard that allegation. I have not been 
able to confirm it.
    Ms. Bono. Mr. Berg, are you aware of that comment?
    Mr. Berg. No, I am not.
    Ms. Bono. I think that it has been pretty widely 
substantiated. You would have to agree with me you heard it; I 
heard it. I mean, everybody heard it.
    Ken, how much did Bighorn Golf Development give for 
mitigation efforts, $500,000, $750,000?
    Mr. Berg. I am not sure which project you are referring to.
    Ms. Bono. The Bighorn golf course, not the development.
    Mr. Berg. I think it was 500.
    Ms. Bono. Five hundred thousand dollars. So when they work 
with you and they get to the point of total frustration, 
throwing up there hands, having nowhere to go other than to 
their Congresswoman, and then they are told going to your 
Congresswoman will not help $500,000 later, is that not an 
extremely sad state of affairs here?
    Mr. Berg. Ms. Bono, I believe the $500,000 is part of the 
state process, not the Federal permit. I do not think that was 
a result of our----
    Ms. Bono. Okay. So the Federal bighorn sheep and the state 
bighorn sheep, I guess they know, I mean?
    Mr. Berg. No, but I am just saying----
    [Laughter.]
    Ms. Bono. I mean, you know, that has been part of my 
frustration, that project. We have talked about it and talked 
about it, you know, again, the state requiring Bighorn Golf 
Development to put up a five foot fence, and then we were told 
a five foot fence was inadequate. They need to remove it and 
put up an eight foot fence. Yes, the state did not talk to the 
Federal Government. There is no question there. The developer 
was the one who was stuck with the bill.
    But when they are that frustrated, when they come to me and 
then they are told in my view they are threatened, going to me 
will not help them, that is a very, very sad state, and I want 
to know. You are hearing it. You are hearing it behind you. We 
have heard it. We have talked about it. In my one year of 
tenure, you and I have talked about this before.
    What have you done to make changes so far in your office 
with personnel? And I think this goes back to the question. It 
is not the bumper sticker itself. It is obviously the 
personality of the bumper sticker. What have you done in that 
Carlsbad office over the course of time to make these changes, 
to know that these people are actually serving the people in 
their best interest?
    Mr. Spear. Well, I have spent more time working with--
perhaps the word ``on'' is appropriate--the Carlsbad office 
since 1995 when I got a call from Molly Bater, then Director, 
who had just talked to the Secretary, and he said something 
like Mike Spear needs to get to Southern California quick.
    Okay. Since 1995, I have been working with the Carlsbad 
office. We have made major changes in structure. Specifically 
we have aligned our staffs geographically oriented. We used to 
have one part of a staff that would do the endangered species 
part. Then in that same area another group would look at the 
wetlands, and then the two might not have talked well enough 
together or somebody else was doing listing.
    Now, they are all aligned geographically so that when we 
have an issue in Riverside County or Coachella Valley, one set 
of people who work on all aspects of that issue. We have 
brought in new staff, changed the structure, brought in 
leadership like Ken, whom I'm very proud of, and there has been 
a major effort.
    And also we have brought resources. I have allocated lots 
of additional resources within what I have received to the 
office.
    What I want to indicate to you is I have personally spent 
more time trying to get the Carlsbad office to a point where it 
can deal with the issues, the tremendous pressures of Southern 
California than I have in any other office either when I was 
Regional Director or now that I am just in California and 
Nevada. I am very proud of where they have arrived. I am very 
proud of the individuals, the organization, and the direction 
that they are taking, their ability to try to work on the 
solutions, try to get away from the project by project, look at 
the big picture.
    So we will continue to work on it. I will; Ken will, and to 
respond to the kind of concerns that you are bringing out at 
this hearing.
    I understand it is there. The pressures are enormous on 
everyone.
    Ms. Bono. All right. Let me reclaim my time here. First of 
all, I want to give you a little credit here, and Mr. Berg as 
well. I do know that the process can work. But I think you guys 
ask for an awful lot of blood to be drawn in the process to get 
there. I think the success of the Ritz Carls and I think we 
found a reasonable, I guess, agreement there, and I am excited. 
I am happy it is going to go forward. So I know it can be done.
    So I do not want to beat up on you guys because I think, 
yes, I know it can happen. Maybe I am the only believer maybe 
in this room, but I know you are capable of doing it, but what 
you are hearing here is people are really begging you, please, 
you know. It is time now to get it together.
    And my last thing, if I could indulge the Chairman just for 
a minute, back to the bumper sticker, and it is not, again, the 
bumper sticker. It is the messenger. Director Jamie Rappaport 
Clark, again in her statement that Mrs. Chenoweth referred to, 
said they are currently 31 regional HCPs, and then goes on to 
say they serve as a mechanism to address over arching social 
concerns, such as urban sprawl, transportation congestion, and 
open space planning, while enabling jurisdictions to meet their 
ESA obligations.
    Is that not meaning that all of these people are subjected 
to the guy with the bumper sticker on his car?
    Mr. Spear. I think what was being referred to in that 
statement is that this mechanism is a local mechanism. It is 
not a Fish and Wildlife Service mechanism.
    Ms. Bono. That is your interpretation of that?
    Mr. Spear. It is our ability to work with local communities 
within the HCP context to provide the biological context for 
larger planning purposes.
    What we have here in Riverside County, and western 
Riverside County is a good example, is close cooperation with 
the supervisors. They have just put out a brochure, questions 
and answers about the Riverside County integrated plan where 
they have put together a land use plan, multiple species plan, 
a transportation plan to be done over the next two to three 
years.
    Ms. Bono. And on that plan, and I will give back my time, 
but on that plan how in the world do you expect us to have any 
good faith in you or the Carlsbad office, knowing that we go 
through this plan, we give you what you want, and the next day 
you guys come around and say, you know, a mile down the road 
here is the latest species and this is what we have to do now 
rather than put up a sign ``Your habitat is that way. Go find 
it''?
    Mr. Spear. I think that that allegation concerns me 
greatly, this notion of there is no deal is a deal. As we have 
been saying and the Secretary has been saying all the way 
along, a deal is a deal.
    The deal is as written. The Quino example in San Diego 
County is a good example. It gets thrown back at us. You 
changed the deal.
    We did not change the deal. The Quino was not a covered 
species, and people knew that. Mayor Golding made that 
statement. We knew it was not a covered species. We provided 
money to San Diego County to go in and add that to the covered 
species list, but we have not changed the deal that was signed.
    And that same commitment goes to western Riverside County. 
People will know what they get. That deal will be lived up to. 
On both sides it must be lived up to.
    Ms. Bono. But I believe, and then I will yield back, that 
if a deal were a deal, we would not be here today.
    So with that, I yield back.
    Mr. Pombo. Mr. Calvert.
    Mr. Calvert. I want to give the other witnesses an 
opportunity real quickly, and the subject of HCP has been 
brought up. As you know, Mr. Spear, I have been trying to work 
out some of these things over the years.
    Dr. Silver made a comment about HCPs as potentially the 
only reasonable way to work out some of these problems, and, 
Mr. Hewitt, I know you have been involved in negotiating with 
development companies over the years. You made a comment that a 
deal is a deal and that Fish and Wildlife keeps their 
commitments.
    I would question, for instance, on the Agua Mansa 
industrial area where they had a letter stating they were clear 
of species and then you had a new species come up, and then 
they had, in essence, an in jeopardy property, and that 
property was not able to be developed.
    I would also say that it is impossible, and I would think 
you would agree with this, to know what species may come down 
the line when you are negotiating these HCPs. I would like to 
hear from Dr. Silver especially on this.
    Don't you think that when landowners in good faith or 
counties in good faith, whether it is Orange County or San 
Diego County, sit down and negotiate an HCP and they put up the 
money and they put up the land, with the implied agreement that 
they will be able to go ahead and use what land is left to 
develop, don't you think that is the implication of that 
agreement or do you think it is something different than that?
    Dr. Silver. I would agree with you.
    Mr. Calvert. You would agree. Now, I will tell you, to be 
very candid, and I think you know this. I really got energized 
when the Quino listing, as you well know.
    Mr. Spear. I know.
    Mr. Calvert. As you well know, Mr. Spear, and we chatted 
that very day, I think.
    Mr. Spear. Yes.
    Mr. Calvert. Because I felt that map--when I saw that map 
for the first time, I was in Riverside, and I was, as a matter 
of fact, sitting with a bunch of folks that were really 
concerned about that map. You know, how on the earth did 
somebody come up with that map that basically shows the entire 
area of Southern California with the exception of downtown Los 
Angeles and a few other exceptions?
    That, in my opinion, and I think a lot of biologists would 
have been here today if they did not feel threatened, I guess, 
to comment, but that was not a very scientifically derived map. 
Wouldn't you agree with that?
    Mr. Spear. I would not agree that it is not scientifically 
derived. What I will certainly agree with, if I ever have a 
chance to do it over again, is that we will do a lot better job 
of explaining what our intentions are. I will not call that one 
of our great public relations successes.
    Mr. Calvert. But this is an important point here. We are 
attempting to potentially enter into an HCP here in Riverside 
County, and what happened to San Diego County is a big concern 
to this area, and it is a big concern to other areas in the 
state.
    I know I have heard testimony from other counties 
throughout the state, both from the north and the south and 
other areas of this country. Why should they enter into an HCP 
if there is no agreement in effect?
    I mean, you say a deal is a deal, but you will admit that 
if a species is not initially agreed to and on this list of 
species that are in that HCP, that there is nothing you can do. 
Isn't that correct that that is exactly what has happened with 
the Quino Checkerspot Butterfly?
    Mr. Spear. In the way you explained it, that is correct, 
but what is on the deal is a list of species that are covered.
    Mr. Calvert. But how about if something comes up? If a 
biologist somewhere out there wants to find a species and get 
it listed, what is to stop them?
    Mr. Spear. Well, if the biology is there and the science is 
there, it would get listed.
    Mr. Calvert. That is correct.
    Any other comments? And I know my time has expired. Mr. 
Hewitt, do you have a comment? Doctor?
    Dr. Silver. I was just going to say that the way the San 
Diego plan works is that there are procedures in the plan so 
that if a species that was not initially covered becomes listed 
in the future, there are procedures in the plan so that each of 
the parties knows what their responsibilities will be, kind of 
trying to divide up the responsibilities in the event that 
happens.
    So the plan makes an effort to deal with that problem.
    Mr. Calvert. Well, do you think they dealt with it in San 
Diego very well?
    Dr. Silver. I think that there are--my understanding is 
that there are procedures now being worked on to add the Quino 
to the list. I cannot tell you what those are in detail, but I 
think that that is simply part of what was anticipated, that if 
a species was not on the list, then people would go back to the 
document and----
    Mr. Calvert. My time has expired, but don't you agree that 
there is a problem here in communication between Fish and 
Wildlife, the counties, all of the participants; that this 
could have an effect on negotiating future HCPs?
    Dr. Silver. I think there has to be this level of trust. I 
just have to say I have not seen a case where there has been a 
commitment in an HCP that the service has not kept, and from 
our point of view, there have been a lot of commitments that we 
have not liked, but again, you know, I just have not seen a 
case where they have not kept them.
    Mr. Calvert. Thank you, Mr. Chairman.
    Mr. Pombo. Dr. Silver, I appreciate your testimony, and 
from what I have been able to learn about you and your 
organization, I really do believe that your effort is to 
protect endangered species and that that is what you are trying 
to do, and I appreciate that because I believe that there are 
many others that have a different agenda, and they have been 
able to use the Endangered Species Act to achieve that agenda, 
and it has very little, if anything, to do with protecting 
endangered species.
    When we look at a case like Mr. Turecek or one of the 
others that testified earlier today and those, in fact, that we 
are going to hear from, I think that we begin to see what is 
really wrong with the implementation of the Endangered Species 
Act and not the Act itself, but the implementation of that Act.
    As has been said, I have held these hearings all over the 
country, and I have had the opportunity to hear people in every 
region of our country and what their problems are with the 
Endangered Species Act. It has always struck me that in some 
regions of the country they do not seem to have these problems, 
and it is not because they do not have endangered species. It 
is not because they do not have destruction of habitat.
    It is because there is a very different attitude when it 
comes to the implementation of the Act, and when I talk to 
Congressmen from different parts of the country and they say, 
``Well, what is the problem? Why don't you sit down with Fish 
and Wildlife and work this out?'' we do not have that option 
out here. We do not sit down with Fish and Wildlife and work 
things out.
    And if you want to know why, it is because you are 
unreasonable. It is because----
    [Applause.]
    Mr. Pombo. Please, please. Mr. Turecek, can you hold up 
that picture from 1940 or whatever you had? That one with the 
corn.
    Mr. Turecek. Yes, sir.
    Mr. Pombo. Now, this is not natural habitat. It may have 
been at some point in time that this was natural habitat for 
species. It has become habitat for other species now, and I can 
guarantee you that if you go through this place, you'll find 
species. Some may be endangered, may not be endangered. I do 
not know because I am not familiar with this, but this is not 
natural habitat.
    And when your biologists or your people go to this guy and 
say this is natural habitat, what is he supposed to do? How is 
he supposed to get out of that?
    Now, what we have ended up with, at least in the 
implementation of endangered species here in California, and 
this is probably the most frustrating thing for me, is we do 
almost nothing to protect endangered species. There is almost 
zero being done to protect endangered species. We are doing a 
hell of a lot to control water, to control growth, to control, 
timber, to control mining, to control grazing. We are doing a 
lot on that, and we are using the Endangered Species Act to 
achieve that goal.
    But when it comes to protecting endangered species, there 
is almost nothing you guys can hold up and say, ``This is our 
success. These are the increased numbers that we have had. This 
is what we have done.''
    Now, you talk about money. Now, Fish and Wildlife Service 
requested almost $111 million in the President's budget for 
endangered species, and there is one very interesting thing 
about this, is that you requested a cut--$114 million; excuse 
me--you requested a cut in your recovery budget.
    Now, the reason that you do that is because this guy is 
going to pay for it. That is who is going to pay for it. Now, 
this $114 million that you requested does not include all of 
the other Federal agencies. It includes Fish and Wildlife 
Service. The money that our Defense Department puts up for 
recovery, the money that Ag. Department, the money that all the 
other Federal agencies put up for endangered species is not 
included in this, and that is just a minuscule amount of the 
money that is spent on endangered species in this country.
    The bulk of the money is coming out of guys like this that 
are writing 50, 100. We had testimony earlier of several 
million dollars to recover endangered species, and we are not 
doing anything with it.
    Now, the people that are here that consider themselves 
environmentalists, who consider themselves conservationists, 
who care about endangered species, if they had any idea how 
much money we spend on endangered species recovery in this 
country and how dismal a record we have of recovery, how dismal 
a record we have of actually doing anything about endangered 
species at the same time that we have gentlemen like this who 
are about to lose their property, who are spending everything 
they have got to hang onto it, who are disrupting their lives; 
when I have got people in my district who are out of work 
because of the actions that your department takes and the 
suicides and the poverty and everything that is attached to 
that because of the actions that your department takes, I would 
say this has been a complete failure.
    We are doing nothing to protect endangered species or 
almost nothing to protect endangered species and recover those 
species. At the same time, the social and economic dislocation 
that has occurred in the State of California because of the 
actions of your agencies is immense, and we can do a better 
job.
    And I will agree with Mary on this. We can do a better job, 
and a lot of that comes down to communication, but the first 
thing you have got to decide is that your job is to protect 
endangered species. It is not to stop him from building, and 
there is a huge difference.
    Figure out a way to protect endangered species so that 
economic activity can go on.
    Now, I know that you have had a long and distinguished 
career, Mr. Spear, and I respect you, and on a personal level, 
I think you are a pretty decent guy, but you have got to get a 
hold of the people that are working in these different agencies 
and these different departments, these different offices that 
are under your control, and I will tell you: use Mr. Hunter's 
example. If somebody showed up at Veteran's Affairs with a 
bumper sticker that said ``Veterans Can Go to Hell,'' they 
would be fired that day. There is no question.
    [Applause.]
    Mr. Pombo. Society would demand it.
    And whether somebody is a developer or a realtor, they are 
no less an American than anybody else, and they should not be 
allowed to be treated differently by the agency.
    I appreciate the testimony of this panel. Mr. Spear, I 
appreciate you being here and answering the questions. I know 
that myself and the other members of the Resources Committee, 
the other Members of Congress look forward to working with you 
and hope that we can get a lot of these problems straightened 
out in a timely manner.
    And, Mr. Berg, to you I will tell you that not only will 
the representatives of this area be watching closely as to how 
the people that had the courage to come forward and testify are 
treated in the future. I will closely be watching how those 
people are treated because I had several people that I 
requested testify at this hearing that at the last minute told 
me no because they were terrified of the reprisals that may 
occur because of their testifying here today.
    Now, I know that you would never allow that to happen 
within your agency, but I will be looking closely to make sure 
that it does not, and I thank you for being here.
    I will dismiss this panel.
    [Applause.]
    Mr. Pombo. Our third panel will be made up of Mr. David 
Zappe, Mr. Dennis Moser, Mr. Dennis Hollingsworth, Mr. John 
Tavaglione, and Mr. Doug Evans. If you could join us at the 
witness table, please.
    I would like to ask the audience we do have a very long 
hearing today and we are trying to stay on time if possible. If 
the gentlemen will join me up front at the witness table.
    Do we have all of the witnesses present? Gentlemen, if I 
could have you raise your right hands.
    [Witnesses sworn.]
    Mr. Pombo. Let the record show they all answered in the 
affirmative.
    You can join us at the witness table.
    Is it Zappe?
    Mr. Zappe. Correct.
    Mr. Pombo. Mr. Zappe, you may begin.

STATEMENT OF DAVID P. ZAPPE, GENERAL MANAGER-CHIEF ENGINEERING, 
 RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT

    Mr. Zappe. Mr. Chairman, members of the Committee, we 
appreciate you being here in our county.
    Mr. Pombo. Go ahead and pull that mike right up close.
    Mr. Zappe. Okay.
    Mr. Pombo. Thank you.
    Mr. Zappe. We appreciate you being here and allowing us 
this opportunity to relate to you some of our district's more 
recent experiences with Fish and Wildlife Service and their 
enforcement of the Endangered Species Act.
    Development practices in the early days of this county were 
such that today we find many areas subject to extreme flood 
hazards and the public's health and safety put at risk every 
time it rains. While much of the need for drainage facilities 
is brought about by new development, the construction program 
administered by our district focuses mainly on the need to 
protect existing development.
    Accordingly, our mission is very simple and very 
straightforward: to protect life and property from flooding 
through responsible and efficient storm water management. Over 
the past 50 years the district has developed an extensive flood 
control system that requires timely maintenance to insure the 
continued protection of our residents.
    However, over the past several years, our efforts have been 
hampered through the regulatory activities of the U.S. Fish and 
Wildlife Service, the Army Corps of Engineers, and the 
Environmental Protection Agency. These agencies have veto power 
over local flood control construction and maintenance 
activities by virtue of regulations promulgated under the 
Endangered Species Act and the Clean Water Act.
    Although these laws have been on the books for many years, 
their impacts have become more burdensome as Federal agencies 
have issued new and more stringent regulations, often without 
the authority of new law and sometimes as a means to negotiate 
settlement of environmental lawsuits of questionable merit.
    Specifically, recent dealings with the Fish and Wildlife 
Service have proven to be particularly frustrating. In some 
cases, negotiations with the service drag on for no apparent 
reason other than for the sole purpose of delaying a project. 
Other cases involve the attempt to impose unwarranted and 
illegal requirements on a project.
    I would like to relate two specific cases which I believe 
illustrate my points. In the first example, the district 
performed a general biological assessment of the area that 
would be impacted by a proposed project. An independent 
biologist concluded that the proposed project had no potential 
of impacting the recently listed Quino checkerspot butterfly. 
This determination was based on the highly disturbed nature of 
the project area and the extremely low potential for the 
presence of any of the butterfly's host plants.
    Forty days after receiving a copy of the biological 
assessment, the service decided that the assessment had not 
been performed at the appropriate time of year and, therefore, 
a focused habitat assessment was required. This was in direct 
contradiction to the service's own survey protocol of January 
1999, which states, in part, that general biological 
assessments may occur throughout the year.
    Only if the potential for the host plant exists should 
focused habitat assessments be conducted. The district 
questioned this finding in a second letter and asked the 
service to justify its position in writing. This time the 
service did determine that focused surveys were not required 
after all.
    I should point out that the district's second letter was 
copied to Congressmen Calvert and Pombo and Senators Boxer and 
Feinstein.
    I believe that the notification of these congressional 
members caused the service to more honestly consider the 
district's position and its own protocol and to arrive at an 
appropriate conclusion, a conclusion that should have been 
properly reached earlier without hesitation by the service, a 
conclusion which I fully believe would not have been reached 
without vigilant oversight of our district and the notification 
of the congressional delegation.
    The second example I would like to cite involves the 
flooding of the City of Temecula from overflow in 1993 from 
Murrieta Creek. Over $10 million in damages to businesses and 
residences resulted from the refusal of Federal officials to 
allow mechanical clearing of the vegetation and removal of 
accumulated sediment from the creek partially due to alleged 
concerns for the endangered least Bell's vireo, though none had 
been found in the creek.
    To avoid repetition of this tragic event in 1997, the 
District requested the Corps of Engineers to prepare a flood 
plain maintenance plan for Murrieta Creek. Several coordination 
meetings involving the Corps, the service, and other Federal 
and state agencies were held. As a result, a baseline which 
struck a delicate balance between proper maintenance and 
environmental concerns was established and agreed to by all 
parties, including the service.
    Upon finalization of the plan last April, the district 
commenced a considerable effort to obtain the required Section 
404 permit. A month later in May, the service suddenly decided 
that they were not in agreement with the baseline and wanted it 
redone.
    When confronted with the fact that they did not express 
this displeasure during the many coordination meetings and, in 
fact, had agreed to the baseline, they simply stated they did 
not recall agreeing to the baseline.
    The district and the Corps in good faith have each expended 
over $100,000 toward the implementation of this plan, and now 
the service tells us they would like to start over because they 
do not recall any commitment, and even if they did, they have 
now changed their mind.
    Survival of endangered or threatened species was not at 
stake in either of the cases that I have cited, but rather 
inflexibility built into the Endangered Species Act.
    Our citizens rely on existing flood control systems and 
upon their timely maintenance to protect them and their homes 
and businesses. It is the responsibility of all of us to insure 
that their safety is not compromised.
    Thank you.
    [The prepared statement of Mr. Zappe follows:]

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    Mr. Pombo. Thank you.
    Mr. Moser.

