[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]



 
 THE ROLE OF NEPA IN THE STATES OF WASHINGTON, OREGON, IDAHO, MONTANA 
                              AND ALASKA.

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




                        OVERSIGHT FIELD HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

            Saturday, April 23, 2005, in Spokane, Washington

                               __________

                            Serial No. 109-8

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES

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

Don Young, Alaska                    Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Eni F.H. Faleomavaega, American 
Elton Gallegly, California               Samoa
John J. Duncan, Jr., Tennessee       Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming               Donna M. Christensen, Virgin 
  Vice Chair                             Islands
George P. Radanovich, California     Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Grace F. Napolitano, California
    Carolina                         Tom Udall, New Mexico
Chris Cannon, Utah                   Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania       Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada                  Jim Costa, California
Greg Walden, Oregon                  Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado         Dan Boren, Oklahoma
J.D. Hayworth, Arizona               George Miller, California
Jeff Flake, Arizona                  Edward J. Markey, Massachusetts
Rick Renzi, Arizona                  Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico            Jay Inslee, Washington
Henry Brown, Jr., South Carolina     Mark Udall, Colorado
Thelma Drake, Virginia               Dennis Cardoza, California
Luis G. Fortuno, Puerto Rico         Stephanie Herseth, South Dakota
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy

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

                      TASK FORCE ON IMPROVING THE
                    NATIONAL ENVIRONMENTAL POLICY ACT

                 CATHY McMORRIS, Washington, Chairwoman
             TOM UDALL, New Mexico, Ranking Democrat Member

Ken Calvert, California              George Miller, California
George P. Radanovich, California     Frank Pallone, Jr., New Jersey
Chris Cannon, Utah                   Edward J. Markey, Massachusetts
Jim Gibbons, Nevada                  Grace F. Napolitano, California
Greg Walden, Oregon                  Jay Inslee, Washington
Stevan Pearce, New Mexico            Mark Udall, Colorado
Henry Brown, Jr., South Carolina     Raul M. Grijalva, Arizona
Thelma Drake, Virginia               Jim Costa, California
Louie Gohmert, Texas                 Nick J. Rahall II, West Virginia, 
Richard W. Pombo, California, ex         ex officio
    officio
                                 ------                                





















                            C O N T E N T S


                              ----------                              
                                                                   Page

Hearing held on Saturday, April 23, 2005.........................     1

Statement of Members:
    Inslee, Hon. Jay, a Representative in Congress from the State 
      of Washington..............................................     3
    McMorris, Hon. Cathy, a Representative in Congress from the 
      State of Washington........................................     2

Statement of Witnesses:
    Blaeloch, Janine, Director, Western Land Exchange Project....    80
        Prepared statement of....................................    82
    Fish, Paul, President, Mountain Gear Inc.....................    83
        Prepared statement of....................................    85
    Geddes, Robert D., General Manager, Public Utility District 
      No. 1, Pend Oreille County, Washington.....................    25
        Prepared statement of....................................    27
    Jensen, Thomas C., Esq., Attorney, Sonnenschein, Nath & 
      Rosenthal LLP, Chairman, National Environmental Conflict 
      Resolution Advisory Committee, U.S. Institute for 
      Environmental Conflict Resolution..........................     6
        Prepared statement of....................................     8
    Kakuk, Michael S., Attorney, Kakuk Law Offices, P.C..........    39
        Prepared statement of....................................    41
    Kennedy, William D., Chairman of the Board, Family Farm 
      Alliance...................................................    69
        Prepared statement of....................................    71
    Kimbell, Abigail, Regional Forester, U.S. Forest Service, 
      Northern Region, U.S. Department of Agriculture............    33
        Prepared statement of....................................    36
    MacDonald, Douglas B., Secretary, Washington State Department 
      of Transportation..........................................    21
        Prepared statement of....................................    23
    Roskelley, John, Board Member, Eastern Washington Growth 
      Management Hearings Board..................................    46
        Prepared statement of....................................    47
    Russell, Luke, Director, Environmental Affairs, Coeur d'Alene 
      Mines Corporation..........................................    63
        Prepared statement of....................................    64
    Urness, Craig, General Counsel, Pacific Seafood Group........    77
        Prepared statement of....................................    79
    Vaagen, Duane, President, Vaagen Bros. Lumber Inc............    58
        Prepared statement of....................................    60

