[House Hearing, 108 Congress]
[From the U.S. Government Publishing Office]




 
     EXAMINING IMPACTS OF THE ENDANGERED SPECIES ACT ON SOUTHERN 
                      CALIFORNIA'S INLAND EMPIRE

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

                        OVERSIGHT FIELD HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED EIGHTH CONGRESS

                             SECOND SESSION

                               __________

           Friday, September 10, 2004, in Fontana, California

                               __________

                           Serial No. 108-106

                               __________

           Printed for the use of the Committee on Resources



 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house
                                   or
         Committee address: http://resourcescommittee.house.gov




                                 ______

                      U.S. GOVERNMENT PRINTING OFFICE
95-902 PS                  WASHINGTON : 2005
_____________________________________________________________________________
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512-1800  
Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001




                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
W.J. ``Billy'' Tauzin, Louisiana     Eni F.H. Faleomavaega, American 
Jim Saxton, New Jersey                   Samoa
Elton Gallegly, California           Neil Abercrombie, Hawaii
John J. Duncan, Jr., Tennessee       Solomon P. Ortiz, Texas
Wayne T. Gilchrest, Maryland         Frank Pallone, Jr., New Jersey
Ken Calvert, California              Calvin M. Dooley, California
Scott McInnis, Colorado              Donna M. Christensen, Virgin 
Barbara Cubin, Wyoming                   Islands
George Radanovich, California        Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Jay Inslee, Washington
    Carolina                         Grace F. Napolitano, California
Chris Cannon, Utah                   Tom Udall, New Mexico
John E. Peterson, Pennsylvania       Mark Udall, Colorado
Jim Gibbons, Nevada,                 Anibal Acevedo-Vila, Puerto Rico
  Vice Chairman                      Brad Carson, Oklahoma
Mark E. Souder, Indiana              Raul M. Grijalva, Arizona
Greg Walden, Oregon                  Dennis A. Cardoza, California
Thomas G. Tancredo, Colorado         Madeleine Z. Bordallo, Guam
J.D. Hayworth, Arizona               Stephanie Herseth, South Dakota
Tom Osborne, Nebraska                George Miller, California
Jeff Flake, Arizona                  Edward J. Markey, Massachusetts
Dennis R. Rehberg, Montana           Ruben Hinojosa, Texas
Rick Renzi, Arizona                  Ciro D. Rodriguez, Texas
Tom Cole, Oklahoma                   Joe Baca, California
Stevan Pearce, New Mexico
Rob Bishop, Utah
Devin Nunes, California
Randy Neugebauer, Texas

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel
                                 ------                                

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Friday, September 10, 2004.......................     1

Statement of Members:
    Baca, Hon. Joe, a Representative in Congress from the State 
      of California..............................................     4
        Prepared statement of....................................     6
    Pombo, Hon. Richard W., a Representative in Congress from the 
      State of California........................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Bennett, Hon. Deirdre H., Mayor, City of Colton, California..     8
        Prepared statement of....................................    11
    Denner, Roy, President & CEO, Off-Road Business Association, 
      Inc., Santee, California...................................    32
        Prepared statement of....................................    35
    Gonzales, Hon. Josie, Fontana City Council Member, Fontana, 
      California.................................................    20
        Prepared statement of....................................    22
    MacDonald, Julie, Deputy Assistant Secretary for Fish and 
      Wildlife and Parks, Fish and Wildlife Service, U.S. 
      Department of the Interior, Washington, D.C................    58
        Prepared statement of....................................    61
    Nuaimi, Hon. Mark, Mayor, City of Fontana, California........    13
        Prepared statement of....................................    15
    Silver, Dan, M.D., Executive Director, Endangered Habitats 
      League, Los Angeles, California............................    48
        Prepared statement of....................................    49
    Thornton, Robert D., Partner, Nossaman, Guthner, Knox & 
      Elliott LLP, Irvine, California............................    40
        Prepared statement of....................................    45
    Vargas, Hon. Grace, Mayor, City of Rialto, California........    17
        Prepared statement of....................................    19


OVERSIGHT FIELD HEARING ON EXAMINING IMPACTS OF THE ENDANGERED SPECIES 
              ACT ON SOUTHERN CALIFORNIA'S INLAND EMPIRE.

                              ----------                              


                       Friday, September 10, 2004

                     U.S. House of Representatives

                         Committee on Resources

                          Fontana, California

                              ----------                              

    The Committee met, pursuant to call, at 9:00 a.m., at 
Fontana City Hall, Fontana, California, Hon. Richard Pombo 
[Chairman of the Committee] presiding.
    Present: Representatives Pombo, Radanovich, and Baca.
    Mr. Pombo. Good morning.
    The oversight hearing by the House Committee on Resources 
will come to order.
    The Committee is meeting today to hear testimony on the 
Endangered Species Act.
    I want to thank you for the opportunity to bring the 
Committee to Southern California and the Inland Empire. I look 
forward to listening and gaining greater insight from the 
witnesses today on how the ESA's impacting families in everyday 
operations in businesses in this region of the country.
    Before we begin, I would like to recognize the Kaiser High 
School ROTC for the Posting of the Colors and then Councilman 
John Roberts for the Pledge of Allegiance.
    If I could have everybody stand, please.
    [Presenting of the Colors]
    [Pledge of Allegiance]
    Mr. Pombo. Thank you.

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

    Mr. Pombo. Thank you very much. It is always nice to see 
some of the impressive young people of this community and this 
country.
    The Endangered Species Act has given wildlife very little 
to fear as we stagger blindfolded into the 30th anniversary. 
Since its inception, nearly 1,800 species have been listed as 
threatened or endangered, yet only seven domestic species 
listed under the ESA have been recovered in 30 years. Sadly, 
that is the history of the Endangered Species Act. Born of the 
best intentions, it has failed to live up to its promises, and 
species are more threatened today because of its serious 
limitations.
    Thirty years of the same prescription have failed. 
Moreover, despite the evidence, some maintain that we can only 
have one treatment, the one prescribed 30 years ago; but for 
the last 30 years, the ESA has remained a law that checks 
species in, but never checks them out. It has been a failing 
form of managed care.
    Specifically, the diagnoses and treatment aspects of the 
law are fatally flawed. They are ambiguous, open to arbitrary 
personal judgment and do not rely on sound science or peer 
reviewed research. Known as listing and critical habitat 
respectively, these key elements of the Act are responsible for 
the misdiagnoses of species as endangered or threatened and the 
application of a one-size-fits-all solution.
    When a species is listed for protection, treatment comes in 
the form of critical habitat designations which forbid the use 
of lands by or for anything but the species. Critical habitat 
is one of the most perverse shortcomings of the Act. It has 
been interpreted to mean that if an animal is determined to be 
in trouble, there is only one viable option--to designate 
critical habitat and let nature take its course. Rampant 
environmental litigation has undermined the already broken 
system at the expense of species' recovery. In fact, there have 
been so many lawsuits that the Federal critical habitat program 
went bankrupt last year. Litigation has left the United States 
Fish and Wildlife Service with limited ability to prioritize 
its species recovery programs and little or no scientific 
discretion to focus on those species in the greatest need of 
conservation.
    The Administration acknowledges that court orders and 
mandates often result in leaving the Fish and Wildlife Service 
with almost no ability to confirm scientific data in its 
administrative record before making decisions on listing in 
critical habitat proposals. In the wake of this decade-long 
trend, the current Administration supported by the previous 
Clinton Administration recognized that critical habitat 
designations provide the majority of listed species and 
proposed to be listed species little if any additional 
protection.
    Congress intended for this law to be used to recover 
species and to increase the number of those in need before 
triggering Federal regulations. To merely prevent the 
extinction of a species is a not a long-term measurable 
success. Congress never dreamed that it would turn into a tool 
used by vocal and well funded special interest groups seeking 
to impose court-ordered Federal land and water use controls on 
the majority of Americans.
    Celebrating these failures, as many are doing in this 30th 
anniversary of the Act, is not how we should mark this 
occasion. Instead, we must begin to improve it for the 21st 
Century and what we are doing here today by closely examining 
its implementation in Southern California's Inland Empire. 
Congress must focus on legislative reforms that foster the 
science, technology and innovation that have made America 
successful in other endeavors.
    Congress took a major step toward updating and 
strengthening the ESA when this Committee passed two major 
pieces of legislation just over a month ago. These two bills, 
one sponsored by a Republican and the other by a Democrat, are 
sound legislative proposals that the Members of Congress here 
before you will continue to hammer out in the hope of becoming 
law before the end of this congressional session.
    I would now like to recognize a member of the Committee, an 
extremely important member of the Committee, somebody that I 
have worked with very closely over the years on a number of 
issues, but in particular on the Endangered Species Act, and 
that's my California colleague, Joe Baca
    [The prepared statement of Mr. Pombo follows:]

        Statement of The Honorable Richard W. Pombo, Chairman, 
                         Committee on Resources

    Good morning. I would like to call this hearing on the Endangered 
Species Act to order. Thank you for the opportunity to bring the House 
of Representatives Committee on Resources to the Inland Empire.
    I look forward to listening and gaining greater insight from the 
witnesses today on how the ESA is impacting families and every day 
operations and businesses in this region of the country.
    The Endangered Species Act has given wildlife very little to cheer 
about as we stagger blindfolded into its 30th anniversary. Since its 
inception, nearly 1,800 species have been listed as threatened or 
endangered. Yet, only seven domestic species listed under the ESA have 
ever been ``recovered'' in 30 years.
    Sadly, that is the history of the Endangered Species Act. Born of 
the best intentions, it has failed to live up to its promise, and 
species are more threatened today because of its serious limitations. 
Thirty years of the same prescription has failed. Moreover, despite the 
evidence, some maintain that we can only use one treatment--the one 
prescribed 30 years ago. But for the last 30 years, the ESA has 
remained a law that checks species in, but never checks them out. It 
has been a failing form of managed care.
    Specifically, the ``diagnosis'' and ``treatment'' aspects of the 
law are fatally flawed. They are ambiguous, open to arbitrary personal 
judgment and do not rely on sound science or peer-reviewed research. 
Known as ``listing'' and ``critical habitat'' respectively, these key 
elements of the Act are responsible for the misdiagnosis of species as 
endangered or threatened and the application of a one-size-fits-all 
solution.
    When a species is listed for protection, treatment comes in the 
form of critical habitat designations, which forbid the use of lands by 
or for anything but the species. Critical habitat is one of the most 
perverse shortcomings of the act. It has been interpreted to mean that 
if an animal is determined to be in trouble, there is only one viable 
option--to designate critical habitat and ``let nature take its 
course.''
    Rampant environmental litigation has undermined the already-broken 
system at the expense of species recovery. In fact, there have been so 
many lawsuits that the federal critical habitat program went bankrupt 
last year. Litigation has left the United States Fish and Wildlife 
Service with limited ability to prioritize its species recovery 
programs and little or no scientific discretion to focus on those 
species in greatest need of conservation.
    The Administration acknowledges that court orders and mandates 
often result in leaving the Fish and Wildlife Service with almost no 
ability to confirm scientific data in its administrative record before 
making decisions on listing and critical habitat proposals. In the wake 
of this decade long trend, the current Administration, supported by the 
previous Clinton Administration, recognize that critical habitat 
designations provide the majority of listed species and proposed to be 
listed species little if any additional protection.
    Congress intended for this law to be used to recover species and to 
increase the number of those in need before triggering federal 
regulation (restrictions). To merely prevent the extinction of a 
species is not a long-term measurable success. Congress never dreamed 
that it would turn into a tool used by vocal and well-funded special 
interest groups seeking to impose court ordered Federal land and water 
use controls on the majority of Americans.
    Celebrating these failures--as many are doing this 30th anniversary 
of the act--is not how we should mark this occasion. Instead, we must 
begin to improve it for the 21st century. As we are doing here today by 
closely examining its implementation in southern California's Inland 
Empire, Congress must focus on legislative reforms that foster the 
science, technology and innovation that have made America successful in 
other endeavors.
    Congress took a major step toward updating and strengthening the 
ESA when this Committee passed two major pieces of legislation, just 
over a month ago. Those two bills, one sponsored by a Republican and 
the other by a Democrat, are sound legislative proposals that the 
Members of Congress up here before you will continue to hammer out in 
hope of becoming law before the end of this congressional session.
    The House Committee on Resources is here today as a result of the 
hard work of my colleague and good friend, Congressman Joe Baca. Mr. 
Baca has been instrumental with the bipartisan effort to update the ESA 
this Congress and I would like to thank him for his help and hard 
work--thank you Joe. I would also like to thank equally the work of my 
other colleagues and friends, Congressman Miller and Congressman 
Radanovich.
    We are before you today to hear from you and receive your ideas on 
what we as your elected representatives in Washington can do to improve 
the implementation of the Endangered Species Act.
    Again, thank you for having us and I would at this time like to 
recognize Mr. Baca.
                                 ______
                                 

 STATEMENT OF THE HON. JOE BACA, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Baca. Good morning.
    I would like to welcome the House Resources Committee to 
Fontana, a historical first in the 43rd Congressional District.
    I want to thank Chairman Richard Pombo and the Resources 
Committee for allowing me to host this hearing here today.
    I would also like to welcome George Radanovich to the 
Inland Empire. I don't know how they both got here, but we all 
flew in last night. And we weren't out late, we just flew in 
late. Got in about 1:30 or 2:00 this morning. Apparently they 
didn't go to sleep and came directly to the hearing.
    But welcome to the Inland Empire, both of you.
    I want to thank Mayor Nuaimi, Councilwoman Josie Gonzales. 
It is not her first time appearing in front of the Committee; 
she has appeared before.
    I would like to thank Mayor Bennett and Mayor Vargas for 
taking the time to share their stories here today as well.
    This hearing is an opportunity for the Inland Empire 
citizens to hear firsthand experience in complying with the 
Endangered Species Act. The witnesses will share with Congress 
their successes and struggles and balancing economic growth 
with species protection. Through their stories, Congress will 
get a better idea how we can listen to how the negative effects 
of compliance with the Endangered Species Act in ongoing areas 
such as the Inland Empire have affected the quality of life in 
two of the largest growth counties in the United States, that's 
San Bernardino and Riverside have experienced the largest 
growth in population.
    I hope Congress then will develop and adopt clear 
recommendations on how the ESA can be applied consistently and 
more successfully in using commonsense and sound scientific 
knowledge. Those are two important elements; common sense and 
sound scientific knowledge.
    ESA is a broken law with a record of only 12 species 
recovered on a list of over 1,000 endangered species. That is a 
99 percent failure rate. Meanwhile communities like mine 
sacrifice beyond their means with little result in land, in 
money and loss of economic growth.
    In 1994, San Bernardino County was forced to shift the site 
of Arrowhead Regional Medical Center 250 feet, costing the 
taxpayers in our area $3 million--all because a sand pit was 
found on the proposed property in which the Delhi Sands Flower-
Loving Fly was believed to breed. Since the Fish and Wildlife 
Service placed the fly on the endangered species list in 1993, 
San Bernardino County has lost--I state San Bernardino County 
has lost hundreds of jobs, development has been stalled and 
millions of taxpayers' dollars have been wasted. That is 
taxpayers' dollars of our communities have been wasted.
    I requested this hearing so that action could finally be 
taken on these issues.
    The ESA was signed into law over 30 years by President 
Nixon and was intended to save species identified as threatened 
or endangered to restore healthy population. Remember that. The 
Act has not been updated since. The Fish and Wildlife Service 
require landowners to set aside specific acreage for fly 
habitat in exchange for the right to build; a cost and a loss 
to quality of life.
    Many companies decided to locate elsewhere rather than meet 
the Act's requirement. And we have lost many opportunities in 
the past where companies that would have improved the quality 
of life for the Inland Empire or would have been able to obtain 
jobs in this immediate area, and many of our youth who are 
going through our schools would have had an opportunity to be 
employed here versus going outside into other communities. Who 
can blame them?
    In the year 2002, the City of Colton was required to find a 
new location for a $12 million baseball park costing taxpayers 
$1.2 million because of a handful of flies.
    In the year 2003, the City of Fontana Empire Center was 
delayed because of the said siting of flies on one acre portion 
of property. The City finally received a building permit in 
March and, in return, the City designated 30 acres of fly 
habitat. That is a lot of valuable land.
    We have had wind storms since then, so there is no telling 
where these flies are now. I mean, there have been a lot of 
storms. We do not even know if it is there, yet we reserve 30 
acres. The winds continue to blow in this area. The Santa Ana 
winds continue to come this way.
    Congratulations to the City of Fontana for the Empire 
Center's groundbreaking yesterday. It is outstanding. It is 
positive for our community. It is positive for the Inland 
Empire to create opportunities for many individuals here.
    For over 10 years the Empire Center was stalled. That is 10 
years. Can you imagine how many jobs have been lost, how many 
opportunities have been lost, what the attitudes were of our 
communities because we were not able to build in this area? You 
know, it is taking too long.
    If I saw a fly flying around in this room, and apparently 
this is my fly swatter, what I would probably do like anyone 
else, is just swat it. I would not know if it was an endangered 
species or not. I mean, that is normally what any American, any 
individual would do.
    I mean, Chairman, you own horses and cattle. I mean, can 
you imagine if a fly went on there and your cattle happened to 
swat one of those flies, I mean would they be penalized for 
swatting that fly? Would they know that it is an endangered 
species, because the winds blew and they happened to land on 
one of your cattle and the tail of it swatted it?
    But these things are ridiculous. I mean, it is something 
that we do not look for. And none of us look for, we 
immediately react.
    We do not even know how many endangered flies there are. 
None of us really know. How can we keep track of the flies that 
only come out once a year to mate, normally in July or August? 
How can we keep track of flies that get blown around with the 
Santa Ana winds?
    We have the responsibility to protect. And I state we have 
the responsibility to protect endangered animals and insects 
from distinction. But first we have the duty to protect the 
people who make up our community. It is time to modernize this 
law for the 21st century. I will do everything I can to make 
sure that the enforcement of the Endangered Species Act does 
not stall our community's growth any longer.
    Again, I want to thank Chairman Pombo, the distinguished 
quests. And I look forward to hearing testimony today.
    Thank you very much, Mr. Chairman.
    [The prepared statement of Mr. Baca follows:]

Statement of The Honorable Joe Baca, a Representative in Congress from 
                        the State of California

    Good morning. I would like to welcome the House Resources Committee 
to the 43rd Congressional district in California.
    Thank you, Chairman Pombo, and the Resources Committee for allowing 
me to host this field hearing today. It is an honor.
    I would also like to welcome Congressman Radanovich to the Inland 
Empire. Thank you for being here.
    Thank you, Mayor Nuaimi, Councilwoman Gonzales, Mayor Bennett and 
Mayor Vargas for taking the time to share your stories today.
    This hearing is an opportunity for the Inland Empire citizens to 
share their first-hand experiences in complying with the Endangered 
Species Act.
    The witnesses will share with Congress their successes and 
struggles in balancing economic growth with species protection.
    Through their stories, Congress will get a better idea of how we 
can lessen the negative effects that compliance with the Endangered 
Species Act has on growing areas such as the Inland Empire.
    I hope Congress will then develop and adopt clear recommendations 
on how the ESA can be applied consistently and more successfully using 
common sense and sound scientific knowledge.
    The ESA is a broken law: with a record of only 12 species recovered 
on a list of over 1,000 endangered species. This is a 99% failure rate.
    Meanwhile, communities like mine sacrifice beyond their means but 
with little results.
    In 1994, San Bernardino County was forced to shift the site of 
Arrowhead Regional Medical Center 250 feet, costing taxpayers $3 
million.
    All because a sand pit was found on the proposed property in which 
the Delhi Sands Flower-Loving Fly was believed to breed.
    Since the Fish and Wildlife Services placed the fly on the 
endangered species list in 1993, San Bernardino County has lost 
hundreds of jobs, development has been stalled and millions of tax 
dollars have been wasted.
    I requested the hearing so that action can finally be taken on this 
issue.
    The ESA was signed into law over 30 years ago by President Nixon 
and was intended to save species identified as threatened or endangered 
to restore to healthy populations. The Act has not been updated since.
    The Fish and Wildlife Service requires landowners to set aside 
specific acreage for fly habitat in exchange for the right to build.
    Many companies decide to locate elsewhere, rather than meet the 
Act's requirements. And who can blame them?
    In 2002, the City of Colton was required to find a new location for 
a $12 million baseball park, costing taxpayers $1.2 million because of 
a handful of flies.
    In 2003, The City of Fontana's Empire Center was delayed because of 
six sightings of the fly on a one-acre portion of the property. The 
City finally received a building permit in March. In return, the City 
dedicated 30 acres of fly habitat.
    Congratulations to the City of Fontana for the Empire Center's 
groundbreaking held yesterday.
    For over 10 years, the Empire Center was stalled because of a fly.
    If I saw a fly flying around this room, I would swat at it.
    We don't even know how many endangered flies there are. How can we 
keep track of flies that only come out of the sand once a year to mate? 
How can we keep track of flies that get blown around with the Santa Ana 
winds?
    We have a responsibility to protect endangered animals and insects 
from extinction--but first we have a duty to protect the people who 
make up our community.
    It is time to modernize this law for the 21st century.
    I will do everything I can to make sure that the enforcement of the 
Endangered Species Act does not stall our community's growth any 
longer.
    Again, I thank Chairman Pombo and our distinguished guests, and I 
look forward to hearing the testimony today.
                                 ______
                                 
    Mr. Pombo. Thank you.
    I would like to recognize Mr. Radanovich for any opening 
comments he may have.
    Mr. Radanovich. Thank you, Chairman Pombo. And I am glad to 
be a part of this hearing. I want to thank you for having it in 
a pretty critical part of the state.
    I am glad to be on your turf, Joe.
    I am from the Central Valley and my District goes from 
Modesto to Fresno up to Yosemite, so we got our share of 
Endangered Species Act problems, both in the Sierra National 
Forest, Yosemite National Park and the San Joaquin Valley. Of 
interest, I think, is we are currently trying to locate the 
tenth of the UC system, University of California. And you were 
talking about critical habitat that things that need to be 
given up in order to locate a university I think in a critical 
part of the state. It is a thousand acres footprint, and in 
order to get that 40,000 acres had to be dedicated to critical 
habitat in order to take care of the Fairy Shrimp which is just 
an amazing a number. I mean, most of the vernal pools were 
created by cattle when you put a salt block for a period of 
time, and yet they seem to be--I mean, you can dig one up 
anywhere you want to and you will get a Fairy Shrimp.
    But, clearly, the abuse of the law is there because it is a 
poorly written law and it is long overdue for reform. And I 
hope this hearing helps to lead to that end. And I want to 
concur with both the Chairman's remarks and Mr. Baca's.
    Thank you.
    Mr. Pombo. Thank you.
    I would like to invite up our first panel of witnesses.
    Mr. Pombo. We have The Honorable Deirdre Bennett, the Mayor 
of the City of Colton; The Honorable Mark Nuaimi, Mayor of the 
City of Fontana; The Honorable Grace Vargas, Mayor of the City 
of Rialto; and The Honorable Josie Gonzales, Fontana City 
Council Member.
    And if I could have you all stand and raise your right 
hand. It is the custom of the Committee that we swear in all 
witnesses.
    [Witnesses sworn]
    Mr. Pombo. Thank you.
    Let the record show they all answered in the affirmative.
    Thank you very much for joining us here this morning. As a 
former local elected official I have learned that when it comes 
to a lot of the Federal issues it is the people on the ground 
that have to deal with these laws every day and their 
enforcement and their regulations that where we can often times 
learn the most. And I appreciate you all being here and making 
the effort to be part of this hearing this morning.
    Ms. Bennett, we are going to begin with you.