     STATEMENT OF DENNIS M. MOSER, VICE PRESIDENT, KELWOOD 
                      DEVELOPMENT COMPANY

    Mr. Moser. Good afternoon, Mr. Chairman, members, and 
guests. My name is Dennis Moser. I am Vice President of Kelwood 
Development Company, managers of the 4S Kelwood General 
Partnership.
    4S Kelwood is the owner and developer of the 4S Ranch 
property in north central San Diego County. The 4S Ranch is a 
3,500 acre master plan community which has generally been 
recognized as a model for smart growth through its transit 
oriented bikable community design with emphasis on habitat 
conservation, parks, and public facilities, and its commitment 
to regional transportation.
    We have also been at the forefront of multiple species 
conservation planning in Southern California over the last 
decade. Indeed, former California Secretary of Resources, 
Douglas Wheeler, wrote that the 4S Ranch ``offers tangible, on-
the-ground proof that the NCCP program goal of creating a 
network of wildlife corridor spanning five counties can 
succeed.''
    Along with Dr. Silver and many other distinguished people, 
I personally served on the MSCP city advisory board, the 
country advisory board, the MHCP advisory board, and am the co-
author of a document called ``Habitat Transaction Method,'' 
which is a market based financing program for HCPs.
    Our leadership was recognized in a certificate of 
appreciation from Secretary of the Interior, Bruce Babbitt and 
also from Congressman Brian Bilbray and State Senator David 
Kelly.
    Now, I give you all of this only to establish our 
credentials as a participant and a facilitator on the regional 
conservation planning efforts over the last 10 years. I believe 
it is a fair statement to say that the 4S Ranch and our 
personal involvement, you know, is generally recognized as a 
poster child for how the process is supposed to work, and we 
are probably one of the success stories; we may be the only 
success story that you are going to hear today simply because 
we have been through the process and have been permitted.
    We support multiple species conservation planning. We 
support HCPs. We have in the past, and we will continue to do 
so in the future.
    Now, having said all of that, the issues of implementation 
credibility, in my view, seriously threaten to destroy what 
amounts to a decade of thousands of hours of intense efforts 
and negotiations by a cast of hundreds that have resulted in 
MSCP.
    You know, I wrote sort of a marginal note. To me the HCPs, 
the whole multiple species process was always intended to be a 
very democratic process, and I use the term ``democratic'' 
because to me it was based on three fundamentals: those of 
representation, those of compromise, and those of trust.
    Clearly, everyone had a seat at the table. Clearly, nobody 
got everything they wanted in the MSCP, not anyone. But, 
fundamentally, it was based on trust that at the end of the 
day, as was said earlier, a deal was a deal, and that was it. 
And whatever the decision was, we would move forward on that 
basis.
    Now, I have two cases or two examples where I think this 
concept is being jeopardized, and the first one is failure to 
issue a take authorization, a Section 10(a) permit for the 
complete list of covered species subject to incidental take.
    This document is the implementing agreement which was 
signed by the jurisdictions and the wildlife agencies and 
represents, if you will, the contract where all of these 
assurances were set forward of how the process was to be 
implemented.
    The implementing agreement is unambiguous. It is clear. It 
is obvious. Its language is unambiguous. It is a legal, binding 
kind of document, and relative to the issuance of the permits, 
the implementing agreement says, ``Concurrent with the 
effective date, the U.S. Fish and Wildlife Service will issue 
Section 10(a) permits to the county for authorizing take of the 
complete list of covered species subject to incidental take,'' 
some 82 species.
    This is the actual permit that was issued to the county, 
and in the permit that was issued, a total of 29 species were 
not covered. They were removed from the permit itself. These 
are wetland dependent species, if you will. There was no 
qualification in the implementing agreement that dealt with not 
issuing coverage for all of them, but coverage has not been 
issued to all of them, and the actual permit says that coverage 
for those 29 will be subject to a further process.
    Now, I see that as a breach in the trust of a deal is a 
deal and that the coverage would be as stated.
    There was also some testimony that you heard relative to 
the listing of the Quino checkerspot, and Dr. Silver referenced 
a process by which new species were to be considered in the 
MSCP, and I would like to quote a number of passages from the 
implementing agreement of what was supposed to occur.
    Prior to the listing of any noncovered species Fish and 
Wildlife was to, first, ``use their best efforts to identify 
the conservation measures within six months of a proposed 
listing which would be necessary to adequately protect the 
species.''
    And then, two, to ``determine whether those measures were 
already contained in the MSCP document.''
    The species has been now listed for two and a half years. 
As far as I am aware, I have not seen, nor do I know of anyone 
who has seen any documentation that that assessment was 
actually completed.
    Now, if the determination was that the conservation 
measures were not adequate, then there was a priority 
established of what Fish and Wildlife Service was supposed to 
do, and those priorities went or additional conservation 
measures went as follows.
    First, habitat management practices and enhancement 
opportunities were to be assessed using existing management 
resources.
    If that was not enough, habitat acquisition through 
reallocation of Federal, state, and/or regional funds was to be 
examined.
    And then, only after all of those things had been analyzed 
and determined there were still inadequate measures to consider 
the species, only at that point were additional conservation 
measures to be looked at, and then with this qualification, 
that preference would be given by U.S. Fish and Wildlife 
Service and the California Department of Fish and Game to 
additional conservation measures that do not require additional 
mitigation or dedication of land.
    So additional mitigation or dedication of land would come 
as the absolute last resort. I think what we have seen over the 
last two years, two and a half years is actually quite the 
opposite. The individual projects are being required to 
dedicate, to mitigate and to dedicate, in land and in money to 
mitigate for the Quino checkerspot.
    Let me just, I guess, offer one other thing. I see my time 
has run out. We do have in our groups that I am a part of 
numbers of recommendations on some management activities that 
we believe would help in solving some of the issues that you 
have heard raised today, and I would be happy to go into those 
at the end of today, or however you would like to address them.
    Thank you.
    [The prepared statement of Mr. Moser follows:]
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    Mr. Pombo. Thank you.
    Mr. Hollingsworth.

STATEMENT OF DENNIS HOLLINGSWORTH, RIVERSIDE COUNTY FARM BUREAU

    Mr. Hollingsworth. Thank you, Mr. Chairman, for the 
opportunity to speak with your Committee today.
    I also want to thank Congressman Calvert and Congressman 
Bono for bringing the Committee to Riverside county so all of 
you can hear from the people who are living every day under the 
laws that Congress passes and the regulations the Federal 
agencies implement.
    I am the Legislative Director of Riverside County Farm 
Bureau, and the Farm Bureau represents over 1,700 member 
families throughout Riverside County. My testimony today will 
tell you about the Farm Bureau's experiences with the Carlsbad 
office of the Fish and Wildlife Service and the Endangered 
Species Act. I will highlight several experiences that expose 
the decade long history of abuses and systematic 
misrepresentations of fact by the Fish and Wildlife Service in 
Southern California.
    Finally, I will discuss the inability of the public to 
invest any amount of trust in the Fish and Wildlife Service due 
to their blatant disregard for their written commitments.
    As you know, the endangered listings of the Stephen's 
kangaroo rat caused severe problems in our county. Since its 
listing in 1988, farm families suffered economic loss, 
restrictions on the normal use of their properties, and 
diminution in their land values.
    You are well aware of the injustices that were done to the 
Domenigoni family and the destruction of 29 homes caused by a 
wildfire, the damage exacerbated by Stephen's kangaroo rat 
restrictions in the Winchester area in 1993.
    In 1992, I was hired by the Farm Bureau to investigate and 
prepare a de-listing petition asking for the Fish and Wildlife 
Service to remove the species from the list, and this is where 
we come in with the issue that the Fish and Wildlife Service 
impedes the public's right to know and openly violates the 
Freedom of Information Act.
    The first item of business in preparing a de-listing 
petition is to find out what was known about the species and 
why it was listed. Well, to find this out, we had to file a 
Freedom of Information Act request.
    Well, the service heavily censored those reports, and they 
were essentially useless. The service did not want the public 
to have the right to judge the adequacy and the accuracy of the 
science backing up their assertion that the K. rat was 
endangered. So they withheld this information, even though 
there are only two allowed exemptions from disclosure found in 
the Freedom of Information Act. One is for national security 
reasons, and the other is protect the privacy of personnel 
files.
    Their response to our pointing out the inconsistency of 
their actions with the law? They told us to sue them.
    One stated reason for not releasing the exact location of 
the K. rats was their fear that we might go out and destroy the 
kangaroo rats if we learned of their locations. Well, this is 
carrying national security concerns to new heights. It also 
points out that the inherent problem with the ESA itself is 
that people do not want to have species on their property.
    Two, the listing of the Stephen's kangaroo rat is based on 
fraudulent misrepresentation of scientific facts. The service 
sought to prevent the public from knowing the information in 
their files because the public would rightly judge that the 
listing of the Stephen's kangaroo rat as endangered is a fraud. 
The Fish and Wildlife Service blatantly disregarded important 
facts and misrepresented others.
    Among many other things, they even went so far as to claim 
the species was extinct in areas that are now preserves for the 
species that contain thousands of acres of occupied habitat.
    Third, the Fish and Wildlife Service abuses the discretion 
Congress gives the agency. As you know, Congress has given the 
Fish and Wildlife Service the discretion to decide whether a 
species is threatened or endangered. Would you like for me to 
read for you the entire analysis that the Fish and Wildlife 
Service completed in determining to list the species as 
endangered rather than threatened? It will not take long.
    ``Ron called and asked some questions about the kangaroo 
rat package. He said that in general, I had presented a good 
case. He wanted the acreage figures clarified and some place 
names clarified as well. He wanted to know how much habitat is 
left as best as I could come up with some acreages. We then 
discussed whether threatened or endangered status would be more 
appropriate. We decided upon endangered.''
    That is the record of a phone conversation that we found 
through the Freedom of Information Act.
    The Fish and Wildlife Service ignores our de-listing 
petition despite the legal requirement to respond within 90 
days.
    You are well aware of the impact of the Endangered Species 
Act on the Domenigoni family and their loss of over $400,000 in 
income and expenditures in order to try and get their 800 
acres, which was shut down by the Fish and Wildlife Service 
after they were illegally trespassed on by a biologist.
    Then the U.S. Fish and Wildlife Service smears Endangered 
Species Act victims who speak out. In 1995, the Domenigonis 
found out that they had been targeted in a smear campaign waged 
by the Fish and Wildlife Service against individuals who had 
spoken about the injury they had suffered from the 
implementation of the Act. They received a document entitled 
``Facts about the Endangered Species Act.'' One whole chapter 
in it is devoted to casting the Domenigonis and other ESA 
victims as liars.
    Yet nowhere in that portion of that story is there anything 
attributing it to any contact people, any telephone numbers, no 
authors or attribution anywhere, and it is not published on 
government letterhead.
    The Fish and Wildlife Service fails to adhere to their 
written commitments to Riverside County. This, I am sure, has 
been discussed with you as Congress members, and I am sure it 
will be discussed more with subsequent witnesses today, but let 
me just point out that there was a planning agreement signed in 
1997 where the Fish and Wildlife Service agreed to provide 
rough conservation requirements so that we would know what we 
were getting into if we were to get into a multi-species plan.
    However, after signing that agreement, they blatantly 
failed to comply with that agreement.
    Well, how do we rein in the Fish and Wildlife Service's 
abuses? I have to tell you that at this point in the 
controversy, this is a point we have been at several times 
before, and it is very predictable. The service does something 
that is egregious, and the Board of Supervisors objects, and 
the Regional Director comes down from Portland to smooth things 
over.
    I have even been to these parties back when it was Marv 
Leonard who was coming down, and today it is Mike Spear.
    When the service does something a little more outrageous, 
Washington, DC gets involved, and we get to meet Assistant 
Secretary John Garamendi, who then smooth out the ruffled 
feathers, and today this job has been handed to David Hayes.
    But when they really, really do something bad, well, all of 
you are here. Well, they are really, really doing something 
bad, and I hope that this hearing and the legislative process 
subsequent to this will break this cycle.
    Well, how do we change this? First, we need to change the 
burden of proof requirement.
    Second, only to the unconstitutional takings of private 
property that occur with the ESA is the travesty that private 
citizens have to prove to the government that they will not 
violate the ESA. As you mentioned, Congressman Hunter, it is as 
though you are proving that you are not guilty. You are proving 
that you are not.
    Legislatively change the judicial deference given to agency 
regulations to a de novo review.
    Require that the judicial branch looks at regulations from 
the agencies fresh without the deference that has been given to 
them.
    Limit standing in the courts in ESA challenges to persons 
who are actually impacted by the Act.
    Legislate a Federal version of California's permit 
streamlining Act. They get one chance to bite at the apple, and 
that is it, and if they do not tell you how they are going to 
bite at the apple completely, they do not get to come back for 
more.
    Legislate that there are definite consequences to the 
agency for not acting.
    Prohibit the use of information obtained by trespass.
    All of these things, if successful, might help to curtail 
many of the abuses we have seen in Southern California. Yet 
even the passage of all of these reforms would only be half 
measures. That is because none of them remove the disincentives 
for property owners to have species on their land.
    In fact, what is needed is an Endangered Species Act that 
can serve species by allowing and encouraging landowners, 
farmers, and ranchers to be good stewards of the land. It 
should be an Act that is so simple as to be immune from the 
bureaucratic evils that so often do not become apparent until 
years after the bill has left Congress and become law.
    In order to have a law in which the agencies can no longer 
twist, ignore, subvert, and use both the scientific evidence 
and the statutory process to further a political or ideological 
agenda, it must be a law that is simple, incentive based, and 
unregulatory. Our experience has shown that given the 
regulatory power and the historically wide latitude of 
discretion given by the courts, agencies will be sure to 
misconstrue and ignore the intent of Congress. I see your 
challenge is to make a law that is both successful for 
conservation of wildlife and upholds the rights and freedoms of 
the people it affects.
    Thank you.
    [The prepared statement of Mr. Hollingsworth follows:]

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    Mr. Pombo. Thank you.
    [Applause.]
    Mr. Pombo. Mr. Tavaglione.