Additional materials supplied:
    Anderson, Michael, The Wilderness Society, Statement 
      submitted for the record...................................   101
    Artley, Richard, Grangeville, Idaho, Letter submitted for the 
      record.....................................................   103
    Coyner, Barbara, Princeton, Idaho, Letter submitted for the 
      record.....................................................   104
    Heiken, Doug, Oregon Natural Resources Council, Portland, 
      Oregon, Statement submitted for the record.................   105
    Kliegman, David, Okanogan Highlands Alliance, Tonasket, 
      Washington, Statement submitted for the record.............
    .............................................................   109
    Lind, Penny, Executive Director, Umpqua Watersheds, Letter 
      submitted for the record...................................   110
    O'Brien, Mary, Ph.D., Eugene, Oregon, Statement submitted for 
      the record.................................................   110
    Rehberg, Hon. Denny, a Representative in Congress from the 
      State of Montana, Letter submitted for the record..........   114
    Simpson, Hon. Mike, and Hon. C.L. ``Butch'' Otter, 
      Representatives in Congress from the State of Idaho, Letter 
      submitted for the record...................................   117
    Thomas, Charles A., Spokane, Washington, Spokesman-Review 
      article ``Open space laws leave many out in cold'' 
      submitted for the record...................................   115
    Young, Hon. Don, a Representative in Congress from the State 
      of Alaska, Letter submitted for the record.................   119
















     OVERSIGHT FIELD HEARING ON THE ROLE OF NEPA IN THE STATES OF 
             WASHINGTON, OREGON, IDAHO, MONTANA AND ALASKA.

                              ----------                              


                        Saturday, April 23, 2005

                     U.S. House of Representatives

                            NEPA Task Force

                         Committee on Resources

                          Spokane, Washington

                              ----------                              

    The Task Force met, pursuant to call, at 10:00 a.m., in the 
Phase I Building Auditorium at the Washington State University, 
Riverpoint Campus, 668 North Riverpoint Boulevard, Spokane, 
Washington, Hon. Cathy McMorris presiding.
    Present: Representatives McMorris, Cannon, Gohmert and 
Inslee.
    Miss McMorris. Good morning, everyone. I'd like to begin 
this hearing by introducing the members of the Boy Scout 171 
Troop from Woodbridge Elementary who will present the colors. 
So, if everyone would please stand.
    [Pledge of Allegiance recited.]
    Miss McMorris. Thank you very much. Well done.
    [Applause.]
    Miss McMorris. Well, thank you, everyone, for coming--for 
giving up your Saturday morning to be here and especially to 
the other members of the Task Force who are here. I thought I 
would just start by taking a moment to have--if you would 
please introduce yourself and share with the audience where 
you're from. That would be great.
    If you would start us off, Mr. Inslee.
    Mr. Inslee. Thank you. Jay Inslee. I represent the First 
District which is south of Everett. And I'm the number one 
fan--chairman of the John Stockton fan club in western 
Washington.
    [Applause.]
    Mr. Cannon. Of course, I actually represent the John 
Stockton fan club--in Utah for many years. I represent the 
central part of Utah. Utah is the seventh most urban state in 
the union because of the desert--people live in the desert 
area. So, I represent a quarter of the state--a little over a 
quarter of the state. Under the county to the west, west 
desert.
    And I want to thank all of you for coming out here and have 
the green and black stickers on. This is an important process 
for us. And I don't think anybody here can exceed my--one of my 
views as an environmentalist (unintelligible). But I want you 
to understand that there are better ways of doing things. And 
hopefully this process will begin to--hello--hopefully this 
process will begin to discover what those ways are so that we 
can add to the--a better cost of society with much more 
efficiency (unintelligible) solving problems. We can do 
something about it.
    The fact is, our biggest problem together is not people 
building buildings on top of a habitat. It's (unintelligible) 
species. That's where the bulk of the structure of species is 
coming from. So, we have huge problems that we deal with and 
deal with effectively as a society. Or we can ourselves and not 
progress that's important.
    Thank you for being here. We appreciate your participation.
    Miss McMorris. One of my fellow brethren who joins us for 
Texas, Mr. Gohmert.
    Mr. Gohmert. I'm Louie Gohmert. I'm from east Texas. And we 
do have a lot of trees and natural resources and 
(unintelligible) Texas. And I'm delighted to be here in 
Spokane. It's a beautiful area around here. And I hope that 
what I'm seeing in Washington doesn't play out across the 
country too far. Some people are so (unintelligible) with such 
bureaucratic inefficiency that they don't want to see change. 
And I want to--there's nothing I've ever done in my life that I 
couldn't review and find some way to do it a little better next 
time, whether it was a competition I won or whatever.
    And so I'm wanting to do things better and improve--now I 
don't--the empowerment, of course, and the ways of protecting 
the environment. So, I'm looking forward to the testimony here. 
I appreciate the wonderful hospitality in this area. We thought 
we were good about hospitality back home, but this has been 
great. Thank you.