          STATEMENT OF THE HONORABLE DEIRDRE BENNETT, 
                     MAYOR, CITY OF COLTON

    Ms. Bennett. Thank you.
    I would like to start by saying thank you very much to 
Congressman Baca. We really appreciate the efforts you are 
making, and appreciate this hearing today. And I would also 
like to thank the Chair, Richard Pombo and George Radanovich 
for coming out here and joining us to hear what we have been 
dealing with over the years.
    For years the Endangered Species Act has been misapplied. 
Many of us who strongly believe we need to protect our 
environment and the species who share the world with us are 
baffled by the methods used to determine which species will be 
listed.
    The Delhi Sands Flower-Loving Fly is a good example of one 
that has created a nightmare for the residents of the City of 
Colton without sufficient scientific data to support its 
listing.
    If you will look to the west on Slover Avenue, you will see 
a horrible sight. You may even blame the City for allowing so 
much trash and debris accumulating in a public area. In 
actuality, this is an example of blight caused by the 
endangered status of the Delhi Sands Flower-Loving Fly. The 
United States Fish and Wildlife Service does not want us to 
disrupt this area as it may disturb the fly. On rare occasions 
when we could not take it any more and public safety was 
jeopardized, we cleared the trash from the roadway and 
shoulders to the outcries of the Fish and Wildlife Service. 
They will not even allow us to install lights to help thwart 
the illegal dumping which occurs here. Reduced to the simplest 
of terms, our national government encourages trash and debris 
to favor a fly. The American public surely must find this 
shocking.
    If a party wants to develop land they own within designated 
fly habitat, they must negotiate with the U.S. Fish and 
Wildlife Service in developing a habitat conservation plan or 
HCP. If they give you a permit, you must buy other habitat land 
at your cost plus pay for maintenance. Unfortunately, this 
process equates to nothing more than legalized extortion.
    We believe public projects, which include public safety, 
public improvements and economic viability are at stake; in 
essence flies take priority for recreational facilities for 
children, improved infrastructure and jobs for our people.
    Besides our sports facility, another project currently held 
hostage is the required Pepper Avenue interchange improvements. 
The County of San Bernardino has been told to mitigate this 
public safety project by purchasing more than 20 acres of fly 
habitat at an approximate expense of $5 million. There is only 
so much money in the bank.
    For the past several years, the City of Colton has been 
greatly hampered by the endangered spices of the Delhi Sands 
Flower-Loving Fly. Development efforts have been thwarted, 
resulting in the loss of several million dollars in local tax 
revenue, not to mention losses to the private sector, including 
several thousand potential jobs.
    The City has tried to be a compatible neighbor to the fly, 
and we tried to intervene on behalf of adversely affected 
property owners in a diplomatic manner. Occasionally, a 
property owner has been able to negotiate a reasonable 
mitigation, a package with the Fish and Wildlife Service, but 
those instances are rare exceptions. More often than not, Fish 
and Wildlife Service wants to study and ponder proposals for an 
excessive period of time, often conveniently forgetting 
tentative deal points reached early in negotiations. Such was 
the situation with the City's proposed Sports Park at Valley 
Boulevard and Meridian Avenue.
    For nearly 2 years, the City of Colton negotiated with Fish 
and Wildlife Service. At one point we thought we had a 
tentative agreement until a Fish and Wildlife Service staff 
person reneged. They reneged on their initial deal and 
conveniently denied consensus was previously reached. The 
proposed agreement was identical to ones reached with a local 
developer where one acre of mitigation was required for every 
three acres developed. When it fell apart, we opted for a 
second year fly study. If flies were not found as in the first 
year study, we could develop the sports park with no habitat 
conservation plan and therefore, no mitigation.
    Unfortunately for us, a few flies (they say five 
``individuals'') were spotted by the biologist hired to do the 
study. No one watches these biologists and there is no way to 
prove or disapprove what they observe. In the end, the Fish and 
Wildlife Service told us they needed 33 acres of habitat for 
the 15 acres we wanted to develop, a requirement six times 
greater than those imposed on previous development. The 
additional cost and time associated with acquiring the 
additional property for habitat forced us to scale down and 
relocate the sports park project and leave the Valley Boulevard 
and Meridian Avenue site in a state of ``fly-induced blight.'' 
Our conservation estimates placed the additional cost to 
acquire an additional 33 acres of habitat at around $3 million. 
Far too much for us to pay to save a few insects with a very 
brief life span. Again, this is nothing more than legalized 
extortion.
    The U.S. Fish and Wildlife Service also wanted to implement 
a countywide HCP for the fly, which primarily includes the City 
of Fontana, Rialto and Colton and the County of San Bernardino. 
They have been talking about this for more than 5 years but 
absolutely nothing has been done. This is typical for that 
agency. The longer they take, the longer development gets held 
up. This appears to be their MO to stop development entirely in 
the Inland Empire, or at least in West Colton.
    In addition, the land acquisition and cost assumptions in 
tentative discussions concerning the countywide HCP were from 
our perspective completely unrealistic as Colton properties are 
placed into a state of ``fly-induced blight'' in 
disproportionate amounts so properties in surrounding 
communities can develop. In short, they receive revenue, jobs 
and economic development while Colton receives DSF Habitat, no 
revenue, no jobs or economic development. As a result, Colton 
will not participate in such a plan, ever.
    Colton wants to work with its neighbors including the 
cities of Fontana and Rialto and the County of San Bernardino 
and we believe that our residents, and to some of you your 
constituents, have been ill served by the listing of the DSF. 
We believe the DSF should be taken off the endangered species 
list, or at least no further habitat conservation should be 
required for this species. In that is not possible, then we 
implore the House Committee on Resources to work with us and to 
work all communities impacted by the DSF, and other species, to 
ensure that the economic well being of communities are 
represented before the interests of flies, rates or sucker 
fish.
    Colton has had conversations with a local conservation 
group, The Wildlands Conservancy. We have discussed an 
opportunity that could provide a positive environmentally 
friendly project for the community, some development as well as 
some habitat set aside for the DSF. While these discussions are 
in a very preliminary stage and have not yet involved the Fish 
and Wildlife Service, it does demonstrate that Colton would be 
willing to consider reasonable accommodations for the DSF.
    The ESA began with noble intentions. No one would argue 
with the idea of protecting a species from complete extinction. 
However, when the Act is used to stop a community from bringing 
jobs and improving the life for the people who live in that 
community, to protect a subspecies that has been separated from 
the main group, that is wrong. We believe that enough is 
enough. It is high time that President Bush takes on the Fish 
and Wildlife Service and rid it of those who enact their world 
view and land use policies on innocent local communities. If 
the Administration really believes in local control, it should 
allow the California Endangered Species Act to be operative in 
this instance. Under that Act, insects are not classified as 
being eligible for endangered status, and we do not believe 
that the authors of the original Endangered Species Federal 
legislation ever contemplated protecting insects.
    The Fish and Wildlife Service staff strategically refer to 
the fly as an individual or animal. This is outrageous. To us 
and the majority of Americans with any common sense at all, 
they are pests. Nothing more, nothing less, pests we have 
historically grown up swatting, as Congressman Baca stated 
earlier.
    Ironically, another project that has been delayed partly as 
a result of the DSF, the 3-5 Storm Drain, has created an 
opportunity for another insect to threaten the health and 
safety of Colton residents. Because of the fact that the storm 
drain has not been constructed, excess rain and nuisance water 
have collected in a low lying area just north of the Union 
Pacific tracks and east of Rancho Avenue. This area has been 
identified by County Vector Control to be a breeding ground for 
mosquitoes and the West Nile Virus.
    In summary, our region has lost its ability to provide 
safety improvements and jobs to its residents because of a fly. 
We believe a large majority of the American people will agree 
with the resolutions that we seek:
    Number one: Congress should work to de-list the fly as an 
endangered species;
    Number two: Insects should not be considered as being 
eligible for endangered status;
    Number three: Greatly limit the administrative powers of 
lower level Fish and Wildlife staff to arbitrarily inflict 
their views on local land use policy, and;
    Number four: Create language that requires better 
scientific data to determine whether a species is truly 
endangered and disallow the use of the Act to protect pocket 
species whose main body is thriving in other areas.
    And remember please, people matter more than bugs.
    Thank you.
    [The prepared statement of Ms. Bennett follows:]

         Statement of The Honorable Deirdre H. Bennett, Mayor, 
                             City of Colton

    If you look to the west on Slover Avenue, you will see a horrible 
sight. You may even blame the City for allowing so much trash and 
debris accumulating in a public area. In actuality, this is an example 
of blight caused by the endangered status of the Delhi Sands Flower-
Loving Fly. The United States Fish and Wildlife Service does not want 
us to disrupt this area as it may ``disturb'' the fly! On rare 
occasions when we could not take it any more and public safety was 
jeopardized, we cleared the trash from the roadway and shoulders to the 
outcries of the Fish and Wildlife Service. They won't even allow us to 
install lights to help thwart the illegal dumping which occurs here. 
Reduced to the simplest of terms, our national government encourages 
trash and debris--to favor a fly. The American public surely must find 
this shocking.
    If a party wants to develop land they own within designated fly 
habitat, they must negotiate with U.S. Fish & Wildlife in developing a 
habitat conservation plan (HCP). If they give you a permit you must buy 
other habitat land at your cost plus pay for maintenance. 
Unfortunately, this process equates to nothing more than legalized 
extortion. We believe public projects, which include public safety, 
public improvements and economic viability are at stake; in essence 
flies take priority over recreational facilities for children, improved 
infrastructure, and jobs for our people. Besides our sports facility, 
another project currently held hostage is the required Pepper Avenue 
Interchange Improvements. The County of San Bernardino has been told to 
mitigate this public safety project by purchasing more than 20 acres of 
fly habitat at an approximate expense of $5 million. There is only so 
much money in the bank.
    For the past several years, the City of Colton has been greatly 
hampered by the endangered status of the Delhi Sands Flower-Loving Fly. 
Development efforts have been thwarted, resulting in the loss of 
several million dollars in local tax revenue--not to mention losses to 
the private sector, including several thousand potential jobs.
    The City has tried to be a compatible neighbor to the fly, and we 
tried to intervene on behalf of adversely affected property owners in a 
diplomatic manner. Occasionally, a property owner has been able to 
negotiate a reasonable ``mitigation'' package with Fish and Wildlife 
but those instances are a rare exception. More often than not, Fish and 
Wildlife wants to study and ponder proposals for an excessive period of 
time--often conveniently forgetting tentative deal points reached early 
in negotiations. Such was the situation with the City's proposed Sports 
Park at Valley Boulevard and Meridian Avenue.
    For nearly two years the City of Colton negotiated with Fish and 
Wildlife. At one point we thought we had a tentative agreement until a 
Fish and Wildlife staff person reneged on their initial deal and 
conveniently denied consensus was previously reached. The proposed 
agreement was identical to ones reached with a local developer where 
one acre of mitigation was required for every three acres developed. 
When it fell apart, we opted for a second year fly study. If flies were 
not found as in the first year study, we could develop the sports park 
with no ``habitat conservation plan'' and therefore, no mitigation.
    Unfortunately, a few flies (they say five ``individuals'') were 
spotted by the biologist hired to do the study. No one watches these 
biologists and there is no way to prove or disprove what they observe. 
In the end, Fish and Wildlife told us they needed 33 acres of habitat 
for the 15 acres we wanted to develop, a requirement 6 times greater 
than those imposed on previous development! The additional cost and 
time associated with acquiring additional property for habitat forced 
us to scale down and relocate the sports park project and leave the 
Valley Boulevard and Meridian Avenue site in a state of ``Fly-Induced 
Blight''. Our conservative estimates placed the additional cost to 
acquire an additional 33 acres of habitat at around $3 million. Far too 
much for us to pay to save a few insects with a very brief life span. 
Again, this is nothing more than legalized extortion.
    The U.S. Fish and Wildlife Service also wanted to implement a 
Countywide HCP for the Fly, which primarily includes the cities of 
Fontana, Rialto, and Colton and the County of San Bernardino. They have 
been talking about this for more than five years but absolutely nothing 
has been done. This is typical for that agency. The longer they take, 
the longer development gets held up. This appears to be their MO to 
stop development entirely in the Inland Empire or at least in West 
Colton. In addition, the land acquisition and cost assumptions in 
tentative discussions concerning the Countywide HCP were from our 
perspective completely unrealistic as Colton properties are placed into 
a state of ``Fly-Induced Blight'' in disproportionate quantities so 
properties in surrounding communities can develop. In short, they 
receive revenue, jobs and economic development while Colton receives 
DSF Habitat, no revenue, no jobs or economic development. As a result, 
Colton will not participate in such a plan, ever!
    Colton wants to work with its neighbors including the cities or 
Fontana and Rialto and the County of San Bernardino and we believe that 
our residents (and to some of you--your constituents) have been ill 
served by the listing of the DSF. We believe the DSF should be taken 
off the endangered species list, or at least no further habitat 
conservation should be required for this species. If that is not 
possible then we implore the House Committee on Resources to work with 
us and to work with all communities impacted by the DSF (and other 
species) to ensure that the economic well being of communities are 
represented before the interests of flies, rats and ``sucker fish''.
    Colton has had conversations with a local conservation group, The 
Wildlands Conservancy, to discuss an opportunity that could provide a 
positive environmentally friendly project for the community, some 
development as well as some habitat set aside for the DSF. While these 
discussions are in a very preliminary stage and have not yet involved 
the Fish and Wildlife service, it does demonstrate that Colton would be 
willing to consider ``reasonable'' accommodations for the DSF.
    We believe that enough is enough. It is high time that President 
Bush takes on the Fish and Wildlife Service and rid it of those who 
enact their world view and land use policies on innocent local 
communities. If his administration really believes in local control it 
should allow the California Endangered Species Act to be operative in 
this instance. Under that act, insects are not classified as being 
eligible for endangered status, and we do not believe the authors of 
the original endangered species federal legislation ever contemplated 
protecting insects. Fish and Wildlife staff strategically refers to the 
Fly as an individual or animal.
    This is outrageous. To us and the majority of Americans with any 
common sense at all--THEY ARE PESTS--NOTHING MORE--NOTHING LESS--pests 
we have historically grown up swatting.
    Ironically, another project that has been delayed partly as a 
result of the DSF, (the 3-5 Storm Drain) has created an opportunity for 
another insect to threaten the health and safety of Colton residents.
    Because of the fact that the storm drain has not been constructed, 
excess rain and nuisance water have collected in a low lying area just 
north of the Union Pacific tracks and east of Rancho Avenue. This area 
has been identified by County Vector Control to be a breeding ground 
for mosquitoes and the West Nile Virus.
    In summary, our region has lost its ability to provide safety 
improvements and jobs to it's residents because of a fly. We believe a 
large majority of the American people will agree with the resolutions 
we seek:
    1.  Congress should work to de-list the fly as an endangered 
species.
    2.  Insects should not be considered as being eligible for 
endangered status.
    3.  Greatly limit the administrative powers of lower Level Fish and 
Wildlife staff to arbitrarily inflict their views on local land use 
policy.
    And Remember: PEOPLE MATTER MORE THAN BUGS!
                                 ______
                                 
    Mr. Pombo. Thank you, Mayor Bennett.
    Mayor Nuaimi?

            STATEMENT OF THE HONORABLE MARK NUAIMI, 
                     MAYOR, CITY OF FONTANA

    Mr. Nuaimi. Thank you, Chair Pombo. I do have an exhibit, 
if we could maybe bring it forward. It is an aerial map of the 
South Fontana area.
    Chairman Pombo, honorable members of the Committee, it is 
my honor and privilege today to appear before you and offer 
testimony on the impacts of the Endangered Species Act on the 
community of Fontana. We are very honored to host you here in 
Fontana City Council Chambers.
    I come before you today as the Mayor of the ninth fastest 
growing city in the United States, population 154,789, 
approximately 56 square miles within our sphere of influence. 
And unfortunately, one of the homes of the Delhi Sands Giant 
Flower-Loving Fly.
    For the past decade, economic development has been 
adversely impacted in the south Fontana area due to the listing 
of the Delhi Sands Flower-Loving Fly. From bond defaults to 
lost develop opportunities to delays in transportation 
improvements, to productivity loss due to congestion, the Delhi 
Sands Fly has cost my community directly and indirectly almost 
$100 million. I do not want to get wrapped around the financial 
details necessarily in my testimony, but I will offer fairly 
simple example.
    We had a recent freeway interchange project, the Sierra I-
10 project that finally got completed, but that project alone 
was delayed 2 years in construction because the Fish and 
Wildlife Service would not authorize the permits to move 
forward with construction because of potential secondary 
impacts or growth inducing impacts that the freeway interchange 
might have on habitat from the fly.
    Now, when you take a look and you calculate, what does that 
delay translate to as far as opportunity and productivity 
costs? Two years of delay, we have 22,500 trips a work day, and 
there are 10 minutes of delay per trip. It amounts to 1,500,000 
hours of additional delay because of a 2-year delay of one 
freeway interchange project. How much is an hour worth to you 
folks? We calculate $10 an hour. So, that's $15 million of 
productivity loss from delaying one freeway interchange for 2 
years. We have three more freeway interchanges and overpasses 
that have been delayed 3 years; Cypress overpass, Citrus Avenue 
and Cherry Avenue freeway interchanges. All three of those are 
being delayed again because of this alleged secondary impact or 
growth inducement potential on habitat.
    Which really brings us to what the whole argument turns to. 
Is it habitat or not? As you look at the map that I have before 
you, one of the most significant areas of contention throughout 
this entire process has been the extent and quality of 
potential habitat for the Delhi Sands Fly. When the fly was 
listed in 1993 and the recovery plan was adopted in 1997, the 
Fish and Wildlife Service proposed that over 1200 acres be set 
aside as suitable habitat for the fly. The problem was that 
their estimates of available habitat to be set aside ignored 
the realities of today, that much of the historical habitat in 
Fontana as an example, was already developed. That much of the 
historical habitat in Ontario was buried under many feet of 
manure. They used historical soil maps from the 1970s to 
determine the historical extent of Delhi Sands in the Inland 
Empire. But, as I mentioned, this is not based upon true 
conditions today.
    I have included in my testimony this map of the south 
Fontana area, and we highlight the historical extent of Delhi 
Sands, that's the lightened area. And then we highlighted in 
orange where there is actual sand that remains. As you can see, 
but a small fraction of the historical sand remains, and yet 
the recovery plan approved the Fish and Wildlife Service 
concluded that hundreds of acres were required to recovery this 
species in Fontana alone. You couldn't find hundreds of acres 
of sand in Fontana.
    What further complicates this entire attempt at species 
recovery is the lack of a recovery plan based upon financial 
constraints and reality. In the same recovery plan from 1997, 
the Fish and Wildlife Service estimated the cost to implement 
such a strategy at a mere $1.6 million excluding the cost to 
acquire land, as if the habitat were just sitting around 
waiting to be placed into conservation.
    If you take a look at this map in south Fontana, this is an 
industrial corridor, a major flow of commerce for much of the 
nation. Being very conservative, the 1200 acres that the Fish 
and Wildlife Service wanted set aside would cost $120 to $200 
million in land acquisition alone. To give you proof of that 
value, I would offer that it was mentioned that we recently 
settled the Empire Center. We had to set aside 30 acres of 
residentially zoned land, land that was already graded for 
development, there are pads ready to go. That land today could 
garnish probably $10 million if sold to private development.
    So, that raises the question: is this species recoverable? 
And there is a number of other questions as well. Can we afford 
to implement this recovery plan? At what point does the Fish 
and Wildlife Service declare that this species is beyond 
recovery? I ask these questions because my residents ask it of 
us. I cannot tell you how many times I have been asked, ``Are 
you really protecting a fly?'' Would not that money be put to 
better environmental use by relieving congestion in the area?
    So, I guess I will pose those questions to you this 
morning. At what point does the Federal government say we gave 
it a go and cannot sustain this species?
    When I was in Washington, D.C. last year and met with Under 
Secretary Manson, he indicated that a 5-year assessment was due 
for this species. Based upon our experience, I would have to 
conclude the following:
    Scientific evidence is lacking that demonstrates that this 
species is sustainable even after 7 years of attempted 
conservation. Any proposal for species recovery must include 
the cost to acquire the land, that unfunded mandate on local 
agencies cannot go undocumented. There is currently no 
mechanism in place nor the staffing and resources that allow 
the Fish and Wildlife Service to modify their recovery plan 
from 1997 to reflect current conditions. Habitat set-aside 
requirements should be based upon current conditions, not 
historical habitat conditions that do not reflect the 
conditions today.
    So, in closing, I would like to offer some suggestions that 
might avoid these situations in the future.
    First, I would suggest that you direct the Secretary of the 
Interior to convene the ``God squad'' to determine specifically 
whether the Delhi Sands Giant Flower-Loving Fly is a subspecies 
that is worth saving.
    Second, I would suggest that we open a U.S. Fish and 
Wildlife Service office locally in the Inland Empire to be 
closer and more responsive to the needs of our communities.
    Third, adopt legislation that declares property to be 
exempt from ESA if that property has had a substantial 
investment in infrastructure made prior to the listing of a 
species.
    Fourth, adopt legislation to exempt property from the 
provisions of ESA if subsequent scientific evidence shows the 
land does not or no longer has the environmental ecosystem to 
sustain a particular endangered species.
    Fifth, we'd suggest that you adopt legislation to create a 
binding arbitration process in lieu of lawsuits.
    We would like to see adoption of legislation requiring the 
Fish and Wildlife Service to develop consistent mitigation 
standards and criteria for implementation for the conservation 
and preservation of species.
    You heard a mayor refer to their varying tests. We had one 
acre of habitat, we had to set aside 30. One acre of occupied 
habitat, we had to set aside 30.
    We would suggest that you increase the budget of the Fish 
and Wildlife Service so that they can hire sufficient staff to 
be responsive to issues in their respective field offices.
    And finally, we need you to create a mechanism for 
modifying the species recovery plan as updated information 
becomes available.
    And with that, I conclude my comments.
    And thank you again for your attendance here today.
    [The prepared statement of Mr. Nuaimi follows:]

            Statement of The Honorable Mark Nuaimi, Mayor, 
                      City of Fontana, California

    Chairman Pombo, Honorable Members of the Committee, it is my honor 
and privilege today to appear before you to offer comments and 
observations regarding the impact of the Endangered Species Act on the 
Inland Empire--with a specific example of what the City of Fontana has 
endured.
    I come before you today as the Mayor of the 9th fastest growing 
city in the United States, population 154,789, approximately 56 square 
miles within our sphere of influence and, unfortunately, the home of 
the Delhi Sands Giant Flower Loving Fly (DSF).
    For the past decade, economic development has been adversely 
impacted in the south Fontana area due to the listing of the DSF. From 
bond defaults, to lost development opportunities, to delays in 
transportation improvements, to productivity loss due to congestion, 
the Delhi Sands Fly has cost my community directly and indirectly 
almost $100,000,000. I don't want to get wrapped around the financial 
details in my testimony but I will offer one fairly simple example. We 
had a freeway interchange project (Sierra / I-10) that was delayed two 
years in construction because Fish & Wildlife would not authorize the 
permits to move forward with construction because of potential 
``secondary'' impacts/growth inducing impacts of the interchange on 
flies in the south Fontana area. When you do the math, those two years 
of delay add up to 10 minutes delay per trip, 22,500 trips per day, 200 
business days per year, multiplied by the two years. That's 1,500,000 
hours of DELAY to my community by simply delaying this one freeway 
interchange by two years. How much is an hour worth to you? Our 
regional studies typically use $10 per hour...so, one interchange 
equates to $15,000,000 in productivity loss. Not to mention the $4 
million in construction cost increases due to rising costs of concrete 
and steel.
    This is only one of four freeway interchange improvements that have 
been delayed. We have experienced over 3 years of delay on the Cypress 
Ave overpass, the Citrus Avenue Interchange, and the Cherry Avenue 
interchange through the environmental gauntlet that we are forced to 
bear--and we still have yet to clear that hurdle. The primary delay is 
due to the notion that these freeway interchange improvements will be 
growth inducing and will adversely impact the habitat of the fly.
FACTS ABOUT THE HABITAT / RECOVER PLAN
    One of the most significant areas of contention throughout this 
entire process has been the extent and quality of potential habitat for 
the DSF. When the fly was listed in 1993 and the Recovery Plan was 
adopted in 1997, the Fish & Wildlife Service proposed that over 1200 
acres be set aside as suitable habitat for the fly. The problem was 
that their estimates of available habitat to be set aside ignored the 
realities of today--that much of the historical habitat in Fontana was 
already developed, that much of the historical habitat in Ontario was 
buried under many feet of manure. They used historical soil maps from 
the 1970s to determine the historical extent of Delhi Sands in the 
Inland Empire. But as I mentioned, this was not based upon true 
conditions today. I have included in my testimony a map of the south 
Fontana area that highlights the ``historical'' extent of Delhi Sands 
and then we have highlighted in orange where actual sands remain. As 
you can see, but a small fraction of the historical sand remains and 
yet the Recover Plan approved by the Fish & Wildlife Service concluded 
that hundreds of acres were required to sustain the species.
    What further complicates this entire attempt at species recovery is 
the lack of a recovery plan based upon financial reality. In their 
final recover plan in 1997, Fish & Wildlife estimated the cost to 
implement such a strategy at a mere $1.6 million--excluding the costs 
to acquire the land. As if the habitat were just sitting around waiting 
to be placed into conservation. If you take a look at the map of south 
Fontana, this is an industrial corridor--a major flow of commerce for 
much of the nation. Being very conservative, the 1200 acres that Fish & 
Wildlife wanted set aside would cost $120 to $200 million. To give you 
proof of that value, I would offer that we recently set aside 
approximately 30 acres as part of the Empire Center project. That 30 
acres is zoned residential and would yield $10 million if sold 
tomorrow--much of the site was already graded for residential 
development.
IS THE SPECIES RECOVERABLE?
    So, this raises a number of questions--none more important than the 
basic question: Is this species recoverable? Can we afford to implement 
this recovery plan? At what point does Fish & Wildlife declare that 
this species is beyond recovery? I ask these questions because my 
residents ask it of us. I can't tell you how many times I have been 
asked ``Are you really protecting a fly?'' Wouldn't that money be put 
to better environmental use by relieving congestion in the area? So, I 
guess I will pose those questions to you this morning. At what point 
does the federal government say we gave it a go and can't sustain this 
species? When I was in Washington, D.C., last year and met with Under 
Secretary Manson, he indicated that a five year assessment was due for 
this species. Based upon our experience, I would have to conclude the 
following:
    1.  The scientific evidence is lacking that demonstrates that this 
species is sustainable, even after over 7 years of attempted 
conservation;
    2.  Any proposal for species recovery MUST include the costs to 
acquire the land--that unfunded mandate on local agencies cannot go 
undocumented;
    3.  There is no mechanism in place, nor the staffing and resources, 
that allows Fish & Wildlife to modify their recovery plan to reflect 
current conditions;
    4.  Habitat set-aside requirements should be based upon current 
conditions--not historical habitat conditions that don't reflect 
conditions of today.
    In closing, I would like to offer some suggestions that might avoid 
these situations in the future:
      Direct the Secretary of the Interior to convene the ``God 
Squad'' to determine whether the Delhi Sands Fly is a subspecies that 
is worth saving;
      Open a U.S. FWS office locally in the Inland Empire to be 
closer and more responsive to local needs.
      Adopt legislation that declares property to be exempt 
from the ESA if that property has had a substantial financial 
investment in infrastructure made prior to a species being listed as an 
endangered species.
      Adopt legislation to exempt property from the provisions 
of the ESA if subsequent scientific evidence shows the land does not, 
or no longer has the environmental ecosystem to sustain a particular 
endangered species.
      Adopt legislation to create a binding arbitration process 
in lieu of lawsuits.
      Adopt legislation requiring the FWS to develop consistent 
mitigation standards and criteria for implementation for the 
preservation of a species.
      Increase the budget of the FWS so that they can hire 
sufficient staff to be responsive to issues in their respective Field 
Offices.
      Create a mechanism for modifying a species recovery plan 
as updated information becomes available.
                                 ______
                                 
    Mr. Pombo. Thank you.
    Mayor Vargas?