   STATEMENT OF JOHN TAVAGLIONE, SUPERVISOR, RIVERSIDE COUNTY

    Mr. Tavaglione. Thank you, Mr. Chair.
    I want to thank you all for allowing us to be here today. 
You have taken on a great task, as we all know.
    My colleague, Supervisor Jim Venable, who represents this 
area, also wants to welcome you to the beautiful Town of Hemet, 
and I also want to thank our good friends, Congressman Bono and 
Congressman Calvert for their leadership in dealing with this 
very, very difficult Act.
    I first became aware of the problems, the severe problems, 
with the Endangered Species Act sitting as a city council 
member on the City of Riverside reading a biological report for 
a property owner who held a family property for a number of 
years, 20 acres. They wanted to develop it into eight lots, yet 
he was told he could not do it because he may have a lizard, an 
endangered lizard on that property, and since they do not know, 
they wanted him to put radio controlled collars around lizards 
that were found and monitor them for five years.
    [Laughter.]
    Mr. Tavaglione. It was at that point I realized that 
something was very wrong, and this is eight years ago.
    As you all know, Riverside County has been one of the first 
throughout the nation to embark upon dealing with this 
Endangered Species Act in a very positive way. We first started 
with the fringe toed lizard back in 1984, the habitat 
conservation plan; the short term Stephen's kangaroo rat plan 
in 1992, followed by the long term kangaroo rat plan in 1997. 
It only took eight and a half years to get through a kangaroo 
rat habitat conservation plan, and they say things are done in 
a timely manner. Only eight and a half years and $125 million 
to deal with the Stephen's kangaroo rat.
    As we speak today, we have engineers, consultants, private 
property owners, state resource agencies, Federal resource 
agencies and the country working on a very commendable process 
called the integrated planning process. Some of you have 
already heard of that. That is where we are embarking upon a 
program here in Riverside County to deal with a three tiered 
program: land use planning, general plan, multi-species 
planning, and corridor planning to deal with our congested 
corridors, recognizing that all three or at least the land use 
and the general plan corridors or--excuse me--the 
transportation corridors will require some mitigation efforts 
for endangered species.
    We have already set aside $22 million to deal just with the 
initial planning of that. I as one colleague on board have 
reluctantly supported that, recognizing that if we get three 
years down the road, the chances of having an agreement by Fish 
and Wildlife Service or the chances of having agreement change 
during that three-year process are extremely high.
    Landowners, farmers, building organizations, public/private 
enterprises have given you comments today on the frustrations 
they have had. You have heard from our flood control Chief 
Engineer and General Manager, Mr. Zappe, about the problems in 
the Murrieta Creek and the inability to clear the way of that 
creek so that the water could flow. Tens of millions of dollars 
of property that were lost back in 1993.
    What Mr. Zappe did not tell you is that because of that 
flood, a family, an entire family was lost trying to cross a 
creek. So we are not just talking about property damage. We are 
talking about lives.
    Today we have in Congressman Calvert's district a river 
that is at risk and has been at risk for well over six years 
because of the lack of or the inability to clear the sediment. 
We have a plan in place to deal with that. We have the funds to 
deal with that. Yet Fish and Wildlife Service wants to increase 
the mitigation, double the mitigation which is going to double 
the cost from $8 million to at least $16 million and possibly 
$20 million.
    We have back in 1993 or--excuse me--1995 a fly. Now, this 
is not the Delhi Sands fly that I am going to talk about in a 
second. We had a Mediterranean fruitfly in the City of Corona, 
western Riverside County. It was very much endangering our 
citrus orchards.
    As you probably know, we have a $1 billion industry in 
Riverside County with regard to our orchards, agriculture.
    The State Agriculture Commissioner decided that it was the 
time to do the aerial spraying on most of western Riverside 
County in a series of evenings over about three weeks. They 
were going to spray the insecticide over homes, backyards, 
school grounds, playground equipment, and it was okay to do 
that.
    Yet Fish and Wildlife Service representatives from Carlsbad 
said, ``No, you cannot do that over endangered species area 
because we are in fear that the least Bell's vireo or we are in 
fear that the Stephen's kangaroo rat might die because the 
spraying may occur on their endangered habitat.''
    It seemed awfully odd that we could spray over school 
grounds but not over endangered species area. It makes you 
wonder if our kids are endangered in the eyes of many of these 
biologists.
    In my district, I happen to have the Delhi Sands flower-
loving fly, and this is an endangered species. Myself and 
Supervisor Jerry East from San Bernardino County are known as 
the parents of the Delhi Sands flower-loving fly, and we are 
very proud of that I want you to know.
    You have heard the story of San Bernardino County's 
regional medical center that was soon to get under construction 
about four years ago. They were put to a complete stop because 
Fish and Wildlife biologists determined that there may be flies 
on a particular site, on a portion of the site where this 
hospital is going to go.
    Not a problem, they said. Move the hospital over to the 
tune of about $2 million, and we will let you have your 
hospital.
    Well, they did that because they needed to get their 
hospital built to serve the indigent who need the care, the 
medical care, but they also have a multi-million dollar 
hospital, a $150 million hospital and a $3 million fly park now 
sitting next to it, something for the patients to observe and 
get well with.
    In my county, in Riverside County, about 10 miles to the 
west of this particular hospital we had a developer. This is 
the most active economic development area in the State of 
California as we speak. It is in an area called Harupa Valley, 
Maraloma. Most of you are aware of it. A tremendous amount of 
business growth occurring, job production, people being put off 
of welfare because of the new jobs that are being incurred 
here.
    One developer wanted to build a 750,000 warehouse 
distribution facility for one of the country's leading computer 
manufacturers. This is a former dairy land where manure was 
very prevalent, and there had been no real farming on this site 
for many, many years. Yet Fish and Wildlife biologists felt it 
might be a good site for the Delhi Sands flower-loving fly, and 
they felt that it could have been there at one point in time.
    They required us to do a study. We did a study for the 
habitat, found that there was marginal habitat, if any at all, 
the Delhi Sands sand, and we also did a study to determine 
whether the fly was there.
    No, there was no fly there. You could only do the study 
during September and August, August and September of each year 
because the rest of the time the flies burrow under the sand.
    There wasn't a fly, but an intern biologist from UCLA 
thought that he heard the fly.
    [Laughter.]
    Mr. Tavaglione. Now, when the fly was heard, and that 
letter was provided to the representatives of the Carlsbad 
office of the Fish and Wildlife Service, and the subsequent 
hearing came before my board to decide whether this project 
should be built, the comments by Fish and Wildlife Service, 
``We believe that the fly is there because we have letters that 
the fly was heard.''
    Well, board approved that project, did not listen. It is 
still in litigation, continues to be in litigation by 
environmentalists who work hand in hand with the Fish and 
Wildlife Service. If anyone tells you they are not, that is not 
true. But yet the project is still under delay and will 
continue to be under delay while environmentalists continue to 
challenge it because of a fly being heard.
    One that is closest to me is the interchange because of all 
of the industrial and business activity, and Congressman 
Calvert is well aware of this. We have needed to build a new 
interchange on the 15 corridor to deal with traffic congestion, 
but also to deal with all of the trucks that are coming from 
the new industry. We are trying to be proactive in doing so. We 
tried to move the project along as quickly as possible to 
eliminate the congestion.
    We sat down with Fish and Wildlife. This was two years ago, 
to work out a plan that we could move forward and assume that 
the project was inhabited. We had to do that because it was the 
Federal nexus that is being provided here because it is a 
Federal highways project.
    And because we did not want to go through the two years of 
study and delay it two years further or a total of four years, 
we had to assume habitation or occupation of the property.
    In the end it was determined that we could probably get by, 
even though there was no occupation by flies, very little soil 
if any; we determined that we could get by with either to 10 
acres of mitigation.
    I attended personally this meeting when we were ready to 
move forward and hopefully strike a deal when members of the 
Fish and Wildlife Service looked me straight in the face and 
said, ``Well, we have changed our mind. The eight to ten acres 
is not sufficient. We want 200 acres.''
    Now, that is when I blew my stack. I have to be honest with 
you. That is when I realized that something was wrong. That is 
when I called my Congressman, Congressman Calvert, and said, 
``We need your help again, Ken,'' and he was very helpful.
    We have, to the credit of many and to the credit of Fish 
and Wildlife Service, we have reached an agreement. It is not 
eight to ten acres. It is 40 acres. It is about 10, 15 miles 
away from the site where the interchange will occur, and the 
agreement is tentative at this point.
    And I have to tell you as others have today; I tell you 
this story knowing the risk that could occur, that this is a 
tentative deal, and that things may not transpire because of 
certain testimony that occurs today. But I have to put the 
faith in Mr. Spear and Mr. Berg that they are going to take the 
bull by the horns and make some change.
    We have a few suggestions for you in terms of how you can 
change.
    Mr. Pombo. I have to ask you to wrap it up.
    Mr. Tavaglione. I am going to wrap it up. I was just going 
to say we have four suggestions here, Mr. Pombo, and they are 
in my written testimony. We ask that you take those very 
seriously.
    After working very closely with the Fish and Wildlife 
Service, as county staff has done, we feel that this is the 
only way that some sense is going to come into this law.
    Thank you very much.
    [The prepared statement of Mr. Tavaglione follows:]

Statement of John F. Tavaglione, Supervisor, Riverside County Board of 
                              Supervisors

    Honorable Chairman and members of the Committee, my name is 
John Tavaglione, member of the Riverside County Board of 
Supervisors, and on behalf of my colleagues and all the 
citizens of our fine county, I want to welcome you here today. 
I've been asked by my colleague, Supervisor Jim Venable to 
especially welcome you to his beautiful hometown of Hemet.
    First, I would like to personally thank all of you for 
providing the leadership which is so desperately needed to 
bring some sensibility and reasonableness to the Federal 
Endangered Species Act (ESA). I especially want to thank my 
good friend Congressman Calvert, who has spent countless hours 
listening to the concerns of local government agencies, private 
property owners, and professional organizations; and for his 
leadership in introducing new legislation in hope of 
establishing some ``common sense'' reform to the Endangered 
Species Act (ESA).
    As you may know, Riverside County was one of the first in 
the U.S., to take the lead in formulating a Habitat 
Conservation Plan (HCP)--first with the Fringe-Toed Lizard HCP 
in 1984, followed by the ``Short-Term'' Stephens' Kangaroo Rat 
(SKR) HCP in 1992, and subsequent ``Long-Term'' SKR in 1997. As 
well, since the early 90's, our County has put into place two 
(2) Multi-Species Habitat Conservation Plans (MSHCP) in 
cooperation with the Metropolitan Water District. And, as we 
speak, County agencies, along with professional engineers, 
consultants, and both the State & Federal resource agencies are 
working closely together to establish the country's first 
multi-tiered approach to habitat conservation, growth 
management/land-use planning, and the planning & designation of 
major transportation corridors. This extremely aggressive but 
worthwhile program is known as the Integrated Planning Process, 
which was given the nod of approval by our board a little less 
than a year ago, with the charge of adopting, within a 3 year 
period a countywide multi-species plan, a new general land-use 
plan, and the identification of new, major transportation 
corridors. All of you, I'm sure, know, that Riverside County 
(along with our neighboring San Bernardino County) is one of 
the fastest growing regions in the country; has some of the 
most congested freeways in the U.S.; and, as many of us believe 
and feel, we are looked at by Federal Resource Agencies and 
environmental groups as the prime target (because of our 
growth) for insuring that a very worthy, but extremely flawed 
Federal Act is adhered to.
    As you can see, our County has not just sat back and tried 
to push the envelope with the regulatory agencies in dealing 
with the ESA--quite the opposite--we are one of the few local 
jurisdictions in the U.S. to take the lead, and are quite proud 
of our ``attempt'' to be a strong team player with the U.S. 
Fish & Wildlife Service in conforming with the ESA. 
Unfortunately, many will believe as I do, that such attempts at 
working cooperatively have, in too many cases, only worked 
against us, causing very costly delays in important and 
critical public and private projects throughout the region.
    Today you will hear (or have already heard) testimony from 
private landowners, farmers, professional building 
organizations, and other public and private entities, who will 
share with you the frustrations each have encountered while 
dealing with the ESA and the local Carlsbad Field Office. Later 
today, you will hear from the General Manager and Chief 
Engineer of our County Flood Control and Water Conservation 
District, who will share with you the difficulties his agency 
has had in dealing with the permitting of local flood 
``safety'' projects----projects, that because of delays in 
permitting, resulted in severe damage to property, and the loss 
of life. And I too, would like to share with you some examples 
that we, as a local government organization have been 
challenged with.
    Let me start by saying that we in Riverside County and the 
Inland Empire Region have nearly 200 species that have been 
identified as ``endangered'' or ``threatened.'' While not all 
of these species have caused us heartache yet, a few of the 
more notable ones (which you have already, or likely heard of) 
have--such as the kangaroo rat, the Fairy Shrimp, the Quino 
Checkeredspot Butterfly, and my favorite--the one that I'm most 
familiar with--the Delhi Sands Flower-Loving Fly. First, I 
would like to share with you a couple of stories that truly 
give the meaning and original nature of the Endangered Species 
Act a bad name, and ones that border on the area of being 
ridiculous, sometimes funny, and unfortunately very tragic. 
I'll start with the tragic and end with the funny. In 1993, 
heavy rains were experienced throughout the region. 
Specifically, in the southwestern part of the county, in the 
city of Temecula, the banks of the Murrieta Creek overflowed 
causing much of the lower-lying areas of the city to flood, 
causing severe damages (in the millions of dollars) to 
businesses and residential neighborhoods. One entire family was 
lost when they attempted to cross a flood road in their family 
vehicle. Should they have attempted to cross? Probably not! 
Could all of this been avoided? Yes, simply by being given the 
proper emergency permits to maintain and clear sediment from 
the creek--yet this was not possible due to concerns for the 
endangered least Bell's vireo. The same bird has prevented us 
from clearing accumulated sediment in the Santa Ana River which 
runs through San Bernardino, Riverside, and Orange Counties. 
Extensive damage has been caused to one specific bridge 
crossing this river, which, with some reasonable cooperation 
from the local Carlsbad office, could be replaced the with 
funds already allocated. Yet because of the personal agendas 
and indecisive nature of some in that office, coupled with the 
bureaucratic maze, costs have tripled, and the replacement 
bridge may never get built.
    I'm sure you have also heard about the Mediterranean Fruit 
Fly. No, thankfully it is not endangered. In fact, it poses 
quite a threat to our abundance of fruit orchards here in 
Riverside County. In 1994, the fruit fly posed such a severe 
threat that the State Agriculture Commissioner ordered the 
aerial spraying of insecticides over a major portion of the 
inhabited cities of our western county. School yards and their 
play equipment along with the residential neighborhoods were 
sprayed on a series of evenings over a month-long period. While 
it was o.k. for children and their play areas to be subjected 
to this spraying, representatives of the U.S. Fish & Wildlife 
Service ordered no spraying to occur over areas that were 
inhabited by the least Bell's vireo and the Stephens' Kangaroo 
Rat.
    I've saved what I consider to be the best for last--the 
Delhi Sands Flower-Loving Fly (DSF). This is the same species 
that prompted members of the Carlsbad office to determine that 
a specific area in southern San Bernardino County, was heavily 
inhabited by the fly and needed to be preserved. Unfortunately, 
it happened to be (partially) the site which was soon to be the 
new home of their county's new regional medical center. Not a 
problem, according to U.S. Fish & Wildlife Service 
representatives, ``move the hospital a few hundred feet and 
we'll be o.k.''--o.k. to the tune of over 2 million 
``taxpayer'' dollars! Down the road about 10 miles West of this 
location, in the regions most active economic development area, 
which also happens to be my direct responsibility, a developer 
desired to build a 750,000 square foot warehouse/distribution 
facility for one of our country's leading computer 
manufacturers. U.S. Fish & Wildlife Service representatives 
contacted the developer and my office, indicating the need to 
do a survey on the property to determine the presence of the 
fly, since, in their opinion, the property had the prime Delhi 
Sands soil by which the fly tended to inhabit. We instructed 
the developer to do those surveys----one to determine the 
quality of the soil and vegetation, which can be done at any 
time of the year, and which was found in this case, to be 
marginal at best. The second survey was to determine the 
presence of the fly, and could only be done during the actual 
``fly'' season--as the Delhi Sands Fly only shows it's wings 
during the months of August & September--burrowing in the sand 
the remaining 10 months of the year. Biologists permitted by 
the Carlsbad office spent approximately 8 weeks (at times 
sitting in chairs on the site for 8 hours--observing) surveying 
and watching for the fly. While none were ever observed by the 
biologists conducting the actual study, a biologist ``intern'' 
from the University of California, Los Angeles (UCLA), just 
happened to be observing the same site during a field 
observation trip. The intern claimed that, he too, did not see 
any flies on the site, but heard one as it flew by. This second 
hand information, brought forward by the intern's professor in 
biology (and fly expert) caused representatives of the local 
Carlsbad office to make an appearance before me and my 
colleagues, urging us to deny the approval of the project, and 
delay the economic progress of the region. Despite the 
unsubstantiated concerns raised by the Carlsbad office, our 
Board approved the project. However, a regional environmental 
group subsequently sued the county and the developer, and has 
delayed the project and continues to delay the project for 
nearly a year and a half. To date, the courts found absolutely 
no flaw in the surveys conducted. Not less than a mile directly 
to the south of this particular area, and due to the active 
industrial development of the region, a new freeway 
interchange, along Interstate 15, was deemed necessary in order 
to address the corresponding existing, and increased truck 
traffic to the area. Congressman Calvert gave us great 
assistance by securing partial Federal funding for the project, 
and with this in hand we began to expedite the design and 
construction in order to stay ahead of the congestion curve. 
Since there was a Federal nexus with the project, we were 
required to consult with the U.S. Fish & Wildlife Service on 
this project. Recognizing that the particular area of the new 
interchange was not prime for habitat, or a known ``flight'' 
area for the Delhi Sands Fly, County staff sat down with 
members of the Carlsbad office, where they all agreed that in 
order to expedite the project, they would ``assume'' some 
amount of occupation by the fly (even though none have ever 
been observed there) and provide for a reasonable level of 
mitigation. This process would allow us to keep the project 
moving without having to conduct the normal 2 year protocol 
observation (during August and September) for the fly. The 
process moves along in a fairly decent time frame, with Federal 
requirements adhered to, and a reasonable level of fly 
mitigation provided--setting the stage for consultation (prior 
to Federal Highway approval) with the local Carlsbad office of 
U.S. Federal Fish & Wildlife Service. After 2 years of 
discusssions, representatives from Carlsbad indicated that the 
8-10 acres of low-value, non-occupied mitigation for the fly 
``is not sufficient, as due to the abundance of industrial 
development occurring in the area, the interchange project 
causes cumulative impacts, and will likely require 
approximately 200 acres of mitigation.'' Quite frankly, Mr. 
Chairman and members of the Committee, it was at this point in 
time, in my 6 years in dealing with the Endangered Species Act, 
and the local Carlsbad office, that I, personally, blew my 
stack!
    It was at this meeting, where I realized that agreements--
hand shakes, verbal, written, or otherwise, meant nothing to 
certain members of the Carlsbad office. Too often, decisions 
are arbitrary in nature, with little or no thought, basis, or 
real science behind them. At times it appears as if decisions 
are made strictly by ones own personal beliefs or agendas, and 
often times, only for the purpose of delaying a project, with 
the ultimate hope of stopping growth and economic productivity. 
Now, to the credit of certain members of the Carlsbad office, 
we have recently reached a tentative agreement on this 
particular interchange which will require not the 8-10 acres of 
mitigation, but 40 acres with a substantial buffer area for 
protection of the habitat. The project should have and could 
have been under construction by now. Instead, we will be 
fortunate to see its construction commence in under 12 months.
    While I know I've been somewhat lengthy in expressing some 
examples and the concerns we in Riverside County have with the 
ESA and the Carlsbad office, I thought it would help you in 
your review.
    Mr. Chairman, I'd like to close by offering some 
recommendations for reform to the Carlsbad Field Office, and 
the Endangered Species Act:

        (1) Standardized mitigation and survey requirements should be 
        developed and adhered to. The U.S. Federal Fish & Wildlife 
        Service, should immediately establish reasonable, uniform, and 
        standard mitigation and survey requirements for all currently 
        listed species. It does not appear reasonable that when certain 
        species can only be observed seasonally, or during 2 months out 
        of the year, that a 2 year survey should be required, 
        potentially delaying economic productivity. Such mitigation and 
        survey requirements should also be developed prior to the 
        listing of the species in order to limit further delays after 
        listing, and only upon adequate and detailed science to back-up 
        the protocol.
        (2) Consultations conducted pursuant to Section 7 of the ESA 
        should be completed within the time period mandated by Federal 
        regulations. Section 7 now requires the consultation to be 
        completed within 150 days of the submittal to the local field 
        office. In the case of Riverside County's Stephens' Kangaroo 
        Rat ``Short-Term'' Habitat Plan (HCP), the U.S. Fish & Wildlife 
        Service took well over 18 months to consult, and there are 
        other similar examples.
        (3) A time period for processing an application for an 
        incidental take permit issued pursuant to Section 10(a) of the 
        ESA and approval of a Habitat Conservation Plan should be 
        established by Federal regulation and complied with.
        (4) The lack of consistency with respect to commitments and 
        agreements, both verbal and written, must be addressed. The 
        U.S. Fish & Wildlife Service representatives must honor all of 
        its obligations under the ESA and must fulfill all commitments 
        made in agreements with local governments. Senior management of 
        the service must hold their personnel accountable for failure 
        to adhere to requirements of law and interagency agreements. 
        Clear and concise policy direction concerning goals and 
        objections must be provided to field staff by management and 
        policymakers. It is the perception of the regulated community 
        that there continues to be a lack of management and oversight 
        of field staff.
    Honorable Chairman and Committee members, thank you for giving us 
the opportunity to address you--we in Riverside County very much 
appreciate the leadership you are all providing to bring a level of 
reasonableness to this important Act of protecting certain species.

    Mr. Pombo. Thank you.
    Mr. Evans.