STATEMENT OF HON. CATHY MCMORRIS, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF WASHINGTON

    Miss McMorris. Well, thank you, everyone, for being here. 
And I think your attendance, without a doubt, shows the 
importance of NEPA, the National Environmental Policy Act, and 
the interest in the work of the Task Force.
    I want to thank the Members for their attendance as well as 
the members of the panels. It is vital to the efforts of the 
Task Force that the Members hear an array of views and thoughts 
on NEPA.
    As one of the first environmental laws passed in this 
country, NEPA was visionary for its time. It started with the 
goal of establishing a national environmental policy to guide 
the action of Federal decisionmakers. Today over 80 Federal 
agencies have developed their own NEPA guidance, and NEPA has 
been modeled in over 20 states, including here in Washington.
    What started as visionary but overly vague has now grown 
into 25 pages of regulations, over 1,500 court cases, and 
several hundred pending lawsuits. Too often instead of progress 
and results we see delays and conflict. And while there's been 
little change to NEPA itself, it's been amended only twice, 
there's been no shortage of activity surrounding the Act.
    Litigation began within three years and there have been 
several legislative streamlining proposals, not to mention the 
countless articles and discussions. NEPA has also changed. In 
1997 under President Bill Clinton, CEQ, which is the White 
House's Counsel on Environmental Quality, reviewed NEPA and 
concluded that NEPA takes too long and costs too much and that 
documents are too long and too technical for people to use. 
Indeed by 2000 the average length of an environmental impact 
statement had grown to 493 pages. Some estimates show that the 
average cost of an environmental impact statement is between 
500,000 and 2 million. And the average EIS takes over two 
years.
    Undoubtedly the NEPA process has increased the Federal 
government's awareness of environmental consequences. And there 
have been cost savings, increased public participation and 
other benefits. This awareness has not necessarily translated, 
though, into a better NEPA process. It is against this backdrop 
that the Task Force seeks input to what is working well, what 
is working poorly, and what can be done to ensure that the 
original intent of NEPA is fulfilled.
    Our new vision for NEPA should be to reform the process in 
ways that foster a spirit of dialog and collaboration so that 
stakeholders work together with a common purpose of making 
projects the very best they can be for our communities and our 
environment.
    Today we will hear from NEPA experts, Federal and state 
officials and groups that have participated in the NEPA 
process. The goal is to create a complete and rich record that 
can guide us as we formulate recommendations.
    I do want to mention that one of the integral parts of NEPA 
is that it calls for public participation and public comment. 
Even though we only have 13 witnesses here today, we want to 
hear from everyone. And I encourage you to submit your comments 
to the Resources Committee so that we can take all comments and 
recommendations into consideration.
    At this time, I would like to acknowledge Mr. Inslee for 
any opening remarks he might have.