           STATEMENT OF THE HONORABLE GRACE VARGAS, 
                     MAYOR, CITY OF RIALTO

    Ms. Vargas. OK. I, too, would like to thank Congressman Joe 
Baca and Richard Pombo and George Radanovich for bring this 
testimony to the City of Fontana and giving me a chance to 
speak our piece regarding to these beautiful flies, as you call 
it.
    But anyhow, the City of Rialto experience with the Federal 
Endangered Species Act and the United States Fish and Wildlife 
Service staff located in Carlsbad, California deals primarily 
with listing of the Delhi Sands Flower-Loving Fly. This species 
was emergency listed by the United States Fish and Wildlife 
Service in September 22, 1993. You have a copy also on this 
issue here. And the City received the news of this listing by 
fax on the same day of the listing.
    The planning staff also was contacted by telephone by a 
representative of the Service shortly after the listing and was 
instructed not to permit the destruction of habitat by issuing 
building or grading permits or through discing activities 
within the impacted areas. The Service would not declare 
critical habitat for the Sands Fly, and therefore no precise 
area was delineated. The Service in the news release referred 
to sandy areas of habitat which proved to be too general or 
practical use, and you also have the news release there with 
you. As a result, the City was forced to use older generalized 
soil maps prepared in the 1970s as our primary basis for 
review. With this little assistance from the Service staff, the 
City merely took an educated guess as to the areas to protect. 
This was just the start of confusion and inconsistencies that 
would follow.
    Taking a proactive approach prior to the emergency listing 
in early 1993, the City of Colton, the City of Rialto and the 
County of San Bernardino all members of the Agua Mansa 
Industrial Growth Association formed a planning committee to 
determine the feasibility of preparing a habitat conservation 
plan for the Delhi Sands Fly in anticipation of its listing. 
This early attempt to prepare a habitat conservation plan prior 
to the listing was supported by the Service staff. Request for 
proposals were sent out to various environmental planning firm, 
and the full Augu Mansa Industrial Growth Association Board 
considered the funding the of the habitat conservation plan on 
June 23, 1993. You also, I believe, have a copy of that.
    At this meeting, some property owners expressed concerns 
regarding the cost of such a program. The testimony by Mrs. 
Linda Dawes, a representative of the Fish and Wildlife Service 
convinced the board not approve the funding. Ms. Dawes 
testified that an elaborate habitat conservation plan, as she 
called it, was not necessary and that the Delhi Sands Fly issue 
could work out with effected property owners and the Edison 
Company. Her testimony influenced the board decision--decision 
resources to develop a habitat conservation plan, so the 
properties were left undeveloped. Two individual habitat 
conservation plans had been completed within the city. These 
habitat conservation plans took several painful years of study 
and negotiations with the Service. To date over--and I am 
saying over 45 acres of industrial zoned land have been set 
aside. Forty-five acres. Aside for the Delhi Sands Fly 
preservation within Rialto. The numbers of acres is substantial 
when compared to the total of acres potentially suitable for 
habitat within the City limits, which is calculated at slightly 
over 300 acres of land.
    With no governmental or property owner group willing to 
prepare a comprehensive habitat conservation plan, Rialto 
adopted a policy that required the property owners to first 
obtain service clearance before the City would process their 
development. These owners, developers were sent to talk to the 
Service, but rarely -but rarely returned to the City to file 
the projects. The direction that the Service staff gave to the 
property owners and to the City varied with each new staff 
member assigned to the Delhi Sands Fly. Since listed various 
staff members have been assigned to manage the Delhi Sands Fly.
    In 1996, the County of San Bernardino proposed a regional 
multi-species conservation plan that would address threatening 
and other sensitive plant and animal species, including the 
Delhi Sands Fly. Each city in the valley contribute funding and 
staff for this plan. This plan limped along for several years 
and finally in early 2003 progress was halted. Additional 
attempts to fund and prepare a habitat conservation plan have 
been made since 1996. Each one failing due to a lack of funding 
or other factors, including a basic mistrust of the Service.
    In 2003, the Service offered to prepare a habitat 
conservation plan at no cost to the affected jurisdiction to 
make this offer valid. All impact cities and County of San 
Bernardino needed to accept this offer. The offer was rejected 
by the City of Colton, the City having the most potential 
habitat due primarily to the lack of confidence in the Service 
staff.
    In 2004, the Rialto City Council authorized the funding of 
a habitat conservation plan to address the Delhi Sands Fly 
within our corporate limits and our sphere of influence. This 
program is a latch ditch effort on behalf of the City to solve 
the Delhi Sands Fly issue. The draft habitat conservation plan 
is under review by city staff and should be forwarded to the 
Service later this fall.
    In essence, the City is spending hundreds--and I mean 
hundreds of thousands of dollars attempting to solve this 
problem that impacts slightly less--and I mean less than 300 
acres of land that we have in Rialto.
    In conclusion, I would like to say the Rialto experience 
with Endangered Species Act and the Delhi Sands Fly listing, 
and the Service staff has been one of a lack of staff 
assistance, inconsistencies, frequent staff changes and 
unjustified policy statements. So, you see we are having the 
same problem and we have given up 45 acres of land for this fly 
we do not even see, you do not even know where it is coming 
from or where it is.
    So, with that, thank you.
    [The prepared statement of Ms. Vargas follows:]

               Statement of The Honorable Grace Vargas, 
                         Mayor, City of Rialto

    The City of Rialto's experience with the Federal Endangered Species 
Act and the United States Fish and Wildlife Service staff located in 
Carlsbad, California deals primarily with the listing of the Delhi Sand 
Flower-Loving Fly. This species was ``Emergency'' listed by the United 
States Fish and Wildlife Service in September 22, 1993. (Copy 
attached). The City received the news of this listing by fax on the 
same day of listing. The Planning staff was also contacted by telephone 
by a representative of the Service shortly after the listing and was 
instructed not to permit the destruction of habitat, by issuing 
building or grading permits or through discing activities within the 
impacted area. The Service would not declare ``critical habitat'' for 
the Delhi Sands Fly, and therefore no precise area of protection was 
delineated. The Service's ``News Release'' referred to sandy areas as 
habitat, which proved to be too general for practical use (please refer 
to attached news release). As a result, the City was forced to use 
older, generalized soil maps prepared in the 1970's as our primarily 
basis for review. With little assistance from the Service staff, the 
City merely took an educated guess as to the areas to protect. This was 
just the start of the confusion and inconsistencies that would follow.
    Taking a proactive approach prior to the emergency listing, in 
early 1993, the Cities of Colton and Rialto and County of San 
Bernardino, all members of the Agua Mansa Industrial Growth 
Association, formed a planning committee to determine the feasibility 
of preparing a Habitat Conservation Plan for the Delhi Sands Fly in 
anticipation of its listing. This early attempt to prepare a Habitat 
Conservation Plan prior to listing was supported by the Service staff. 
Requests for proposal were sent to various environmental planning firms 
and the full Agua Mansa Industrial Growth Association Board considered 
the funding of the Habitat Conservation Plan on June 23, 1993. (Copy 
attached). At this meeting, some property owners expressed concerns 
regarding the cost of such a program. The testimony by Ms. Linda Dawes, 
a representative of the Wildlife Service, convinced the Board not to 
approve the funding. Ms. Dawes testified that an ``elaborate'' Habitat 
Conservation Plan, as she called it, was not necessary and that the 
Delhi Sands Fly issue could be worked out with the affected property 
owners and the Edison Company (please refer to attached Board minutes). 
Her testimony significantly influenced the Board's decision not to 
prepare a Habitat Conservation Plan. Additionally, Ms. Dawes' testimony 
was in direct conflict with the Service's recommendation to prepare a 
Habitat Conservation Plan. As a result of her testimony, several months 
of inter-agency advanced planning were lost and more importantly the 
momentum to fund the preparation of a Habitat Conservation Plan.
    Shortly after the Agua Mansa Industrial Growth Association 
abandoned the preparation of a Habitat Conservation Plan, a property 
owner initiated an attempt to prepare an Habitat Conservation Plan 
which also failed. With no unified attempt to solve this problem, each 
property owner had to either abandon their attempt to develop their 
property or develop individual Habitat Conservation Plans. Small 
property owners did not have the resources to develop a Habitat 
Conservation Plan, so their properties were left undeveloped. Two 
individual Habitat Conservation Plan's have been completed within the 
City. These Habitat Conservation Plan's took several painful years of 
study and negotiations with the Service. To date over 45 acres of 
industrially-zoned land have been set-aside for Delhi Sands Fly 
preservation within Rialto. The number of acres is substantial when 
compared to the total acres of potentially suitable habitat within the 
City limits, which is calculated at slightly over 300 acres of land.
    With no governmental or property owner group willing to prepare a 
comprehensive Habitat Conservation Plan, Rialto adopted a policy that 
required the property owner to first obtain Service clearance before 
the City would process their development. These owners and developers 
were sent to talk to the Service, but rarely returned to the City to 
file their projects. The direction that the Service staff gave to 
property owners and to the City varied with each new staff member 
assigned to the Delhi Sands Fly. Since listed, various staff members 
have been assigned to manage the Delhi Sands Fly.
    In 1996, the County of San Bernardino proposed a regional Multi-
Specie Conservation Plan (MSHCP) that would address threatened and 
other sensitive plant and animal species, including the Delhi Sands 
Fly. Each City in the Valley contributed funding and staff for this 
plan. This plan limped along for several years, and finally in early 
2003, progress was halted. Additional attempts to fund and prepare a 
Habitat Conservation Plan have been made since 1996, each one failing 
due to lack of funding or other factors, including a basic mistrust of 
the Service. In 2003, the Service offered to prepare a Habitat 
Conservation Plan at no cost to the affected jurisdictions. To make 
this offer valid, all impacted cities and County of San Bernardino 
needed to accept this offer. The offer was rejected by the City of 
Colton (the City having the most potential habitat) due primarily to a 
lack of confidence in the Service staff.
    In 2004, the Rialto City Council authorized the funding of a 
Habitat Conservation Plan to address the Delhi Sands Fly within our 
corporate limits and our sphere of influence. This program is a last 
ditch effort on behalf of the City to solve the Delhi Sands Fly issue. 
The draft Habitat Conservation Plan is under review by City staff and 
should be forwarded to the Service later this fall. In essence, the 
City is spending hundreds of thousands of dollars attempting to solve 
this problem that impacts slightly less than 300 acres of land in 
Rialto.
    In conclusion, Rialto's experience with the Endangered Specie Act, 
the Delhi Sands Fly listing and the Service staff has been one of a 
lack of staff assistance, inconsistencies, frequent staff changes and 
unjustified policy statements.
    NOTE: Attachments to Ms. Vargas' statement have been retained in 
the Committee's official files.
                                 ______
                                 
    Mr. Pombo. Thank you.
    Council Member Gonzales?

          STATEMENT OF THE HONORABLE JOSIE GONZALES, 
                  FONTANA CITY COUNCIL MEMBER.

    Ms. Gonzales. Honorable Chair Pombo and honorable members 
of this Committee, thank you for coming to the City of Fontana 
and hearing testimony on the Endangered Species Act and its 
impact on our communities.
    The listing of the Delhi Sands Flower-Loving Fly in 1993 as 
an endangered species has caused considerable adverse impacts 
to this city's economy, to our citizens' well being. Eleven 
years have passed and we still do not have a viable plan to 
save this fly. The U.S. Fish and Wildlife Service prepared a 
recovery plan in 1997, but it lacked the ways and means to 
implement said plan.
    The recovery plan has been unreal by any stretch of the 
imagination. And my message to you this morning is please let 
us get real. Let us get to the point. Let us get somewhere. Let 
us have some progress. And this--this in fact stretch of the 
imagination requires the purchase of 1200 acres of land in the 
City of Colton, Rialto areas in order to turn them back into 
habitat. This targeted area is in the middle of developed 
industrial and residential properties. The going rate for one 
acre of land is anywhere from $100 to $150,000 per said acre. 
The total cost of the acquired land alone is over $200 million.
    Where is this money going to come from? Who knows. We know 
for a fact that the Federal government does not have this money 
to help us. So, are we meant to come up with this money? Where 
is this hypothetical solution to come from? None of us know.
    What are the chances that the fly will survive? What is the 
survivability rate of prognostication? No one knows. Again, 
hypothetical.
    The recovery plan is incomplete because it does not have a 
business plan. A good business plan would put the recovery plan 
into a realistic perspective.
    Seven years have passed since the plan was adopted and what 
has been done about it? If the Service is not able in 7 years 
to put the plan into action, why should the City of Fontana and 
any of the other affected cities and property owners be held up 
and required to comply with said plan?
    How has this listing of the fly impacted the Fontana 
community? I will give you the citizen's perspective since I 
live and run in my business on this very street before you here 
in the City of Fontana, which requires me to cross the I-10 
freeway any number of times as I go about doing my daily 
business.
    The citizens are frustrated because of the delays they 
experience in having to get on and off and to cross the 
freeway. The delays are caused by this imaginary fly that, I 
know for a fact, the majority of us in this room have never 
seen.
    It took years for Fontana to get a green light to go ahead 
with the construction of the Sierra, the I-10 and Sierra 
interchange after the design right-of-way. And even the 
funding--and even after the funding was in place. The delay 
affects many people's lives. It affects citizens, business, 
police, fire personnel and other emergency services. We are 
still experiencing the delay, particularly at the I-10 Citrus, 
I-10 Cherry interchanges. So, the story is being repeated where 
we are held hostage for a perceived fly impact.
    It is also almost a year now that environmental experts 
have determined that neither the Citrus nor the Cherry 
interchange projects have any impact on the fly, yet there is 
no formal written determination that these projects are 
cleared. Why? We are afraid to make decisions. How do we 
justify said delays? That is why we are here before you.
    And most of all, as was mentioned before, what are the 
economic impacts to the growth of this community? We request 
that the United States Fish and Wildlife Service clear our 
projects, particularly on I-10 Cypress, I-10 Citrus and I-10 
Cherry that we may proceed with the construction plans to 
provide safe and proper traffic handling in our community.
    Our people and the goods movement depend on these freeway 
access and overcrossing projects in order to comply and meet 
the demands within our community.
    Thank you very much for allowing us to come before you, 
give this heartfelt testimony. We live with the everyday 
frustrations of having our constituents come before us and ask 
us the ridiculous questions with us being befuddled as to how 
do we respond with even more ridiculous sounding answers. It is 
imperative that the intent to go forward be arrived at. There 
is no other way to that as we sit here this morning before you 
there are people all over the Inland Empire preparing, I say 
this in the form of landlords, property owners, to either rent 
or sell properties to the people who are out there picking up 
their U-haul trucks getting ready to move into the Inland 
Empire this very weekend. There is nothing that you can do 
about it, just as there is nothing we can do about it. But the 
end result will be that come Monday morning we will be having 
more people looking for a job, looking for a local place to 
shop, looking for property than we do at this very minute. We 
cannot continue to carry this burden that is imposed upon us by 
these fickle, unknown impositions that ESA has somehow come to 
a conclusion and feels that we must be entangled with and the 
lack of efforts to disentangle us from it.
    I will simply close by saying that I had the privilege of 
sitting with the late Congressman George Brown at one of his 
endangered species meetings that he had here across the way at 
our police department. And that the end of that meeting I 
looked over and I spoke to George, he was sitting immediately 
to my right, and I said ``George, what do you think?'' And he 
said ``This is a mess.'' He says ``It is a complete mess.''
    As we walked out, the reporters came to the door and 
immediately huddled around him and said ``Congressman, what do 
you think? What is your opinion? What progress do you think was 
made at this meeting today?'' His answer, as many many times he 
had a way of speaking was very simple. He said ``Today was a 
lesson in frustration.'' That lesson is still being dealt to 
each and every one of us on a daily basis as we sit in the over 
crowded freeways we now call parking lots.
    With this, I say thank you for coming out and listening to 
us. Please help us.
    I want to say thank you to Congressman Joe Baca because all 
of these cities that are here before you are within his 
District, and we have no one else but him to help us to open 
the way to find a resolution to solve this problem.
    Thank you very much.
    [The prepared statement of Ms. Gonzales follows:]

        Statement of Josie Gonzales, Fontana City Council Member

    Honorable Chair Pombo, and honorable members of the Committee. 
Thank you for coming to Fontana and hearing testimony on the Endangered 
Species Act, and its impact to our community.
    The listing of the Delhi Sands Flower-Loving Fly in 1993, as an 
endangered species has caused considerable adverse impact to the City's 
economy and to our citizens' well-being. Eleven years have passed and 
we still do not have a viable plan to save this fly. The U.S. Fish and 
Wildlife Service prepared a recovery plan in 1997 for the fly, but it 
lacks the ways and means to implement the plan.
    So, my message this morning is simple: ``let us get real.'' The 
recovery plan is unreal by any stretch of the imagination. It requires 
the purchase of 1,200 acres of land in Colton, Rialto, and Jurupa 
areas, in order to turn them back into habitat. This targeted area is 
in the middle of developed industrial and residential properties. The 
going rate for one acre of land is $100,000 to $150,000 per acre. The 
total cost to acquire the land alone is about $180 Million. Where is 
this money coming from? Even if the Federal Government had the money, 
what are the chances for the Fly species to survive?
    The Recovery Plan is incomplete because it does not have a business 
plan. The business plan would put the Recovery Plan into perspective, 
into reality.
    What has the Service done to implement the Plan? Seven years have 
passed since the Plan was adopted, and what has been done about it? If 
the Service is not able in seven years to put the Plan into action, why 
should the City of Fontana and property owners be held up and required 
to comply with the plan?
    How has the listing of the Fly impacted the Fontana community? I 
will give you the citizen's perspective, since I live and run my 
business in Fontana, requiring me to cross the I-10 Freeway a number of 
times every day.
    The citizens are frustrated because of the delays they experience 
in having to get on, off, and across the freeway. The delays are caused 
by the fly. It took years for Fontana to get a green light to go ahead 
with the construction of the I-10/Sierra Interchange, after the design, 
right of way, and even the funding was in place. The delay affects many 
people's lives. It affects citizens, businesses, police, fire personnel 
and other emergency services.
    We are still experiencing the delay, particularly at the I-10/
Citrus and I-10/Cherry Interchanges. So, the story is being repeated, 
where we are held ``hostage'' for a perceived fly impact.
    It is almost a year now, that environmental experts have determined 
that neither the Citrus nor the Cherry Interchange projects have any 
impact on the fly. Yet, there is no formal, written determination that 
these projects are clear. Why? Are we afraid to make decisions? Do we 
weigh the delay costs to the community?
    We request that the U.S. Fish and Wildlife Service clear our 
projects, particularly the I-10/Cypress, I-10/Citrus and I-10/Cherry 
projects, so that we may proceed with the construction plans to provide 
safe and proper traffic handling in our community. So, much of our 
people and goods movement depends on these freeway access and 
overcrossing projects.
    Thank you for taking my testimony, and we look forward to realistic 
plans that do not cause adverse impacts to our community.
                                 ______
                                 