  STATEMENT OF DOUG EVANS, CITY MANAGER, CITY OF PALM SPRINGS

    Mr. Evans. Thank you very much.
    My name is Doug Evans. I am Director of Planning and 
Building for the City of Palm Springs, and I would like to 
thank the Chair, members of the Resources Committee, and also 
Congresswoman Bono for having this opportunity to address you.
    The City of Palm Springs has had a long term commitment to 
resources. We feel we have a lot of success stories to talk 
about, and I am going to talk about what we think is a success 
story that has not been acknowledged.
    Now, the City of Palm Springs and many property owners have 
been frustrated by the service and how they have implemented 
the Endangered Species Act. Since 1993, the city council has 
approved three major projects, and currently all three are 
being delayed by the Fish and Wildlife Service. In all three 
instances, the service has required significant modifications, 
revisions, or other mitigation measures which make the projects 
economically unfeasible and have contributed to the city's 
financial challenges.
    In order to augment city resources or revenues, the city 
council has had to cut programs and has had to impose a local 
utility tax to maintain essential public services.
    The delays caused by Fish and Wildlife Service have kept 
the city from expanding its primary industry, tourism, while 
neighboring jurisdictions in the Coachella Valley have expanded 
and developed resorts in similar terrain and with similar 
biological resources.
    For the past 25 years, the City of Palm Springs has been a 
leader in environmental protection and acquisition of sensitive 
habitats. The city's general plan designates 33,000 acres for 
conservation, open space, parks, recreation and water course. 
That is 66 percent of the land in the City of Palm Springs.
    Our general plan and zoning ordinance requirements are very 
restrictive. We have never been complimented as a city that is 
easy to develop in, although I have been charged with trying to 
change that. To show its commitment, the city council has 
acquired through purchases, trades, dedications 3,400 acres of 
prime bighorn sheep habitat. These lands form an almost 
continuous no development boundary along the base of the San 
Jacinto Mountains.
    The exhibit to my left with the bright green on it shows 
all of the city owned lands, and in the areas outlined in 
blue--it does not show up very well--show two of the three 
development projects I am going to speak about today. The area 
in purple shows the areas that were disputed with the agency or 
the service.
    The city council has offered to place additional deed 
restrictions on these lands or possibly even dedicate these 
lands to the state or Federal Government if these properties 
can be developed that I am going to speak about.
    Let me put it in context as far as acreage. There is over 
33,000 acres of bighorn sheep habitat in the San Jacinto 
Mountains on that map. We are asking if we can develop the last 
500 acres to fill out the western edge of our city. The rest of 
the area available is either owned by the city or undevelopable 
because of the size of the mountain, the steepness of the 
mountain, and the other environmental factors.
    You have heard a lot about the Shadowrock development. Mr. 
Bragg has worked very hard. I have worked personally with him 
15 years on that project.
    He did not tell you the first position from Fish and 
Wildlife Service, and this position was stated in initial 
meetings. It was also stated in a settlement agreement meeting 
with California Fish and Game over a lawsuit.
    Fish and Wildlife staff's initial position was for the 
owner to call the Nature Conservancy because he would never be 
able to develop his land. Mr. Bragg outlined what is left, 150 
acres from 1,100.
    Mountain Falls Golf Resort, a very similar story. Fish and 
Wildlife Service reduced the area from development from 120 
acres to 60 acres, enough land to develop a seven to nine hole 
golf course. This is just a golf course project with 20 
condominiums. It is not a big project. There is no other land 
to move the golf course to around the property.
    Every time the Mountain Falls developer has met with Fish 
and Game or Fish and Wildlife Service, they have been asked to 
move the golf course down the mountain. They did. They moved 
the line, and we submitted in our information where they put 
the line.
    They have taken 120 acres, made it 60. You can barely do 
nine holes of golf. That is not a project.
    Canyon Hotel and Resort, this project was approved by the 
city back in 1993 and was a direct result of the vision from 
former Mayor and Congressmen Bono. This is a project that Fish 
and Wildlife Service scared a development team, a very notable 
development team, in a hotel operation that we would love to 
have in our community by claiming that an existing golf course, 
an existing street, an existing bridge, and an existing flood 
control channel formed a significant bighorn sheep corridor, 
this in spite of the fact that there is a tribal park a half 
mile away that cost the state $17 million, and the county just 
added several million dollars to that, that has a wonderful 
corridor through it. It is about five to eight miles wide.
    After three or four subsequent meetings, Fish and Game and 
Fish and Wildlife Service changed their mind. That area is not 
a corridor.
    Well, the developer is gone. The project still is 
undeveloped, and the tribal council which owns the land is 
struggling with how do you make the project work with all of 
these restrictions.
    One of the things that we have run into is the availability 
of information from the service when we look at projects. I am 
going to give you an example.
    The city asked for detailed information for approximately 
two years to prepare an EIR. Fish and Wildlife Service, and now 
working in conjunction with Fish and Game, did not provide any 
on site data. In fact, today on another project they tell me 
they do not need field surveys because they know where the 
habitat is.
    Then at the eleventh hour, the Sierra Club or the Bighorn 
Institute submits data, sometimes with Fish and Wildlife 
Service titles on it, into the record with the intent of trying 
to disrupt the project at the last public hearing.
    In our experience, we found the staff to be accessible. We 
tend to be able to have meetings, but we do not feel that they 
consider all of the available information. We do not believe 
that they participate effectively in consultations and public 
meetings. We also believe that they clearly extend beyond their 
legal authority to discourage development at the very, very 
beginning.
    We have listed some questions. I note my time is up. They 
are suggestions. One of the items we would like you to try to 
push is the release of the recovery plan. We have been asking 
for the bighorn sheep recovery plan for a long time. We are 
told that this will help resolve problems, and it is probably 
over a year late.
    Thank you very much. We need your help, and I appreciate 
the opportunity to address you today.
    [The prepared statement of Mr. Evans follows:]

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    Mr. Pombo. Thank you very much.
    Mr. Calvert.
    [Applause.]
    Mr. Calvert. Thank you, Mr. Chairman.
    Supervisor Tavaglione, obviously we have a common interest 
with the Galena Exchange, and I would just like you to get into 
potentially more detail to the Committee on how the 40 acre 
mitigation agreement was reached when the Fish and Wildlife 
Service initially wanted 200 acres.
    Mr. Tavaglione. Mr. Calvert, there are three recovery areas 
for the fly, one in the Algomanza Colton area that has been 
mentioned earlier, one in the Herupa area, and the one in 
Ontario, the Ontario recovery area. This particular interchange 
is in the Ontario recovery area, though it is in Riverside 
county, and very little habitat remains in that recovery area.
    Yet because this is a Federal project and there is little 
habitat remaining or at least anything to really force certain 
properties to be brought into habitat, it was mentioned that 
the 200 acres could provide mitigation for the entire recovery 
area, Ontario recovery area.
    Mr. Calvert. Just for the Committee's information, 200 
acres in that area would cost per acre how much would you 
estimate?
    Mr. Tavaglione. Two hundred acres today would cost $100,000 
an acre minimum.
    Mr. Calvert. Hundred thousand dollars an acre for 200 
acres, and what was the cost of the entire Galena project?
    Mr. Tavaglione. The cost of the entire Galena project is 
$15 million.
    Mr. Calvert. So the cost of the initial mitigation exceeded 
the cost of the entire project?
    Mr. Tavaglione. That is correct. That is correct.
    Now, the 40 acres, since there is little land remaining or 
little recovery area remaining for this fly in the recovery 
area, yet we have a need to keep this project moving. I 
volunteered the ability to, if they would give us the ability 
to, mitigate outside the recovery area, which they agreed to 
do, 40 acres of prime habitat which is going to be well beyond 
40 acres after we include some buffer area for protection of 
the fly. This is above the Stringfellow acid pits, which I 
think many of you are aware of, which is a state infrastructure 
or a superstructure fund property.
    Forty acres is being provided. To date I have not seen any 
real science that leads to either the 200 acres, the eight to 
ten acres that we originally wanted to provide for mitigation, 
nor has there been any real science for the 40 acres other than 
that the fly has been observed in abundance.
    Mr. Calvert. Thank you.
    Mr. Tavaglione. Yes, sir.
    Mr. Calvert. Mr. Zappe, what would you consider to be the 
most frustrating issue when you deal with the Carlsbad office, 
in your opinion?
    Mr. Zappe. Well, I guess I would have to say that at least 
on the part of some of the staff, the lack of integrity and our 
inability to trust what we hear very often.
    Mr. Calvert. That is a pretty powerful statement. You head 
up one of the largest agencies in Riverside County. Obviously 
you, I guess, would be considered a bureaucrat, work for the 
government, and you believe that there is a lack of integrity, 
that you question in fact whether or not a deal is a deal per 
se in that office?
    Mr. Zappe. I think our experience tells us that a deal is 
not a deal. Unfortunately very often it is difficult to get a 
commitment out of staff. It is even rarer that you can get a 
written commitment from staff, and when we do, we pursue that 
particular course of action only to find later a change of 
heart, a change of mind, and someone saying on staff, ``Let's 
do it a different way.''
    So we invest a lot of time and money going down a 
particular path only to be told we do not think that is going 
to work. Let's go another direction.
    Mr. Calvert. Now, you deal with issues that obviously are 
involving public health and safety. Your requirement and your 
job is to make sure that the public's health and safety is 
protected. Do you think that the Fish and Wildlife Service puts 
any consideration in the health and safety of the people that 
you are mandated to help?
    Mr. Zappe. I have not seen much evidence of that. I think 
that the service seems to have a fairly myopic, environmentally 
biased view, we feel, our experience with them. I think that as 
Mr. Woolfolk mentioned much earlier today, I think there is 
tremendous influence from the environmental community upon the 
staff at Carlsbad.
    The bumper sticker example has been cited. We have heard 
that. We fully believe that. I think we know who that is from 
our own experience in working with some of the field staff.
    We see the purpose of the staff to be, one, to fairly and 
dispassionately administer the law with, you know, a neutral 
bias, with no bias, being neutral with regard to projects that 
are brought forward. We do not feel that that is the case.
    Their mission certainly appears to be at cross-purposes 
with our own which you mentioned, and that is to provide public 
health and safety. Our purpose is certainly to keep humans off 
the endangered species list.
    Mr. Calvert. I appreciate your testimony.
    Thank you, Mr. Chairman.
    Mr. Pombo. Mr. Hunter.
    Mr. Hunter. Thank you, Mr. Chairman.
    Mr. Chairman, I am sure my colleagues feel the same way. We 
want to really thank you as this hearing goes on for the great 
direction you have given us and leadership.
    Mr. Moser, one of the rewards for being one of the few in 
the bold who are willing to take the witness table here is that 
you get to make recommendations, as a number of our people 
have. You have put together, along with a number of other folks 
in San Diego County, some recommendations, constructive 
recommendations to make this relationship between Fish and 
Wildlife and the consumer a better relationship, and could you 
tell us about some of your major proposals here?
    Mr. Moser. Well, let me just touch on a few. There are also 
some boards, I think, over to the side perhaps somebody can put 
up.
    I think one is simply to promote success, and the one way 
of doing that is to actually budget the de-listing process. I 
think, Congressman Pombo, you noted that the success rate has 
not been what Congress had intended. Perhaps as part of your 
appropriations, you should look at a specific budget that goes 
strictly and solely to de-listing species which would provide 
an incentive to actually make the program work.
    On more of perhaps an administrative level, one of the 
things that is, I think, unique in these multi-species 
conversation programs is that they are not just about biology. 
They are an attempt to balance biology, economics, development, 
a whole host of things. They are, indeed, a compromise 
solution.
    So what we would recommend is that they be staffed with 
people that come from a varied background, not just biologists. 
You know, you could have an economist who works at Fish and 
Wildlife Service. Even a builder might be nice, you know, maybe 
one.
    But beyond that, the establishment of performance goals, 
and by performance I do not mean performance in the sense of 
how many projects can be delayed or how many species can be 
listed, but really performance in the sense of how quickly you 
can respond to the varied administrative tasks that one has, 
and certainly we do that in business all the time.
    You are given an assignment. You have a time period in 
which to respond, and you are evaluated on whether you respond 
within that time frame, and perhaps one of the ways of tracking 
that is really an application tracking system. I know the 
County of San Diego has initiated that. They can tell you on 
any given instant that you call them by pulling it up on the 
computer where your application is or where your letter is or 
whatever it is, where it is in the process.
    You cannot get that from Fish and Wildlife Service today. 
So those are a few. We are happy to provide you with additional 
ones.
    Mr. Hunter. Okay, and, Mr. Chairman, with your permission, 
if we could ask Mr. Moser's recommendations to be made a part 
of the record, and, Mike, maybe you folks could review them and 
take a look at them and maybe make a comment on them for Mr. 
Speak, if you would do that.
    Mr. Pombo. Without objection, they will be included.
    Mr. Hunter. Let me just throw a couple of things out that I 
think would expedite the process and make it more fair. You 
have obviously got a lot of entities and obviously several 
Federal entities that are interested in the same issues, the 
Fish and Wildlife, the environment, the Corps of Engineers, and 
then you have got your state subdivisions, the counties, 
cities, et cetera.
    As I understand, one of the frustrations that I have heard 
about, and, Dennis, maybe you could speak to this, is that we 
seem to have a consecutive situation here you will first have 
where the agencies will sometimes string out their 
participation. So you do not have a coming together of all of 
the affected entities who sit down and say, ``Let's have the 
environmental planning meeting, and let's figure out what we 
are going to do with this particular stream that goes through 
the affected property.''
    And then you could get Fish and Wildlife to comment on it. 
You could get Corps of Engineers to comment on it. You could 
get the local government and, if applicable, the state 
government to comment and to put together a plan with respect 
to that aspect of that particular piece of property.
    Instead, and tell me if I am wrong, what I understand is 
one agency will make their scrub, and they will say, ``We want 
so many acres in mitigation, and here is out plan,'' and when 
that gets finished, the next agency will say, ``Now, we will 
take a look at it after the other guy is finished, and we will 
make our scrub.''
    Is that an accurate description of what happens?
    Mr. Moser. Well, it is accurate, but in fairness to the 
agencies, I would say that, you know, the bringing together of 
everybody at the table is a difficult process because Army 
Corps is working under one set of legislative mandates and so 
forth, and Fish and Wildlife and EPA under others.
    So I do not think that there is a lack of desire to do 
that, but there is a lot of hindrances to the process, and 
certainly there is a need to bring everybody to the table at 
one time.
    Mr. Hunter. Okay. I just had a meeting with the Corps on 
this. They said they would be happy to sit down. You know, 
Mike, you were talking about lack of resources. Being able to 
sit down at the same meeting with all of the agencies and 
review the aspects that you are all going to look over so that 
you do not have to reinvent the wheel for each individual 
agency I think has an efficiency aspect.
    So I would like to make a recommendation, Mr. Chairman, and 
maybe put it into writing at some point here that we have a 
memorandum of understanding between Federal and state 
subdivisions and the Fish and Wildlife and the Corps that 
provides for some joint meetings early on in the process.
    And, Dennis, maybe you could give us some input there.
    And so thank you, Mr. Chairman. Just the last thing I would 
ask, Mr. Berg, if you can, I know my constituent who drove up 
here from Jacumba, Mr. Turecek, is going to be around for a 
while, and I ask if you could re-engage with him and try to 
help him walk through this process, and if you could take a 
minute with him before the meeting is over, I would sure 
appreciate it. Thank you.
    Thank you, Mr. Chairman. I appreciate it.
    Mr. Pombo. Ms. Bono.
    Ms. Bono. Thank you, Mr. Chairman.
    It is a pleasure to have Doug Evans here before me. It is 
kind of ironic that he is here. Just on a personal note, he is 
one of the reasons Sonny got into politics in the beginning, 
working at City Hall, and Sonny ran into you and bureaucracy 
and decided to run for mayor and became your boss.
    Mr. Evans. Because he wouldn't give him the permit?
    Ms. Bono. No, he is the guy who replaced the guy who would 
not give him his permit.
    Mr. Evans. Thank you very much for that clarification.
    [Applause.]
    Ms. Bono. There is hope. My question is for you, Doug.
    Do you believe that the agencies, among them the U.S. Fish 
and Wildlife Service, California Department of Fish and Game, 
Bighorn Institute, and the Sierra Club, or local employees of 
the agencies have worked together against the City of Palm 
Springs or project proponents to stop development?
    Mr. Evans. Well, there is very, very little doubt there. I 
mean we have sat down with the agencies, asked for information, 
very specifically for information, told we would receive it. We 
would not receive it.
    And then on the Shadowrock project, the Sierra Club walked 
in with a document with Fish and Wildlife Service letterhead on 
it showing location of sheep sightings. It is actually a part 
of the information on this exhibit.
    On another project more recently, Mountain Falls, we have 
been trying to get sheep information, actually where do they 
exist in the mountains, and at the last public hearing, 
probably after midnight, the Bighorn Institute walked up and 
handed the information to us. It was GIS coordinate level 
information. So it looked like a scientific formula. You 
couldn't read it that night and make a decision.
    We waited. The council continued the hearing so we could 
plot the information, and the ironic thing is it was confirming 
every bit of the information we had in our environmental impact 
report, and yet the agencies were standing there telling us 
that the information was not accurate. They had better 
information.
    Once we got that information, it confirmed that we had good 
information and that council acted with good information.
    Ms. Bono. You deal with an awful lot of, I think, different 
governmental agencies obviously with your job. Can I ask for 
your unbiased opinion with the Carlsbad office here, and your 
frustrations with it?
    Mr. Evans. I think, you know, one of the things that they 
need to do and something that we have worked with our staff on 
is to encourage them to be less afraid of making a decision and 
then having the supervisors accept the decisions of the staff 
and empower the staff to work with people.
    What we run into is you work with a field biologist and you 
get right up to where you think you're going somewhere, and 
then they say, ``Well, the decision is really my supervisor. 
Well, it is really the assistant field supervisor,'' and I 
think what you have heard today, it is really Mr. Spear.
    And it is a very cumbersome process to work up the chain 
that far to deal with issues that really are business decision. 
They are business for Fish and Wildlife Service. They are 
business for the city. They are business for property owners, 
and it is very frustrating to never be able to meet with a 
decision maker that will sit at the table and say, ``I can make 
a decision on this.''
    Ms. Bono. Thank you.
    Is there any scientific data that the City of Palm Springs 
has been provided by the U.S. Fish and Wildlife Service that 
supports the conclusion that the Mountain Falls Golf Preserve 
project will cause a take of the peninsular bighorn sheep?
    Mr. Evans. We have received very lengthy letters basically 
criticizing the information in the public record, but the 
service has not provided any site specific information. That 
information came on that particular project either through the 
Sierra Club or the Bighorn Institute, a nonprofit organization 
in the Coachella Valley.
    Agencies tend to say when you ask, ``Well, where is data?'' 
Fish and Wildlife and Fish and Game tend to respond, ``The data 
is collected by the Bighorn Institute. They are a nonprofit 
corporation. We cannot share their data.''
    Well, we believe most of their data is collected with 
public money, and if the agencies are using it for a decision, 
we should be able to look at the same information, have it 
analyzed, present it to our decision makers who have to make 
tough decisions.
    And we submitted the mitigation outlines for two of the 
projects to you in your materials. Our council is tough. It 
required off site mitigation. They have required relocation 
projects. So the council has tried to work in a balanced 
situation and has taken some tough positions.
    I know Mr. Bragg and the Mountain Falls people have not 
been happy with all of those decisions. It would help us if we 
had the information up front as opposed to after midnight the 
last night city council is going to consider a project.
    Ms. Bono. Thank you.
    My time has expired, Mr. Chairman. Thank you.
    Mr. Pombo. Mr. Evans, I would like to just follow up with 
something you were just saying. I am a little curious. You are 
saying that you believe that the biological data is gathered by 
a private organization.
    Mr. Evans. The data that we typically receive, and what 
we're typically looking for is we can go out and evaluate the 
quality of habitat by the technical surveys and have 
professionals do that. What we always need is where are the 
sheep. Where do they spend most of their time? What are the 
lambing areas, you know? What are the corridors? Where are the 
water sources, things of that nature?
    And where we have trouble is the entity that seems to 
collect that information is the nonprofit, but they share the 
information with the agencies, and then the agencies consider 
it confidential and will not share it with the city, and we 
have to kind of wait until the last----
    Mr. Pombo. Do they base their decision on that information?
    Mr. Evans. Fish and Wildlife Service?
    Mr. Pombo. Yes.
    Mr. Evans. It is my belief that they do. That is the only 
data that is available. The data represented on that map, the 
sheep sighting information is the best information the city 
council could get after two years of working with the agencies, 
and we did not get it from Fish and Wildlife Service. We got it 
from either the Sierra Club or the Bighorn Institute, and 
almost always at the last possible minute.
    And the agencies know the information is there. They know 
what it is, and all they have to do is probably make a phone 
call and say, ``I think it is time to share the information.''
    You as decision makers know that if you have good 
information, if you have time to consider it, you make better 
decisions. Evidently the service, Cal. Fish and Game do not 
believe in that at the local level. That is my experience.
    Mr. Pombo. All right. I may want to follow up with you on 
this. I have some questions I need to go over with staff on 
exactly the way this should work, but I may want to follow up, 
and I may provide questions in writing for you after the 
hearing.
    Mr. Hollingsworth, you are here representing the Farm 
Bureau. I know my experience typically. The farmers and 
ranchers are not the best friends with the developers. They are 
not typically on the same side of most issues, and yet your 
testimony brings out many of the complaints, many of the 
concerns that we have heard from those in the development 
community.
    In your experience, has the agency been that difficult to 
deal with in terms of the farmers that are out there? They are 
not developing. It is the guys who are out there farming. Have 
they had the same kind of difficulties?
    Mr. Hollingsworth. Well, you have to, and I am sure you do, 
understand the unique situation that agriculture is in in 
dealing with the Endangered Species Act. Agriculture does not 
have the ability to say you are going to go out and farm some 
grain or you are going to put in a new orchard. They do not 
have the ability to take their property and put half of it 
aside and hand it over to the government as mitigation in order 
to get an endangered species permit.
    So what usually happens, if somebody is planning an 
agricultural activity on the property and the Fish and Wildlife 
Service stops them because there is a species there, it just 
does not happen. The agriculture does not happen. That is 
exactly what has happened with the Stephen's kangaroo rat in 
most instances in the county, and I am afraid that is what is 
going to happen with a number of species elsewhere in the 
country.
    And you are right. We have been able to work very closely 
with the builders in this county. We have formed what I think 
is a very valuable coalition with the builders and the property 
owners association, along with the Farm Bureau, in dealing with 
these issues, and we have put forth what we think is a workable 
solution under the existing Endangered Species Act that 
protects what we all have in common, and that is protection of 
our private property rights, but deals with the ESA in the 
situation that we have today.
    Mr. Pombo. Let me ask you a question about mitigation 
lands. I know in my area, typically when it is decided that we 
are going to set aside land for habitat conservation plans, 
that it is typically farmland that ends up, whether it is 
grazing land or land that is being farmed.
    And I know that a lot of farmers in my area are not real 
comfortable with them ending up being permanent habitat and in 
compensation levels that are talking about are not necessarily 
in line with what it means being permanent habitat.
    How do the farmers and ranchers in this area feel about 
becoming permanent open space?
    Mr. Hollingsworth. Well, again, I think it goes back to 
their private property rights. If they are not forced to, I 
think they have a right to do that with their property if that 
is their own individual decision without pressure from 
government regulatory agencies.
    Mr. Pombo. So as long as it is their choice and if they are 
choosing to sell part of their property right, part of their 
bundle of property rights, you think they are okay with that?
    Mr. Hollingsworth. I think if the individual wants to do 
that and he is not pressured unduly by a regulatory situation 
or by, you know, a neighboring government ownership of property 
that keeps harassing him in his activities and where he just 
gives up and has to sell or sell a conservation easement, but I 
think there is a larger issue there.
    Where does that stop? You know, there is a difference 
between agricultural preservation and continuing agricultural 
viability. Agricultural preservation is what you end up with 
with most green belts, is a museum piece that is not 
productive. It is not producing food for the country or anybody 
else, and it is not producing income for the person who owns 
that property.
    What we need are ideas that make agriculture viable and 
able to change to the marketplace and able to stay in places 
like Southern California that are rapidly growing, with a 
change in agricultural marketplace.
    I mean, people think that Riverside County is just an 
urbanizing county, and as Supervisor Tavaglione correctly 
pointed out, we are still one of the top agricultural counties 
in the state and in the country with over $1.2 billion in 
agricultural receipts last year, and that went up $100 million 
from the year before.
    So agriculture just has to have that ability to remain 
viable. In order to have that ability, it needs to be able to 
change and adapt.
    Mr. Pombo. Well, thank you.
    I thank the panel for your testimony. I am going to excuse 
this panel and call up our fourth panel.
    Mr. Edwin Sauls, Mr. Don Fife, Ms. Lorrae Fuentes, and Mr. 
Randy Kading.
    Thank you. Now that you sat down, if I could have you stand 
up for just a second and raise your right hand.
    [Witnesses sworn.]
    Mr. Pombo. Let the record show they all answered in the 
affirmative.
    Thank you very much for joining us.
    Mr. Sauls, you can begin.