STATEMENT OF HON. JAY INSLEE, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF WASHINGTON

    Mr. Inslee. Thank you. And I want to thank the Chair 
(unintelligible) in Congress for the willingness to take on 
this responsibility. And so thank you very much for your 
(unintelligible) having you on the Committee already.
    I do have some comments I'd like to make. I want to say 
that, first, I approached this responsibility with a fair 
amount of humility, which might be (unintelligible) politics I 
suppose. But I do so because I really feel--for a variety of 
reasons.
    Number one, I really feel that we are walking in the 
footsteps of giants here. This is something that Henry Jackson 
created. This is one of his absolute marked achievements in his 
illustrious career in the State of Washington. And any time you 
talk about sort of redrafting, rewriting something of--
something that has had such a success by such a great 
(unintelligible) in Washington. You have to approach it with 
some humility.
    Second, flying over this morning, I just got kind of an 
eyeful of what this is about, which is, you know, the place as 
you know it the Creator worked on everywhere else. And when he 
got done practicing, he made Washington. When you fly from 
Seattle to Spokane you really get a flavor of that.
    Look down (unintelligible) at lake where my dad first took 
me hiking when I was ten years old. Grand Coulee and Dry Falls 
and--you know, it's just--it really is an incredible spot we 
live. And NEPA is important to the preservation of that.
    But there's a third issue that I sort of--I think you 
should have some humility about which isn't the land which is 
obvious on NEPA. But NEPA is really the--perhaps as or more 
important it's about people. It's about people's access to the 
democratic process. And it's the ability of individuals and 
communities to make sure that their voices are heard when their 
Federal government is charged with responsibility to protect 
their land and their water and their air.
    And this issue of NEPA is really in my book a perfecting 
process of our democratic institutions to make sure that 
agencies listen to people that they're intended to protect. 
That people do consider alternatives. That people do consider 
it as any business would to look at alternatives and make 
investments early so you don't make mistakes late.
    These are real fundamental concepts of democracy. And it's 
just not environmental issues that we are concerned with. It is 
a democratic principle that agencies work for the people rather 
than people working for the agencies. And NEPA probably is one 
of the single most effective tools to date of making sure that 
people remain ascended in these decisions.
    And I want to say a couple things. NEPA has processes that 
cause great angst, anxiety and concern. It is an issue that 
involves people who want to move quicker than the NEPA process 
allows in time. It creates a lot of frustration.
    But I think it's important just to know some of the 
successes.
    You look at Hanford where because of the NEPA process, we 
avoided about a $500 million bad decision that the Department 
of Energy wanted to make. And when citizens finally had their 
input, it saved the Federal government $500 million.
    You look at the North-South highway where we had some 
improvements made. There were communities locally concerned 
was--were taken into consideration. And look at the Hauser 
situation, when we're told there was no NEPA compliance when we 
had this fueling station went in. Now we have a potential 
contamination of the Spokane aquifer. This is a local issue in 
Spokane County. And that's why I'm very appreciative 
(unintelligible). There are people concerned about this. I see 
about, oh, 120 people wearing stickers saying ``I support 
NEPA.'' And I think that reflects a broad concern.
    Two other points I want to make. When we consider NEPA, I 
think it's important in our discussions that we consider it in 
coordination with the other parts of our environmental 
protection scaffolding that protects our clean air and clean 
water. And I don't think we can consider it alone. And I have 
to say that I approach this with some caution. Because right 
now the Federal government has had significant rollbacks in a 
whole host of environmental protections for its citizens.
    We've seen rollbacks in protection against arsenic in our 