    Mr. Pombo. Thank you.
    Unfortunately, listening to all of you testify here this 
morning, this is not the first time or Joe or George have heard 
this from local officials. This is something that has gone on 
predominately throughout the west. It is something that we are 
all dealing with, and it does not matter if it is my District 
or George's District, we hear our mayors or city council 
members with the same frustrations in trying to deal with this 
law and its implementation.
    Just as, I guess to clarify this for myself, do any of you 
feel like we should repeal the Endangered Species Act or that 
there is no need to have an Endangered Species Act in this 
country?
    Mr. Nuaimi. I don't think any of us think that you need to 
repeal the Act if it was managed to truly protect species of 
value to this nation--to the people of this nation. But I think 
what the original intent of this Act and what is being played 
out today on the front lines of this battle I do not think the 
two are in line with one another. The original intent was to 
protect those species that held value to the history of this 
country and history of the region and it is being used, as has 
been expressed by many, as a hammer to stop development or to 
extort money out of development.
    Mr. Pombo. All right. I think that is a very important 
point that you bring up, Mr. Mayor. Because one of the 
criticism that this Committee often hears is that there is very 
little concern paid to endangered species and that all we are 
attempting to do is to gut the Act or eviscerate the Act or 
repeal the Act. And I think those that say that do not spend a 
lot of time actually listening to people like you or the other 
mayors or council members who have testified here this morning 
about what some of the problems are.
    I would like to ask you, Mayor Nuaimi, you talk about the 
mitigation and the cost in terms of development to your city. 
How do you budget for something like that? You know, the State 
of California does not have money, the Federal government is 
running a huge deficit. I would guess that even if your city is 
run extremely well, that you do not have a huge surplus.
    How do you budget for that if you are going to provide 
economic development for the future in your city?
    Mr. Nuaimi. You really do not budget for it. You cannot 
budget for it. It is an unknown as to the extent of the 
resources needed. Unfortunately, we are forced to tackle these 
case-by-case, issue-by-issue.
    In the case of the Empire Center that was referenced in 
Congressman Baca's opening statement, that has been a 10-year 
gauntlet that we have gone through. And through that process, 
we had bond holders whose bonds went into default. We had the 
City forced to acquire the land to bring a resolution. We ended 
up putting $5 million at risk with really no solution readily 
available. And then it took us an additional 2 1/2 years after 
that to continue through this negotiation.
    Just in that one project alone, one 400 acre development 
that had 1 1/2 acres of habitat that actually had three flies 
sited on it, we ended up having to set aside, as I mentioned, 
30 acres. And it took us countless years of protocol surveys, 
countless years of negotiation back and forth because there was 
not a clear prescription.
    I can budget if I know what the prescription calls for. But 
when the prescription is it is going to change from staff 
member to staff member or it is going to change from project to 
project, you cannot budget for it. You grin and bear it and you 
absorb the costs and, unfortunately, they have been 
considerable. They have been to the tune of $100,000 a month of 
debt costs that we had to bear on the Empire Center project. It 
came to all the engineering designs that we had to do, all the 
redesigns, all the survey assessments. And then we started 
dealing with Army Corps of Engineers. It just mushroomed out 
and continued to mushroom.
    And I cringed actually to go back to our staff and say how 
much exactly did we spend on this, because it has been an 
ongoing process for years.
    Ms. Gonzales. I would like to add something to that. As the 
population growth has impacted us over the said years within 
the impacts of the ESA, we have been forced to have a lower 
quality of life. And when we reached a level that we could no 
longer permit, we were forced to impose a utility user's tax 
upon our residents in order to bring in revenue that would 
bring up the standards for community safety programs.
    Everything has to give. If you squeeze here, it gives 
somewhere else. So, what had to give was the quality of life 
that we were trying to provide for our residents. And that 
continues to be the case. We are on the south side of our 
utility user's tax. We have just eliminated the tax for the 
residents. We are now on the latter 50 percent 5 years left of 
the business imposed utility tax. When that goes, and this has 
not been solved, once again we will have to look to our 
residents to find some kind of relief.
    So, there is a continual negative ripple effect that just 
comes down the scale and it ends up in the lap of our 
residents.
    Mr. Pombo. Mayor Vargas, there was something in your 
testimony that I wanted you to expand on. You talked about 
telling developers that they had to get a sign-off from the 
Fish and Wildlife Service first and they would come in and talk 
to you about projects and that they then had to go to the Fish 
and Wildlife Service. And they never or rarely came. And is 
that because the cost of complying is too high or the amount of 
time that it would take to get the Fish and Wildlife Service to 
sign off is too long, and that is why they are not coming back 
to you and the City and saying these are the jobs or the 
housing that we want to bring to your city?
    Ms. Vargas. You are absolutely right. Some of the 
developers or even the owners do not want to pay that high fee 
they have to pay in order to develop or anything. So, they just 
come back or they do not come back or they just call and just 
they are not going to do it.
    So, we in our city also are experiencing the same thing 
that the other cities, the surrounding cities are experiencing. 
You know, the lack of development, the lack of the safety.
    We, too, at the City of Rialto just passed a utility tax 
also for safety. And we are doing almost what every other city 
is doing also.
    So, but the person that can tell a little bit more on that 
would be, if you permit me to call our planning department, 
because he deals a lot with that. He is right here.
    Mr. Pombo. I would like to have him answer for the record, 
if possible. Answer in writing if possible.
    Ms. Vargas. OK.
    Mr. Pombo. And you can give me a little bit of an idea. 
Because this is one of the problems that we have seen in other 
communities is that the Fish and Wildlife Service does not tell 
them no, they just make it so expensive or take so long that 
they cannot ever do it. So, they are not actually being told 
no, they just make it impossible for them to comply.
    Ms. Vargas. The expense is too large for some of the 
owners. Normally what we do on the south end of town where we 
have the development and also the--some of the owners up in the 
south end of land cannot develop because of that, because of 
the fees being high or they just forget us, we are not going to 
do it. And sometimes we do not even hear. We do not hear.
    Mr. Pombo. Thank you.
    Mr. Baca?
    Mr. Baca. Thank you very much, Mr. Chairman.
    First of all, before I ask the question, I would like to 
acknowledge a couple of people in the audience that are here 
right now.
    First, I would like to acknowledge those who are very much 
concerned with this issue, the impact scenario, because they 
represent this area, and that is from Senator Soto's office, 
Frank Stallworth is here in the audience.
    And then the next possible assembly person for the 62nd 
Assembly, and that is Joe Baca, Jr., who is in the audience and 
care very much about this.
    I am sure there are other individuals, but I want to 
acknowledge both individuals that care very much about the 
hearing and what is going on and its impact in the area. 
Because when you look at this immediate area compared to the 
other assembly areas, the supervisors areas, and Congressional 
areas, it is the lowest economic area in this whole valley. And 
a lot of it has been because of the fly. It has not allowed us 
to develop to grow in their immediate area. So, it makes it 
very difficult when we, the mayors, the city council people, 
supervisors, the assembly persons, are trying to fight to 
change this to improve the quality of life, so this way we can 
be just as competitive other than a residential area to create 
jobs. That has hindered some of the growth in development in 
the area.
    With that, I would like to ask any one of you four a 
question, and I am sure that you may have indicated, since 1973 
since the Delhi Sands Flower-Loving Fly was declared an 
endangered species, and we know that it comes once a year, it 
comes out in July and August, it only lives 2 years if it does 
live that long, have any of you ever seen this fly?
    Ms. Bennett. Congressman Baca, the City of Colton is what 
the Fish and Wildlife Service calls ground zero for the fly. 
And in all the time I have been out to that area, we have taken 
people on tours, we have toured the area personally with our 
staff, I have not seen a Delhi Sands Fly.
    Mr. Baca. Mayor Nuaimi?
    Mr. Nuaimi. No. The only time I have seen it, and you refer 
to it as a fly swatter, is actually your little token of our 
appreciation, it is a T-shirt with a Delhi Sands Fly. This is 
the only one I have seen in Fontana of late.
    Mr. Baca. An artificial fly, but no real one?
    Mr. Nuaimi. No. We are effectively prevented from going 
anywhere near the habitat because of fear of disturbance. So, 
the only evidence that we have seen is through the habitat 
surveys that are conducted for the developers. As the Chairman 
was asking what makes developers go away, it's a 2-year 
protocol survey where they have to go out, pay a biologist to 
go out and sit in the weeds for 6 weeks during the summer and 
then come back and do it again the next year. That is one of 
the things. Those are the only folks who have seen them.
    Mr. Baca. Mayor Vargas?
    Ms. Vargas. I have never seen it. The only time I have seen 
a picture of it was in some literature that was given me so I 
would learn all about this beautiful fly we talk about.
    Mr. Baca. Council Member Gonzales?
    Ms. Gonzales. Have never seen said fly. And I will tell you 
that in the south end, because in the past has been primarily 
poultry and we have got chicken farms out there, we do quite a 
bit of spraying with vector control. And of late, with the West 
Nile Virus situation being as serious as it is, we have 
increased our vector control spraying.
    And I will tell you that unlike ourselves who have the 
power of vision, the spray will kill everything including the 
fly. So, if in fact there was ever anything there, I am hard 
pressed at this time to tell you that the spray if it killed 
the mosquitoes and kills the flies as a result of the chicken 
farm, I am sure it also killed the Delhi Sands Flower-Loving 
Fly.
    So, I thank you for asking me.
    Mr. Baca. And yet in this immediate area--just between two 
cities and the possibility of Colton--how many acres have been 
reserved? It was mentioned by Mayor Nuaimi that 30 acres have 
already been reserved just for the City of Fontana and 45 acres 
for the City of Rialto. That is 75 acres that have been set 
aside for a fly that we do not even know exists or is even 
alive. And I do not know if anyone has seen it. So, we look at 
the value in cost and the quality that could be improved, and 
in Colton itself when we talk about Colton, we have problems in 
this area with the West Nile in the immediate area. We have had 
death in the immediate area. To me a life is very important and 
yet we talk about the storm drain in the immediate area. Well, 
as you know that when they cultivate to that area, what impact 
has it had, Mayor Bennett, in that immediate area because it 
has hindered additional growth and development. And I know that 
we have brought in Federal dollars to deal with the storm drain 
because in that area we talk about emergency services, going to 
the hospital, access to the hospital, as well. Could you 
elaborate a little bit more on that?
    Ms. Bennett. We did not quantify the number of acres that 
are put into a habitat this time, because our entire 
development on the west side has been halted. We have not been 
able to bring any development and we have several projects that 
have come, had an interest, found it was impacted by the fly 
and left the area.
    One of the projects brought over 600 jobs to the area, 
which to me was significant. You cannot quantify that.
    The fly has hindered our ability to provide safety 
measures. During the winter months when the rains come, the I-
10 freeway and Valley Boulevard where the hospital is located 
floods and makes it difficult for emergency services to arrive 
at the hospital.
    As I stated in the testimony, we have recently found a 
pocket that is impacted by the flooding and the water that is 
sitting over there that contained West Nile Virus. And so many 
flies that the vector control was flabbergasted that this is 
allowed to go on. The owner of the proper was cited because 
they had not taken care of that area. And they also sprayed in 
that area, which as Council Member Josie Gonzales stated, would 
kill more than just the mosquitoes. It is right in the heart of 
the Delhi Sands area that this was located. And it has been a 
major detriment to our community.
    Mr. Baca. That is why I think it is so important in terms 
of scientific data, because we do not even know if this fly is 
currently alive or where it is at right now, or where it has 
moved to based on winds and the Santa Anas.
    Let me ask one additional question. Obviously, the issue 
has an impact on each of you personally and for those who run 
the city. What about the residents of each city, is there 
something that residents are talking about? I just wanted to 
give the Committee the idea of how big a deal the fly is to 
people's daily lives and how often you hear about it from the 
residents. Because, you know, you are hearing it yourself 
because you are dealing with developers, you are dealing with 
people, you are trying to improve the quality of life in the 
area. But what about the residents in the area, do you hear?
    I'll leave it to anybody who would like to--Mayor Nuaimi, 
would you like to start with that?
    Mr. Nuaimi. Well, you say how often do you hear about the 
fly from the residents. Frankly, we hear about the impacts the 
fly has on the community, but they do not talk about a fly. 
They talk about ``I live south of the 10 freeway yet I cannot 
get north of the 10 freeway!'' The I-10 freeway divides south 
Fontana from the core of Fontana. Sierra I-10 is the only new 
transportation improvement that has been completed, again with 
2 years of delay.
    We have at least four additional projects all being held up 
because of the environmental that we have to survive because of 
potential secondary impacts on habitat. And again, as I 
mentioned, you look at the historic map in south Fontana and 
you look at the areas that are orange. And then you will see 
the circles that go along that freeway. Those circles are the 
freeway interchange projects. There is no sand around them. Why 
would our environmental process be held up because of potential 
impacts to sand to habitat that when you really take a look at 
the map, it is already developed. There are homes there 
already.
    So, that is what residents hit us up on. Where are jobs? 
When is a grocery coming? When is a gas station coming? When 
are jobs coming? Why is there this vacant field? Why can I not 
get over the I-10 freeway? All of those are the types of 
impacts that we hear on a daily basis.
    And I know our community gets sick of my having to tell 
them well we are held up 3 years now in our environmental 
process for our freeway interchanges because Federal highway 
mandated it to respond to the Fish and Wildlife Service 
concerns that we do an extended study on secondary impacts. 
They do not want to know that. They do not care about it, but 
they want the freeway smoother. They want to be able to get in 
and out of our community more effectively. They want jobs and 
commercial development. And they do not want to hear that a 
two-inch fly that comes out for 2 weeks mates and dies, 
effectively, that that is what is holding this up.
    And what is really frustrating when you tell residents that 
the actual recovery plan that was approved in 1997 on page 1 
part of the introduction says the Service considers this 
species to have a high degree of threat and low potential for 
recovery, and we are seeing hundreds of millions of dollars of 
impact to this region for a low potential for recovery that was 
documented in 1997. This is Federal bureaucracy run amuck and 
it just does not leave a good flavor in the mouths of 
residents.
    Ms. Bennett. Honorable Congressman, may I add to that?
    In the packet that we have handed out, there are pictures 
of our area. Our residents see on a daily basis the impacts of 
the fly to our community. Slover Avenue is littered with 
debris, and the residents what we hear continuously is 
complaints about how this detracts from our city and how they 
are ashamed that our city has allowed this blight to continue 
without addressing it.
    Mr. Baca. Nobody can get in there, right?
    Ms. Bennett. The only way that we could get it there is if 
it is removed by hand. And the Fish and Wildlife Service has 
said that they wanted to have a biologist onsite while we do 
that.
    It would be cost prohibitive for us to send our staff out 
there without their equipment to remove the debris, the tires, 
the furniture, the beds, whatever that has been thrown out 
there by hand.
    Mr. Baca. Do they have some kind of detectors that go along 
like a mine, you know, you find it is going to step on a mine 
and it explodes? Find out if there is a fly there, you might 
step on it?
    Would anybody else like to comment?
    Ms. Gonzales. I would like to add just briefly to Mayor 
Bennett's situation. I am also aware of the young kids going 
out there on the weekends, throwing parties. They take their 
own mattresses, their own couches. They sit on them. Have a 
good time during the night. Before they leave, they pour 
lighter fluid on them, set them on fire. And they are gone and 
the City is left with the ability--or should I say--the 
inability to clean it up.
    The other thing I will tell you, you asked earlier about 
how we look at this. Let me tell you that in my opinion special 
interests groups have attached themselves, have latched on to 
the ESA as a form of receiving notoriety, as a form of 
accumulating power that will otherwise disappear if some common 
sense were to be injected into this situation.
    I also know that these special interest groups come out 
into our community and to many of the hearings that we have, 
and beat us over the head ESA until we feel guilty, until we 
become someone is looked upon as a negative element within the 
community as the ecological process and workout plan of this 
whole environment is trying to come to an end.
    I will tell you that I do not believe for one moment that 
any of us here want to see the disappearance or the extinction 
of any species. However, we also need to take into 
consideration that over the many billions of years that this 
earth has been in existence, prior to us humans even coming 
into the picture, there are species documented that became 
extinct through no help, through no negative contribution from 
a human.
    I believe that there is a natural ecological evolution that 
takes place. Some species must become extinct in order for 
others to come on board. And I will say that I fear that on 
that scale we as humans are soon to be very, very much impacted 
because we are being extinct in this matter because we are 
giving the prioritization to an insect over ourselves.
    Mr. Baca. Mr. Chairman, I know that I have taken a little 
bit more of my time, but if I can ask just one question.
    How much easier would it be to negotiate a habitat 
conservation plan if the Fish and Wildlife Service center was 
located closer to Carlsbad? Because we know time is money and 
we know that each one of you basically in your testimony 
indicated that the lack of response during that period of time 
has caused additional litigation that hes cost us growth and 
development. And you continue to grow in population. Can you 
talk about all the problems--population and the growth and the 
need? But would the part be better served if an office was 
already located here, since this is where the growth is? And 
would any one of you like to tackle that? If you are able to go 
to someone and respond if someone who wants to develop or grow 
in the immediate area?
    Ms. Bennett. Congressman, from Colton's perspective we have 
highly frustrated by this whole situation and working with the 
Carlsbad office. We at one point did ask to be relocated to 
another office hoping that we would have better success rate.
    If you brought an office out to us, we are not opposed to 
trying to work with them. But as I stated earlier, our history 
with them has not been very successful.
    Mr. Nuaimi. I would suggest that a local presence here 
would afford better access and there would be greater 
accountability. If you do just that, I am fearful that the 
process will still--the process is still broken, it does not 
matter how close they are. We will still end up going to 
Washington, D.C. to try and find resolution. And that, 
unfortunately, is our reality. We end up going to Washington to 
try and bring forth solutions that a local field office should 
be offering us.
    I think it would be helpful to have local residents who are 
staffing those offices recognize that the Inland Empire is not 
Carlsbad. The ecosystem in the Inland Empire is not the same as 
the ocean. And that we do deserve economic development 
opportunities and job opportunities in the Inland Empire as 
well. I think it would help with the responsiveness, but you 
still also need to break--you probably need to break the 
process and rebuild it.
    Mr. Baca. Mayor Vargas?
    Ms. Vargas. Yes, I do feel the same way because it is like 
everything, you know, Fontana has a water department here and I 
have to come from Rialto to pay it. So, it is closer. Instead 
of mailing, I would come over here to Fontana and pay it.
    And I think that goes the same for the Service department, 
it would be a little bit more local and maybe communication is 
also, which I believe is very crucial, that we need to have 
good communication with them, especially with the owners--the 
owners that do have land that they want to develop.
    And maybe when you come to one-to-one face, they understand 
the system better or they can explain better to them, where 
maybe possibly we could do something and get that land 
developed.
    Mr. Baca. Thank you.
    Ms. Gonzales. I also believe that it is very important that 
in the process of considering such a move that the correct 
person, the right person be hired to man said office. Many 
times the arrogance and the distancing of the person in charge 
is what leads to the miscommunication, leads to the lack of 
participation and the lack of interest.
    Mr. Baca. Thank you.
    Mr. Pombo. Mr. Radanovich?
    Mr. Radanovich. Thank you, Mr. Chairman.
    Mr. Nuaimi, I have a couple of questions about your map up 
there because it is interesting. And you had mentioned that the 
only part of undeveloped, the only portion that is undeveloped 
in the Delhi Sands profile, are the orange areas?
    Mr. Nuaimi. The areas that are orange are those areas 
within the historical profile that actually have sand in place, 
where there is actual sand habitat in place.
    Mr. Radanovich. OK.
    Mr. Nuaimi. The rest is what folks at the Fish and Wildlife 
Service would consider to be restorable habitat. And by 
restorable you get to truck in sand to rebuilt a habitat.
    Mr. Radanovich. And that is the beige area the remaining, 
not the orange areas?
    Mr. Nuaimi. That is correct. The beige area and when you 
look at that beige area, much of it is developed. There is a 
significant chunk in the middle right hand portion which you 
will see Empire Center, that is the 400 acre project that we 
just negotiated. So, all of that will be developed. So, you 
look in, this is what is referred to as the recovery unit. 
There effectively are no areas or very minimal areas that are 
developable as habitat. And yet we still have to go through 
additional environmental processes for freeway interchanges.
    Mr. Radanovich. But if the U.S. Fish and Wildlife Service 
were to set aside land for the fly, it would probably be those 
orange areas, if I am right?
    Mr. Nuaimi. Well, that is not what they were asking for.
    Mr. Radanovich. No, no.
    Mr. Nuaimi. Yes.
    Mr. Radanovich. But if they were to set aside land, it 
would be the orange areas because it is habitat now, right?
    Mr. Nuaimi. It is sand. It is not inhabited necessarily, 
and this is where you get the crux--
    Mr. Radanovich. It is suitable habitat, yes.
    Mr. Nuaimi. It might be suitable, but there may be no 
populations. Frankly, they do not know where the populations 
exist because unless an developer goes to develop, you do not 
do the protocol survey.
    Mr. Radanovich. Right. OK. And I am sorry I do not know the 
area very well, but you are ratio of one area to 30 acres for 
habitat. Has that 30 acres been designated and is that part of 
those orange areas?
    Mr. Nuaimi. Yes. Can I go up to the map and show you?
    Mr. Radanovich. Yes.
    Mr. Nuaimi. Thirty acres comprises this area down here in 
the southern tip. It is part of our South Ridge community, 
which is all residential. This area was originally planned to 
be residential. Protocol surveys were done. They found flies. 
And it is immediately adjacent to Riverside County area where 
habitat has been set aside as well.
    Mr. Radanovich. Yes.
    Mr. Nuaimi. So, we ended up going through a transaction 
where we own this land. We traded this land for that land. And 
then land was set aside for conservation purposes.
    Mr. Radanovich. OK. Does that not conclude the big fly 
issue. This is a two-inch fly?
    Mr. Nuaimi. It is a two-inch fly. That concludes the fly 
issue for the Empire Center because all of this transaction was 
for one project.
    Mr. Radanovich. OK. All right.
    Mr. Nuaimi. It still does not conclude, although when you 
look at that you say well that is all the orange areas in 
Fontana, yet our engineering staff still have to go through 
additional environmental process for all of those circles along 
the I-10 freeway. And, again, look at the expanse. The area is 
developed.
    Mr. Radanovich. Yes. Interesting. All right. Thank you.
    Those are my only questions. I appreciate it. Thank you.
    Mr. Nuaimi. OK.
    Mr. Pombo. Well, thank you very much. This panel has been 
very informative for us. I guess the only additional thing I 
would say to you is that you all talked about the cost of this 
mitigation, which is somewhat intriguing to me because if you 
happen to own that land that you cannot develop and if they say 
there is flies out there you cannot go out there, and that 
land, comparable land may be worth $150,000 an acre, but the 
Fish and Wildlife Service just made that land worthless. And 
whoever ended up owning that land, whoever the poor sucker is 
that has that has had the entire thing taken away from him, 
because that land is not worth anything anymore. Because they 
told you you cannot develop it and you cannot even walk on it 
unless they send a biologist with you. And to me that is an 
outright taking of property when that happens. So, that is 
something that I think we, and I know Joe and I have talked 
about this before, it is something that we are going to have to 
deal with in some way because that is a taking. And you have 
taken away the value of somebody's land by doing that.
    You also have in the process driven up the cost of all of 
the surrounding lands. And I am sure you are as concerned about 
affordable housing as we are in my area, and that has just 
become a thing of the past.
    But I want to thank you all for your testimony. If there is 
any further questions that any of the members of the Committee 
have, they will be submitted to you in writing. If you could 
answer those in writing so that they could be included as part 
of the hearing record, I appreciate it.
    And thank you again.
    Mr. Nuaimi. Thank you again for joining us.
    Ms. Gonzales. Thank you for coming out.
    Mr. Pombo. I would like to call up our second panel. We 
have Mr. Roy Denner, President & CEO, Off-Road Business 
Association; Mr. Robert Thornton, who is an attorney; and Dan 
Silver from the Endangered Habitats League.
    I'd like to have the three of you stand and raise your 
right hand, please.
    [Witnesses sworn]
    Mr. Pombo. Thank you.
    Let the record show that they all answered in the 
affirmative.
    I want to welcome all of you to the Committee hearing.
    We are going to begin with Mr. Denner.

           STATEMENT OF ROY DENNER, PRESIDENT & CEO, 
                 OFF-ROAD BUSINESS ASSOCIATION

    Mr. Denner. Good morning. My name is Roy Denner. I want to 
thank you for allowing me to speak to you today.
    I am an off-highway vehicle advocate and for more than 40 
years I have enjoyed this activity, often with four generations 
of family members, much of the time within the Inland Empire. I 
have watched the interpretation and the enforcement of the 
Endangered Species Act erode OHV recreation activity 
significantly across the United States. And I am here to echo a 
previous comment; enough is enough!
    When the Endangered Species Act was enacted in 1973, we all 
believed it was a good thing. Most of us recognized the need to 
provide protection for some of the magnificent creatures in 
this country whose population was declining. Then in 1994 
California was subjected to a major impact on how public lands 
can be used with the passage of the California Desert 
Protection Act. Millions of acres within the California desert 
and within the Inland Empire were set aside as wilderness. 
Being naive at that time about the environmental movement and 
the political process, many of us bought into the idea that we 
were still being left with plenty of public land for activities 
like recreation and cattle grazing. After all, we are 
environmentalists, too, and it is only appropriate that species 
that had been properly identified as threatened or endangered 
be provided reasonable protection. Besides, we were told that 
Congress intended that this would suffice for protection of 
desert species in California.
    Then the environmental movement shifted into high gear. 
Over the past 10 years 1300 species of plants, insects and 
animals have been listed as threatened or endangered under the 
ESA and only a few have ever been actually removed from the 
list, and several of those have actually become extinct. Every 
day environmental organizations are petitioning to list more 
and more species. The U.S. Fish and Wildlife Service makes 
listing decisions based on ``the best science available.'' 
Maybe no more than the opinion of a staff biologist.
    The result of this frenzy of activity is that the Federal 
agencies are so busy defending themselves against lawsuits 
about environmental organizations who use the ESA as a weapon 
rather than as a tool that they do not have any resources 
available to actually work on recovering species. This has led 
to the closure of millions of more acres within the California 
desert and within the Inland Empire resulting from lawsuit 
settlements directed by the courts to satisfy claims under the 
ESA; a perfect catch 22 situation.
    Federal agencies manage millions of acres of public lands 
within the Inland Empire. The BLM has developed new plans for 
the areas it manages that are actually environmental impact 
statements providing protection not only for listed species, 
but for species of concern and special status species. The new 
BLM's plans identify at least 18 endangered species, at least 
eight threatened species and at least 80 sensitive species or 
species of concern that exist within the Inland Empire.
    The entire CDCA was managed under this plan for over 20 
years. In a misguided effort to avoid future lawsuits, the CDCA 
has been divided into five separate planning areas, each of 
which have their own plans, EISs, of two volumes each that look 
like this. That one is for the Northern and Eastern Mojave plan 
which has much of its planning area lying within the Inland 
Empire.
    The Department of the Interior's new budget includes not 
one cent for the implementation of these plans. After a few 
years of no action on the part of BLM to implement their own 
plans, the environmental extremist groups will have a field day 
with new lawsuits against the BLM and the Fish and Wildlife 
Service. The only available action to the BLM without resources 
to implement plans will be emergency closures to public access.
    I predict the public lands managed by the BLM within the 
Inland Empire and across the entire California desert will be 
closed to all but foot traffic within 5 years unless the 
demands and the interpretation of the ESA change dramatically.
    The primary species driving the requirements of these BLM 
district plans is the Mojave Desert Tortoise. Millions of acres 
have been closed to many public uses to support the 1994 Desert 
Tortoise recovery plan, a plan that according to the tortoise 
experts who drafted it had very little science to support it. 
They inserted a requirement into their own plan that it needed 
to be reviewed and updated within three to 5 years when 
hopefully better science would be available. Here it is 10 
years later and restrictions to public land use continues to be 
implemented to accommodate the Desert Tortoise recovery plan. 
Good sound peer reviewed science is still not available 
regarding the tortoise. This is typical of most of the species 
that are listed under the ESA that are impacting land use 
nationwide.
    The Desert Tortoise also provides a good example of the 
impact of the ESA requirements to designate habitat for 
species. Four million acres of tortoise habitat have been 
designated in the California desert, all on the notion that 
this will save the tortoise. A recent ruling by Federal Judge 
Susan Illston eliminates permits for cattle grazing and OHV use 
in tortoise habitat. In the meantime, baby tortoises are being 
killed by the hundreds by a raven population that has doubled 
over the last 10 years. No action has been taken to date to 
reduce the raven population because of a Federal Bird 
Protection Act.
    The tortoise is also dying off from a deadly and highly 
contagious upper respiratory track disease. Very little 
research is being done on this disease problem. It is much 
easier to blame to OHVs and cattle grazing and eliminate those 
activities from species' habitat. That sort of thing is 
happening nationwide to satisfy ESA requirements.
    It is extremely important that Congress get behind 
Congressman Dennis Cordoza's Critical Habitat Reform Act, H.R. 
2933. This is an important first step in the right direction to 
alleviate a serious problem.
    The San Bernardino National Forest lies totally within the 
Inland Empire. The actions by the Forest Service over the last 
10 years to protect the forest have actually made things worse. 
All logging and thinning of tree growth has been terminated, 
logging roads, fire roads and recreation routes have been 
closed and blocked off. Clearing of brush around private 
property has been restricted. As a result a forest fire last 
year threatened to wipe out the resort towns of Big Bear and 
Lake Arrowhead. Many threatened and endangered species were 
destroyed in that fire. This is a perfect example of how 
actions taken in the name of the ESA can actually cause a 
decline in the population of species. Fortunately this year the 
President signed into the law the Healthy Forest Restoration 
Act. This Act allows some logging and some prescribed burns, 
but it is not enough. Many roads and trails are still blocked 
off to recreational vehicles, which also blocks them off to 
fire trucks. More vehicle access in the forest will actually 
improve forest health.
    Congressman Walden's Sound Science for ESA Planning Act is 
a bill that will help stop the misuse of the ESA. The simple 
process of demanding that land use decisions be supported by 
good peer reviewed science will eliminate many of the 
inappropriate land use actions by Federal agencies that are 
costing taxpayers and the American economy billions of dollars 
every year. It is extremely important to every person who uses 
public lands that Congress works very hard to turn Walden's 
bill into Federal law.
    My written testimony elaborates on the issues that I have 
covered here briefly today. We look forward to seeing Congress 
fix the ESA.
    Thank you for listening to my plea.
    [The prepared statement of Mr. Denner follows:]

               Statement of Roy Denner, President & CEO, 
                     Off-Road Business Association

I. OVERVIEW--ESA AND THE INLAND EMPIRE:
    In addition to the major population areas of San Bernardino, 
Riverside, and Palm Springs, the area known as the Southern California 
``Inland Empire'' includes a huge portion of the California Desert 
District as well as a section of the San Bernardino Mountains. Within 
this geographic area, there are a significant number of plants, 
animals, and insects that are listed under the Endangered Species Act 
as ``threatened'' or ``endangered''. The listing of these species, and 
the efforts to protect species that are not listed, have caused a major 
impact on the public use of public lands within the area. Federal 
Agencies involved with managing the public lands within the Inland 
Empire include the Bureau of Land Management (BLM), the National Forest 
Service (NFS), and the National Park Service (NPS).
    Three distinct BLM planning areas can be found in the Inland 
Empire.
      The entire 1.2 million acre Coachella Valley Planning 
Area lies entirely within the Inland Empire. This planning area 
contains Palm Springs, Palm Desert, and Indio and runs east, along 
Freeway 10 to the Chocolate Mountains. The BLM manages 330,516 acres 
(about 28%) of the land within the Coachella Valley area. This BLM plan 
has been approved and is being implemented.
      The southeastern portion of the BLM's Northern and 
Eastern Mojave (NEMO) planning area from Baker to Needles also lies 
within the Inland Empire. This BLM plan has been approved and is being 
implemented.
      About 70% of the 9,359,000 acre West Mojave (WEMO) 
planning area lies within the Inland Empire. 3,264,000 acres of public 
lands within the WEMO area are managed by the BLM.
So, the BLM is responsible for managing millions of acres of public 
lands within the Southern California Inland Empire.
    The entire San Bernardino National Forest, including the popular 
resort cities of Lake Arrowhead and Big Bear, are located within the 
Inland Empire. These mountain lands are managed by the National Forest 
Service.
    The entire Joshua Tree National Park, managed by the National Park 
Service, lies within the Inland Empire.
    The 271,000 acre Santa Rosa and San Jacinto Mountains National 
Monument lies within the Inland Empire. Part of the Monument is in the 
San Bernardino National Forest and part is in the BLM's Coachella 
Valley management area.