  STATEMENT OF EDWIN G. SAULS, THE SAULS COMPANY AND BUILDING 
          INDUSTRY ASSOCIATION OF SOUTHERN CALIFORNIA

    Mr. Sauls. Thank you, Mr. Chairman, members of the 
Committee.
    Good afternoon. My name is Ed Sauls. I am speaking here to 
share with you my experiences as Chairman of the Endangered 
Species Task Force for Building Industry Association of 
Southern California, also as a land developer, and as a 
consultant in resolving conflicts between endangered species 
and development.
    Let me give an overview here. From the development 
perspective, the purpose, the purpose of the Endangered Species 
Act is a very good one. As an industry, we value species 
protection. We also value good planning. In fact, Building 
Industry Association has joined with many others and taken a 
leadership role in advocating good planning for western 
Riverside County and other areas of Southern California, good 
planning that includes the production and conservation of 
sensitive habitat and species.
    Such planning can create a balance between development and 
conservation. It can create highly desirable communities. 
However, effective conservation requires a cooperative effort 
with U.S. Fish and Wildlife Service and those whom they 
regulate. It requires trust, communication, and close 
cooperation.
    Now, let me step back a moment and share with you that two 
years ago I was particularly frustrated in my dealings with the 
Carlsbad office of Fish and Wildlife Service, and I thought, 
well, maybe this is something that is personal. Maybe I am the 
wrong guy to be doing this, and so I conducted an informal 
survey.
    Now, this was a survey, as I said, that was informal. It 
was mainly with other people in the development industry, but 
it was with people that had a continuing experience, an ongoing 
experience with U.S. Fish and Wildlife Service.
    And the results of that concluded that there is substantial 
frustration among most applicants that deal with Fish and 
Wildlife Service. Now, the findings of this survey were 
reviewed with upper management of the Carlsbad office and Mr. 
Spear. They were reviewed in 1997 and again in 1998 when Mr. 
Berg took over management of that office.
    Some things have changed since then, but I tell you the 
trust, communication, and close cooperation needed to 
accomplish effective wildlife conservation is not adequate. 
Implementing the Endangered Species Act in Southern California 
is in sore need of improvement.
    Today there continues to be a lack of trust between the 
Carlsbad office and many of the landowners they regulate. 
Projects continue to be stalled because conflicts are not 
resolved. There are no predefined time frames for actions 
regarding Section 10 permits. In fact, many people have been 
told habitat conservation plans are not going to be processed.
    And if you are operating under a Section 7 consultation 
where there are time frames established, you have heard today 
that there are delays in getting the process started.
    The authority and limits of authority of Fish and Wildlife 
Service under the ESA is not consistently applied and can vary 
depending on the individual that you work with.
    Incentives to conserve sensitive habitat, such as 
conservation banking, are ineffectively implemented.
    You know, landowners who are experienced in working with 
the Endangered Species Act are not motivated in these 
circumstances to conserve habitat. In their dealings with the 
service, their incentive is not to be proactive in 
conservation.
    To offer a more complete perspective, let me say that I 
have worked closely with the Carlsbad office since 1991. The 
staff is hard working and committed to the protection of 
endangered species. Together we have solved problems on more 
than a dozen incidental take permits, adopted new Federal 
policies, created three conservation banks, and addressed many 
other landowners' issues.
    So as Congresswoman Bono told us earlier, there are some 
successes, and I confirm those successes. I have seen Mike 
Spear work to improve the HCP process and restructure the 
Carlsbad organization. Ken Berg, Jim Bartell and Sherry Barrett 
are senior managers that regularly meet with the building 
industry to facilitate communication. These are good things.
    But I tell you problems do persist, and there is much room 
for improvement.
    Now, let me share with you something, an action that has 
been taken this year that I think epitomizes the problem. You 
have heard about the--I will make it brief--you have heard 
about the multiple species plan for western Riverside County. 
Mr. Spear referred to it as a good example. This is supposed to 
be the solution for all the conflict that we face. This is what 
occurred.
    We have a planning agreement that sets forth obligations of 
the Fish and Wildlife Service. That planning agreement said 
that Fish and Wildlife Service will provide some information to 
us and be cooperative in the process.
    The reality is Fish and Wildlife Service reneged on their 
commitment. They refused to provide and refused to provide 
without apology the information they were supposed to provide. 
I do not think this is a good example, as Mr. Spear indicated, 
of how we solve these problems.
    In my testimony I offered further clarification of the 
problems. I think this describes it. I have offered further 
clarification of the solutions. Mr. Moser has a pretty 
comprehensive list, and mine would only complement his.
    Let me conclude by saying that Southern California is a 
hotbed of conflict between population growth and endangered 
species conservation. More than 13 million people live here. In 
areas such as western Riverside County, the population is 
expected to double by the year 2010. A housing shortage exists, 
and it is a major struggle to produce affordable housing.
    This is also one of the most biologically diverse areas. We 
must do a better job of resolving these conflicts. We must 
constantly seek to improve the working relationship between the 
service and the regulated community.
    I believe we are at a turning point. We must either take an 
affirmative action now and take action. I believe words are no 
longer adequate. Action must be taken to rebuild the trust, and 
trust would be accomplished by doing some of the things 
presented here and presented in my testimony.
    If we do not, we will fail to accomplish the quality of 
communities we desire to build. We will fail to accomplish 
meaningful wildlife conservation. Improve or fail, this is our 
choice.
    Thank you.
    [The prepared statement of Mr. Sauls follows:]

 Statement of Edwin G. Sauls, Chairman, Endangered Species Task Force, 
          Building Industry Association of Southern California

    Mr. Chairman and Members of the Committee:
    Good morning, my name is Ed Sauls. I am pleased to have the 
opportunity to share with you some of my experience in 
implementing the Endangered Species Act in Southern California 
as Chairman of the Endangered Species Task Force for the 
Building Industry Association of Southern California, and as a 
developer and consultant to landowners specializing in 
resolving endangered species issues.

OVERVIEW

    The purpose of the Endangered Species Act is very good. As 
an industry, we value protection of species and their habitat. 
We value good planning. In fact, the Building Industry 
Association has taken a leadership role in advocating 
multispecies planning to promote wildlife conservation and 
balance it with housing demand. Such planning can create highly 
desirable communities. However, effective conservation requires 
a cooperative effort between the U.S Fish and Wildlife Service 
(FWS) and those whom they regulate. It requires trust, 
communication and close cooperation.
    Two years ago, I was particularly concerned about my 
personal frustrations in working with the FWS Carlsbad Field 
Office. I was interested to know if my experience was unique 
and I wanted to learn how we might improve the relationship 
between FWS and the people they regulate. Accordingly, I 
conducted an informal survey of people who were experienced in 
working with the Carlsbad Field Office. The results of this 
survey concluded that there is substantial frustration among 
most applicants interviewed. The findings of this survey and 
resulting recommendations to improve industry and agency 
relations were presented to FWS management in 1997 and again in 
September 1998 after Ken Berg became Field Office Supervisor.
    Since then, some improvements have taken place. For 
example, the office has reorganized and the current chain of 
command is much more clearly defined. However, frustrations 
remain very high and many improvements are needed. The trust, 
communication and close cooperation needed to accomplish 
effective wildlife conservation in Southern California is not 
adequate. Implementing the Endangered Species Act (ESA) in 
Southern California is sorely in need of improvement.

         There continues to exist a lack of trust between the 
        Carlsbad Field Office and many of the landowners that they 
        regulate.
         Survey protocols vary yearly as to how and when 
        landowners are required to survey for listed species.
         Projects continue to be stalled because conflicts are 
        not resolved.
         Scientific information, used as the basis of permit 
        decisions, is limited and often inadequate. Better information 
        is needed and FWS should openly encourage the exchange of 
        information from outside sources, including consulting 
        biologists.
         The cost of complying with the ESA is difficult to 
        predict. Mitigation requirements can vary dramatically between 
        neighboring properties. In many instances, mitigation demands 
        by FWS are excessive.
         The authority, and limits of authority, of FWS under 
        the ESA is not consistently applied and can vary depending upon 
        the individual staff member assigned to a project.
         Landowners who require Endangered Species Take permits 
        can be delayed one, two, three years or more.
         There are no predefined timeframes for actions 
        regarding Section 10 permits. Section 7 consultations, that are 
        supposed to have timeframes, are continually delayed.
         Enforcement of ESA violations are confusing, limited 
        and ineffective.
         Incentives to conserve sensitive habitat such as 
        Conservation Banking are ineffectively implemented.
         Landowners who are experienced in working with the 
        Endangered Species Act are not motivated to proactively 
        conserve habitat. Instead, current policy encourages compliance 
        with only the minimum requirements of the law. Sometimes 
        landowners are encouraged to destroy habitat when the gray 
        areas of the law allow them to do so.
    To offer a more complete perspective, let me say that I have worked 
closely with the Carlsbad office since May 1991. Without exception, the 
staff is very hard working and strongly committed to the protection of 
endangered species. Together, we have solved problems on more than a 
dozen incidental take permits, adopted new Federal policies, created 
three conservation banks and addressed many other landowner issues. For 
example, I have seen Mike Spear work to improve the HCP process and 
restructure the Carlsbad organization. Ken Berg, Jim Bartel and Sherry 
Barrett meet regularly with the Building Industry Association to 
facilitate communication. Many other examples of good working 
relationships exist with individual employees of FWS. During the last 
eight years, we have had successes and there are a lot of very good 
people at the Carlsbad Field Office. But problems do persist, and there 
is much room for improvement.

RECENT ACTIONS

    Some recent actions of FWS will help articulate the current 
relationship with FWS. On March 4, 1999, approximately 40 people 
participated in a meeting to plan the Multiple Species Habitat 
Conservation Plan (MSHCP) for Western Riverside County. If successful, 
this plan will change the future of Western Riverside County. This plan 
has the expectation of solving the inherent problems between population 
growth and wildlife conservation. It presents the single best 
opportunity to reconcile the conflicts over an individual's right to 
the use of their property on one hand and a community goal of assuring 
wildlife conservation on the other. This plan can also be the solution 
to solving the individual permit problems and horror stories we hear 
about. Through the plan, we also expect to protect more than one 
hundred species when (or if) this plan is implemented.
    Equally important, it is possible this plan can serve as a new 
prototype for other parts of our nation looking to solve their 
endangered species problems. To say that a lot is riding on this plan 
is an understatement.
    A Planning Agreement, executed on August 28, 1997 by Michael Spear, 
Regional Director, sets forth the ground rules of the planning process 
for the MSHCP including the obligations of FWS. This document took more 
than 2 years to carefully negotiate with FWS and representatives of 
various stakeholder interests. The executed agreement called for FWS to 
provide a ``rough cut'' of the requirements necessary to obtain 
approval of the MSHCP. It also called for a cooperative process among 
the participants including stakeholders and the U.S. Fish and Wildlife 
Service.
    Delivery of this information was promised more than a year earlier, 
but was finally scheduled for March 4, of this year. FWS did present 
considerable, impressive information at the meeting, but the ``rough 
cut'' information was not delivered!
    More than five representatives from a broad spectrum of interests 
including biologists, environmental groups, farming and landowner 
interests agreed and clearly stated that the FWS had failed to provide 
the long awaited information.
    Many of the attendees felt insulted that FWS tried to pass off the 
other information they presented as fulfilling their commitment to 
provide the ``rough cut.'' FWS was challenged to provide the promised 
information. Without apology, FWS unilaterally decided to renege on 
their promise as set forth in the Planning Agreement and signed by the 
Regional Director.
    At a subsequent MSHCP planning meeting, the issue was raised again. 
It was agreed that FWS clearly reneged on their promise. Many 
participants responses were, ``So what else is new from FWS? They do 
this type of thing all the time.'' (See attachments).

PROBLEMS:

    This conduct and other ongoing actions on the part of FWS create 
major problems in implementing the ESA in Southern California. It leads 
landowners and local government agencies to conclude that:

         FWS does not live up to its commitments even when they 
        are in writing.
         Their prior decisions cannot be relied on.
         Information known to FWS, and which is critical to 
        permit decisions, is withheld.
         FWS' commitment to cooperatively participate in a 
        stakeholder process is not reliable.
         Trust has clearly been broken by FWS.
         Landowners are not benefited by meeting with FWS early 
        in development approvals.
         Decisions and formal processing of projects are often 
        delayed unnecessarily.
         Meetings with FWS staff members occur without 
        resolution of project conflicts.
         Interpretations regarding the limits and authorities 
        of the FWS vary with individual staff members.
         No clearly delineated understanding exists regarding 
        the authority or lack of authority of FWS.
         Staff members do not regularly present reasonable and 
        prudent solutions to address endangered species impacts.
         Mitigation varies with each project and it is 
        extremely expensive.
         When disagreements occur, project proponents are 
        concerned that elevating the problem will result in 
        retributions in getting permits processed.

SOLUTIONS:

    Is there room for improved management of the FWS? Absolutely yes! 
This is why we are here today. This is not a witch-hunt. We are not 
here to burn anyone. We are here to recognize a problem and provide our 
collective best efforts to resolve it. We are looking for better ways 
to facilitate communication, to resolve conflicts, reestablish an 
overall trust relationship and to provide that the process maintains 
mutual respect.
    Major changes are urgently needed now to correct the degraded 
relationship between FWS and those they regulate. Accordingly, FWS 
should:

         Provide improved management including closer 
        supervision, more active participation by senior managers and 
        better accessibility of management to resolve conflicts.
         Establish the position of an ombudsman who reports to 
        an authority other than FWS. This position should be created to 
        actively facilitate communication, processing, interagency 
        communication and problem solving.
         Conduct substantive, pre-project processing meetings 
        with senior management in attendance.
         Assign staff members to projects according to their 
        experience level.
         Set standards for conflict resolution and milestones 
        associated with project processing including reasonable time 
        lines. Track and report performance according to these 
        standards.
         Clearly articulate the authority and limits of staff 
        authority as provided in the ESA.
         Stress the importance that needless delays do not 
        benefit species protection and present unacceptable costs to 
        private landowners.
         Require staff members to respect stakeholders and 
        understand the importance of their role in multispecies plans 
        as team members working to a common goal.
         More proactively provide applicants the information 
        they need.
         Encourage staff to provide applicants reasonable and 
        prudent measures consistent with the goals and purposes of the 
        proposed project. (similar to that which is required in Section 
        7 jeopardy opinions, but provided early in the consultation 
        process)
         Create positive incentives for personnel to improve 
        relations with those they regulate.
         Provide a climate that encourages landowners to 
        consult early with the FWS.
    Most importantly, FWS should take action now that rebuilds trust. 
If it is rebuilt, particularly through implementation of 
recommendations such as described above, we can accomplish a lot.

CONCLUSION:

    Southern California is a hotbed of conflict between population 
growth and endangered species conservation. More than 13 million people 
live here. In areas such as Western Riverside County, the population is 
expected to double by the year 2010. A housing shortage exists and it 
is a major struggle to produce housing affordable to this growing 
population. Concurrently, Southern California is one of the most 
biologically diverse regions in the world. We must do a better job of 
resolving conflicts between endangered species and growth. We must 
constantly seek to improve the working relationship between the U.S. 
Fish and Wildlife Service and those they regulate.
    We are at a turning point in implementing the ESA in Southern 
California. We must either make an affirmative commitment and take 
immediate action to improve relations between the Southern California 
office of FWS and those they regulate, or we will fail. We will fail to 
accomplish the quality of communities we desire to build. We will fail 
to accomplish meaningful wildlife conservation. Improve, or fail. This 
is our choice.

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    Mr. Pombo. Thank you.
    Mr. Fife.