water. We've seen rollbacks in protection of mercury in our 
air. We've seen a failure to fund Superfund site activity. 
We've seen rollbacks on a whole host of issues. We've seen a 
failure to deal with global warming issues.
    And I think that when we have that sort of host of 
reductions of environmental protection going on in our Federal 
government, NEPA is more important than ever. And I think NEPA 
is--probably is more important now than perhaps it has ever 
been.
    One other point I'd like to make is I hope that in our 
discussions we look for ways and I think we'll find principle 
ways to improve and help agencies in their executive 
performances of statutes. Statute is one thing; agency 
performance is another. And I'm going to be very interested in 
what our witnesses talk about how to help the agencies perform 
their duties better to give them the resources. And I have tell 
you I'm very concerned about the budget cuts in the forest 
service and the national parks right now making it more 
difficult for them to comply with their environmental 
responsibilities.
    But I think we also need to look at ways to strengthen NEPA 
to fulfill its obligation of citizen input environmental 
protection. For instance, I think we need to look at can we 
make NEPA better, look at the cumulative impacts of individual 
decisions.
    We passed an energy bill in the House the other day that 
has some cumulative impacts, for instance, on global warming. 
Does NEPA do a good enough job to consider those cumulative 
impacts? I think there's that kind of issue.
    Are we doing a good enough job helping agencies become 
educated about NEPA compliance? You know, a lot of these 
lawsuits when the courts decide there was lack of NEPA 
compliance, it's not the statute's fault. It's the agency's 
fault for not complying. People get mad at NEPA. Perhaps there 
should be some angst at agencies on occasion. Can we help them 
more.
    And third the budgetary issue.
    So, those are kind of the things I'm interested in. I want 
to thank my friends from other states and look forward to 
working with you. Thank you.
    [Applause.]
    Miss McMorris. Thank you. At this time, we're going to hear 
from our first panel. And I will ask that all of the Task Force 
members' statements be included for the record.
    On the first panel, we have six people.
    To give us a bit of history and context is Thomas Jensen. 
He is an attorney with Sonnenschein, Nath & Rosenthal, LLP, and 
Chairman of the National Environmental Conflict Resolution 
Advisory Committee.
    Second to talk about NEPA and its impact on infrastructure 
is Doug MacDonald. He's the Secretary of Washington State's 
Department of Transportation.
    To give the panel light on NEPA's role in hydroelectric 
project re-licensing is Bob Geddes. He's the General Manager of 
Pend Oreille Public Utility District.
    To provide the perspective of a Federal agency line manager 
is Abigail Kimbell. She's a Regional Forester, Region 1, of the 
U.S. Forest Service who joins us from Montana.
    To give us some insight into the state mini NEPA is Michael 
Kakuk, an attorney from Helena, Montana. And he worked on MEPA, 
which was the Montana Environmental Policy Act.
    And then finally is John Roskelley, who is former Spokane 
County Commissioner and member of the Eastern Washington Growth 
Management Hearings Board, who will share with us the 
importance of public participation.
    Miss McMorris. So, I thank you all for joining us today. 
And I might just mention that this is a regional hearing. This 
is--we've asked for a broad base of folks from around this 
region being Washington, Oregon, Idaho, Montana and Alaska.
    It's the policy of the Resources Committee to swear in 
witnesses. So, for those of you who are going to participate 
right now in the panel, I will ask you to stand and raise your 
right hand.
    [Witnesses sworn.]
    Miss McMorris. Let the record reflect that the witnesses 
answered in affirmative.
    Before we get started, I wanted to point out that there are 
lights at the front of the table to control the time here. Each 
witness has five minutes. When the light turns yellow, you will 
have one minute. And when it turns red, please wrap up. Your 
full testimony will appear in the record. Keeping the 
statements to five minutes will allow more time for questions.
    So, with no further ado, Mr. Jensen, would you please 
begin.