II. FEDERAL SPECIES WITHIN THE INLAND EMPIRE:
    The species below are listed in the categories shown in the BLM 
land management plans overlapping the Inland Empire and in the San 
Bernardino National Forest (SBNF) plans. Many more species have been 
proposed for listing and are not included herein.
      Federal Endangered Species:
      *  Amargosa Niterwort
      *  Amargosa Vole
      *  Arroyo Toad
      *  California Brown Pelican (SBNF)
      *  California Condor (SBNF)
      *  Coachella Valley Milk Vetch
      *  Desert Pupfish
      *  Desert Slender Salamander
      *  Least Bell's Vireo
      *  Mojave Chub (SBNF)
      *  Peninsular Ranges Bighorn Sheep
      *  Quino Checkerspot Butterfly (SBNF)
      *  San Bernardino Kangaroo Rat (SBNF)
      *  Shay Creek Unarmored Threespine Stickleback (SBNF)
      *  Southwest Willow Flycatcher
      *  Triple-ribbed Milk Vetch
      *  Unarmored Threespine Stickleback (SBNF)
      *  Yuma Clapper Rail
      Federal Threatened Species:
      *  Ash Meadows Gumplant
      *  Bald Eagle (SBNF)
      *  California Red-legged Frog (SBNF)
      *  Coachella Valley Fringe-toed Lizard
      *  Coastal California Gnatcatcher (SBNF)
      *  Desert Tortoise
      *  Inyo California Towhee (FWS)
      *  Spring-Loving Centaury
      Federal Sensitive Species/Species of Concern
      *  Amargosa Canyon Speckled Dace
      *  Amargosa River Pupfish (BLM)
      *  Arroyo Chub (SBNF)
      *  Banded Gila Monster
      *  Bendire's Thrasher (BLM & FWS)
      *  Black Milk Vetch
      *  Burrowing Owl (BLM)
      *  California Gray-Headed Junco (FWS)
      *  California Leaf-Nosed Bat
      *  Coachella Valley Giant Sand Treader Cricket
      *  Coachella Valley Jerusalem Cricket
      *  Coastal Rosy Boa (SBNF)
      *  Curved-Pod Milk Vetch
      *  Darwin Mesa Milk Vetch (BLM)
      *  Darwin Rock Cress (BLM)
      *  Death Valley Beardtongue
      *  Death Valley Round-Leaved Phacelia (BLM)
      *  Death Valley Sandpaper Plant
      *  Desert Bighorn Sheep (BLM)
      *  Ferruginous Hawk
      *  Flat-Tailed Horned Lizard (Proposed)
      *  Foothill Yellow-Legged Frog (SBNF)
      *  Forked Buckwheat
      *  Fringed Myotis
      *  Geyer's Milk Vetch (BLM)
      *  Gilman's Milk Vetch
      *  Gray Vireo (BLM)
      *  Hanaupah Rock Daisy (BLM)
      *  Howe's Hedgehog Cactus
      *  Inyo Hulsea (BLM)
      *  Inyo Mountain Slender Salamander (BLM)
      *  Inyo Rock Daisy (BLM)
      *  Jaeger's Caulostramina
      *  Jaeger's Ivesia
      *  Jointed Buckwheat
      *  July Gold
      *  Kingston Mountain Bedstraw (BLM)
      *  Kingston Mountains Ivesia
      *  Large Blotched Ensatina (SBNF)
      *  Le Conte's Thrasher (BLM)
      *  Little San Bernardino Mountains Linanthus (BLM)
      *  Loggerhead Shrike
      *  Long-Eared Myotis
      *  Mojave Ground Squirrel
      *  Mountain Yellow-legged Frog
      *  Occult Little Brown Bat
      *  Pallid Bat (BLM)
      *  Panamint Alligator Lizard (BLM)
      *  Panamint Daisy
      *  Panamint Dudleya
      *  Panamint Mountains Buckwheat
      *  Panamint Mountains Lupine
      *  Pungent Glossopetalon
      *  Rock Lady
      *  Ruby's Desert Mallow
      *  Saline Valley Phacelia
      *  San Diego Horned Lizard (SBNF)
      *  Santa Ana Speckled Dace (SBNF)
      *  Shining Milk Vetch
      *  Shoshone Cave Whip Scorpion (BLM)
      *  Shoshone Pupfish
      *  Silvery Legless Lizard (SBNF)
      *  Sodaville Milk Vetch
      *  Southern Rubber Boa (SBNF)
      *  Southwestern Pond Turtle (SBNF)
      *  Spotted Bat
      *  Stephen's Beardtongue
      *  Tecopa Birds-beak
      *  Thorne's Buckwheat
      *  Townsend's Western Big-Eared Bat
      *  Tricolored Blackbird (BLM & FWS)
      *  Western Least Bittern
      *  Western Mastiff Bat
      *  Western Small-Footed Myotis
      *  Western Snowy Plover (FWS)
      *  Western Yellow-Billed Cuckoo (FWS)
      *  White Bear Poppy
      *  White-Faced Ibis
      *  Wildrose Canyon Buckwheat
      *  Yellow Blotched Ensatina (SBNF)
III. THE DESERT TORTOISE--MAXIMUM IMPACT EXAMPLE.
    The Mojave Desert Tortoise is probably the most vivid example of a 
listed species that has had a tremendous impact on the development and 
use of public lands across four western states. In spite of the fact 
that many government biologists believe that the Desert Tortoise 
population is in a serious decline, there has never been an accurate 
census taken because the Tortoise is very difficult to count. It spends 
most of its life underground and monitoring techniques are not very 
sophisticated. Even within Desert Tortoise Conservation areas, federal 
agencies have no idea about population trends. Most knowledgeable 
biologists believe that the Tortoise population is even declining in 
the areas where they are protected. Actions taken to protect the Desert 
Tortoise under the ESA have had a significant impact on land use within 
the Inland Empire.
      The 1994 Desert Tortoise Recovery Plan:
    The Mojave Desert Tortoise was listed as ``Threatened'' in 1990. In 
1994, BLM biologists developed the ``Mojave Desert Tortoise Recovery 
Plan (DTRP)''. Very little proven peer-reviewed science was available 
at the time to justify actions proposed under the DTRP. Biologists 
involved with the preparation of the Recovery Plan acknowledged that 
the Plan was based on ``the best science available'' at the time. 
Having agreed that the science available was not very thorough, the 
Plan preparers wrote into the Plan a requirement to review the Plan and 
update it within three to five years, using science that was expected 
to be developed in the interim time period. At this time--ten years 
later--the DTRP has still not been updated!
      Designation of Critical Habitat:
    Three major California Desert BLM planning areas overlap the Inland 
Empire. New land use Plans (actually Environmental Impact Statements) 
developed for those areas are driven, to a large extent, by the alleged 
need to protect the Desert Tortoise. Approximately four million acres 
within the ten million acre California Desert have been designated as 
Tortoise habitat. This designation has severely limited the use of 
public lands in the California desert.
      DMG & MOG efforts regarding the Desert Tortoise
    For the past two years, the Desert Managers Group (DMG) and the 
Desert Tortoise Management Oversight Group (MOG) have been working on 
the task of assembling a team of biologists to take on the job of 
reviewing and updating the DTRP. While this effort is underway, no 
specific actions--other than new monitoring efforts and designation of 
millions of acres of Desert Tortoise habitat--are being taken on-the-
ground to benefit the Desert Tortoise. Current estimates, by BLM 
experts, suggest that it will take about a year to come up with a new 
plan once the team has been assembled. In the meantime, the Tortoise is 
dying off from a highly contagious Upper Respiratory Disease and a 
shell disease problem. In addition, ravens--whose population has 
doubled over the past ten years--are feeding voraciously on baby 
Tortoises.
      Recent 9th District Federal Court actions:
    Recently, ninth district federal court judge, Susan Illston, issued 
a ruling that no more permits for off-highway vehicle use or cattle 
grazing will be allowed in Desert Tortoise habitat. In a subsequent 
ruling, she added a requirement that the BLM is not doing enough with 
its efforts to protect the Desert Tortoise. She ruled that the BLM must 
implement a plan to actually recover the species--not just protect it. 
This ruling will impose a significant added burden on the California 
Desert BLM office that is already under-staffed and under-funded--
leading, of course, to a negative impact on public land use within the 
Inland Empire.
IV. ESA IMPACT ON FORESTS WITHIN THE INLAND EMPIRE.
    Many of the species listed in Section II above are found in the San 
Bernardino Mountain range, which is located totally within the Inland 
Empire. Actions taken by the Forest Service to satisfy ESA 
requirements, over the past ten years, have led to:
      Termination of all logging activities.
      Closure and blocking of many logging roads, fire roads, 
and vehicle access trails.
      Termination of clearing of underbrush.
      Restrictions to establishing fire-breaks around private 
property.
      Restrictions to all forms of recreation activities within 
the forest.
    As the underbrush has been continually building up, the bark beetle 
has infected the forest and killed off a large number of trees. The 
combined effect of these two events has made the San Bernardino 
Mountains a living tinder box. Last year's disastrous forest fire in 
this area came very close to burning out the resort cities of Lake 
Arrowhead and Big Bear within the Inland Empire.
V. FUTURE OF PUBLIC ACCESS IN THE INLAND EMPIRE.
      New BLM Management Plans that cannot be implemented:
    The BLM's Northern & Eastern Mojave (NEMO) desert land use plan and 
the Coachella Valley land use plan are approved and are ready to be 
implemented. The BLM's Western Mojave (WEMO) desert plan is in its 
final stages. All three of these land use plans are actually 
Environmental Impact Statements that provide for the protection of 
listed species and species of concern as well as special status 
species. Each of these plans consists of two volumes about an inch and 
a half thick. Significant additional resources will be required in the 
BLM's California Desert District to implement these plans. There is no 
funding included in the current Department of the Interior budget for 
implementation of any of the new California Desert District management 
plans. With federal funds being burned up by the war and recovery 
efforts from 9/11, it is unlikely that funds will be committed in the 
foreseeable future to implement the new California Desert District 
management plans.
      Lawsuits by Anti-Access Groups:
    Lawsuit settlements between the BLM and radical enviro-extremist 
groups, over the last few years, have led to restrictions on public use 
of many acres of public lands within the Inland Empire. After a period 
of time, it will become evident to these anti-access groups, that 
object to any public use of public lands, that the BLM is not 
implementing the new land use plans. The door will be open for a 
plethora of new lawsuits! The only action the BLM will be able to 
take--without adequate resources--will be ``Emergency Closures!'' 
Public lands managed by the BLM within the Inland Empire will be closed 
to all types of public use until the issues can be resolved in the 
courts. This could lead to permanent closures as the only acceptable 
action available to the BLM to satisfy the courts.
VI. ESA MODIFICATIONS DESPERATELY NEEDED.
    If the current trend continues, with 1300 species listed and only 
12 species removed from the list--and new listing petitions being 
submitted almost daily--it is clear that eventually, all species that 
live in the Inland Empire will be protected and impacts to the economy 
and to recreation will continue. Development and land use will be 
eliminated. ESA reform is imperative if this trend is ever to be 
reversed.
      Cardoza Bill Extremely Important:
    The House Committee on Resources has passed a Bill sponsored by 
Congressman Dennis Cordoza from California titled ``The Critical 
Habitat Reform Act'', H.R.2933. The Cardoza legislation adjusts the 
arbitrary and now-untenable deadline under which the FWS is required to 
designate critical habitat, giving the agency more time to collect 
useable data. This will also reduce the overwhelming volume of the 
frivolous litigation filed under the ESA, litigation that forces 
biologists out of the field and into the courthouse. It corrects the 
dysfunctional critical habitat designation process, linking it to the 
species recovery planning process, and integrating the data accumulated 
in that process. The result will be a greater focus on species recovery 
under the Act and improvement of the abysmal .01% success rate. 
Considering the amount of critical habitat already designated for 
various species within the Inland Empire, this legislation can help 
reduce the negative impacts resulting from enforcing the ESA.
      Healthy Forest Initiative:
    On November 17, 2003 the President signed into law the ``Healthy 
Forest Restoration Act.'' This Act allows actions in the San Bernardino 
National Forest, that were not allowed previously under the Endangered 
Species Act, that will have a positive impact on the Inland Empire:
      *  Logging of hazardous fuels to protect communities.
      *  Conduct prescribed burns.
      *  Log areas with Southern Pine Beetle outbreaks.
      *  Speed up the appeals process.
      *  Change the judicial review process.
Implementation of these changes a few years earlier might have saved 
many homes in the Inland Empire from being destroyed by forest fires.
      Need for Good Science:
    Since the enactment of the Endangered Species Act, 1300 species 
have been listed as ``threatened'' or ``endangered'' under this Act. 
Decisions by U.S. Fish & Wildlife Service (USFWS) to list species have 
always been based on ``the best science available''. In many cases, the 
listing decision is based on the opinion of a few biologists who work 
for Federal Agencies. Because of the threat of lawsuits from 
environmental organizations, USFWS typically errs in favor of listing 
rather than demanding good peer-reviewed supporting science. The 
decision to list the Mojave Desert
    Tortoise (as described above), even though the biologists who 
developed the Desert Tortoise Recovery Plan were not confident of the 
science available, is a perfect example of how the scale is weighted in 
favor of listing a species. In one case, USFWS actually listed a 
species that subsequently was proven to be non-existent! Section II of 
this report contains a list of the many allegedly threatened or 
endangered species that exist within the Inland Empire. One can only 
wonder how many of these species actually have good science supporting 
their listings. More species within the Inland Empire are being 
proposed for listing every day.
    Earlier this year, the House Committee on Resources passed a bill 
sponsored by U.S. Congressman Greg Walden, from Oregon called the 
``Sound Science for ESA Planning Act'', H.R.1662. The Walden 
legislation would strengthen the scientific foundation of species 
recovery efforts by integrating a peer-review tool into ESA decision-
making processes. The absence of peer review explains the overwhelming 
record of inaccurate data--and data errors--under the ESA. Peer review 
is a standard scientific safeguard, but has somehow never been 
integrated into Washington's solution for recovering endangered 
species. It is vitally important that elected officials and citizens of 
the Inland Empire support this legislation which will help reduce 
impacts on the economy and on recreation resulting from decisions made 
to accommodate the Endangered Species Act.
      Treatment of non-listed species
    Section II of this report contains a partial list of species, found 
within the Inland Empire, that are considered ``sensitive species'' or 
``species of concern'' by Federal Agencies. Federal land management 
agencies provide protection for these species in their land management 
plans even though they are not listed. In many cases they are treated 
as if they were listed!
    The agencies argue that it is necessary to provide protection to 
this category of species so that they won't become listed. Whatever the 
reason, significant resources are being expended within the Inland 
Empire to provide special protection to many species that do not fall 
under the Endangered Species Act. This is a perfect example of a catch-
22 situation--a method of providing the effect of a listing without 
scientific justification for an actual listing! The irony is that this 
action is being taken by land management agencies to avoid lawsuits by 
the enviro-extremist organizations while there is more litigation 
taking place today than ever before in history!
VII. CONCLUSION:
    The huge geographic area included within the Inland Empire lends 
itself well to the purpose of this hearing--to examine the impacts of 
the Endangered Species Act on Southern California's Inland Empire. The 
area includes two complete federal management planning areas--one BLM 
and one Forest Service. It also is overlapped by portions of two other 
BLM planning areas. All of the land management plans for these Federal 
areas are driven, to a large extent, by the Endangered Species Act.
    The Inland Empire hosts at least eighteen Federal ``endangered'' 
species, at least eight Federal ``threatened'' species, and a mix of at 
least eighty ``sensitive'' species and ``species of concern''. 
Petitions are being presented every day to add more species to each of 
these categories.
    Lawsuits initiated by environmental groups have led to restrictions 
on the use of millions of acres of public lands within the Inland 
Empire. The negative impacts on recreation, ranching, mining, and 
forest health as a result of actions taken in the name of protecting 
species have been significant. The economy of the Inland Empire has 
taken a huge hit at a time when it can ill afford it.
    The citizens and elected officials of the Inland Empire need to 
wake up to the fact that the Endangered Species Act, a law that was 
originally designed to provide much needed protection to a few 
important endangered species, has been exploited to the point where 
every citizen or property owner in the Inland Empire has experienced 
some impact--whether recognized or not. People need to become educated 
to the fact that the ESA is not a law that just protects warm and fuzzy 
creatures. It also applies to beetles, flies, poisonous plants, rats, 
and lizards. Enforcement of the ESA costs taxpayers billions of dollars 
every year and very few species have ever been recovered as a result of 
the enforcement of this out-of-control law. As it is being applied in 
the Inland Empire as well as all over the country, the Endangered 
Species Act is seriously broken and it is time to fix it!
                                 ______
                                 
    Mr. Pombo. Thank you, Mr. Denner.
    Mr. Thornton?

            STATEMENT OF ROBERT THORNTON, PARTNER, 
             NOSSAMAN, GUTHNER, KNOX & ELLIOTT, LLP

    Mr. Thornton. Mr. Chairman, with your permission I would 
just like to submit my testimony and summarize it, if I might?
    Mr. Pombo. OK.
    Mr. Thornton. Thank you.
    I am a lawyer. I have practiced for the last 28 years in 
the natural resources area. I represent landowners and public 
agencies on ESA matters, a number of other environmental 
matters. I was the original advocate for what became the 
Habitat Conservation Plan provisions of the Act in '82. I have 
worked on a couple dozen HCPs, and I have been involved and I 
have been involved in a number ESA litigation matters. So, my 
testimony reflects that background and perspective.
    We have a crisis today in the State and in the west in area 
of critical habitat, following upon Mr. Denner's testimony that 
I would like to speak to today. This crisis is a product of 
like three interrelated actions that come together.
    One, a tidal wave of litigation that has been brought by 
the environmental interests to force the Fish and Wildlife 
Service to designate critical habitat, as indeed the Service is 
required to do with very narrow exceptions under the Act.
    Two, are what we believe are over-broad designations of 
critical habitat. Over board by the tune of tens of millions of 
acres.
    And, three, court decisions including the decision 
mentioned recently by Mr. Denner that effectively will prohibit 
really any economic activity within critical habitat.
    But to put this into perspective to consider the overall 
magnitude, there is the map on the far right, and maybe Ms. 
Johnson can help by referring to, and there is a smaller 
version attached to our testimony, probably be more legible.
    But this is a map that we had a consulting firm prepare 
several years ago with GIS data provided by the Fish and 
Wildlife Service and NOAA Fisheries because I asked the 
question, gee, how much critical habitat is there in California 
proposed or designated, because none of the agencies had mapped 
the critical habitat. Nobody knew the answer to that question. 
So, we had a consulting agency with considerable difficultly, 
but ultimately they put together the data map.
    And it turns out that in the last decade, for 21 species in 
California, there have been designated or proposed 40 million 
acres of land as critical habitat. Now let me put that into 
perspective.
    There is a 100 million acres of land in California total. 
As we know, about 50 percent of the land mass of California is 
Federal land. So, about 40 percent of the total land area of 
California has been designed as critical habitat or proposed 
for 21 species.
    Of that 40 million, 24 million is on non-Federal land. So, 
again, going back to our map, 50 million acres of non-Federal 
land approximately 50 percent of the non-Federal land in this 
state has been designated or proposed as critical habitat for 
21 species. The impact is, frankly, enormous.
    Now here is the real kicker; that is for 21 species. There 
are 298 listed species in California. The Service has only 
designated or proposed to designate critical habitat for 87 of 
those 298 species. Again, we know the Act effectively requires 
the Service to ultimately designate critical habitat for every 
species. It does not take a rocket scientist to figure out if 
that trend continues, really the entirety of the State outside 
of the urban core, and maybe even a portion of the urban core 
as we heard from the testimony earlier with regard to the fly, 
is going to be end up designated as critical habitat.
    Now, part of the problem I referred to is the over-broad 
nature of these designations. And I want to focus the testimony 
at the hearing today as with regard to impacts on the Inland 
Empire. I want to focus on a key issue in Southern California 
with which we have been struggling for well over a decade, and 
that's the California gnatcatcher.
    As a result of environmental litigation, the Service 
proposed and ultimately designated approximately 500,000 acres 
of critical habitat. There was litigation commenced that we 
commenced and also the environmental community commenced. We 
prevailed. The court ordered the Service to reevaluate the 
critical habitat on the grounds that the economic analysis was 
flawed. So, the Service came back and has reproposed once again 
500,000 acres of critical habitat.
    Now, to put that into perspective, when the Service listed 
the gnatcatcher in 1993 the listing rule indicated that there 
was potential occupied habitat, entirety of potential occupied 
habitat in Southern California of 400,000 acres, and that was 
the principle rational for listing the gnatcatcher. They said, 
gee, this bird is very threatened because its habitat is 
limited, has been reduced from historical numbers and there's a 
maximum of 400,000 acres of habitat. At the same time they said 
that there was about 200,000 acres of what they characterized 
as high quality habitat at the time.
    In 1999, when the litigation was commenced by the 
environmental community to force the designation of critical 
habitat, the Service made a determination that it was prudent 
to designate about 120,000 acres of critical habitat. So, then 
in 2000 when they designated critical habitat, they went to 
500,000 acres. And the 500,000 did not include a lot of 
property on Camp Pendleton, on the air station, the Orange 
County Central Coastal NCCP area and the San Diego HCP 
conservation plan area.
    So, somehow we went from 200,000 acres of high quality 
habitat in the listing rule to 500,000 critical habitat not 
including probably a couple of hundred thousand other acres 
that were excluded from the designation of critical habitat. 
Now, the map is a little hard to read from that distance, but I 
want to focus in on some of the specifics.
    Jennifer, if you'll refer to the Riverside County area. 
Talking about the impacts on the Inland Empire area.
    There are large--tens of thousands of acres of critical 
habitat designated, and this is actually the current pending 
proposal, of critical habitat in Riverside County, much of it 
along the I-15 corridor, some of the most valuable developable 
property the area that is most appropriate for housing 
development and that is the infrastructure.
    Camp Pendleton, obviously an important facility in terms of 
national defense has critical habitat proposed on it.
    I want to point in Ventura and Los Angeles Counties what 
was referred to as the far northern area. Jennifer, maybe you 
could go around and point out unit 13 as tens of thousands of 
acres of critical habitat that has no gnatcatchers on it. This 
map also includes a mapping of those areas, the most recent 
data of where gnatcatchers are found. And essentially 13 there 
are only gnatcatchers in the far western--a few pairs in the 
far western extreme of that proposed critical habitat area.
    There are a number of other examples I could go through. 
But the bottom line here is that this is one microcosm of the 
problem, which is that you have got this incredibly over board 
designation with tens of thousands of acres with no birds in it 
and yet it is designated or proposed as critical habitat.
    Now, what are the economic costs of all of this? As you 
know, Mr. Chairman, the Act requires the Service to evaluate 
the economic and other impacts of designated critical habitat. 
And it is the one portion of the statute that explicitly allows 
a weighing and balancing of the economic impacts against the 
environmental benefits of the designation. So, the Service has 
been going through analyzing the economic impacts. And we have 
brought litigation challenging several of those because in our 
view the evaluations were done improperly and the courts 
ultimately agreed with us and have ordered the Service to 
change their methodologies for evaluating economic impacts.
    But again I asked the question what is the accumulative 
magnitude of the impact that we are talking about? Dr. David 
Sunding, an economist, Ph.D. economist at the University of 
California at Berkeley conducted an analysis with regard to 
just the 500,000 acres of critical habitat for the gnatcatcher. 
And remember, this out of the 40 million acres in the State. 
And his analysis indicated that the impact was between $4.6 and 
$5.1 billion, billion with a B. OK.
    I started thinking and preparing for this testimony. Now, I 
wondered what is the overall magnitude to the State of the 
economic impact of critical habitat. And using some very 
conservative assumptions.
    If you assume, for example, that the critical habitat on 
the Federal land has zero impact, clearly an incorrect 
assumption but just assume that for a moment. And if you assume 
the remainder of the critical habitat on the non-Federal land 
in the State, the other 22.5 million acres other than the 
gnatcatcher has an impact of one-tenth--10 percent of the 
impact that Dr. Sunding analyzed with regard to the gnatcatcher 
because property in Riverside and Orange County and San Diego 
is obviously more valuable than more rural property, you come 
up with a number that is well in excess of the $100 billion. 
Now that is, obviously, an extremely rough estimate but it 
gives the Committee some general order of magnitude of the kind 
of impacts on the society that we are talking about. And, 
again, this is without even considering the impacts on Federal 
lands, impacts on military preparedness with regard to military 
installations and, I might add, it doesn't even talk about 
water. I have not talked about water.
    You have critical habitat designated on the Sacramento 
River with regard to several fish species. You have critical 
habitat designated on the lower Colorado River with regard to 
several fish species.
    The decade-long effort to resolve the water wars in 
California on the Colorado River and the CALFED process and the 
Bay Delta are in serious jeopardy as a result of the critical 
habitat designations.
    This situation has been made much more extreme just within 
the last month as a result of several court decisions. Again, 
Mr. Denner mentioned the decision with regard to the Desert 
Tortoise by the District Court of the Northern District of 
California. About 2 days later there was even a more serious 
problematic decision out of the Ninth Circuit Court of Appeals, 
the Gifford Pinchot Task Force decision. That decision is, 
obviously, troubling because: (a) it is a Ninth Circuit 
decision so now that is the law of the land with regard to 
Federal district judges in California and in the west.
    Gifford Pinchot involved a challenge brought by 
environmental groups to the so-called Northwest Forest Plan 
that was the effort by the Clinton Administration to resolve 
the decade long battle concerning the Spotted Owl and other 
species on Federal lands in Oregon and Washington. 
Unprecedented planning effort. I think everyone would admit 
that it provided an unprecedented level of protection for 
endangered species, just order of magnitude again. It reduced 
timber harvests on the Federal lands by about 50 percent. 
Nonetheless, a group of environmental groups challenged that 
plan and alleged that the plan violated the critical habitat 
provisions of the Endangered Species Act because it allowed 
some minimal amount of timber harvesting on certain critical 
habitat areas.
    The Ninth Circuit in this Gifford Pinchot decision agreed 
with the environmental plaintiffs and invalidated timber 
harvests pursuant to that plan. And the most troubling aspect 
of this decision, the part that everybody is focused on, the 
court invalidated the so called ``adverse modification'' 
definition. Adverse modification was defined by the agencies in 
1986 to mean harm to both survival and recovery. So, basically 
the threshold for determining whether you comply with critical 
habitat is whether you are having an impact on the survival of 
the species. What the court said is that is the wrong standard 
and that the appropriate standard for critical habitat is 
whether you are impacting recovery of the species. Well, that 
just ratchets up the requirements under critical habitat 
tremendously.
    But an even more troubling aspect of the decision is 
essentially the court said that critical habitat areas are 
inviolate, that is no activities, no economic activities can 
occur in critical habitat. The government argued that gee, 
there is this overall comprehensive Northwest Forest Plan. Yes, 
we are allowing some timber harvests activities within 
designated critical habitat, but overall the plan is providing 
a net benefit for the Spotted Owl, the fish, etcetera because 
of the combination of all the reserves that were put together 
under the Northwest Forest Plan and the court rejected that. 
And let me just quote from a key passage, and this is at page 
10611 of the slip opinion.
    The court says ``If we allow the survival and recovery 
benefits derived from parallel habitat conversation plan, the 
Northwest Forest Plan, that is not designated critical habitat 
to stand in for the loss of designate critical habitat in the 
adverse modification analysis, we would impair Congress' 
unmistakable aim that critical habitat analysis focused on the 
actual critical habitat.''
    So, what the court is saying is it does not matter how good 
the plan is overall. It does not matter that the plan is 
providing net benefits to the species. If you allow any 
activity within critical habitat, that is prohibited by the 
Endangered Species Act. That, Mr. Chairman, is blockbuster.
    As I said, I have devoted most of my professional career, 
frankly, to trying to make the Endangered Species Act work in 
what I call in the trenches, in the real world working with 
landowners, working with the likes of Dan Silver, the 
Endangered Habitats League, working with the agencies. If the 
law of the land is that these plans cannot be put together in 
away that allows any impact on critical habitat, nothing will 
occur and the plans that have been approved are in jeopardy.
    Let me say just a few words about that.
    Mr. Pombo. I am going to have to ask you sum up.
    Mr. Thornton. Sure.
    Over the last decade, tens of millions of dollars have been 
spent in the so called Southern California Natural Community 
Conservation Planning program to put together a comprehensive 
plan to once and for all attempt to resolve the endangered 
species issues and balance jobs, housing needs, etcetera. 
Riverside County after much effort, tens of millions of 
dollars, just completed their plan. That plan is now in 
jeopardy as a result of Gifford Pinchot decision as are the 
other plans even those plans that have been excluded from 
critical habitat because plaintiffs will argue that critical 
habitat was excluded not using the proper test that the Ninth 
Circuit has now articulated.
    So, the net loss of this is not only the fact of the 
economic impact. I believe that the net loss would be to good 
sound science-based comprehensive conservation planning. And 
these are not just my views. These are also the views of 
responsible people in the environmental community.
    I just wanted to end with a quote from Professor Houch. 
He's a professor at Tulane University and was formerly general 
counsel of the National Wildlife Federation for many years. And 
let me read something that he wrote not too long ago, and he's 
a describing the Southern California and the NCCP program. And 
he says ``The upshot of the Federal state conversation planning 
that is captured in the subregional plan developed for Orange 
County, in all of that 80 percent of the habitat and 80 percent 
of the breeding population of gnatcatcher will be preserved. 
When the full plan for the Los Angeles and San Diego corridor 
is implemented it will project 380,000 acres. With some 
lingering outsiders, the business community is largely on 
board, the State is on board, the environmental community is on 
board: A miracle in Southern California. That effort, that 10 
year effort is now in jeopardy as a result of the court 
decision.''
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Thornton follows:]

                Statement of Robert Thornton, Partner, 
                 Nossaman, Guthner, Knox & Elliott, LLP