STATEMENT OF DON FIFE, NATIONAL ASSOCIATION OF MINING DISTRICTS

    Mr. Fife. Mr. Chairman, members of the task force, I am 
Donald Fife. I am a professional scientist specializing in 
environmental mining and engineering geology for more than 20 
years in both government and private industry. My experience 
deals with environmental aspects of land use planning, natural 
resources planning at both the state and Federal levels.
    I have worked with the state clearing house as a reviewer 
for EISes and EIRs. I am a former Government Employees Union 
Local president for the Antelope Valley region. I belong to 
numerous professional societies, Geological Society, and even 
Sierra Club and the Native Plant Society.
    My education includes a Bachelor's degree in paleontology, 
stratigraphy, and geology from San Diego State University and 
additional studies at University of California, Riverside; 
University of Dayton; and University of the Philippines in the 
Republic of the Philippines.
    I currently serve as Chairman of the Nonrenewable Resources 
Committee of the American Land Rights Association. I chair the 
National Association of Mining Districts, and as a Director of 
Holcomb Valley Mining District, I work with prospectors and 
small miners and with large mining corporations. Our largest 
member is the Cushenbury Mine Trust, which is the trustee for 
the employees that lost their jobs at the Kaiser steel mill and 
mine in Fontana and Eagle Mountain in the early 1980s.
    In the bankruptcy of Kaiser Steel, there was a trust 
created by agreement with the former Kaiser company, Kaiser 
Steel, and the United Steelworkers of America, AFL-CIO. 
Royalties from their interest go to pay for vision insurance, 
dental insurance, and death benefits; they would expand these 
benefits if they were allowed to to mine their other reserves. 
They sell high-grade limestone to more major mining companies 
than probably any other group: Mitsubishi, Omya, Specialty 
Minerals, and several cement plants in the Lucerne Valley-
Victorville area.
    This district is an extremely important resource in 
California. The yearly production is $200 million FOB mine. 
This generates more than $1 billion per year and probably 
closer to $2 billion per year to the local economy, and creates 
thousands of jobs in Southern California.
    It is all now at risk because we have listed endangered 
weeds. The U.S. Fish and Wildlife Service has listed five 
allegedly carbonate or limestone endemic weeds have put 
thousands of jobs at risk. The plants have been used by the 
Forest Service to propose a withdrawal of 30,000 acres of the 
highest mineral potential in the San Bernardino Mountains.
    The State of California has zoned the minerals to protect 
them from incompatible land uses. This proven mineral resource 
is currently proposed and may be listed as an emergency closure 
to mineral entry by the Bureau of Land Management. The Forest 
Service supervisor, Gene Zimmerman, has made that request. It 
could be published in the Federal Register at any time.
    It is our concern that there has been virtually no real 
science or justification for the listing of these plants by the 
U.S. Fish and Wildlife. We try to get reports through the 
Freedom of Information process. We get reports that come back 
censored with black felt pen marks.
    I am currently co-owner with the trust of one of the large 
mines there, and we have great concern that we are going to be 
put out of business. This 30,000 acres includes properties that 
are about to be permitted as well. In this area, the Parton 
Mine was put completely out of business, destroying that asset 
to the community, the jobs, and the tax base. This was done 
with so-called endangered plants, such as the Cushenbury 
buckwheat, which the literature actually shows is not 
restricted to the San Bernardino Mountains and is not 
endangered. The exact same variety is used all over the western 
United States, according to University of British Columbia, 
Professor Brooks, as a geochemical indicator for prospecting 
for base metals.
    We submitted factual information on the listing when the 
process was going on. Talking to the U.S. Fish and Wildlife 
Service is like talking to a brick wall. These plants are 
dependent on disturbance, such as mining, fire breaks, and 
wildland fire for habitat expansion. They totally ignored this. 
This is non-science. They will not even let us use the plants 
for mitigation when we are reclaiming quarries, even though 
they will naturally revegetate there.
    The Forest Service blew up a road in 1991 and started a 
wildland fire to re-wild the area for Senator Feinstein's 
Desert to Wilderness Bill. The next year in an area where there 
were virtually no endangered plants, two such weeds, Parish's 
daisy and a locoweed, (incidentally, a toxic, noxious weed that 
is against the law to knowingly grow on your property) came 
back in the rebuilt road thriving there and in the wildland 
fire area--absolute proof that these weeds are dependent on 
fire and disturbance for habitat expansion.
    In Lone Valley, the Forest Service's own quarry has filled 
naturally in the abandoned portions with this Cushenbury 
buckwheat. In fact, in November 16th, 1997, the Forest Service 
parked 20 vehicles from the State Off Road Commissioner's field 
trip right on top of the endangered weeds. These are 
inadvertent species that go into open areas. They need open, 
disturbed spaces.
    We are totally disappointed with their kind of ``science,'' 
if you want to call it that. There is nothing that I have seen 
published in a scientific journal that says or proves these 
plants are actually limestone endemic and/or threatened or 
endangered. Yet we have $1 billion of our economy threatened 
with these allegedly limestone endemic weeds. We know they grow 
in granite and sandstone and other mixtures.
    So anyway, I will end there and entertain any questions 
that the Committee might have.
    [The prepared statement of Mr. Fife follows:]

Statement of Donald L. Fife, Director, Holcomb Valley Mining District, 
     & Chairman, National Association of Mining Districts, Tustin, 
                               California

    Chairman Pombo and Members of the Committee:
    I am a professional scientist, specializing in 
Environmental, Mining, and Engineering Geology for more than 20 
years. My experience includes geotechnical, surface-ground 
water, and environmental aspects of land-use planning and 
natural resource planning at local, state and Federal levels. 
While with the state of California I was technical reviewer for 
the Department of Real Estate and Office of Architecture and 
Construction and also for the State Clearinghouse for EIR/EIS 
documents. While a government employee, I served as the 
President of the State Employees Union (CSEA) for the Antelope 
Valley Region. During the past decade I have belonged to 
numerous scientific or professional societies, such as the 
Geologic Society of America, Society of Mining Engineers, South 
Coast Geologic Society, Association of Engineering Geologists, 
American Institute of Professional Geologists, and also the 
Sierra Club and California Native Plant Society.
    My education includes San Diego State University, Bachelor 
and Masters Degrees in Paleontology-Stratigraphy and Geology 
with additional studies in Pharmacy at the U.S. Air Force, 
School of Aviation, Gunter AFB, Alabama, University of 
California at Los Angeles and Riverside, and University of 
Dayton, Dayton, Ohio and University of the Philippines, 
Republic of the Philippines. My state professional licenses 
include Certified Engineering Geologist, Registered Geologist, 
and a Lifetime Earth Science Teaching Credential. From 1981 to 
1989 I served four Secretaries of the Interior as their 
appointee/advisor on geology, energy and minerals for the 25 
million-acre California Desert Conservation Area.
    Currently I serve as Chairman of the Non-Renewal Resource 
Committee of the American Land Rights Association and Chairman 
of the National Association of Mining Districts. As a Director 
of the Holcomb Valley Mining District I work with mom and pop 
miners and prospectors as well as large corporate miners. Our 
largest member is the Cushenbury Mine Trust, Vision Insurance 
Fund for the United Steel Workers of America (AFL-CIO). These 
are the union workers who lost their jobs when the Kaiser Steel 
Mill in Fontana and the Eagle Mountain Iron Mine were closed by 
overzealous environmental regulations and Japanese dumping of 
steel in the late 1970's and early 1980's. The union workers 
pensions and health insurance were not well funded, so in the 
bankruptcy of Kaiser, they acquired all the limestone-mining 
claims of Kaiser in the San Bernardino Mountains for their 
Vision Insurance Fund. They sell limestone to most of the 
operating mines and processing plants. Mining income goes to 
several thousand beneficiaries for eye exams, eyeglasses, eye 
surgery, and services for blind union members and their 
dependants. I am co-owner of the White Ridge/White Knob Calcite 
(limestone) Mine with the Vision Insurance Fund.
    The Holcomb Valley Mining District was established in 1860 
after William F. Holcomb discovered gold in this valley on May 
4, 1860. More than $100 million in gold has been mined since 
that time and numerous gold deposits still exist in the 
district. Since 1947 and the discovery of the Lucerne Valley 
Limestone Province, high-grade limestone production has over-
shadowed gold production. Presently the district is the largest 
producer of cement and other limestone products in the western 
United States. There are only five high-grade limestone 
districts in the entire United States. Local production is more 
than 5 million tons per year worth more than $200 million 
dollars per year FOB mine. This raw material supports several 
thousand jobs in California and neighboring states. The value 
added to the economy is greater than a billion dollars per 
year.
    Calcite, the mineral that makes up limestone is considered 
the ``cement of modern civilization'' and per capita 
consumption is about 1,000 lbs per year per person. Limestone 
makes up about 80 percent of Portland cement, and is used a 
white pigment and filler-extender in rubber, plastics, paints, 
putties, crayons, and other commodities. It is essential in 
making steel, glass, and refining sugar. It's used in chewing 
gum and tooth paste as an abrasive and acid neutralizer to 
prevent cavities. It is used in food and pharmaceuticals. 
``Tums'' the antacid, is ninety-percent calcite or limestone. 
It is essential in water purification and air pollution 
control. McDonalds is test marketing ``Earth Shell'' a 
biodegradable product made of potato starch, limestone, and 
binder. This product has the potential to replace Styrofoam and 
paper in the fast food industry.
    The California State Board of Mines and Geology has spent 
several years identifying, classifying and zoning mineral 
deposits in the San Bernardino Mountains. Under the State Mine 
Reclamation Act (SMARA) they are charged with protecting 
valuable mineral deposits from incompatible land uses that 
would preclude society access to these raw materials. Under the 
National Environmental Policy Act (NEPA) Federal agencies are 
required to include these local government planning documents 
in Federal land use plans such as the San Bernardino National 
Forest (SBNF) Plan. However, the San Bernardino National Forest 
in league with the U.S. Fish and Wildlife Service appear to 
have ``invented'' several ``endangered'' plants that only grow 
on limestone, the mineral that we are mining!
    This has been a twenty year process, starting with so 
called ``Cushenbury Buckwheat'' or Eriogonium ovalifolium, 
vareity vineum in mid-1970's. District Ranger Jerry Mitchell 
told me while reviewing a proposed plan of operation for the 
White Knob Calcite Mine, that the ``only place in the world 
that this plant was found'' was on the one acre of limestone we 
proposed to mine. He said the SBNF had this plant on their 
sensitive plant list and they had to treat it as if it was 
endangered.
    I went home that day and looked the plant up in Edmond 
Yeager's 1940 Desert Wildflower book and found he reported it 
(including the variety vineum-Latin for wine colored) as 
occurring from the Sierra Nevada Range to the Laguna Mountains 
in San Diego County and even as far as Arizona or New Mexico. 
Ranger Mitchell suggested we hire and ex-forest service 
biologist buddy of his, Tim Krantz, who could write us a 
``dispensation'' so we could mine. I believe we paid this 
biologist about $11,000 dollars for his report. Since that 
times the SBNF put together a listing package for five alleged 
``Limestone Endemic Plants,'' and submitted it to U.S. Fish and 
Wildlife Service for listing under the ESA. USFWS ignored the 
industry objections that there was little or no scientific data 
to support these plants as being limestone endemic or even 
restricted to the San Bernardino Mountains.
    Talking to USFWS was like talking to a brick wall, they 
ignored the fact that all the reports submitted by the SBNF 
were in house unpublished reports on government letterhead or 
environment subcontractors. None of these reports in my opinion 
as a scientist could be published in a professional scientific 
journal. Normally real scientists are proud of their work and 
seek to have it published in a peer review journal.
    USFWS ignored the fact that Eriogonium ovalifolium; var. 
vineum was reported as occurring in the literature (Munz, 1974 
California Flora and Hickman, 1993. The Jepson Manual of Higher 
Plants of California, 1993) as being found all over western 
North America. Professor R.R. Brooks of the University of 
British Columbia, in his 1993 paper Biological Methods in 
Geochemical Prospecting, indicates this same species is being 
use all over the western region of north America as a 
prospecting tool to find base metals. The flower apparently 
turns wine colored, if a few parts per million base metals are 
present in the soil or rock substrate.
    The five ESA listed plants are invader species, or, as 
laymen would call them, ``weeds.'' Such plants are nature's 
first step in restoring the ``climax vegetation'' in open space 
for a given geographic area. In my experience they require soil 
disturbance through clearing the chaparral or forest canopy. 
They grow in areas such as firebreaks, abandoned roads, mines 
and mine dumps, or in areas cleared by wildland fire. The 
Coyote Flat fire in July 1976 at the White Ridge/White Knob 
created a population explosion in Erogonium ovalifolium, var. 
vineum in the newly built firebreaks and in the burned areas.
    However, an even more dramatic example was the September 
14, 1991 destruction of the historic Horse Thief Flats Cabin 
and SBNF Road 3NO3A. Forest Supervisor Gene Zimmerman, brought 
the Marines in to blast the historic cabin and road out of 
existence. The Marines were told they were destroying these to 
keep drug lords out of the area. The real reason was to 
manufacture wilderness for the Feinstein's ``Desert Closure 
Act,'' S-21 (see testimony before The Committee on Resources, 
June 18, 1996--The Bighorn Mtn. Wilderness, CA: A Case Study in 
Federal Land Use Planning: Abuse of Authority, Fraud, Waste, 
and Violation of the Public Trust to ``Manufacture Wilderness 
to Deceive Congress as to Wilderness Suitability''. . .).
    They blasted the road in four places, the last blast 
vaporized about forty tons on my family property and sprayed 
hot shrapnel into the tinder dry forest. The Forest Service 
staff and the Marines went home and dozens of small fires 
burned all night and into the next day--for 18 hours these 
fires were coalescing into a single wildland fire. A citizen 
reported smoke, and SBNF and California Division of Forestry 
(CDF) fire fighters came in and put the fire out. The Road 
3NO3A was rebuilt after several congressmen contacted the SBNF. 
December 11, 1991, District Ranger Rebecca Aus sent out a 
letter of apology for the fire and destruction of the road. 
Fortunately the Santa Ana winds stopped the day before or the 
16,000 down-wind residents of Bear Valley would have had a 
dangerous wildland fire on their doorsteps. About $200,000 was 
spent to put the fire out and rebuild the road.
    The next spring I noticed that two of the alleged 
endangered species, Cushenbury milk-vetch (Astragalus albens) 
and Parish's daisy (Eriogeron parishii) were thriving in the 
disturbed ground of the rebuilt road and the area destroyed by 
the wildland fire. Astragalus albens has the cute name milk 
vetch, but in consulting the scientific literature, I found it 
is a noxious poisonous weed, called locoweed. It can cause 
delusions, blindness, or even death if eaten by browsing 
animals or humans. The San Bernardino County weed abatement 
tells me it is against local laws and ordinances to knowingly 
propagate it on your property. You can be fined for not 
removing it, but it is now federally listed as endangered and 
it is a felony to remove it from your pasture or property!
    Another good example of these weeds needing disturbed or 
cleared ground for habitat expansion is the SBNF own road 
material quarry at the east end of Lone Valley near Rose Mine, 
where 3NO3 and 2NO2 join. Several acres have been cleared down 
to bedrock for barrow material during the last few decades. As 
the SBNF road crews abandon portions of their quarry about 10 
percent to 20 percent of the naturally invading species are 
Eriogonium ovalifolium var. vineum! On Saturday November 16, 
1996 SBNF staffers Ruth Wenstrom, Gail Van Der Bie and John 
Wimbaugh unknowingly directed about 20 vehicles, some of them 
state OHV Commissioners, to park right on top of the 
``endangered'' buckwheat. They announced that the SBNF had just 
spent thousands of dollars of State Greensticker funds to prove 
there were no ESA listed weeds growing there! This is probably 
the best and healthiest population of this species in the 
entire SBNF. Thus, the USFS proved that these species could be 
used to reclaim mined areas.
    It is very obvious that facts don't count with USFWS and 
SBNF. They appear to be out to shut down mining in the SBNF. 
Science doesn't support listing of these weeds under the ESA. 
One of the four large mines in our area, the Partin Limestone 
Mine, was driven out of business by way of using these weeds to 
stop mining. Over the last decade I have testified that this 
was going on to both House and Senate Resource Committees. It 
is now a fact the Partin mine with millions of dollars in 
reserves is dead. These weeds are just another ``surrogate'' 
used to shut mining down. In a secret June 10, 1999 meeting 
(not open to the public in violation of the Federal 
Administrative Procedures Act) Forest Supervisor Gene Zimmerman 
distributed an April 28, 1999 letter he wrote on SBNF 
letterhead to the Pacific SW Forester and BLM requesting that 
these phony USFWS ESA listed ``carbonate endemic'' weeds be 
used to close about 30,000 acres of the highest mineral valued 
lands, mostly zoned by the state under SMARA classification and 
zoning to remain open to mining. These plans to close the 
region to mineral entry are now being implemented. This action 
will destroy the union Dental, Vision, and Life Insurance Fund 
and other mineral rights holder's mineral assets. This 
Zimmerman request could be published in the Federal Register at 
any time.
    As part of my written testimony I am incorporating a 
published paper by Howard Brown (1994) in Murbach and Baldwin 
(editors), Mojave Desert, South Coast Geologic Society, Annual 
Guidebook #22, pp. 458470. His paper documents many of the 
abuses of USFWS in the listing of the alleged limestone endemic 
weeds.
    Many botanists and biologists that have worked on these 
weeds privately doubt that they are really thretened or 
endangered. However, everyone who told me this said they were 
afraid of retaliation, and would be black-listed and never work 
again, if they openly opposed USFWS or USFS conclusions that 
these weeds are threatened or endangered.
    If the USFWS listing stands, the SBNF will close one of the 
nations richest mining districts to mineral entry and the few 
existing mines will be depleted and die a slow death. Two of 
the major mines are already looking for other deposits in 
Arizona or other areas, in case they can't utilize the 
remaining reserves in the San Bernardino Mountains. We request 
the Committee on Resources take action to stop this closure to 
mineral entry ASAP.
    We would like to invite the Committee and staff to visit 
Forest Supervisor Gene Zimmerman's proposed 30,000 acre 
``endangered weed sanctuary'' in the near future.
    Thanks for the opportunity to appear before your Committee.

    Mr. Pombo. Thank you.
    Ms. Fuentes.

   STATEMENT OF LORRAE FUENTES, VICE PRESIDENT OF EDUCATION, 
                CALIFORNIA NATIVE PLANT SOCIETY

    Ms. Fuentes. Chairman and Committee members, it is a 
pleasure for me to be here today to testify before you. My name 
is Lorrae Fuentes, and I am a native to Southern California. I 
have lived here all my life. I am currently a resident in 
Riverside and a homeowner.
    I have a degree in biological sciences at one of our local 
universities. I have been an educator for 20 years both in the 
classroom teaching science to children, and am currently an 
educator in informal science institutions.
    I also still hold my teaching credential active.
    I am a representative today of the California Native Plant 
Society. I serve in that organization on the executive council 
as Vice President for Education.
    California Native Plant Society is dedicated to the 
preservation of California native flora and is an organization 
of laymen and professionals united by an interest in the plants 
of California.
    The work of the society is done mostly by volunteers who, 
along with staff members, work to promote awareness of 
California's unique flora.
    The California Native Plant Society is a science based 
organization and is the primary scientific repository of 
information on rare plants of California.
    California is, indeed, blessed with a wealth of plant life 
that reflects the diversity of its natural landscape. 
California has over 6,000 native species of plants. One third 
of those are endemic to the state, that is, they are found 
nowhere else in the world, and over 1,700 of those have some 
kind of listing, rare, threatened or uncommon.
    In general principle, CNPS, the California Native Plant 
Society, supports the current Federal Endangered Species Act. 
If allowed to be implemented and enforced properly, it serves 
species well and is a useful tool for protecting biodiversity 
the plants, animals, habitats, and ecosystems in California and 
nationwide.
    It is not that the law will never need improvement. On the 
contrary, new scientific knowledge and knowledge of what works 
best in both practical and political terms can lead 
conservationists and politicians alike to seek improvement in 
the law.
    Any law, of course, is only as good as its consistent, 
effective implementation and reliable enforcement. It is here 
that CNPS takes issue in regards to the Federal Endangered 
Species Act. The two previous administrations but especially 
the current one failed to live up to the responsibilities to 
fulfill the intent of the Endangered Species Act, that is, to 
recover imperiled species.
    Resources to conduct good scientific studies to support 
listings, development of recovery plans, designation of 
critical habitat, and protection of species on private and 
public lands has not been allocated sufficiently. Without 
listing species receive little protection. Yet review of almost 
all listing petitions has ceased.
    Habitat conservation plans are conceptually a good tool and 
popular with the public because it protects habitat. However, 
inadequate habitat conservation plans are being developed and 
approved. Scientists have identified numerous deficiencies with 
pending and approved conservation agreements and raised serious 
questions about habitat conservation plans and their 
credibility.
    The administration has refused furthermore to designate 
critical habitat aimed at helping species and get them off the 
endangered species list. The majority of landowners affected by 
endangered species regulations are willing to and want to 
comply, but instead become increasingly frustrated with slow 
permitting and habitat conservation planning process.
    Furthermore, there are landowners willing to sell land and 
to protect species, but, again, the resources are not available 
for land acquisition.
    I would like to point out again that the Federal Endangered 
Species Act is fundamentally good. The implementation and 
enforcement needs improvement. Congress only needs to provide 
adequate funding to establish necessary support mechanisms 
mainly in gathering of adequate scientific data, then good 
habitat conservation plans can be crafted listing of species 
and designation of critical habitat can proceed and land 
acquisition, where possible, can occur.
    The Sierra Club, Audubon Society, groups deal largely with 
a variety of environmental issues, but only the California 
Native Plant Society is focused specifically on the needs of 
plant species in communities. Few people realize that the 
Federal Endangered Species Act provides almost no protection to 
most currently endangered, threatened plants, and in fact, the 
Federal Endangered Species Act protects animals everywhere but 
allows unlimited destruction of federally listed and threatened 
endangered plant species outside of Federal land where more 
than 80 percent of the federally listed plants are found in 
California.
    This outdated policy flies in the face of biological 
reality, and we wish that the Endangered Species Act would be 
amended to give plants equal protection.
    Thank you very much.
    [The prepared statement of Ms. Fuentes follows:]

    Statement of Lorrae Carol Fuentes, Vice President of Education, 
                    California Native Plant Society