STATEMENT OF THOMAS JENSEN, ESQ., ATTORNEY, SONNENSCHEIN, NATH 
  & ROSENTHAL LLP, CHAIRMAN, NATIONAL ENVIRONMENTAL CONFLICT 
RESOLUTION ADVISORY COMMITTEE, U.S. INSTITUTE FOR ENVIRONMENTAL 
                      CONFLICT RESOLUTION

    Mr. Jensen. Madam Chairman and members of the Task Force, 
thank you for allowing me to appear today. As the first 
speaker, I think it would be helpful if I provide some context 
for the rest of the hearing and the rest of your work.
    I'll offer context in three different perspectives. The 
first is Spokane itself. As Congressman Inslee pointed out, 
we're in the home state of NEPA's father, Henry Jackson. I 
think equally important, though, Spokane is a growing town with 
a changing economy, surrounded by public lands that are used 
and valued by all sorts of different interests in different 
ways.
    We are downstream from the nation's largest Superfund site. 
We're next to two states with very different environmental 
rules and cultures and competing economies. We're downwind from 
Hanford. We're connected to a federally managed, federally 
owned high power system that other states would love to get 
hands on. And we're on a river with more demand than supply. 
It's a good place to think about NEPA.
    The second context I would offer is this. There's lots of 
discussion about NEPA's purpose. And I think it's easy to get 
lost in the weeds. The place to start is to remember Winston 
Churchill's quip about democracy which is that it's the worst 
form of government except for all the others we've tried.
    The problem that NEPA set out to solve--I'll put it in very 
colloquial terms--myopic, dishonest, dumb government. It's NEPA 
was about government. People link NEPA because of the 
chronology to other environmental laws like the Clean Air Act, 
the Clean Water Act, and the Endangered Species Act.
    But I think it is probably more useful to think of NEPA as 
being akin to the Freedom of Information Act, the Government 
Performance Results Act, the Information Quality Act, even the 
Debt Collection Payment Act that requires government to pay 
interest on its debts when it's late paying them.
    If you trust government to always do the right thing for 
you, for your community, for your business, your family or the 
environment, you probably don't care about NEPA or any of those 
other laws. If you don't trust government, utterly, on those 
grounds, then NEPA is pretty relevant to think about.
    I think the last piece of context here is that as you look 
at--as you hear other witnesses, as you look at the law and 
look at the history, maintain a distinction in your mind 
between symptoms and causes. You'll hear a lot about the 
symptoms, and they're very real: Delay, litigation, 
uncertainty, dumb paperwork. I assume those boxes behind you 
are evidence. Interagency confusion. Non-Federal employees 
being frozen out of the process. The selective nonuse of NEPA 
by green agencies when they're doing something good for the 
environment. Those are important symptoms. We live and breathe 
them. They're out there. But the causes are different, and 
they're more important in the long-run. What I'll--and I'll 
talk mostly about them. And my comments come from spending the 
last two-and-a-half years chairing a Federal Advisory 
Committee, very verse, bipartisan, Federal advisory committee 
to the U.S. Institute for Environmental Conflict Resolution 
looking at NEPA, looking at environmental conflicts. How to 
resolve them. How to turn down the heat nationwide.
    NEPA's problem is in its implementation and not the law 
itself. NEPA implementation should rely on three components, 
three factors.
    The first is National Environmental Policy. It's Section 
101 of the statute. It's the policy. The second leg is 
environmental analysis, which is in Section 102. And the third 
leg is public engagement.
    NEPA usually stands on just one of those legs, the second 
one, analysis. EIS's and EA's of paper. An analysis is often 
too kind a word for what really is just compiling information.
    The National Environmental Policy, Section 101, is a 
remarkable text. It expressly integrates environmental quality 
with the quality of our country's economy and culture. It comes 
as close to anything I know of to framing a set of 
environmental, economic and social goals that most Americans 
could agree on. It's common language which is the thing that we 
most need if we're going to understand each other and get 
along.
    NEPA is about improving governments. The management of 
decisions affecting the human environment. And the term human 
environment is key. It's in the statute. It doesn't just mean 
what's out there. It means natural places and built places. It 
means cities and salmon. It means wilderness and neighborhoods, 
families and frogs, health and wealth, clean air and safe 
streets. America as a whole. I think the meaning has been lost 
over time, but it's there. It's in the law.
    The courts decided that Section 101, the purpose, was not 
enforceable. It was too broad. It was too aspirational. And as 
soon as the agency saw that the courts wouldn't enforce it, 
they abandoned it or they paid lip service to it at best. The 
fact that the courts have declined to enforce the laws policy 
does not mean that the Federal government should not attempt to 
achieve it.
    The first recommendation of the Task Force is that we need 
to bring Section 101 back into the central place that NEPA's 
framers intended. And we need that common language.
    The second missing piece is public engagement.
    Engagement is something entirely different and a lot more 
meaningful and productive than just giving people a chance to 
comment on a draft EIS. The advisory committee members believe 
very strongly that there are well-developed, disciplined 
practices and principles for engaging effective interest in 
agency decisionmaking that will reduce the number of conflicts, 
resolve conflicts and, as I said earlier, turn the heat down. 
Solve problems.
    Not every issue is resolvable. And some things will have to 
get resolved in the courts or in the political process. But we 
can do a lot better than we are doing now. That's the problem 
with NEPA. We need to fix those parts.
    Without Section 101, without robust principle public 
engagement, NEPA is employed as a compliance exercise rather 
than a thoughtful, strategic, conclusive planning opportunity. 
It's a missed opportunity for agencies, project proponents and 
the affected public. It doesn't solve the myopic, dishonest, 
dumb government problem which NEPA was aimed at.
    We have to stop confusing process with the purpose of a 
law. We have to put more emphasis on people, our people, than 
on paper. We need to link the policy of the law to reliable, 
useful, honest analysis and the respectful engagement of all 
affected parties. That's the way we get decisions in a timely 
way that earn support, face fewer challenges and survive the 
challenges that do arise.
    I think NEPA done right is capable of working effectively 
and efficiently with the cities and the families and the 
species who are downwind, downstream or just outside the 
attention span of comprehension or understanding of Federal 
agencies.
    Thank you very much.
    [The prepared statement of Mr. Jensen follows:]