    Mr. Chairman and Committee Members:
    I am pleased to testify on the impact of the Endangered Species Act 
on the Inland Empire.
    While my testimony reflects my views alone, it is provided from the 
perspective of a lawyer who has represented landowners and public 
agencies on ESA and other natural resource issues for over 28 years. I 
was the original advocate for what the habitat conservation plan 
provisions of the ESA. I have worked on over two dozen habitat 
conservation plans. I have litigated a large number of ESA matters and 
I am counsel in four pending ESA lawsuits.
    My testimony focuses on the critical habitat crisis that we have in 
the Inland Empire and throughout the State. This crisis is the product 
of three interrelated events:
    1.  The tidal wave of litigation initiated by environmental 
interests under the ESA concerning the failure of the Fish and Wildlife 
Service to designate critical habitat;
    2.  Over-broad designations of critical habitat impacting tens of 
millions of acres in California; and
    3.  Court decisions that prevent any economic activities in large 
portions of the State and that undermine California's Natural Community 
Conservation Planning Program.
A.  Forty-Percent of the State Is Proposed Or Designated Critical 
        Habitat--For Only 21 Species.
    Principally as a result of environmental litigation (and resulting 
court decisions) over the last decade the Fish and Wildlife Service and 
NOAA Fisheries have designated or proposed to designate nearly 40 
million acres of land in California for 21 species. The attached map, 
prepared from data provided by the Service and NOAA Fisheries, shows 
the broad extent of the designations in California. This map does not 
include recent designations.
    But to fully appreciate the impact of these designations on the 
California economy, consider the following:
      There are 100 million acres of land in California;
      50% of the State is federal land;
      Of the 40 million acres of proposed or designated 
critical habitat--24 million acres are on non-federal land;
      Thus, nearly 50% of the non-federal land in the State is 
designated, or is proposed, critical habitat.
    Here's the kicker: This map only shows the critical habitat 
designations for 21 species. There are 298 federally listed threatened 
and endangered species in California. The Service and NOAA Fisheries 
have designated or proposed critical habitat for 87 species (or 29%) of 
the currently listed species in the State. 1 It doesn't take 
a rocket scientist to figure out that if this trend continues, much of 
the private land in California outside of urban core will end up 
designated as critical habitat. We know this to be the case because, as 
interpreted by the courts, the ESA requires the designation of critical 
habitat with very narrow exceptions. Over the last decade, the 
environmental community has waged a successful litigation campaign that 
has resulted in dozens of court orders forcing the designation of 
critical habitat. In several instances, the courts have required the 
agencies to make complex technical and economic decisions affecting 
large portions of the State in a matter of a few months.
---------------------------------------------------------------------------
    \1\ See attached Tables which list the species for which critical 
habitat is proposed or designated and that describes the status of the 
critical habitat designations.
---------------------------------------------------------------------------
    There is more critical habitat to come. I have attached a table 
showing the listed species in California and those species with 
designated or proposed critical habitat. As is apparent, many more 
critical habitat designations are inevitable.
B. The Critical Habitat Designations Are Overbroad.
    Perhaps we could accept the critical habitat designations if we 
thought that the designations were accurate and actually identified 
areas essential to the species. But we now that many of the 
designations are grossly overbroad. Let me provide a prominent example 
of particular concern to the Inland Empire--the critical habitat for 
the coastal California gnatcatcher.
    It is instructive to consider the following chronology:
      1993--Service lists gnatcatcher as ``threatened'' species 
largely on the basis of the estimated loss of historic habitat in 
Southern California.
      1993--Service estimates that there is a maximum of 
400,000 acres of ``potentially occupied'' gnatcatcher habitat in 
Southern California.
      1993--Service estimates that there are 200,000 acres of 
``high value'' gnatcatcher habitat.
      1999--Service determines that 124,000 acres are prudent 
to designate as critical habitat.
      2000--Service designates 511,000 acres of critical 
habitat NOT INCLUDING the habitat within the Orange County Central/
Coastal NCCP, the San Diego MSCP, Camp Pendleton, and Miramar.
      2003--After district court orders Service to prepare new 
economic impact analysis and reevaluate critical habitat, Service 
proposes 495,000 acres of critical habitat, including large areas not 
previously designated, but excluding the several of the NCCP plan 
areas.
    When one considers that the current proposal to designate 500,000 
acres of critical habitat for the gnatcatcher excludes the military 
bases and the areas with adopted NCCP/HCP plans, it is obvious that the 
amount of ``critical habitat'' has expanded dramatically over the 
years. There are two possible explanations:
    1.  The Service greatly overestimated the threat to the gnatcatcher 
from the loss of habitat because it underestimated the extent of 
habitat in Southern California; and
    2.  The Service has designated large areas that are not 
``essential'' to the protection of the gnatcatcher as required by the 
ESA.
    There is an extensive body of evidence supporting both of the above 
conclusions. We documented that the gnatcatcher critical habitat 
designation includes tens of thousands of acres that is not occupied by 
gnatcatchers. Clearly, the Service itself expanded dramatically the 
number of acres that it considered ``critical habitat''--from 124,000 
acres in 1999 to the current designation of 511,000 acres.
C. Critical Habitat Has Tens of Billions of Dollars of Adverse Economic 
        Impacts--Even Without Considering the Additional Impact of 
        Recent Court Decisions.
    The critical habitat designations are of great importance to the 
State because the designations are resulting in tens of billions of 
dollars of adverse economic impact. I do not use the ``B'' word 
lightly.
    Dr. David Sunding of the University of California at Berkeley 
evaluated the economic impacts of the proposed designation of 500,000 
acres of critical habitat for the California gnatcatcher. Dr. Sunding 
concluded that the designation would result in adverse economic impacts 
of between 4.6 and 5.1 billion dollars on the Southern California 
economy. Even the Service now estimates that that the proposed 
gnatcatcher critical habitat will have adverse economic impacts of 
approximately one billion dollars--even though the Service estimate is 
based on the dubious assumption that the reduction in available land 
does not translate into increased housing prices.
    Consider that the gnatcatcher critical habitat represents 
approximately one percent of the critical habitat in the State. A very 
conservative estimate of the adverse impacts of critical habitat 
designations in California is well in excess of $100 billion dollars.
    To be conservative, we made the following assumptions:
    1.  That critical habitat designations on federal land have zero 
economic impacts; and
    2.  That the economic impact of the other designations on non-
federal land have an impact that is one-tenth of the economic impacts 
of the gnatcatcher designation.
    Obviously, this is a very rough estimate. But it provides an 
approximation of the enormity of the problem. The actual impact could 
easily be higher--especially if economic impacts of the designation of 
critical habitat on federal lands are included.
    Neither the Service or NOAA Fisheries has estimated the cumulative 
economic impacts of the critical habitat designations--nor to even 
calculate how much land is designated or proposed critical habitat in 
the State. As a legal and policy matter, the Service and NOAA Fisheries 
should be evaluating the cumulative economic impacts of the many 
critical habitat designations--just as NEPA requires other federal 
agencies to evaluate the cumulative environmental impacts of agency 
actions. To date, however, the wildlife agencies have ignored 
cumulative economic impacts. The issue of whether the Service is 
required to evaluate cumulative economic impacts is before the courts 
in several pending litigation matters.
D. Recent Court Decisions Will Dramatically Increase the Economic 
        Impacts of Critical Habitat.
    Dr. Sunding's estimates of critical habitat assumed that Service 
would regulate critical habitat in accordance with the ESA critical 
habitat regulations. However, recent federal court decisions make it 
clear that Dr. Sunding's estimates are understated. The Fifth and Ninth 
Circuit Courts of Appeals have now invalidated the ESA regulatory 
definition of ``adverse modification''. (Sierra Club v. U.S. Fish and 
Wildlife Service, 245 F.3d 434 (5th Cir. 2001); Gifford Pinchot Task 
Force v. U.S. Fish and Wildlife Service (9th Cir. Aug. 6, 2004). The 
Ninth Circuit decision is particularly troubling because it is now the 
law in California and will govern the decisions of the district courts 
in the State in pending and anticipated critical habitat litigation.
    The Court invalidated six biological opinions issued by the Fish 
and Wildlife Service regarding timber harvests within critical habitat 
in Oregon. The Court held that the biological opinions were invalid 
because the Service had relied on the regulatory definition of 
``adverse modification'' which the Court held violated the ESA. The 
Court held that the regulatory definition of ``adverse modification'' 
violates the ESA because the regulatory definition sets the bar too low 
for the protection of critical habitat.
    The Service had relied upon a regulation (adopted by the 
Departments of Interior and Commerce in 1986) defining ``adverse 
modification'' to mean actions that ``appreciably diminish the value of 
critical habitat for both survival and recovery'' of a listed species. 
The Court stated that the standard for determining whether activities 
are allowed within critical habitat is whether the action will impact 
recovery of the species.
    The decision is all the more disturbing because the case concerned 
timber harvest activities authorized by the vaunted ``Northwest Forest 
Plan'' adopted during the Clinton Administration to address the impacts 
of management of federal lands on the spotted owl and other species. 
The Forest Plan reduced dramatically timber harvest levels on federal 
lands in Oregon and Washington and provided unprecedented levels of 
protection for endangered species. The Northwest Forest Plan was in 
fact a plan designed to promote the recovery of the spotted owl and the 
other covered species.
    An extremely troubling aspect of the Court's decision is that it 
suggests that critical habitat is inviolate--even where the critical 
habitat is just one part of a larger conservation plan that provides 
net benefits for endangered species. The government argued that the 
Forest Plan complied with the critical habitat requirements of the ESA 
because the Plan as a whole provided benefits for endangered species--
even if it allowed some economic activities within critical habitat. 
The Court rejected the government's argument.
E. The Gifford Pinchot Decisions Jeopardizes the Riverside MSCP and the 
        Southern California NCCP Program.
    The decision is especially ominous for Southern California.
    The Riverside MSCP and the other NCCP plans in Southern California 
are fundamentally premised on the ``No Surprises'' principle--or as 
Secretary Babbitt called it--``A deal is a deal.'' Landowners and 
public agencies in Southern California have spent the last 13 years and 
many tens of millions of dollars working on habitat conservation plans 
to address and resolve endangered species issues. Over 700,000 acres is 
designated for long-term conservation. Additional tens of millions of 
dollars are being spent to manage and enhance the habitat on reserves 
established through the NCCPs. It is not an exaggeration to say that 
the NCCP program has fundamentally altered future land uses in Southern 
California to balance the regional need for jobs and housing with the 
desire to protect large blocks of wildlife habitat. Many prominent 
figures in the environmental and scientific communities describe the 
NCCP program as a model for reconciling competing societal needs for 
jobs, housing and wildlife protection and for avoiding economic train 
wrecks under the ESA.
    All of this work is jeopardized by the Ninth Circuit decision in 
Gifford Pinchot. For example, the Riverside MSCP authorizes development 
activities on land designated as critical habitat. Counsel to the 
Center for Biological Diversity has already announced their intention 
to challenge the Riverside MSCP. It is likely that the Center will 
claim that the Riverside MSCP is invalid under the reasoning of Gifford 
Pinchot.
    Even the NCCP plans that do not include critical habitat are at 
risk. The Service excluded areas within HCPs and military installations 
from the designation of critical habitat. The Service excluded these 
areas from critical habitat using its authority in section 4(b)(2) to 
weigh and balance the economic impacts of a critical habitat 
designation against the benefits of the designating critical habitat. 
Even before Gifford Pinchot, environmental plaintiffs argued that the 
exclusion of HCP areas from the designation of critical habitat 
violates the ESA because the Service underestimated the environmental 
benefits of designating critical habitat. For example, the Natural 
Resources Defense Council is making this claim in its pending challenge 
to the exclusion of Orange County Central/Coastal NCCP from the 
designation of critical habitat for the California gnatcatcher. The 
NRDC will now certainly argue that the exclusions are invalid because 
Gifford Pinchot indicates that the critical habitat provisions of the 
ESA prohibit activities that harm recovery of the species.
    In summary, the designation of critical habitat is having an 
enormous economic impact on California. Gifford Pinchot multiplies this 
impact. It threatens over a decade of hard work by local government, 
landowners and the environmental community in the reconciliation of 
need for jobs, housing with the conservation of wildlife habitat.
                                 ______
                                 
    Mr. Pombo. Thank you.
    Dr. Silver?

       STATEMENT OF DAN SILVER, MD, EXECUTIVE DIRECTOR, 
                 THE ENDANGERED HABITATS LEAGUE

    Dr. Silver. Chairman Pombo and Committee members, thank you 
very much for this opportunity.
    For your reference, Endangered Habitats League is a 
regional conservation group dedicated to ecosystem protection 
and sustainable land use. I have spent a large part of the last 
13 years trying to solve problems and helping to put together 
large scale HCPs. And we have supported no surprises in the 
context of those programs.
    I would like to draw a comparison between Riverside County 
and San Bernardino County. But before that just to make a 
general statement of the ESA--in my view, it is not broken. The 
law has brought public support. I do not believe it needs 
fixing in terms of changed scientific procedures. The safe net 
does not have to be weakened.
    The bottom line for me is that we must do better in 
responding to species imperilment.
    Now, in western Riverside County there is now a 
comprehensive scientifically sound multi-species habitat 
conservation program encompassing all the cities as well as the 
county. The goal is to preserve all of creation, including the 
Delhi Sands Fly and its ecosystem. There was strong and 
committed leadership at the local level. The building industry 
helped fashion the plan, and is strongly supported. The take 
permits cover all listed species, and the habitat focuses 
anticipates any newly listed species that might arise.
    The result of it is certainly. There is certainly for 
economic development and for conservation, and very importantly 
there is a widespread recognition within Riverside County and 
the body politic that the natural open space protected by the 
plan is not just for plants and animals. Rather, it constitutes 
a critical investment in quality of life, an investment that 
over the long run will attract business and enhanced regional 
competitiveness. So, at the end of the day, I believe the 
impact of the ESA on western Riverside County communities is 
markedly positive.
    As you know, in western Riverside County, as we have all 
heard today, in San Bernardino County the ESA-related problems 
have not been solved. From my perspective, because they have 
not been solved, the Delhi Sands Fly and the San Bernardino 
kangaroo rat are slowly going extinct under current project-by-
project permitting. And without comprehensive permits from a 
multiple species plan, developers in San Bernardino continue to 
face substantial uncertainty.
    In addition, the last opportunity preserve tranquil open 
space and associated recreation within a rapidly urbanizing 
area is being lost. In my view, San Bernardino, its wildlife, 
its natural heritage and its economic future needs a 
comprehensive species and habitat plan.
    Even though efforts in San Bernardino County toward a 
multiple plan and even toward a more limited plan for the Delhi 
Sands dunes have been successful. I do not want to try to 
assign blame and be confrontational. Rather, let me identify 
what I think has been missing.
    In San Bernardino we have not had a formal, organized 
effort. There has not been, for example, a stakeholder advisory 
committee. In my experience stakeholder participation, business 
community, conservation groups, special districts is essential 
for a successful plan. The stakeholders can help build 
consensus, they can bring the creativity of the private sector 
into play with problem solving ideas, financial mechanisms. I 
really think this is the missing ingredient, and that is the 
main purpose of my testimony.
    The San Bernardino Association of Governments could convene 
such a formal effort. It may require additional planning monies 
if the State no longer has the Federal funds it used to have. 
We would need the help of our congressional delegation if that 
is the case, if we do need more planning monies.
    These plans are never easy. They are front loaded. But on 
the other hand, there has been groundwork that has been done in 
this area. Maybe it would not take that long.
    With a practical vision based upon constructive problem 
solving, I believe the process will work. It does require 
committed local leadership, but I am sure that that leadership 
exists here.
    The Endangered Habitats League has assisted with these 
plans in Orange County in San Diego, as well as Riverside 
County. We offer our experience and expertise, and our good 
faith, to collaborate with others to the San Bernardino County 
jurisdictions as well.
    Thank you again for the opportunity to testify.
    [The prepared statement of Dr. Silver follows:]

           Statement of Dan Silver, MD, Executive Director, 
                       Endangered Habitats League

    Chairman Pombo and Committee Members:
    Thank you for the opportunity to report to you on how the 
Endangered Species Act is affecting Southern California's Inland 
Empire, and to share some thoughts on future directions. For your 
reference, the Endangered Habitats League is a regional conservation 
group dedicated to ecosystem protection and sustainable land use.
    There is a big difference in how the ESA is impacting Riverside 
compared with San Bernardino County. In western Riverside County, a 
comprehensive and scientifically sound Multiple Species Habitat 
Conservation Plan (MSHCP) is in place, for all the cities as well as 
county land. The goal is to preserve all of Creation--including the 
Delhi Sands fly and its ecosystem. There was strong and committed 
leadership at the local level. The building industry helped fashion the 
plan, and is in strong support. The take permits cover all listed 
species, and the habitat focus anticipates any newly listed species 
that might arise.
    The result of the conservation plan approach is certainty for 
economic development and for conservation. Very importantly, there is 
wide recognition in Riverside County that the natural open space 
protected by the plan isn't just for plants and animals. Rather, it 
constitutes a critical investment in quality of life, an investment 
that over the long run attracts business and enhances regional 
competitiveness. At the end of the day, the impact of the ESA on 
Riverside County communities is markedly positive.
    As you know, in western San Bernardino County--just next door--ESA-
related problems have not been solved. Meanwhile, the Delhi Sands fly 
as well as the San Bernardino kangaroo rat are slowly going extinct 
under current project-by-project permitting. And without comprehensive 
permits from a multiple species plan, developers in San Bernardino 
continue to face substantial uncertainty. In addition, the last 
opportunity to preserve tranquil open space and associated recreation 
within a rapidly urbanizing area is being lost. San Bernardino--its 
wildlife, its natural heritage, and its economic future--needs a 
comprehensive species and habitat plan.
    Even though efforts in San Bernardino County toward a multiple 
species plan--and even toward a plan limited to the Delhi Sand dunes--
have been unsuccessful thus far, it is not productive to assign blame 
or to be confrontational. Rather, let me identify what is missing: a 
formal, organized effort that includes a stakeholder advisory 
committee. Stakeholder participation--business, conservation, special 
districts, etc.--is essential for a successful plan. The San Bernardino 
Associated Governments, for example, could convene such an effort. 
Congress could appropriate planning monies, for which we would need our 
delegation's assistance. These plans are never easy, but with a 
practical vision based on constructive problem solving, the process 
will work. I am confident the necessary leadership exists.
    The Endangered Habitats League has assisted with multiple species 
plans in Orange County in San Diego County, as well as in Riverside 
County. We offer our experience and expertise--and our good faith 
commitment to work with others--to San Bernardino jurisdictions, as 
well.
    Thank you again for the opportunity to testify before your 
Committee.
                                 ______
                                 