    Good morning. My name is Lorrae Fuentes and I am here as a 
representative of the California Native Plant Society to 
present testimony to this Committee. It is a pleasure to be 
here and to provide you with this important input into the 
issues regarding the implementation and enforcement of the 
Federal Endangered Species Act.
    The California Native Plant Society is dedicated to the 
preservation of the California native flora and is an 
organization of laymen and professionals united by an interest 
in the plants of California. The work of the society is done 
mostly by volunteers who, along with staff members, work to 
promote awareness of California's unique flora so that a more 
knowledgeable public will insist on the preservation of native 
plants and their habitats for future generations. The 
California Native Plant Society is a science-based organization 
and is the primary scientific repository of information on rare 
plants of California.
    California is blessed with a wealth of plant life that 
reflects the diversity of its natural landscape. I work with 
the general public in my role as educator. People of all ages 
clearly grasp the concept of biodiversity. On a global scale, 
people understand that human beings depend on the functioning 
of ecosystems absolutely. The ecosystems that we manage in 
order to produce food and other essentials--farm field, 
rangelands, and forests--are intimately connected with the 
global ecology and are not immune from the detrimental effects 
of the loss of biodiversity. On a regional basis, people 
clearly understand that the economic wealth of California is an 
expression of its natural diversity, and that when economic 
prosperity is manufactured from natural diversity, as it has 
been in California change in landscape and loss of diversity is 
inevitable.
    In general principle, CNPS supports the current Federal 
Endangered Species Act. If allowed to be implemented and 
enforced properly, it serves species well and is a useful tool 
for protecting biodiversity--the plants, animals, habitats and 
ecosystems in California and nationwide. Furthermore, the 
Federal ESA has and continues to serve as a model for global 
protection of biodiversity. It is not that the law will never 
need improvement. On the contrary, new scientific knowledge and 
knowledge of what works best in practical and political terms 
can lead conservationists and politicians alike to seek 
improvement in the law. Any law of course is only as good as 
its consistent effective implementation and reliable 
enforcement. It is here that CNPS takes issue in regards to the 
Federal Endangered Species Act.
    The two previous Admnistrations but especially the Clinton 
Administration have failed to live up to its responsibilities 
to fulfill the intent of the ESA--that is to recover imperiled 
species. Sufficient resources to conduct good scientific 
studies to support listings, development of recovery plants, 
designation of critical habitat and protection of species on 
private and public lands has not been allocated.
    Without listing, species receive little protection. Yet, 
review of almost all listing petitions has ceased. Inadequate 
Habitat Conservation Plans are being developed and approved. 
Scientists have identified numerous deficiencies with pending 
and approved conservation agreements and raised serious 
questions about HCPs credibility. Too often HCPs data on 
species populations and habitat requirements are incomplete or 
missing, assessments of impacts to species are inadequate, 
resources to monitor the plan's impacts are meager, and plans 
frequently rely on unproven management prescriptions.
    This Administration has refused to designate critical 
habitat aimed at helping species to recover and get species off 
the endangered species list even though the ESA makes it clear 
that critical habitat is a primary mechanism for species 
recovery. As a practical matter, designating critical habitat 
helps agencies and individuals understand the areas that need 
to be protected to maintain a species' viability. 
Unfortunately, the Federal Government's reluctance to designate 
critical habitat has severely hampered species recovery 
efforts. To date, less than 10 percent of all species listed in 
the U.S. have official critical habitat.
    The majority of landowners affected by ESA regulations are 
willing to and want to comply, but instead, become increasingly 
frustrated with the slow permitting and HCP process. 
Furthermore, there are landowners willing to sell land to 
protect species. But again, the resources are not available for 
land acquisition.
    I would like to point out once again that the Federal 
Endangered Species Act is fundamentally good. It is the 
implementation and enforcement that needs improvement.
    Congress needs only to provide adequate funding to 
establish the necessary support mechanisms, mainly the 
gathering of adequate scientific data so that good Habitat 
Conservation Plans can be crafted, listing of species, and 
designation of critical habitat can proceed and land 
acquisition, where possible can occur.
    There are inadequacies in the ESA of concern to the 
California Native Plant Society that I would like to address. 
The Sierra Club, Audubon Society and groups deal with a large 
variety of environmental issues but only the California Native 
Plant Society is focused specifically on the needs of plant 
species and communities. Few people realize that the Federal 
Endangered Species Act provides almost no protection to most 
federally endangered and threatened plants. In fact, although 
FESA protects federally listed animals everywhere, it allows 
nearly unlimited destruction of federally listed threatened and 
endangered plants outside Federal lands, where more than 80 
percent of federally listed plants are found in California.
    This outdated policy flies in the face of biological 
reality. Science tells us that plants and animals are 
inextricably intertwined and contribute equally to the health 
and survival of the ecosystems that sustain us all. If we are 
to conserve healthy ecosystems and biological diversity, we 
cannot pick some species to save and ignore others.
    The California Native Plant Society would like to see the 
Federal Endangered Species Act amended where necessary to 
protect plants with the same protections that are currently 
provided to animals.
    Finally, even though this is not linked directly to the 
issue of the Federal Endangered Species Act, we would like to 
be included in the growing number of groups commending the 
sponsors of H.R. 701, H.R. 798, S. 25 and S. 446 which is sound 
legislation to provide dedicated funding for land and resource 
conservation.
    Thank You.

    Mr. Pombo. Thank you.
    Mr. Kading.

  STATEMENT OF RANDY KADING, FIELD SUPERINTENDENT, C&H FRAMING

    Mr. Kading. Good afternoon, Mr. Chairman and members of the 
Committee. My name is Randy Kading. I am a field superintendent 
for C&H Framing, a contracting firm working in Southern 
California.
    Currently I am working on a residential housing project on 
the north coast of San Diego County in the City of Encinitas. 
The company subcontracts with builders after a piece of land 
has been completely entitled and permitted.
    I have worked in most of the western states since the date 
of 1971.
    By way of additional background, back in 1958, my parents 
purchased this little two bedroom house in Wichita, Kansas. 
What was unique about this house is along the front and down 
the side approximately 100 feet was this fence that had three 
rails on it, and by the time I was seven years old, I could 
walk this fence without falling down. My mother hated the idea.
    Little did I know that in 1971 I would be hired to do the 
same thing by building houses, single story and two story 
houses. I was being paid at that time three times minimum wage 
being a first period apprentice. I fell in love with the trade, 
could not believe I was being paid to have this much fun.
    Two years later, I walked into my first recession 
experience when OPEC decided to become a world player and flex 
their muscles. The construction industry was affected, and 
because of this I was forced to, well, walk away from 
everything I had acquired at that time, stuck my thumb out, and 
ended up in New Mexico where I lived on a ranch for two years, 
and these people were small time developers, and I was able to 
increase my assets by learning how to not just frame houses, 
but to stucco and lay tile, floor covering, and roof.
    During that time nearly everyone I knew was thrown out of 
work, and it was not just the trades people on the job site. It 
was the folks who supplied the products, the truck drivers, the 
loggers, the delivery people. I learned very early on that a 
recession can have a profound impact on people's lives and 
their families.
    Now, generally the life of a framer or anyone else on the 
job site can be very nomadic, as I have moved around a lot. In 
the last 28 years, I myself have worked all over the western 
United States, including Texas and Louisiana. Basically you go 
from job site to job site, depending on where the work is.
    In the past, as I have alluded to previously, our ability 
to get work has been related to economic cycles. I now have 
been through three of these recessions. The last one, which was 
the most devastating, was the one in the 1980s and the early 
1990s. It took a while to overcome that one.
    In working with my guys, what generally happens is they 
either toughen up and survive by moving on, which only works 
with the single guys. The ones with wives are usually forced to 
take lower paying jobs, but one that has more of a consistent 
paycheck, whether it be driving a Wonder Bread truck or maybe 
working at the postal system.
    This is especially hard for me to watch because I see their 
love for the trade on their faces on a daily basis, and when 
one of these recessions hits, which will happen pretty soon, as 
an apprentice, they do not have a lot of assets. Even though 
they have spent a lot of their money buying their equipment, 
they have not acquired the skill to stick around or to be kept 
around when it gets real tight, when there is not a lot of work 
to keep them busy.
    And so you can see that they are going to be forced to take 
jobs that will put food on the table, and they will just look 
back on their experience as a carpenter or as a builder, as a 
person in the trade as one of just something that let them 
down.
    And, frankly, it is the fear of the recession that all of 
us think about most of the time. Not a day goes by when I do 
not wonder about when work is going to end. I have made my own 
self recession proof because what I learned in the last one 
that I experienced was do not acquire anything anymore. The 
only thing I do now is save all the money I can so that I can 
survive the one or two year cycle that happens to put me out of 
work because there was a couple that I did not do that, and it 
was a real struggle.
    So in essence, our ability to maintain a consistent work 
load and, therefore, to receive a consistent paycheck is 
directly related to the landowner's ability to get required 
permits from all jurisdictions, including what I understand can 
be the most difficult, the Federal Government.
    In Southern California, I have noticed by the ebb and flow 
of work the difficulty landowners have in securing these 
permits so we can do our jobs and earn a paycheck and put food 
on the table. I want to make something clear. I am not opposed 
to protecting our environment, but it seems to me that when 
people who are supposed to be protecting the environment seem 
more interested in just stopping growth that there must be a 
problem.
    Oftentimes the focus in on the builder and developer when 
it comes to these environmental issues and concerns. I am here 
today, however, to make it clear that they are not the only 
ones impacted by unreasonable and arbitrary decisions aimed at 
stopping growth, and I must say it pains me to know that when 
my guys are--what they are in for in the next recession hits. 
No matter what the cost, frankly, recession caused by economy, 
albeit unfortunate, is easier to understand than one caused by 
well meaning but misguided and poorly interpreted environmental 
regulations.
    What we need is balance. We need fairness. There needs to 
be a bipartisan committee established between Carlsbad and the 
building industry and the developers, who I consider to be the 
good stewards of putting these projects together because what I 
want in the future is not the boom we are in now. I want 
controlled growth because that is better than no growth, and 
that is what takes the hope out of most of the people that are 
out there in the trade now, is the fact that within just the 
next couple of years they will be in the midst of their first 
and my fourth, and it becomes a desperate situation for all of 
us.
    Thank you.
    [The prepared statement of Mr. Kading follows:]

      Statement of Randy Kading, Field Superintendent, C&H Framing

    Good Afternoon Mr. Chairman and Members of the Committee, 
my name is Randy Kading. I am a field superintendent for C&H 
Framing, a contracting firm working in Southern California. 
Currently, I am working on a residential housing project on the 
north coast of San Diego County in the city of Encinitas. Our 
company sub-contracts with builders after a piece of land has 
been completely entitled and permitted. I have been working in 
all seven southwestern states since 1971.
    By way of additional background, my family purchased a 
modest 2-bedroom house in Wichita, Kansas. It was growing up in 
this house where I first gained an appreciation and love for 
the art of carpentry. As I learned the trade, I remember 
thinking why can't everyone have this much fun. I realized 
shortly thereafter, in the summer of 1973, that the fun can 
quickly come to an end. What happened? Well, that's when OPEC 
decided to flex its muscle and threw the United States into a 
deep recession. One of the first industries to be impacted was 
the construction industry. Because of this, I was forced to 
move to New Mexico for the better part of 2 years just to 
survive.
    During that time, nearly everyone I knew was thrown out of 
work. And it wasn't just the trades' people on the job site. It 
was all of the folks who supplied the products for 
construction, the delivery people and anyone else even 
tangentially related to the industry. I learned very early that 
a recession can have a profound impact on people's lives and 
their families.
    Generally, the life of a framer (or any one else on the job 
site) can be very nomadic. In the last 28 years, I myself have 
worked all over the southwestern United States. Basically, you 
go from job site to job site depending on where the work is. In 
the past, as I alluded to previously, our ability to get work 
has been related to economic cycles. As you can imagine, the 
most recent recession of the late 80's and early 90's made this 
profession again very difficult.
    In working with my guys, what generally happens is they 
either tough it out and survive by moving around (which really 
only works for the single guys), or their wives force them to 
take lower paying but more stable job in a different line work. 
This is especially hard for me to watch because I see their 
faces on a daily basis and I know how much they enjoy their 
jobs. It breaks my heart to know that they don't want to leave, 
but will have to because they won't be able to weather the next 
recession.
    Frankly, it is the fear of recession that all of us think 
about most of the time. Not a day goes by when I wonder when 
the work is going to end. Now, even in these very good economic 
conditions, it seems that the demand in the market for new 
housing can not be met because of the difficulty of getting 
land entitled. Recession is the thing that will ruin our lives. 
And recession, whether caused by a down economy or 
environmental concerns, is still a recession. And rest assured, 
many of us, as working class, regular folks, will lose their 
jobs, their incomes, their possessions and some will even lose 
their very families.
    In essence, our ability to maintain a consistent workload 
and therefore, to receive a consistent paycheck is directly 
related to a landowners ability to get the required permits 
from all jurisdictions including, what I understand can be the 
most difficult, the Federal Government.
    In Southern California, I have noticed, by the ebb and flow 
of work, the difficulty landowners have in securing these 
permits so we can do our jobs, earn a paycheck and put food on 
the table of our families.
    I want to make a something clear. I am not opposed to 
protecting our environment. But it seems to me when people who 
are supposed to be protecting the environment seem more 
interested in just stopping growth that there must be a 
problem. To be blunt, which I am, I do not want arbitrary 
political decisions to stop our ability to build houses and 
earn a living.
    Protecting the environment and providing housing are NOT 
mutually exclusive, in my opinion.
    Often times, the focus is on the builder and developer when 
it comes to these environmental issues and concerns. I am here 
today, however, to make it clear that they are not the only 
ones impacted by unreasonable and arbitrary decisions aimed at 
stopping growth.
    I am the face of the working person in the field whose job 
depends upon builders being able to supply housing.
    I am a mirror of the guys in the field who work for me.
    And, I must say, it pains me to know what my guys are in 
for when the next recession hits, no matter what the cause. 
Frankly, recession caused by the economy, albeit unfortunate, 
is easier to understand than one caused by well meaning but 
misguided and poorly interpreted environmental regulations.
    You can imagine, as a framer in Southern California, what I 
must think about these articles condemning growth and the 
support no-growthers seem to get from the environmental 
agencies. I remember the coastal initiatives of the 70's. 
Lately there's been the fairy shrimp on the coast and the 
kangaroo rat in Riverside. And now we have butterflies again 
blocking the folks we work for from getting their permits. You 
may think it's just the landowners that know about this stuff, 
but we pay attention because it effects us so directly.
    I myself am even an avid back-packer who has hiked the 
Pacific Crest Trail from Baja to Washington State. I enjoy the 
environment, whether on foot in the mountains, or in the ocean 
on my surfboard. Some may scoff, but it is the truth. I say 
this only because it is automatically assumed that folks in our 
industry don't care about the environment. But we do. We also 
care about providing shelter for families. A quality product, 
which I think many in this room may take for granted. Well, I'm 
saying you just shouldn't.
    Our guys come from all over the political spectrum. Their 
top concern is making sure we have work to sustain our 
families. Previously, many were unable to make their opinions 
known, let alone gather information about important issues like 
these. Fortunately, with the internet, we're now able to not 
only learn more about these issues and better educate 
ourselves, we are also better able to communicate with other 
people in the trade and also better able to make our voices 
heard.
    And I guarantee, we will be heard!
    The other side of the equation for trades' people in the 
field is being able to find housing we can afford. The closest 
we'll get to the houses we're helping build are the days we 
spend framing. You don't need to ask why when the average new 
home in San Diego County will soon exceed $300,000. There's not 
a housing project my guys work on that where they'll be able to 
afford a unit . . . that is unless they hit the lottery. Many 
of these guys live with their parents or find other ways to 
improvise and survive.
    I see a big problem with the American Dream in Southern 
California and I know some of it has to do with all the 
environmental regulations forced down the throat of the 
landowner and paid for by the blood, sweat and tears of working 
men and women throughout Southern California. With my butchered 
hands, I have built these homes the new buyer comes home to 
after work. When I'm gone, they'll still have their jobs. But 
that does not mean we cannot fight for what's right.
    In closing, there is probably a myriad of solutions to make 
the situation better. Any solution should assure a much-needed 
supply of land to house people affordably, at all income levels 
and I don't just mean in apartments either. We, the people who 
build these houses, know the value of homeownership. I think 
it's pretty ironic that many of us can't afford to but one and 
live the American dream.
    What do we need? We need balance. We need fairness. We need 
someone working on behalf of the working men and women whose 
daily existence depends upon their job, not just their net 
worth.
    I want to be able to tell my guys that something is being 
done to preserve their ability to earn money and care for their 
families. I hope I can leave here today with that message. 
Please help me provide them with the security I so desperately 
want to provide my guys.
    Thank you for this opportunity. I'm not accustomed to this 
kind of setting for airing my concerns, but I'm glad that you 
all traveled from your districts to hear what we had to say.