    Mr. Pombo. Thank you.
    I thank the panel for their testimony.
    I am going to recognize Mr. Baca to begin.
    Mr. Baca. Thank you very much, Mr. Chairman.
    Mr. Thornton, I do not know, you are quite aware and I want 
to ask you, you know that you were talking about the 
gnatcatcher and you are talking about 40 million acres 
statewide. That is a hell of lot in terms of acres of reserve 
based on the gnatcatcher. Is that a correct?
    Mr. Thornton. Yes, Mr. Baca. The number for the gnatcatcher 
is 500,000. But for all the 21 species that we looked at, which 
is not all the species with critical habitat, totals about 40 
million acres.
    Mr. Baca. But yet in our immediate area, I do not know if 
people are aware, not too many years ago, we had a high school 
in Rancho Cucamonga that apparently had problems because they 
had already done an EIR and they had already made approval in 
terms of building the high school in that immediate area, but 
somehow they found the gnatcatcher in that immediate area, so 
exceeding costs and delays of even with that construction of 
the school site that area. That again will cost the taxpayers 
dollars, delays during that period of time. And then the 
quality of education for many of our kids in that immediate 
area ultimately ended up solving.
    Yet, here a gnatcatcher and if anybody saw a bird, this 
bird that would land in their home or whatever, what would 
somebody do? Can you describe what you would do if you saw a 
bird that landed there? I know what I would do. I would 
basically take it and move it somewhere else.
    Mr. Thornton. The answer is what you have to do under the 
statute is go through a rigorous regulatory process that--
    Mr. Baca. Without touching the bird, right?
    Mr. Thornton. Without harming the bird, correct. That is 
what the law prohibits or requires.
    Mr. Baca. Thank you.
    Let me ask this of Mr. Denner. In your testimony I am glad 
that you mentioned support of the ESA reform legislation. We 
need to amend the ways of critical habitat is designed, which 
Congressman Dennis Cordoza will do. But I also agree that sound 
science is needed, and Congressman Walden's bill does provide 
that. You state in your testimony that the absence of peer 
review now explains the increased data and data errors under 
the Endangered Species Act. You mentioned that the Desert 
Tortoise is one species that is difficult to keep track of. 
Some say the population is declining, even in protected areas.
    How convinced are you that the peer review and more modern 
systems would help remove the species from the endangered list 
and in your estimate of those listed would be taken off the 
list with better data and peer review data?
    Mr. Denner. Well, I am a member of the BLM's California 
Desert District Advisory Council. Have been for about 5 years. 
So, I deal with these questions of species and their impact on 
land use, you know, on a regular basis.
    And in my own personal opinion virtually all of the species 
that the BLM and other Federal agencies are taking action on 
completely lack good peer reviewed science.
    I brought up the Desert Tortoise as my example of a case, 
of a species of that is being afforded tremendous amount of 
protection with very little science, because that is probably 
the poster child of the land use closures here in the State of 
California, the Desert Tortoise in terms of public lands and 
recreation lands, which is of course what I deal mostly with. 
And you would expect that that species would have had the most 
studies, the most scientific information supporting actions 
taken than probably any other species within the California 
desert district. And I can prove, I mean I have the Desert 
Tortoise recovery plan right here, and I have been involved 
with the desert managers group and the Desert Tortoise 
Management Oversight Group for the California Desert District 
for at least 4 years. And I can show you and prove to you that 
there is very little known about that Desert Tortoise.
    So, if we have a species there that is the poster child 
species that has virtually no science supporting it, imagine 
what the case is with all the other species. So, in my opinion, 
by demanding really good peer reviewed science, we are going--
it will lead to a situation that we all believe the ESA was 
originally intended to do: It will lead to showing us species 
that are truly seriously endangered and that we need to do 
something about, and it will wipe out 90 percent of the rest of 
the things that are based on pure biological opinion.
    Mr. Baca. Thank you. Because one of the things that you 
mentioned, and your advice is that you mentioned ESA--could you 
refine that?
    Mr. Denner. Yes, absolutely. From a recreation standpoint 
all forms of recreation have been restricted from use of public 
lands, and it is not just in California. All over the country 
because of actions taken under the ESA. And that goes right to 
the peer reviewed science question.
    The way it sits now Federal agencies take action based what 
they think are endangered species. And as I mentioned, the 
northern and eastern Colorado plan has 22 species within that 
plan, it's a two volume document like this, that are not listed 
at all. They are called sensitive species and species of 
concern. And the very same actions are being taken for those 
species because the argument is that if they take action now, 
they will not get on the endangered species list. Well, what is 
the difference? If they are treating like endangered species 
and closing lands to the public for recreation and cattle 
grazing and that sort of thing just because they suspect some 
day they might be listed, you know, I think that shows the 
impact of what is happening directly to recreation, certainly, 
and other activities like cattle grazing are suffering the same 
consequences.
    Mr. Baca. Thank you.
    Mr. Thornton, today we have heard a lot of testimony on the 
high cost of communications and economic impact in the area of 
the protection of the species. Do you think it would be helpful 
for the Administration to issue a regulation or policy 
guideline explaining the methodology to be used to analyze 
economic impact on critical habitat designation?
    Mr. Thornton. I do. I think it would need to be done by 
regulation for it really to stick. And there has been, I must 
say, some progress made since the court decisions invalidated 
the Service's prior approach. But I do think there should be a 
regulation that defines the methodology to be employed. And I 
think methodology, by the way, ought to include an analysis of 
cumulative effects. None of the analyses today look at any 
cumulative effects.
    Mr. Baca. Thank you.
    Dr. Silver, question one, as Mayor Nuaimi mentioned in his 
testimony, at what point should the Fish and Wildlife Service 
declare that a species is beyond recovery? Two, in your 
opinion, what does it take to call out the God squad? And, 
three, what scientific evidence is needed?
    Dr. Silver. We have had a lot of species that have been 
reduced to almost numbers that you can count on one hand, yet 
we have not given up. I mean, we have tried to captive breed 
species, reintroduce them. And it is not really about the Delhi 
Sands Fly. It is about the ecosystem of a fly, the sand dunes, 
the whole community of life. I think it is a very worthwhile 
effort to try to keep this system going, to have a conservation 
plan for it.
    So, I do not think it is time to give up. I have talked 
with scientists who have studied the fly and they believe that 
there are habitat areas of sufficient size that have sufficient 
relationship to the winds and to the dune formation that you 
can have something that has long-term biological viability. So, 
I do not think the fly is at that point that even some of other 
species reached, that you are into this--there is just a few--
literally a few of them left and you are almost into a zoo 
situation. I do not think we are at that point.
    I would have to brush up on the God squad to find out 
exactly how that God squad is triggered and the requirements 
for decisionmaking. I do know it has been used very rarely. And 
I do not think it really solves the problem. The problem is how 
can we get along and have economic development, have the 
species conservation and work out the solutions. And that is 
the direction that I think we need to move.
    Mr. Baca. Dr. Silver, one of the biggest complaints we have 
heard today, especially the Delhi Sands Flower-Loving Fly is 
that it is not really known how many currently exist right now. 
Is it not possible to tag a fly and know where they go when the 
Santa Ana winds blow? Would it provide more incentives to 
landowners to come up with their own HCPs if more of the Fish 
and Wildlife Service budget was focused on science and whether 
a species should be considered endangered or threatened?
    Dr. Silver. I certainly would not argue with providing the 
Service more resources to do the proper studies. I think that 
certainly makes good sense. But I do not think you want to 
delay and obstruct things that need to be done. If a species 
needs to be listed, they do need to use the best available 
science and proceed.
    In terms of the fly, the funny thing is it is really, you 
know, in some ways a fairly resistant animal. It has been found 
in places that have been even graded and compacted. It has 
adapted to the sand. It has adapted to the Santa Ana winds. And 
it is one of the things that has caused problems, and I am sure 
the elected officials will know that the fly tends to reinhabit 
areas that even have been intensively disturbed. So, I think it 
gives us some optimism that if we can identify some core areas 
that do have long-term viability; generally part of the HCP 
process is that other areas that do not have the long-term 
viability are developed, mitigation is done. That's the nature 
of the problem solving plan. So, you know, I say we have had 
problems, things have not worked out so far. I am in no 
position to sort out the fault of the Service, the fault of the 
jurisdictions, the fault of private developers. I have not been 
engaged, I have not been asked to be part, like I said, the 
Stakeholder Advisory Committee to try to help. The only thing I 
can do is say that I am here to give it a try.
    Mr. Baca. Thank you.
    I know that my time has run out. But one final--two final 
questions to determination--one is have you ever seen the fly?
    Dr. Silver. I have not seen a fly that is alive. I have a 
specimen. And it is impressive for an insect. It is not a house 
fly type appearing animal. And I have seen the dunes. So, I 
have seen where they live. But, no, I have not seen a live 
animal.
    Mr. Baca. Because we have seen a lot of life around the 
areas of the preserve in that area and it is devastating to a 
lot of our communities.
    Well, let me ask you this final question: Do you have any 
recommendations as to how to provide more incentives for 
landowners and cities to enter into the regional habitat 
conservation plans?
    Dr. Silver. Well, I have always believed that the no 
surprises policy is an incentive, and that is one reason why 
our group has supported it. I do think you need to provide the 
incentive of planning monies. Local governments are typically 
short of cash. The planning, you know for a few hundred 
thousand dollars in planning monies, you can really get a big 
bang for that buck. So, I think that is an important incentive.
    There is a lot of incentive programs that have been 
developed for the ESA in terms of, you know, easements or 
management agreements, long-term management plans. You know, 
here in this area which is more urbanized maybe some of those 
do not really apply. But I think the planning money is 
important. I think the assurances are an important incentive. 
But there clearly have been some problems in this area that 
have been so far inattractable. And I think, as one of the 
elected officials mentioned the fact that so much of the 
habitat is in Colton, how does Colton, in essence, get enough 
revenues to keep its city government going given the amount of 
the habitat. And I think that is where it strikes me that if 
you got the private sector involved, the business community, 
the local governments, conservationists working together to 
look at these financial issues, that is where you know maybe 
that would get finally get us over the hurdle here that we need 
to get to.
    But in terms of your question, I think the planning monies 
would be absolutely necessary, and I have found assurances to 
be an important incentives for local governments.
    Mr. Baca. Thank you very much. Because you know it is a 
form of taxation in one sense and people have to--lands and 
cities just do not have the revenue. So, it is a form of 
taxation and burden that is on the communities at that point in 
terms of further development. And then our constituents that 
end up paying through other forms of taxes that are imposed 
upon them. And that is totally unfair. Hopefully we can look at 
some recommendations and to look at solving this particular 
problem.
    Again, thank you very much.
    Dr. Silver. Thank you.
    Mr. Baca. Mr. Chairman.
    Mr. Pombo. Mr. Radanovich?
    Mr. Radanovich. Thank you, Mr. Chairman.
    I appreciate your testimony, Dr. Silver. I would like to 
hear a reaction to your statement about successes in Riverside 
County and other counties and the lack of success in San 
Bernardino County and the need for a stakeholder process that 
might be a solution to it, but most of the people that would 
respond were probably in the previous panel, who I assume are 
in San Bernardino County.
    Can anybody respond to that? I mean, has it been a lack of 
just not going through the stakeholder process here that has 
caused and maybe prolonged some of the difficulty?
    Dr. Silver. Well, when I have looked at the differences 
between, say, western Riverside and San Bernardino, that is 
what really struck me was the fact that a number of years ago 
the multiple species plan that was at that time led by the 
county, and this is back 10 years ago, it just did not get off 
the ground. And we never had the formal process, we never had a 
formal stakeholder advisory committee. And so that struck me as 
the difference because I know how important it has been to have 
stakeholder group, build consensus, look at reserve 
alternatives, look at the biology, look at financial, potential 
financial solutions. And I just have seen that as a difference.
    So, I would certainly as you would like to hear the 
response of the elected officials, maybe we are at the point 
where there is nothing to lose by giving a shot. So, I would 
certainly volunteer to help.
    Mr. Radanovich. Can I request that any response be provided 
in writing rather than--I would like that to be done. Thank 
you.
    Mr. Pombo. Dr. Silver, in light of your comments and Mr. 
Radanovich's questions, I probably had more people from 
Riverside County in my office complaining about the process 
that they have gone through over the last 10 years than any 
other county in the country. And I have become a very reluctant 
supporter of these habitat conservation plans because the way 
that the law is being implemented today, I do not see any other 
way of having economic development in the county unless you 
adopt some kind of a regional habitat conservation plan. But in 
light of recent court decisions, I am not sure that these HCPs 
mean anything anymore. And, you know, I went through a ten or 
12 year process in my home county working toward developing an 
HCP, so I know how painful and expensive that process is. And I 
am just not sure what they mean today as opposed to what we had 
worked on for some long.
    I do not know where your group or you personally are in 
this whole process, but it seems to me like no matter what 
solution we ultimately come up with for dealing with this, 
there is someone that comes out with a lawsuit. And if they 
find the right judge, it gets thrown out. And how do you 
respond to that? I mean, how do we move forward if we keep 
having lawsuits no matter which way we go?
    Dr. Silver. I think it is really a fair question. And, you 
know, Rob brought forward this new decision. I have--I am 
really just learning about it. But certainly I would be very 
concerned if that decision adversely affected the Riverside 
plan and the San Diego plan.
    Mr. Pombo. I do not know how it couldn't.
    Dr. Silver. Right. So, you know, I share that concern. And 
my view, these large scale HCPs, the natural community 
conservation plans, whatever you want to call them, should be 
de facto recovery plans. That is how I have always looked at 
them, and that has been my goal to make sure they do meet that 
bar that they are an ecosystem plan that has the conductivity 
and the natural systems can keep going; so they do meet that 
recovery bar. And if they do, I think there should be certainty 
and assurances and the plan should function. So, I agree with 
you on that.
    Mr. Pombo. Well, listening to your testimony and listening 
to you talk about this, I think you're sincere in your attempts 
to try to do something with this. And I guess this is a story 
that is yet to be written. But in my reading of that opinion it 
takes the basis for the HCPs that we started on and says that 
does not count anymore.
    Dr. Silver. Yes.
    Mr. Pombo. So, anything we did after that, I am not sure 
what it means. And it may not be you and your group, but 
somebody else is going to come along and file a lawsuit when 
they want to stop something from going forward. And we will end 
up with--whether it is San Diego or Riverside County's HCPs 
being thrown out, and we are back to where we were before which 
quite frankly is why the Committee has worked over the last 
several years toward looking at what really does have to change 
with the Endangered Species Act in order to make it work.
    I mean, none of us have ever proposed that we appeal the 
Act or that we gut the Act, or that we take away the 
protections in the Act. If you ever actually look at the 
Cardoza bill or what Walden's doing, you may agree or disagree 
with the fine points of it, but none of that is intended to 
destroy the Act. We are just trying to make it so that, you 
know, the mayor of Fontana can have economic development. I 
mean, that is kind of what we are trying to do with all of 
this. And that is one of the things that has proven to be so 
frustrating over the years is that people talk beyond each 
other instead of actually looking at what we are trying to do. 
And that gets frustrating for me and I know the rest of the 
Committee when we are trying to work on this issue, because it 
is such an emotional issue.
    Dr. Silver. I agree with you.
    Mr. Thornton. Mr. Chairman, maybe just a one comment 
follow-up.
    First, Dr. Silver and his organization has been a real 
constructive participant in the Southern California planning 
process, but you really put your finger on the problem. And 
there are a number of environmental organizations; 
Environmental Defense, The Nature Conservancy and others that 
have really played a constructive role in promoting regional 
conservational planning with assurances. We have, however, 
pending in the District Court in the District of Columbia a 
lawsuit brought by a number of environmental organizations 
challenging the validity of the no surprises rule. We have this 
lawsuit brought that invalidated the Northwest Forest Plan. So, 
that is a fundamental problem that really only Congress can 
solve: Codify the ``no surprises'' rule; make it legally 
meaningful; and deal with the jeopardy presented by Gifford 
Pinchot
    Mr. Pombo. I believe that if you go back and look at the 
original Endangered Species Act as it was written and as it was 
implemented, it is very difficult to find a problem. But most 
of the problems that we have developed over the last 30 years 
have come in court cases and regulations have developed. And if 
we could go back to what the original intention of the Act was, 
it would eliminate a lot of problems. We cannot do that, so now 
we have to go look at the Act and all of those court decisions 
over the last 30 years and how do we fix what has happened so 
that we can get to some form of balance in the way this Act is 
being implemented. And that is the effort that the Committee 
has made over the last several years. And hopefully we will get 
to the point where we can bring a little bit of balance back 
into the way this thing is being implemented. Because, you 
know, as you heard from the mayors and city council member, 
this is being used to achieve other things. It is not just 
about saving endangered species anymore. It has become a way of 
controlling land use with a Federal hand.
    Mr. Denner, what you have come to us with, it is the same 
problem but it is a different area in terms of a lot of what 
you and your members do is involving Federal lands. And I 
forget the exact the Desert Protection Act, was it 8 million 
acres?
    Mr. Denner. Yes. It was right around 8 million acres of a 
25 billion acre desert.
    Mr. Pombo. So, we set aside and that was when I first 
became a Member of Congress, we had the fun of the Desert 
Protection Act moving through Congress. And at that time that 
was the be all, the end all protection of the California 
desert. We were going to set aside 8 million acres and that was 
going to be, you know, protected forever. And the idea at the 
time, and I specifically remember the testimony and debate on 
the Floor. We are going to set aside a third of the desert to 
be permanently protected, and the rest of it is going to be 
managed for multiple use. So, people like you and others that 
use the Federal lands, the public lands, OK you cannot use this 
8 million anymore but the rest of it you can still use. And we 
have watched over the last almost 12 years that that has 
gradually gotten to the point where there is little or anything 
left that there is really public access on that is managed as 
multiple use.
    You look at what Mr. Thornton is talking about in terms of 
critical habitat designations and what that means to the State, 
what the Federal lands are, but that does not even take into 
account the public lands that we cannot touch anymore, that 
people really cannot go out on. So, you know, the impact on a 
State like California is immense. And the economic impact on a 
certain area is immense.
    You know, when we went through the Desert Protection Act 
the story was OK you are going to lose all this economic 
activity because we are going to set aside this 8 million 
acres. But we will make up for it in increased recreational use 
because we will have more people going out to these areas to--
in a form of recreation and that will bolster the economies of 
the surrounding counties and cities. Well, it was not very long 
after that that they said well no you cannot go out there. So, 
what happened to the recreation? What happened to the tours? 
And we said no. So, this is an issue that, you know, it all 
gets wrapped up inside a number of bills and legislation and 
how we are going to try to proceed with this. But I happen to 
believe that there is a way that we can bring balance to this 
so that the things that Dr. Silver cares about and talks about 
can be protected and people like Mr. Denner and the people he 
represents can use the public lands and we can have economic 
development and build affordable housing. I do not think that 
all of this is mutually exclusive. I think that there is a way 
to do this. You just have to quit filing lawsuits and let us do 
something.
    I want to thank this panel. This has been--
    Mr. Denner. Could I respond to that quickly?
    Mr. Pombo. Yes.
    Mr. Denner. I think the real problem is that most people, 
particularly recreationalists and not just OHV recreation, over 
the years have compromised.
    You pointed to the Desert Protection Act. We finally, you 
know we fought that, we wanted to minimize it and we finally 
said OK, this is it. This is fair, let us do it, and we 
compromised.
    The problem that we have is that the environmental 
organizations will not compromise. They want to save every last 
single bug and weed on this planet, you know. And I represent 
businesses. And every one of my businessmen, every day when he 
gets up, has to make a decision about how he is going to invest 
his resources today. Well, it is time we start looking at what 
resources are available to implement the Endangered Species 
Act. Maybe we have to give up the sand fly to protect the Big 
Horn Sheep.
    I voted on the advisory council to set aside the Santa Rosa 
monument to preserve, to set it aside as a conservation area 
for the Big Horn Sheep. That makes a lot of sense to me. To 
stop development in Riverside and San Bernardino because of a 
fly makes no sense to me. Maybe it is time that they start 
saying OK maybe we have to compromise. Maybe we are going to 
lose some of these issues, but if we can come up with something 
that works for everybody, you know, that represents a 
compromise, then we can get the job done.
    The way it is now with then suing on every single species 
that exists, we are never going to get there. We cannot fund 
it.
    Mr. Pombo. I want to thank this panel for your testimony. 
It has been very informative for me and I am sure the other 
members of the Committee. So, thank you.
    I would like to call up our final witness, Ms. Julie 
MacDonald, U.S. Department of the Interior.
    Mr. Pombo. Ms. MacDonald, if I could have you stand and 
raise your right hand.
    [Witness sworn]
    Mr. Pombo. Thank you.
    Let the record show she answered in the affirmative.
    Welcome to the Committee. I think we are all anticipating 
your testimony, so when you are ready, you can begin.

 STATEMENT OF JULIE MACDONALD, DEPUTY ASSISTANT SECRETARY FOR 
  FISH AND WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE INTERIOR

    Ms. MacDonald. Mr. Chairman, members of the Committee, I am 
Julie MacDonald, Deputy Assistant Secretary for Fish and 
Wildlife and Parks at the Department of the Interior.
    I am very happy to appear before you today and discuss the 
Act. We appreciate the Committee's interest in examining the 
impact of the Endangered Species Act on Southern California. 
Given the large amount of Federal land in Southern California, 
we are acutely aware of the of the regulatory decisions we make 
can profoundly impact local communities.
    This Administration believes that conservation does not 
have to come at the expense of local needs, and we are 
committed to achieving a balance. This commitment means 
emphasizing cooperative approaches to the recovery of 
endangered and threatened species. But while we have made great 
strides in improving the administration of the Act, one area of 
implementation that continues to be both a challenge and a 
source of controversy as everybody has noted here today is the 
designation of critical habitat.
    As we have previously detailed in testimony before the 
Committee, the Service has been embroiled in a relentless cycle 
of litigation over the listing and critical habitat provisions 
of the Act.
    In the past and currently, the Service has characterized 
the designation of critical habitat as the most costly and 
least effective class of regulatory actions they undertake. It 
is often of little additional value or counterproductive and 
can result in negative public sentiment to the species and to 
the Act itself. This is fueled by inaccuracies in the initial 
area designated when we must act with inadequate information to 
meet strict statutory deadlines. Because of its limitations for 
many years, the Service often found designation of critical 
habitat to be not prudent, an approach that was formalized by 
the previous Administration. In the late 1990s critics began 
challenging those findings in court. The lawsuits subjected the 
Service to an ever increasing series of court orders which now 
consume nearly the entire listing program budget.
    The accelerated schedules of court-ordered designations 
have left the Service with limited ability to take additional 
time to ensure the rules address all the pertinent issues 
before making decisions. This in turn fosters a second round of 
litigation in which those who were suffer adverse impacts from 
the decisions challenge them. The cycle of litigation appears 
endless, is very expensive, and provides relatively little 
protection to the listed species.
    Experience has now shown that the courts are equally 
constrained by the language of the Act. The Department of 
Justice has sought to secure relief to allow the Service to 
regain the ability to prioritize their work. Almost 
universally, the courts have declined to grant that relief.
    In 2001, a Federal district judge observed that ``the 
Secretary is caught in a quandary'' in trying to ``fulfill the 
myriad of mandatory ESA duties.'' The judge opined that ``more 
lawsuits will inevitably follow'' unless, among other things, 
the Service regains its discretion to prioritize. The judge 
suggested that a legislative solution is necessary; otherwise 
``tax dollars will be spent not on protecting species, but on 
fighting losing battle after losing battle in court.''
    Other courts have agreed with this assessment. Simply put, 
the listing and critical habitat program is now operated in a 
``first to the courthouse'' mode, with each new court order or 
settlement taking its place at the end of an ever-lengthening 
time. At this point with insisting court orders we are funding 
up until 2008 is consumed and we have currently 72 additional 
lawsuits pending related to critical habitat or listing.
    In short, litigation over critical habitat has hijacked the 
program.
    The Department and the Congress must work together to 
determine how to get the most value for species conservation 
out of the Federal resources devoted to the endangering species 
listing program. However, critical habitat deficiencies are not 
the only aspect of species conservation we address. As a matter 
of policy, the Administration pursues more modern and effective 
conservation strategies. As a result we have formed 
conservation partnerships with States, tribes and non-
governmental organizations. And through these various 
partnership, encourage private stewardship by individuals and 
businesses. These efforts improve the health of our lands, 
forests, rivers and other ecosystems and their implementation 
provides far greater conservation benefits than those we could 
compel through regulatory action.
    For example, through the Canada Conservation program the 
Service can work with States, landowners and others to 
voluntarily conserve declining species. The Services works to 
identify the species for which listing under the ESA is a 
possibility and provides information and planning assistance 
and resources to facilitate voluntary partnerships and 
agreements. The results can contribute to removing the threats 
that might otherwise necessitate listing under the Act.
    Most recently, a candidate conservation agreement developed 
by the Bureau of Land Management, State of Idaho, Idaho 
National Guard and several private property owners served as 
part of the basis for the Service's determination to withdraw 
is proposal to list the slickspot peppergrass. This is an 
outstanding example that listing a species in designated 
critical habitat is not necessarily the only way to achieve 
conservation.
    Similar to Canada Conservation Agreements, Safe Harbor 
Agreements are also a means to achieve property owner support 
for species conservation on their land. Under safe harbor 
agreements, property owners who implement voluntary 
conservation measures for listed species receive assurances of 
no additional future regulatory restrictions.
    The Habitat Conservation Planning Program, HCPs that 
everybody's been talking about, provides a process for 
permitting the incidental take of threatened and endangered 
species and allows applicants to identify local methods to 
achieve compliance with the ESA.
    Conversation banks are lands acquired by third parties 
managed for specific endangered species and protected 
permanently by conservation easements. They help reduce 
piecemeal approaches to conservation by establishing larger 
reserves and enhancing habitat while saving time and money for 
landowners. In 2003, the Service announced new guidelines to 
facilitate the use and development of these banks.
    Another way that we have improved administration of the Act 
is by avoiding duplicative regulation. It is our view that 
where programs provide for species conservation and management, 
critical habitat designation is not needed. Section 3 of the 
Act states that critical habitat is defined as those areas 
occupied by the species, which may require special management 
considerations or protections. It has been our view that areas 
that are not in need of special management considerations or 
protection are outside the definition of critical habitat and 
are therefore excluded from designation.
    Now, I might note that one district court has opined that 
that is not a valid reading of the Act, but we continue to make 
those findings.
    Conserving California's natural resources while 
accommodating the projected population growth has required 
innovative use of cooperative conservation in administering the 
Act. For example, In July of 2004 the Service approved the 
Western Riverside County Multiple Species Habitat Conservation 
plan, the plan that everybody has been talking about. Under 
this landmark agreement a proposed 500,000 acre reserve system 
as created as habitat for 146 species through the combined 
efforts of Federal, State and local partners. Because of this, 
the City of Riverside and local jurisdictions will be able to 
proceed with economic development projects while fully 
complying with the mandates of the Act.
    As we continue to encourage voluntary ecosystem-based 
approaches in administering the HCP program, we hope that the 
Riverside County Multiple Species Habitat Conservation will 
serve as an example. And, again, it has been mentioned before, 
these habitat conservation programs have been excluded from 
critical habitat designations.
    These tools, voluntary and multiple species and regional 
plans, will become all the more important as Southern 
California continues to experience unprecedented growth.
    In closing, I would like to reiterate our commitment to 
working with Congress to find a solution to the problems 
associated with critical habitat designation and other related 
issues. At the same time, the Department will continue to 
strengthen our partnerships and expand the use of cooperative 
conservation tools. It is our goal to emphasize to use 
cooperative conservation to involve local communities and use 
all the tools at our disposal to implement programs that will 
eliminate the need for listing by conserving species before 
they become threatened.
    And that concludes my comments, my prepared remarks anyway.
    [The prepared statement of Ms. MacDonald follows:]

 Statement of Julie MacDonald, Deputy Assistant Secretary for Fish and 
          Wildlife and Parks, U.S. Department of the Interior