    Mr. Pombo. Thank you.
    Mr. Calvert.
    Mr. Calvert. Thank you, Mr. Chairman.
    Mr. Sauls, why would biologists and private landowners be 
reluctant to testify at a hearing like this one that you are 
participating in today?
    Mr. Sauls. Congressman Calvert, I think the answer in its 
shortest form is fear of retribution. I cannot tell you that 
that retribution is reality. I have heard that it is. I have 
heard that permitted biologists are denied permits.
    You understand clearly that Fish and Wildlife Service has 
the ability to issue those permits, and I have heard directly 
from biologists that they are, in fact, reluctant to testify 
for that reason.
    The same thing is true for landowners. They have unresolved 
issues with the agencies, and they are concerned that their 
speaking out will draw further attention to them or problems 
with them.
    Mr. Calvert. And how would an agency such as this do that? 
Just not process the application? Just continue it?
    Mr. Sauls. Well, for biologists, they have to receive their 
permits. That is one way. That would be to deny or delay their 
permits for conducting their business.
    For a landowner, the habitat conservation plans are deemed 
to be a discretionary permit process. You take the plan, put it 
on the back shelf, and there is little or no recourse. If 
you're lucky enough to have a Section 7 permit you might have 
some time frames, but as we have shared with you, there are 
ways to ask continually for more information such that the 
Section 7 process is not initiated.
    Mr. Calvert. Well, I have yet to see a time frame that has 
been met yet in the experience I have had lately with Fish and 
Wildlife, but moving on, a witness on an earlier panel, the 
Reverend--I cannot pronounce his last name--testified about his 
beliefs regarding the loss of species habitat and his belief 
that it is tied to overpopulation, too many people.
    How do you feel about that, since you represent the 
building industry?
    Mr. Sauls. I do not create all of those people. I have my 
own children, and I happen to love them dearly.
    [Laughter.]
    Mr. Sauls. I do want to agree with one thing that the good 
Reverend communicated, and that is that we are to be stewards 
of the world we live in. I think it is a gift from God, but I 
think God also told us to love your neighbor. In fact, I think 
that was the second most important commandment that Christ 
communicated, and part of loving your neighbor is an element of 
respect, and I believe that that is the issue that many people 
are bringing before you here today, that that respect is either 
lacking or needs dramatic improvement.
    Mr. Calvert. Thank you.
    Mr. Fife: I used to be Chairman of the Mining and Resource 
Committee a few years ago and before I took on a different 
subcommittee. I spent a lot of time on issues regarding mining, 
and mining I have always considered one of the base industries. 
As our Chairman, Don Young, would say, everything there is is 
either mined or farmed, you know, and those are the basic 
industries in this country, what is derived from those 
industries.
    How much of the mining that is taking place, from your 
background, has been exported outside of the United States 
lately, the last few years? What is just your own feeling about 
that?
    Mr. Fife. Just the exploration and development money is in 
the billions of dollars. We have actually exported hundreds of 
thousands of jobs. The United States in many cases has become a 
Third World country. If you can mine something, you cannot 
process it here because of the enormous environmental hurdles 
you have to get over.
    Mr. Calvert. And many people, as yourself, are aware of the 
value added jobs that go along with mining and the importance 
of the mining industry in providing for those. By the way, I 
believe probably some of the best paid blue collar jobs in the 
country, primarily union jobs, and an industry that has 
probably been as devastated as any industry and continues to be 
devastated even in this recovery.
    So I just wanted to point that out, Mr. Chairman, and I 
know my time has expired.
    Mr. Pombo. Mr. Hunter.
    Mr. Hunter. Thank you, Mr. Chairman.
    Mr. Kading, you build homes.
    Mr. Kading. Yes, sir.
    Mr. Hunter. And I think that is a very honorable 
profession. You know, my dad built homes for many years and 
said at one point the thing he was proudest of was the fact 
that he was able to make a payroll every Friday. That is a 
tough thing to do, and I know that you are concerned also about 
the people who work with you, working folks, and their ability 
to buy the homes that they are building.
    We led this hearing off; at least that was my statement. I 
know my friend Mike Spear was not in the audience at that time, 
and Mike mentioned later the relative prosperity that we are 
experiencing right now, but one of my points was in San Diego 
County the average home, and I believe it is about $270,000. In 
fact, we can have one of our staff folks hold that up. I think 
it is 265.
    You see, Richie is shopping for a house in San Diego 
County. It is 265. The median home is $265,000. That requires 
with today's interest rates about a $70,000 paycheck, annual 
paycheck, and that requirement has placed the ability to buy a 
home in San Diego County beyond the means of many of the 
working folks who work in the building industry.
    But are there many of your folks who can afford to build 
the median home in San Diego County?
    Mr. Kading. No, not at all.
    Mr. Hunter. Beyond that, the information that I have, and I 
have talked to some builders, for example, one builder, for 
example, that built a $185,000 home was making $10,000 profit 
per unit, but the hard cost of building the home was only 
$59,000 out of the remaining $175,000, and I said, ``What is 
the rest of it?''
    He said, ``Land and land use regulation.'' He said all of 
the consultants you have to hire, the biologists you have to 
hire, the time you have got to spend working with the Federal 
agencies and state and local government, which also have their 
own level of bureaucracy.
    So the rest of that, that almost $60,000 out of $175,000 is 
not building the home at all. It's that little piece of land 
that it is on and the land use regulation, and the estimates 
that I have seen is that we could avoid or lower costs of 
housing by almost 35 percent in San Diego County if we offset 
or took away the cost of regulation, land use regulation.
    So I guess my second question is in the old days at least, 
when we were building homes up in Arupa Hills up in Riverside, 
we built homes for a lot of working people. I mean, in fact, a 
lot of the folks working on our homes ended up buying our 
homes. They were good homes, good 1,500, 1,600 square foot 
homes.
    You do not see that. Do you see many working people being 
able to purchase their homes in San Diego County now?
    Mr. Kading. No. Actually most of the people that purchase 
or work in San Diego County that I am familiar with live in 
Riverside County. They are forced to commute because it is 
cheaper up in Riverside County.
    Mr. Hunter. So they are driving how far?
    Mr. Kading. Oh, one way, 60 miles, 70 miles, more.
    Mr. Hunter. Okay.
    Mr. Kading. Some are working as far south as Chula Vista.
    Mr. Hunter. And isn't that the area out north of March Air 
Force Base? A lot of the folks there work, in fact, in Orange 
County and Los Angeles County from what I understand.
    Mr. Kading. That is correct.
    Mr. Hunter. I think that shows some of the misguided 
policies, and, Mr. Chairman, I think this falls on our back as 
well as those of the Administrators. In this effort that is to 
protect the environment and the perversion that I think we have 
made of some of the regulations, we have actually damaged the 
environment. We have massive traffic jams that are a result of 
people not being able to afford homes in the areas where they 
work.
    One reason they cannot afford homes is because we are 
protecting their environment in the communities where they 
work. So we have them put out tons of smog on the freeway to 
get 60 miles away where they can afford a home.
    So I think that working America has a real stake in seeing 
to it that we pull back regulation, make it more reasonable and 
make it more applicable to folks like the gentleman who was in 
here, Mr. Turecek. I do not know if you saw him, but average 
people that have pieces of land that they want to develop, to 
give them a fighting chance at it.
    Mr. Kading, I appreciate all of the witnesses, but I 
especially appreciate you being here and laying out the 
perspective of a working man.
    Mr. Kading. Thank you.
    Mr. Hunter. Thank you.
    [Applause.]
    Mr. Pombo. Ms. Bono.
    Ms. Bono. Thank you, Mr. Chairman.
    I really just want to thank the panelists. I think their 
testimony was extremely straightforward, and I have no 
questions. I would yield back the balance of my time.
    Mr. Pombo. Thank you.
    Mr. Fife, I know that you have spent a lot of time. You and 
I have had the opportunity to talk in the past, and you have 
spent a lot of time on the issues that you have testified 
about. One of the questions that I have for you is how is it 
that you have such a difficult time and others have such a 
difficult time when it comes to the science and getting Fish 
and Wildlife to look at that science?
    You know, it would seem to me that it would be natural that 
they would go to the people that are living and working in an 
area and say, you know, in your example, an endangered plant, 
``Where do these grow? Where do you see them?''
    Why is it so difficult to put that information together and 
give it to Fish and Wildlife and have them do something with 
it?
    Mr. Fife. Well, I think probably it is either incompetence 
or actually the desire to get as many things listed and build 
as big an empire and get as much authority over the private 
sector as possible. I do not know how to explain it.
    There is virtually nothing published in the scientific 
literature that supports these plants, for instance, as being 
restricted to the San Bernardino Mountains or endangered. In 
fact, there is information to the contrary that is right out 
there for anybody.
    I mean I am a paleontologist, and my specialty is in micro 
plants, but I mean, it does not take much effort for me to find 
these things in the literature.
    And where are these people coming from? It is either 
incompetence or it is an intention to seize some kind of power. 
What happens is you get the listing package for the Forest 
Service for these five plants. One of the plants does not even 
grow on limestone. We have never been able to find it on 
limestone. I mean, how could it be limestone endemic? It grows 
on granite.
    It is just amazing how they get away with this. The listing 
package the Forest Service sent to Fish and Wildlife was 
totally inadequate. They went out and counted 3,721 of these 
plants, ``known in the world.''
    I come out with my botanist, and of course, I have been 
dealing with these for over 20 years, and we can count that 
many in a day just walking around.
    And then we find other things going on, such as I was 
hoping to bring a gentleman here today to introduce you to, a 
former Forest Service employee who contacted me to apologize 
for the fact that the Forest Service had bought a seed spreader 
and was spreading seeds on my property to prevent me from 
mining, and sure enough, we have been held up since August 1990 
to get a permit on that property.
    Mr. Pombo. Now, wait a minute.
    [Laughter.]
    Mr. Pombo. They are doing what? They are spreading seeds?
    Mr. Fife. They are collecting the seeds from these 
allegedly endangered plants and they are spreading them on my 
roads and other roads with a seed spreader. I took one of the 
gentlemen who was on the witness list that did not come in 
today, a botanist, a local guy; took him out, and we walked a 
newly built off road vehicle trail, and we were amazed at the 
endangered locoweed. It looked like lawn on each side of it, 
like somebody--we did not think at the time it could have been 
planted, but that explains why this stuff is growing there.
    And I had this not from just this ranger that told me, and 
he said he is willing to testify in court or wherever. I was 
told before that by volunteers that worked as volunteers for 
the Forest Service on off road vehicle road restoration 
projects. Two couples said that the Forest Service was doing 
this. I really did not believe it until this forest ranger 
actually told me about it.
    And I would certainly like to have the GAO investigators 
depose this guy or interview him. He is willing to do it. We 
have name, rank, serial number, time. I mean I even have the 
records, the time cards of when these people were out there 
doing this, and we do have evidence.
    Mr. Pombo. It is my understanding of the Endangered Species 
Act, and I will have to ask Mr. Spear about this later, but 
that would be illegal.
    [Laughter.]
    Mr. Fife. I think it is called habitat manipulation. I 
think that is what the Act calls it, and I believe if you are 
going to do it, you have to go through the legal process within 
at least an EA to do this, but I guess maybe NEPA does not 
apply to the Endangered Species Act.
    Mr. Pombo. Yes, we are going to have a series of questions 
for you, Mr. Fife, because if you do have evidence that this is 
occurring, I think the Committee needs to investigate that 
further, and the Committee hearing will be left open for you to 
provide additional information on that.
    Ms. Fuentes, a question of you. In your prepared statement, 
even though you and Mr. Fife come from a little bit different 
angle on this, unfortunately it appears that your complaints 
are very similar to his, and they may be coming from different 
ends of the spectrum, so to speak, but you have a real problem 
with the science that is being used as well and do not feel 
that it is adequate or that the efforts that are being made are 
adequate.
    Would you like to respond to what you have heard here?
    Ms. Fuentes. I cannot respond to----
    Mr. Pombo. Not that specifically.
    Ms. Fuentes. Okay. Thank you.
    Mr. Pombo. I would not do that to you.
    [Laughter.]
    Mr. Pombo. But I mean just in terms of the science end of 
it. You were not out spreading seeds out there, were you?
    [Laughter.]
    Ms. Fuentes. No. I do not believe I would comply with the 
law if I did that.
    I think our main point here coming from the Native Plant 
Society is that there has been an incredible backlog in the 
listing of endangered species, especially endangered plants, 
and designation of critical habitat. Habitat conservation plans 
that are put together, although conceptually I think they are a 
good tool but inadequate for plants, which means there is not 
enough of good science based information.
    And I think the agencies involved just have been under-
resourced for over a decade, and that there is not enough good 
scientific information for people to come together for good 
negotiations, and sit down with, you know, just common sense 
and come up with a plan to protect species.
    You have to have them listed. They cannot be protected 
unless they are listed, and there is just this huge backlog of 
listing, and they do have recovery plans in place for them, but 
I think what we are coming at if ``inadequate science'' is that 
there is just not enough of it. You have to have the resources 
available to go out there and get the good baseline information 
that you need to make good decisions.
    Mr. Pombo. Mr. Kading, I know my time has expired. I just 
wanted to end with you.
    The houses that you are working on now, where are you 
working in San Diego County?
    Mr. Kading. Just west of La Casta Resort, Interstate 5 and 
La Casta Avenue up on the bluff there.
    Mr. Pombo. Approximately what size houses are going up in 
that area?
    Mr. Kading. The present project I am on, the smallest home 
is 3,820. The biggest one is 5,000 square feet.
    Mr. Pombo. This is, I think, the real problem that we face, 
and I am seeing this in my own community. The more expensive 
you make land, the more expensive you make the process to go 
through. The only thing the developer can do at that point is 
build a bigger house and sell it to the higher end of the 
market.
    Mr. Kading. Yes.
    Mr. Pombo. And what we are seeing in my area, and I would 
like you to comment on this, is that we have seen the two 
bedroom starter home disappear from the market. We do not have 
houses that a young couple, just married couple that is 
starting out can move into. We have got a lot of houses that 
are 350, $400,000, but in the starter home area you either have 
to end up in an apartment somewhere or you are out of luck.
    And is that what you are seeing happen down here?
    Mr. Kading. Well, the current project I am working on, the 
houses start at $1 million, and I have not seen the homes you 
are talking about in 15 years. I would not even know where they 
built those at anymore.
    Mr. Pombo. Now, I do not know. You know, it is real 
frustrating because a lot of what we hear is that, well, this 
only hurts the rich guy. You know, it is the big developer, the 
big landowner. Those are the only guys that get hurt by this, 
and we really do not care if they have to spend $1 million on a 
habitat conservation plan. It does not matter to us because 
that is just the wealthy guy that has to pay.
    But that is not what is happening in my area. In my area, 
it is the little guy that is getting hurt because he cannot 
find a house to buy, and he cannot find a job, a place to work, 
and we are unfortunately going through a lot of the same things 
that you do.
    I live in a little farming community, what used to be a 
little farming community that has now become a suburb of the 
San Francisco Bay area because people are driving all the way, 
some of them two and a half hours each way commute because 
there is no place they can afford to live. It is the only place 
they can afford to buy a house.
    And that cannot be good for them. It cannot be good for 
their family. It cannot be good for the environment no matter 
how you look at it.
    Mr. Kading. No, it is not.
    Mr. Pombo. But that is what we are ending up with, and I 
appreciate all of your testimony.
    Mr. Fife, I will have a series of questions for you that I 
will submit in writing, and if you can answer.
    I thank all of you for your testimony. I guess more 
importantly I thank you for your patience in waiting around, 
and I apologize, but somebody had to be on the last panel, but 
I appreciate all of you for your testimony and for your answers 
to our questions, and thank you for being here.
    Mr. Hunter. Mr. Chairman.
    Mr. Pombo. Yes, Mr. Hunter.
    Mr. Hunter. Mr. Chairman, I want to thank our host, Ken and 
Mary, and you for such a wonderful hearing. You came a long way 
to run this hearing. It is very important to our working 
people. It is very important to our landowners and everybody 
that believes in basic fairness.
    Thanks a lot for holding this hearing. We appreciate it.
    Mr. Pombo. Thank you.
    [Applause.]
    Mr. Calvert. Mr. Chairman, let me just add onto that and 
thank you for taking the time. I know that it does take a lot 
of time. I have done it, as well as you have, to come out and 
do these hearings, and I certainly appreciate. I am sure both 
Mary and I understand that, and we really do appreciate it.
    I just wanted to say that there is some terminology we 
heard today, ``practical,'' ``reasonable,'' ``balanced,'' 
``fairness,'' those types of words, and I hope, Mike, that you 
and I and Fish and Wildlife, we can work toward trying to get 
back to that because I think Fish and Wildlife's reputation 
from when I was a kid is a lot different than it is today, and 
I would like to look to the day that we can say that it is back 
to where it should be.
    With that, Mr. Chairman, thank you very much.
    Ms. Bono. My turn, Mr. Chairman?
    Mr. Pombo. Go ahead.
    [Applause.]
    Ms. Bono. I, too, would like to thank you, Chairman Pombo, 
for holding this hearing, for again spending part of your 
vacation time here with us.
    I think we have learned an awful lot. I think it has been 
very productive.
    I want to also take this time to thank my colleagues, Ken 
Calvert and Duncan Hunter. I work so often with them on so many 
issues, as you all know, especially the Salton Sea. I think the 
three of us have sort of become a little--I do not know what 
you would want to call us--some sort of strange Three Stooges. 
I do not know.
    [Laughter.]
    Ms. Bono. But it is always a pleasure and it is truly an 
honor for me to work with all of these gentlemen. I my one year 
in Congress I have learned so much, but I have to tell you that 
I have learned that there are a lot of really very decent 
people in Congress, and I think this whole panel was evidence 
of that.
    I would like to thank the City of Hemet for hosting this 
event, the Senior Center, the police department, once again, 
for all of their hard work, but there is somebody I really, 
really want to thank. She is asleep right now or she is peeking 
an eye. My daughter Chianna has stayed through this entire 
hearing, and I just want to thank her for being here.
    [Applause.]
    Ms. Bono. So thank you, Mr. Chairman.
    Mr. Pombo. Well, thank you all very much.
    I would like to just close the hearing by saying that we 
have a lot of different ideas, a lot of different directions 
that people would like to do. I think we all agree that the 
goal of the Endangered Species Act should be to protect 
endangered species, and if we can get beyond a lot of the 
issues that we have dealt with today and can get back to what 
the original intention of the Act was, we would not have to 
hold hearings like this, and some day I hope to see that 
happen.
    Some day I hope that we can pass a reauthorization bill 
that gets beyond a lot of the fights and a lot of the problems 
that we have now, and I hope my kids or my grand kids could 
look back at it and say we did a better job of protecting 
endangered species than what I am looking back at now.
    But to Fish and Wildlife Service, we all look forward to 
the changes that will come here. We look forward to working 
with you, and I hope if nothing else, I hope this hearing 
pointed out to you that there are some real problems. It is not 
just a few guys out there who are not straight shooters, who 
are not playing right. There are some problems, and it is not 
just created in someone's mind somewhere, and I hope that you 
can go back with that and look at what has been going on and 
make some changes so that it does not have to happen again.
    But I appreciate you being here. I appreciate you sticking 
through the entire hearing with us. That does mean a lot to me 
that you were willing to stick here and listen to all of the 
testimony.
    But thank you all very much. The hearing is adjourned.
    [Whereupon, at 2:35 p.m., the hearing was concluded.]
    [Additional material submitted for the record follows.]
 Statement of Hon. Bill Thomas, a Representative in Congress from the 
                          State of California

    Mr. Chairman, thank you for the opportunity to give this 
statement to the Committee and to discuss the concerns of my 
Kern and Tulare County constituents from California's 21st 
District. Your dedication to holding hearings on this matter 
and keeping the spotlight on the many problems of species 
protection laws is very much appreciated by me and by rural 
landusers in California.
    We Need Real Conservation
    As you know, I have introduced three Endangered Species Act 
reform bills, H.R 494--The ESA Fair Process Reform bill, H.R. 
495--Fair Land Management Reform bill, and H.R. 496--The 
Liability Reform bill. In my last appearance before this 
Committee I had only time to briefly touch upon these bills and 
their goals. I want to give you some specific comments on other 
reforms that are needed.
    My constituents have been severely affected by the 
designation of over 20 Federal threatened and endangered 
species and almost 100 candidate species. Kern County 
comprising two-thirds of my district embraces more than 8,000 
square miles of desert, mountain and valley terrain (equal to 
the size of Massachusetts), including two important military 
facilities, Edwards Air Force Base and the Naval Air Warfare 
Center at China Lake.
    Rural land users can never have faith in the government's 
action toward endangered species protection unless we are a 
part of that process of listing species and devising plans for 
their recovery and management. That is why I wrote the Fair 
Process Reform bill to correct the current problems of land 
users being shut out of the process. People need to have equal 
access to inforrnation relied upon by Federal agencies when 
making decisions on endangered species. If the government 
collects insufficient or inadequate information, then the 
public should be able to point that out and present necessary 
information. There needs to be a legitimate hearing by 
government officials, not a meeting in which a government clerk 
collects local complaints and says ``I'll pass this on'' to the 
people who actually make the decisions. ``I'll pass this on'' 
means that complaints from local landowners will be dropped 
into the black hole of a government file folder.
    A legitimate hearing involves an opportunity to call 
government officials as witnesses, question their actions, put 
on independent witnesses and experts, and provide more 
scientific evidence. A rural landowner who may ultimately bear 
the burden of paying for endangered species protection has the 
right to look in the eye of the government bureaucrat who is 
listing a species and ask, ``Why did you ignore this 
information?'' and ``Our witnesses show this species is not 
endangered. How do you respond?'' That is why I included in my 
bill a provision for such a hearing process with full 
disclosure of information by the agencies. My bill includes 
provisions for open access to the public for scientific studies 
and underlying study data. My bill also includes provisions to 
improve the scientific basis of government decisions such as 
minimal information requirements for petitioners, peer review 
of multiple scientific studies used to support listing or 
government action, and economic impact analysis of its actions 
required for listings.
    I have previously spoken in support of Chairman Young's 
bill, H.R. 1142, that compensates landowners for significant 
government takings. I wrote my bill, H.R. 496--the Fair Land 
Management Reform bill, with a similar provision. You also 
know, however, about the general practice of the government in 
extracting ridiculous mitigation requirements from landowners. 
No doubt today you will hear many more such examples. The 
problem is one that is built into the current system. The 
government is staffed with people who follow their own view of 
species protection and have taken power far beyond what 
Congress envisioned. Since Congress does not provide money to 
protect these species, government officials force landowners to 
pay. Frankly, with nothing stopping them, Washington has taken 
on the power to demand land and money from landowners which is 
why we continue to hear stories of these outrageous mitigation 
requirements. I include a provision in H.R. 496 that limits the 
how much mitigation the government can require for both land 
and water projects. If there must be mitigation, then it should 
be on an acre for acre basis.
    Lastly, we must stop penalizing landowners for ``harming 
species'' when no harm occurs. In my last testimony to this 
Committee, I recounted how the government made my constituents 
sandbag a tree that would be flooded; the tree was assumed to 
be the habitat for a species, but in fact there was no species 
present in that tree. The government nonetheless would not 
relent and demanded that the tree be sandbagged regardless of 
the work and cost. My bill, H.R. 495, the Liability Reform 
bill, would stop such nonsensical actions. In no way do we 
affect the current criminal and civil penalties in the 
Endangered Species Act against intentional actions. If a person 
intends to harm a species by cutting down trees with the nests 
of spotted owls or plowing fields with endangered kit foxes, 
the current law would operate just as it does today. But 
criminal and civil penalties should be limited to actual and 
intentional takings of an endangered species, not accidental or 
hypothetical ones. My bill also includes ``Safe harbor'' and 
``No surprises'' provisions to end the string of broken 
promises and added obligations put on landowners by the 
government such as those mentioned above. It is sad that we 
need a law to ensure government honesty, but apparently that is 
needed.
    Until such steps are taken, the Endangered Species Act will 
continue to fail to achieve its intended goal of Federal 
wildlife protection, which reflects the will of the American 
people. I ask this Committee to consider the bills I introduced 
as means to fulfill America's promise to protect endangered 
species and endangered family farm and landowners as well.

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