    Mr. Chairman and Members of the Committee, I am Julie MacDonald, 
Deputy Assistant Secretary for Fish and Wildlife and Parks in the 
Department of the Interior (Department). I am pleased to appear before 
you today to discuss the Endangered Species Act (ESA or Act).
    We appreciate the Committee's interest in examining the impact of 
the ESA on Southern California, an area of great biological and 
ecosystem diversity and one of the fastest growing regions in the 
United States. Given the large amount of federal lands in Southern 
California, we are acutely aware that the resource management decisions 
we make can profoundly impact local communities. However, we believe 
that resource management does not need to come at the expense of the 
needs of local communities, and the Administration is committed to 
achieving a balance between conservation and growth using all the 
available tools. At the Department, this commitment means implementing 
a cooperative approach toward the recovery of endangered and threatened 
species through the development of partnerships with states, tribes, 
landowners, and other stakeholders. To that end, I would like to 
discuss how the Administration is working to make implementation of the 
ESA more efficient and effective.
Designation of Critical Habitat
    While the Department has made great strides in improving the 
administration of the ESA, one area of implementation that continues to 
be both a challenge and a source of controversy is the designation of 
critical habitat. As we have previously detailed in testimony before 
this Committee, the U.S. Fish and Wildlife Service (the Service) has 
been embroiled in a relentless cycle of litigation over its 
implementation of the listing and critical habitat provisions of the 
Act. The Service now faces a Section 4 program facing serious 
difficulties due not to agency inertia or neglect, but to a lack of 
scientific or management discretion to focus available resources on the 
listing actions that provide the greatest benefit to those species in 
greatest need of conservation.
    The Service has characterized the designation of critical habitat 
as required by the Act as the most costly and least effective class of 
regulatory actions undertaken by the Service. It is often of little 
additional value or counterproductive and can result in negative public 
sentiment to the species and the Act itself. This negative public 
sentiment is fueled by inaccuracies in the initial area designated when 
we must act with inadequate information to meet strict statutory 
deadlines. For example, under the Act, the Service is required to 
designate critical habitat concurrent with a final listing 
determination, using the best scientific data available. Unfortunately, 
in some circumstances, the information supporting such designations 
have later been found to be incomplete, sometimes resulting in a cycle 
of litigation, described in further detail below.
    In addition, there is often a misconception among the public that, 
if an area is outside of the designated critical habitat, it is of no 
value to the species. At the same time, the designation of critical 
habitat imposes burdensome requirements on federal agencies and 
landowners and can create significant economic and social turmoil.
    As a result, for many years the Service often found designation of 
critical habitat to be ``not prudent,'' and did not designate it for 
most listed species; an approach which was formalized by the previous 
administration. In the late 1990s, some critics began challenging these 
``not prudent'' findings in court; those successes led to a flood of 
additional suits which continue to this day. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. Consequently, the 
Service has little ability to prioritize its activities to direct 
resources to listing program actions that would provide the greatest 
conservation benefit to those species in need of attention. The 
previous Administration recognized this when it said that lawsuits 
which force the Service to designate critical habitat necessitate the 
diversion of scarce Federal resources from imperiled but unlisted 
species which do not yet benefit from the protections of the ESA.
    The accelerated schedules of court-ordered designations have left 
the Service with limited ability to take additional time for review of 
comments and information to ensure the rule has addressed all the 
pertinent issues before making decisions on listing and critical 
habitat proposals, due to the risks associated with noncompliance with 
judicially imposed deadlines. This in turn fosters a second round of 
litigation in which those who will suffer adverse impacts from these 
decisions challenge them. This cycle of litigation appears endless, is 
very expensive, and in the final analysis provides relatively little 
protection to listed species.
    Extensive litigation has shown that the courts cannot be expected 
to provide either relief or an answer, because they are equally 
constrained by the strict language of the Act. The Department of 
Justice has defended these lawsuits and sought to secure relief from 
the courts to allow the Service to regain the ability to prioritize the 
listing program according to biological need. Almost universally, the 
courts have declined to grant that relief.
    In 2001, a federal district judge, in Center for Biological 
Diversity v. Norton, No. CIV 01-0258 PK/RLP (ACE), observed that ``the 
Secretary is caught in a quandary'' in trying to ``fulfill the myriad 
of mandatory [ESA] duties.'' The judge opined that ``[m]ore lawsuits 
will inevitably follow'' unless, among other things, the Service 
regains its discretion to prioritize its workload. The judge suggested 
that a legislative solution is necessary; otherwise ``tax dollars will 
be spent not on protecting species, but on fighting losing battle after 
losing battle in court.''
    Other courts have agreed with this assessment. Simply put, the 
listing and critical habitat program is now operated in a ``first to 
the courthouse'' mode, with each new court order or settlement taking 
its place at the end of an ever-lengthening line. We are no longer 
operating under a rational system that allows us to prioritize 
resources to address the most significant biological needs. I should 
note that it is as a direct result of this litigation that we have had 
to request a critical habitat listing subcap in our appropriations 
request the last several fiscal years in order to protect the funding 
for other ESA programs. At this point, compliance with existing court 
orders and court-approved settlement agreements will likely require 
funding into Fiscal Year 2008.
    The Administration's budget request for FY 2005 provides funding to 
meet resource protection goals and address the growing listing program 
litigation-driven workload. The requested increase includes a total of 
$13.7 million for critical habitat for already listed species. This is 
an increase of $4.8 million over the FY 2004 funding level. The 
increased funding will allow the Service to meet its current and 
anticipated court orders for the designation of critical habitat for 
already listed species. In this regard, I would note that as of August 
23, 2004, there were 72 lawsuits pending or expressly threatened 
related to critical habitat or other section 4 actions. In short, 
litigation over critical habitat has hijacked the program.
    However, additional funding to stem the tide of this ``deadline'' 
litigation is not the solution. When Congress included strict deadlines 
to ensure that listing measures are completed in a timely manner they 
could not have foreseen that litigation over deadlines would highjack 
the program. This highlights the need for a specific legislative 
solution. The Department and the Congress must work together to 
determine how to get the most value for species conservation out of the 
federal resources devoted to the endangered species listing program.
    Former Secretary Bruce Babbitt wrote in a New York Times op-ed 
piece in April 2001 that, in its struggle to keep up with court orders, 
the Service has diverted its best scientists and much of its budget for 
the ESA away from more important tasks like evaluating candidates for 
listing and providing other protections for species on the brink of 
extinction. We also believe that available resources should be spent 
focusing on actions that directly benefit species such as improving the 
consultation process, development and implementation of recovery plans, 
and voluntary partnerships with states, tribes, and private landowners.
    Some of the more significant and efficacious elements of a modern 
conservation strategy that we have pursued include candidate 
conservation agreements, habitat conservation plans, safe harbor 
agreements, voluntary agreements with landowners such as through the 
Service's Partners for Fish and Wildlife Program, incentive-based 
actions such as those carried out under the Service's Landowner 
Incentive Program, partnerships with states, tribes, and 
nongovernmental organizations, and private stewardship efforts by 
individuals and businesses. These programs, which consist of combined 
private and governmental action, improve the health of our lands, 
forests, rivers, and other ecosystems. Their implementation provides 
far greater conservation benefits than the designation of critical 
habitat while avoiding the regulatory, economic and social 
disadvantages of critical habitat designations.
Habitat Protection through Cooperative Conservation
    We are continually working to find new and better ways to encourage 
voluntary conservation initiatives. Indeed, the Service currently has 
many conservation tools available which provide for close cooperation 
with private landowners, state, tribal, and local governments, and 
other non-federal partners that are particularly important in our 
implementation of the ESA. For example, through the Candidate 
Conservation program, the Service can work with states, landowners, and 
other non-federal partners to voluntarily conserve candidate or other 
declining species. Under this program, the Service works to identify 
species that face threats that make listing under the ESA a possibility 
and provides information, planning assistance, and resources to 
encourage voluntary partnerships and agreements. These resulting 
conservation agreements or plans may contribute to removing the threats 
that might otherwise necessitate listing under the ESA.
    Most recently, a Candidate Conservation Agreement, developed by the 
Bureau of Land Management (BLM), the State of Idaho, the Idaho Army 
National Guard, and several private property owners who hold BLM 
grazing permits, served as part of the basis for the Service's 
determination to withdraw its proposal to list the slickspot 
peppergrass (Lepidium papilliferum). Among other information central to 
the Service's decision to withdraw the proposal, this formalized 
agreement was determined to reduce risk to the slickspot peppergrass 
such that this species is unlikely to become endangered within the 
foreseeable future. The slickspot peppergrass story is an outstanding 
example that listing a species and designating critical habitat is not 
necessarily the only means to achieve conservation.
    Similar to Candidate Conservation Agreements, Safe Harbor 
Agreements also serve as a means to garner non-Federal property owners' 
support for species conservation on their lands. Under Safe Harbor 
Agreements, non-Federal property owners who commit to implement 
voluntary conservation measures for listed species will receive 
assurances that no additional future regulatory restrictions will be 
imposed.
    In addition, the Habitat Conservation Planning Program provides a 
flexible process for permitting the incidental take of threatened and 
endangered species during the course of implementing otherwise-lawful 
activities. The program encourages applicants to explore different 
methods to achieve compliance with the ESA and to choose the approach 
that best meets their needs. Perhaps the Program's greatest strength is 
that it encourages locally developed solutions to listed species 
conservation, while providing certainty to permit holders. Through this 
process of consultation and cooperation with our partners, the Program 
helps provide for the conservation of listed species on non-federal 
land throughout the country.
    On May 8, 2003, the Service announced a new conservation banking 
guidance to help reduce piecemeal approaches to conservation by 
establishing larger reserves and enhancing habitat connectivity, while 
saving time and money for landowners. This guidance, which has been in 
place since May 2003, details how, when, and where the Service will use 
this collaborative, incentive-based approach to species conservation.
    Conservation banks are lands acquired by third parties, managed for 
specific endangered species and protected permanently by conservation 
easements. They may also help avoid the need for designation of 
critical habitat. Banks may sell a fixed number of mitigation credits 
to developers to offset adverse effects on a species elsewhere.
Critical Habitat Exclusions
    These are among the many conservation tools we use that play an 
important role in our implementation of the ESA. It is our view that 
where programs provide for species conservation and management, 
critical habitat designation is not needed. Our support for this 
interpretation is derived from the definition of ``critical habitat'' 
under Section 3 of the Act which states that critical habitat includes 
areas occupied by the species ``on which are found those physical or 
biological features (I) essential to the conservation of the species 
and (II) which may require special management considerations or 
protection.'' It has been our view that areas that are not in need of 
special management considerations or protections are outside the 
definition of ``critical habitat,'' and are, therefore, excluded from 
designation.
    However, a court decision in the District of Arizona has cast doubt 
on this interpretation. In a case involving Forest Service lands, the 
U.S. District Court in Arizona ruled that this interpretation is 
incorrect, and found that the fact that lands require special 
management necessitates their inclusion in, not exclusion from, 
critical habitat.
    Although the decision is limited to the critical habitat 
designation at issue in that case, it may negatively affect our future 
ability to use this interpretation of ``critical habitat'' elsewhere. 
The Service uses other methods besides this policy to encourage 
voluntary and cooperative conservation. For example, Section 4(b)(2) of 
the ESA allows the Department to exclude areas if the benefit of 
exclusion outweighs that of inclusion as long as it does not result in 
the extinction of the species. This Administration has used this 
provision to exclude lands subject to Habitat Conservation Plans and 
other conservation agreements or management strategies designed to 
conserve species.
Cooperative Conservation at Work in Southern California
    Deemed a ``biological hotspot'' by biologists and other 
researchers, Southern California supports a rich diversity of fish, 
wildlife, and plant species because of the area's unique geological, 
hydrological, climatic, and topographic characteristics. As one of the 
most ecologically diverse areas in the country, Southern California has 
approximately 100 species listed as threatened or endangered under the 
Act. In the State of California alone, there are 292 federally listed 
species, 2 proposed, 16 candidate species, as of June 24, 2004.
    The area is also one of the fastest growing regions in the United 
States. With a projected population of 19 million people, Southern 
California has five of the six most populous counties in the nation. 
Riverside County is one of California's fastest growing counties and 
its population of approximately 1.1 million in 1990 is projected to 
increase to 1.8 million by 2005. Orange County, although already very 
densely populated, will likely rise from its current level of 2.9 
million to just over 3 million within the next four years. San 
Bernardino County's population is also on the upswing, with an 
anticipated increase from 1.4 million residents in 1990 to almost 2 
million by 2005. Los Angeles County, already approaching the 10 million 
mark, is more populous than 42 of our Nation's states.
    Conserving California's natural resources, while accommodating the 
projected population growth, has required the innovative use of 
cooperative conservation in administering the ESA. For example, in June 
2004, the Service approved the Western Riverside County Multiple 
Species Habitat Conservation Plan(HCP). Under this landmark agreement, 
a proposed 500,000 acre reserve system was created as habitat for 146 
species through the combined efforts of federal, state, and local 
partners. Through this regional HCP, the County of Riverside and local 
jurisdictions will be able to proceed with economic development 
projects, while fully complying with the mandates of the Act.
    As we continue to improve upon a more holistic, ecosystem-based 
approach in administering the HCP program, it is our hope that the 
Western Riverside County Multiple Species Habitat Conservation Plan 
will serve as an example for future HCP's. As previously mentioned, 
pursuant to our authority under Section 4(b)2 of the Act, we have 
excluded lands that are subject to these plans from critical habitat 
designation.
    Such tools will become all the more important as Southern 
California continues to experience unprecedented growth.
Conclusion
    In closing, I would like to reiterate our commitment to working 
with Congress to find a solution to the problems associated with 
critical habitat designation and other related issues. At the same 
time, the Department will continue to strengthen our partnerships and 
expand the use of cooperative conservation tools. It is our goal to use 
cooperative conservation and the tools at our disposal to implement 
programs that will eliminate the need for listing by conserving species 
before they become threatened.
                                 ______
                                 
    Mr. Pombo. Well thank you.
    In light of the testimony we have heard this morning and to 
start with the fly and some of the issues that they have been 
dealing with. I think that one of the biggest complaints that I 
hear from local officials and property owners is that it is 
very difficult, if not impossible, to work with the Fish and 
Wildlife Service in this area and that there seems to be a real 
disconnect. I do not know if it is agenda-driven or attitude or 
exactly what it is, but there seems to be a large amount of 
consensus that in dealing with some of these issues that the 
Fish and Wildlife Service has been pretty difficult to deal 
with.
    And I am not sure exactly what the solution to that is, I 
mean in terms of dealing with some of these problems, but it 
seems to be very consistent that we do have a problem and maybe 
opening a new office in the Inland Empire is a possible 
solution or an option that we should pursue.
    Has the Department looked at opening a local office in San 
Bernardino County?
    Ms. MacDonald. It does not sound like we have done that 
specifically, but we are aware of the concerns that you have 
raised.
    The Cities of Fontana and Colton were in and talked to the 
Assistant Secretary last year. I was in that meeting. We are 
very aware of the difficulties around the fly.
    Steve Thompson, who was unable to be here today, has asked 
his assistant regional manager to be here and also Paul Henson, 
who is in a new position I think since we spoke to the city. 
Paul now overseas all the field offices. And Paul is here to 
listen to some of these concerns. Steve is concerned about 
this. Whether it is real or perceived does not really matter. 
But the disconnect between the people that the Service is 
serving and how they perceive the Service's attitude toward 
them, they are here to hear these comments and think about ways 
that we can address the concern; whether it is another field 
office locally, whether it is just more attention and work done 
on particular projects. But they are here to listen and to try 
to address these problems.
    Mr. Pombo. In terms of the HCPs, does the Fish and Wildlife 
Service intend on reevaluating what adverse modification means 
and the impact in terms of critical habitat? Where do we go 
from here in light of these recent court decisions?
    Ms. MacDonald. Well, you know, I can basically echo a lot 
of the concerns that Rob Thornton raised earlier in his 
testimony.
    We are still reviewing the case. But, you know, with the 
Federal government everybody has to look at it. But we are 
reviewing the case, we are reviewing the decision, we are 
reviewing our options. We do not disagree with the way that Rob 
characterized in his comments. I do not know that I would say 
that is our position, but those are certainly some of the 
consequences that we have identified as potential.
    We are still basically working through what are our options 
short term, medium term, long term. What does this mean for 
HCPs. What does this mean for critical habitat designations. 
What does this mean for biological opinions. The ramifications 
are considerable.
    So, I do not have a definitive answer for you in terms of 
where are we going to go from here, but I can tell you that 
this got our attention immediately and we have been working on 
it ever since.
    Mr. Pombo. Another issue that Mr. Thornton raised was the 
amount of land that has been designated or is being designated 
as critical habitat. Just looking at the numbers, and I am 
going to have to review his testimony further, but just looking 
at the numbers it looks like somewhere between 60 and 75 
percent of the State of California ends up being off limits 
because of critical habitat and the amount of land that is 
federally owned. But if you take the figures he used and add on 
top of that lands that are State owned, lands that are being 
included in habitat conservation plans and start layering all 
of these different conservation schemes and lands use plans 
that get put together, you end up with an extremely small 
portion of the State of California that can be developed, that 
there can be some kind of economic activity on.
    Does the Fish and Wildlife Service, does the Department 
ever look at this in this way and say, you know, we are not 
just talking about the Red Legged Frog or we are not just 
talking about the fly or the kangaroo rat, or whatever but look 
at it in its entirety and just look at California and look at 
what we have done over the last 20 years in terms of 
conservation and protecting lands, and what we have set aside, 
and all of that and layer all of this on top of each other and 
actually take a look at what that means? I think it would be a 
lot easier for local cities to plan their growth if you guys 
actually looked at this in its entirety instead of on a 
piecemeal basis.
    Ms. MacDonald. I think you are right. The short answer is 
no, we do not do that. But probably the most appropriate place 
for that to occur would be in the economic analysis that we do 
for critical habitat designations.
    I hate to be an apologist for inadequate review of some of 
this stuff, inadequate analysis. We do not have a lot of time 
to complete those because, again, the court-ordered deadlines 
force us to do a designation. We cannot do an economic analysis 
until we at least have a proposed designation, which really 
shortens the amount of time that is available to do the 
analysis.
    The cumulative effects of these designations are 
devastating. We do attempt to look at the big picture when the 
critical habitat designations come to the Assistant Secretary's 
office, and we exercise the authority that the Act gives us 
under Section 4.b.2 where we can make exclusions for economic 
or other reasons. We did that in the case of the Verna Pools. 
We had an economic analysis that gave us county-by-county 
information. What we did then in the Assistant Secretary's 
office was to take a look at the analog to the gross national 
product for each county and ask the question what is the 
percent impact on this county on their gross annual product of 
this listing, of this designation. And then we also looked at 
unemployment as a proxy for how much can they sustain in terms 
of a hit to their annual product. And we made exclusions based 
on that.
    We are in court now on those decisions because the 
environmental community did not think that we should do that.
    Mr. Pombo. Well, I know that over the last several years, 
and it predates this Administration, it does not matter what 
decision you make, you are going to get sued. I mean, that is 
just the way it happened. But I think just finally and for me, 
you know Mr. Denner, I have had the opportunity over the years 
to talk to him a number of times about what is happening in the 
California desert and what the impacts are on people. But I 
think what he is bringing out is just a snapshot of what is 
happening throughout all of California where, you know, we set 
aside the 8 million acres and then we sit on top of that, you 
know, Desert Tortoise and rats and Big Horn Sheep. And it just 
gradually gets to the point where there is nothing left.
    Ms. MacDonald. Right.
    Mr. Pombo. And I think if you look at what he is doing or 
what he is trying to do in protecting the people that he 
represents and look at the State of California in the same 
perspective, it has happened throughout the State of 
California. And that is why cities like Fontana and Colton and 
Rialto are coming to us saying you are killing us. And I think 
you need to look at it in that respect.
    I understand exactly what is happening with your budget and 
with your personnel. Because everything is being sucked up 
going and defending lawsuits and answering lawsuits and little 
of it is being used to actually do what you should be doing. I 
know that is frustrating for me so I am sure it is frustrating 
for you.
    I am going to recognize Mr. Baca.
    Mr. Baca. Thank you very much, Mr. Chairman.
    Thank you very much, Julie, for being here and listening to 
the comments that were said. And hopefully you can take those 
comments back to your office and come back with constructive 
guidelines in terms of how we deal with the problems that are 
impacting the Inland Empire, especially as we continue to see a 
lot of growth in this area and we see more and more people 
moving and housing and development that continues to be in this 
area. But we also want to get economic development, as well as 
to make it very good for a lot of our residents who live in the 
immediate area.
    Let me ask you this question, and I know that I am not the 
only Member of Congress in California who has difficulty in 
dealing with Carlsbad Fish and Wildlife Service. As you know, 
Congressman Ken Calvert requested a General Accounting Office 
audit to find out how efficiently things were running. The main 
complaint about was the time the office takes to move forward 
with habitat plan. As we heard from cities of Fontana today and 
others, the amount of red tape, waiting, back and forth is 
painful. And I want to quote what Mayor Bennett said. ``If a 
party wants to develop land they own within designated habitat, 
they must negotiate with the Fish and Wildlife in developing 
habitat conservation plans. And if you get a permit, you must 
buy habitat land at your costs plus pay for maintenance. 
Unfortunately, this process equates to nothing more than 
legalized extortion.''
    Can you elaborate on why the attitudes and feelings are 
there when they are trying to deal with the Fish and Wildlife 
Service and yet the cost and the burden that is on the cities 
such as Colton or maybe Fontana or others that are trying to 
have a conservation, yet there is a form of extortion or 
hostage that they are being held because of the time and the 
day and the response, and time is money? Can you elaborate on 
that, please?
    Ms. MacDonald. Yes. I would like to do two answers.
    First, I will answer more broadly on a policy basis and 
then I think I will ask Paul Henson to talk more specifically 
about the Carlsbad office and what his CNO office has been 
doing to address some of these problems.
    I think that part of the difficulty is the Act requires the 
Service to ensure that there's no jeopardy. That is the law. 
And these people are doing their job in terms of OK, you know, 
there are 15 flies that live on this--I am just making this 
up--those 10 acres. We only know of 25 flies. If you are going 
to use this 10 acres for something, we have to be able to make 
a reasonable argument that this project is not going to 
jeopardize the continued existence of this species. That is 
where you end up with, you know, OK three to one or two to one 
or one to one mitigation or other habitat that you have to buy 
and restore and maintain.
    So, to the extent that this discussion even takes place, 
the law forces it.
    Now I am going to ask--
    Mr. Baca. Can I just disrupt you just a second on this, 
Julie?
    Ms. MacDonald. Yes.
    Mr. Baca. When you look at it and are developing this, and 
you come up hypothetical numbers, does anybody come to inquire 
to find out if those numbers are even accurate? And has anybody 
ever seen the fly? Have you personally ever seen the fly?
    Ms. MacDonald. No.
    Mr. Baca. I mean, that is why when you look at it--
    Ms. MacDonald. The fly is like--
    Mr. Baca.--and you are using that as a legal documents to 
argue, then it makes it very difficult on other cities.
    Ms. MacDonald. Well, it is horrible because there is no 
information on this fly. Nobody ever sees the fly, but it is 
listed and the law says we have to protect it.
    Mr. Baca. Go ahead. I yield.
    Mr. Pombo. If the gentleman would yield for just a second.
    One of my big issues with mitigation is it seems to be 
based more on ability to pay than it does anything else.
    Ms. MacDonald. Paul, would you like to?
    Mr. Henson. I would be happy to answer questions.
    Mr. Pombo. Yes. You want to answer.
    Ms. MacDonald. Paul has more experience, I think, in the 
field.
    Mr. Pombo. Paul, just identify yourself for the record.
    Mr. Henson. Sure.
    Mr. Pombo. And you are more than welcome to answer the 
questions. But in more cases than not mitigation appears to be 
based on the ability to pay than it does with anything to do 
with the habitat.
    Mr. Henson. My name is Paul Henson. I'm Assistant Manager 
for U.S. Fish and Wildlife Service in Sacramento in our 
California/Nevada Operations Office.
    I do have sort of a ``buck stops here'' kind of 
responsibility on some of these issues, so I want to make that 
real clear to you up front, Congressman. And also to the mayors 
and the former council member here as well. I now supervise the 
Carlsbad office from Sacramento, as well as several other field 
offices in California and in Nevada. So, I came in part here, I 
was not asked to attend to testify or anything like that, but I 
wanted to hear some of these issues. I need to familiarize 
myself with these things and look into them a little more 
closely.
    On the mitigation issue, actually what you have described 
is accurate. And in Section 10, our HCPs that we have been 
talking about and maybe Rob Thornton had something to do with 
this something 20 years ago, mitigation is supposed to be 
provided to the maximum extent practicable. And that definition 
of what is practicable--this is in the Section 10 context, not 
in some of these other Section 7 issues. But that definition of 
practicable assumes a certain reasonableness, a certain what 
is, say, a large--say in the timber arena, a large company like 
Warehouser what they're able to do and what a small single 
family business owner can provide. So, there is a certain 
interpretation of that, but that is a very difficult thing to 
render because there is consistency issues.
    Now, in terms of mitigation in this context of Section 7 
with, say, the Federal highway projects here in your 
neighborhood, we do not require mitigation in that context. If 
an agency like the Army Corps is doing a Clean Water Act 
permit, they do have a mitigation function and requirement. But 
the Service does not in Section 7, we have to do two things. We 
have to avoid jeopardy to the species in our biological 
opinion, make sure that happens. And then second if take is 
going to occur in that action, we permit the take and we try 
identify measures that minimize that take. And those measures, 
sometimes people look at those measures as mitigation and they 
use that, what we call the M word. But it is not mitigation in 
the sense like Clean Water Act compensatory mitigation. But if 
that is happening or some people perceive that has happened in 
some of these context, I would like to talk more with some of 
the affected parties to maybe clear that up and certainly 
improve that if that has a problem in the past.
    Mr. Pombo. Thank you.
    Mr. Baca. Thank you. I know that we are running short of 
time, and I know we all have some additional questions. And I 
will ask you to, hopefully, to respond back to them in writing. 
But one additional question that I have, one year ago I, along 
with the City of Fontana, met with Under Secretary Manson 
concerning the Delhi Sands Flower-Loving Fly. He told us there 
was a 5-year review to consider delisting the fly. Do you know 
where the Fish and Wildlife Service is with this study?
    Ms. MacDonald. It sounds like they have not even started. I 
know that that direction was given, but I am going to plead the 
lawsuit because our listing program, our critical habitat 
program is 100 percent consumed with court-ordered listing for 
designation. The listing program has about, I think, ten to 15 
percent discretionary funds which are funds that are not 
obligated due to lawsuits. That ten to 15 percent the Service 
will have used that money to do the status review. It sounds 
like they did not do it.
    I can--I will go back and I will make sure it happens.
    Mr. Baca. We appreciate that very much because as we look 
at the dates and the times and the deadlines, and that is what 
people are all complaining about. Here again, you know, we were 
given the 5 years and yet we have not seen what the status or 
changes or what is occurring in that area, and yet this is the 
Under Secretary that indicated that we would be working on 
this. And yet, as Members of Congress, they ask us what is the 
status and what is going on in terms of finding the solution to 
the problem.
    Finally, if I can, it was mentioned earlier by Mayor of 
Colton when we talked about the drain storm in the immediate 
area that has had an effect on a lot of areas, especially with 
12 deaths with the West Nile Virus in San Bernardino County and 
Riverside and Orange County, how flexible is the Endangered 
Species Act in taking safety of people into account and how 
much--and how can situations like this be handled without 
violation of ESA?
    Ms. MacDonald. I think that it is very flexible unless you 
are in a situation where there is a jeopardy opinion. And I do 
not hear that that is what is going on with the fly. And so I 
think that this issue, along with all the others that are 
brought up, Paul is here, he will be working with the cities 
and the field office to make sure that some of this stuff gets 
addressed.
    Mr. Baca. Thank you.
    Mr. Pombo. Mr. Radanovich?
    Mr. Radanovich. Thank you, Mr. Chairman.
    Ms. MacDonald, you have mentioned I think in your testimony 
that the agency has such a hard time establishing its 
priorities. I am assuming it is because of lawsuits and 
judgment kind of interfere with your setting of those 
priorities?
    Ms. MacDonald. Right.
    Mr. Radanovich. And you did mention that the remedy to 
that, if I am correct, is legislation?
    Ms. MacDonald. Yes.
    Mr. Radanovich. Right? Can you do it? Can you do it--I mean 
can you provide the law--
    Ms. MacDonald. We cannot.
    Mr. Radanovich. Yes. I know. We are supposed to be doing 
it. But can you write the law in such a way that makes it a 
little more bullet proof to lawsuits and judgments?
    Ms. MacDonald. I think there are lots of ways to address 
these issues. And we have been in open discussions with various 
members who have legislation moving through the process. We 
have tried--we are very interested in addressing this problems 
and working with Congress to find solutions.
    Mr. Radanovich. OK. One quick question regarding the 
Carlsbad office. I understand that there was a GAO study that 
was released in 2000 which had mentioned problems in the 
Carlsbad office, one of them being time lost from office staff 
turnover and reassignment in part due to the high cost of 
living in the Carlsbad office or within the Carlsbad area. Is 
the location of the Carlsbad office a deterrent in your view to 
the hiring and maintaining of qualified staff to be there on a 
consistent basis?
    Ms. MacDonald. Again, I cannot speak from personal 
knowledge, but I know that I have heard repeatedly that it is a 
high cost of living area, very very high work load, very 
contentious issues. So, it is not a very pleasant place to 
work. And so, you know, you couple that with the difficulty in 
finding a place to live and living comfortably, that is one of 
the reasons I have been given that it is a difficult office to 
maintain the staff.
    Mr. Radanovich. Thank you.
    In closing, I just--I have to concur that the legislative 
answer to this is really the answer and the difficulty that 
people like Mr. Baca and Chairman Pombo especially and myself 
over the last many, many years to try to precipitate that in 
the Congress given the sensitive nature, the Endangered Species 
Act. And I got to tell you, and I know we got to close, but 
there is such a discrepancy in the law. Back in Washington 
there is a Wilson Bridge which is being built to connect the 
beltway across the Potomac River. And there is the endangered 
Short-Nosed Sturgeon, it's been listed since 1974. Their method 
of dealing with it to protect the endangered Short-Nosed 
Sturgeon was to strip away their habitat, which was the clam 
beds at the base of the river before they started dynamiting 
for the new bridge to go in there. And further upstream where 
they go to spawn, the water that is cleansed for the District 
of Columbia and Virginia is pulled out into settling ponds and 
then they add chemicals like allium and chlorine and this 
sedimentation fills up over a period of time. Well, they 
bulldozed 200,000 tons of this stuff back into the river 
through a national park, Heritage River, and the spawning 
grounds of this endangered species. And there is no issue of 
habitat conservation. Nobody has brought a big lawsuits only 
because somebody did not in their own wisdom did not deem that 
area to be worth the legal efforts to try to stop. A special 
interest group determined that that should be happening in 
Fontana rather than in Washington, D.C. The law applies to the 
same endangered species even though it is administered under 
NOAA and not Department of Fish and Wildlife. But it is a bad 
law that allows this kind of inequity to happen in the United 
States.
    And God bless you guys, but I think that more habitat 
conservation issues need to be in places like Philadelphia and 
Washington, D.C. and New York City before we are going to 
precipitate the votes in Congress.
    It is sad. It has been awful for people like you, but more 
Americans need to feel the pain, unfortunately.
    Ms. MacDonald. It is a difficult problem. You are right.
    I am done. But, again, thanks for having the hearing, Mr. 
Chairman.
    Mr. Pombo. Thank you. I want to thank you for your 
testimony. And I know Mr. Baca had additional questions and I 
have a couple. Those will be submitted to you in writing. If 
you could answer those in writing for the Committee, I would 
appreciate it.
    And to the Mayors and City Council Member who are here, 
since Paul has come on, I mean I have had a chance to talk to 
him and deal with him a few times. He is a good guy, he really 
is. And he is somebody that you ought to get to know and talk 
to because he at least will try and has a little bit of an 
understanding of what is going on.
    There are a couple of people that I wanted to thank. Bee 
Watson is the Clerk of Fontana City Hall. Larry Watson a 
production specialist. And Silas Johnson, coordinator who 
helped us greatly in putting this on.
    I also wanted to again acknowledge that Joe Baca, Jr., took 
the time to be here and pay attention to what was going on. I 
appreciate him doing that, Joe.
    And I would also like to thank Joe for hosting us here. 
This is something that we have been talking about doing for a 
long time and it is nice to have an opportunity to be here and 
hear from your constituents about what some of the issues are 
and problems that they are dealing with, and hopefully we can 
move forward with it. And I thank you for all the work you have 
put on in the Committee to make this successful, along with the 
Resources Committee staff who put in all the effort to put this 
hearing together.
    It is something I like to do--going out and holding field 
hearings and hearing from people across the country who have to 
deal with laws we have passed. It is not easy for staff to pick 
up everything they do in Washington, D.C., and bring it out and 
replicate it here. I know sometimes they get frustrated with 
me, but it is something I enjoy doing because I think it is 
important.
    And I also wanted to thank Mr. Radanovich for making the 
effort to be here and to hear from people on this issue.
    We going to adjourn this hearing. I want to thank all of 
our witnesses and everyone who was here.
    If there are further comments, the hearing record will be 
held open for 10 days in order to include those in the record.
    If there is no further business before the Resources 
Committee, the Committee stands adjourned.
    [Whereupon, at 12:05 p.m. the Committee was adjourned.]

                                 