  Statement of Thomas C. Jensen, Esq., Sonnenschein, Nath & Rosenthal 
LLP, and Chairman, National Environmental Conflict Resolution Advisory 
    Committee, U.S. Institute for Environmental Conflict Resolution

    Madame Chairwoman and Members of the Task Force, thank you for 
inviting me to participate in today's field hearing. It is an honor to 
be present and to have an opportunity to discuss ways to improve the 
National Environmental Policy Act.
    The Task Force asked that my testimony focus on differences between 
the intent of the framers of NEPA and the manner in which the law is 
implemented today. The perspective I bring to this task is shaped by 
three major influences.
    First, I have worked as an attorney on NEPA-related matters for 22 
years, and am familiar with the way the law has been applied in 
numerous and diverse contexts, including, among other things, cross-
border electric power lines, federal water contracts, federal dam 
operations, pipelines, hydropower licensing, military base realignment, 
fish and wildlife restoration, and radioactive waste.
    Second, I have served for most of the last decade as a trustee of 
the University of Wyoming's Institute for Environment and Natural 
Resources, along with each sitting and several former Wyoming 
governors, Senator Craig Thomas, and former Senator Al Simpson, 
leadership of the state legislature, and representatives of virtually 
every agricultural, energy, and environmental constituency in the 
state. The University's Institute sponsored an extended analysis of 
ways to improve NEPA implementation, involving, among others, former 
Resources Committee staff counsel.
    Third, over the past two-and-a-half years I have had the privilege 
of serving as chair of a very diverse, bipartisan federal advisory 
committee, formally known as the National Environmental Conflict 
Resolution Advisory Committee or NECRAC, focused on ways to prevent and 
resolve environmental conflicts and measures to improve implementation 
of NEPA so as to fulfill its policy goals. The Advisory Committee's 
work offers ideas that respond directly to this Task Force's mandate 
and I will describe the Advisory Committee's work and findings later in 
my testimony. My testimony today is given on behalf of the Advisory 
Committee, though at certain points, I will offer my individual 
opinion.
    To begin, let me note how fitting it is to hold this first NEPA 
Task Force hearing here in Spokane. In many respects, the State of 
Washington, not the District of Columbia, is NEPA's home. Henry M. 
Jackson, who first served six terms in the House of Representatives, 
then Chaired the Senate Committee on Energy and Natural Resources from 
1963 to 1980, is widely recognized as the central figure in NEPA's 
creation. Many other people were involved, including his senior 
committee staff, Bill Van Ness and Dan Dreyfus, and his advisor, Dr. 
Lynton Caldwell, but Senator Jackson shepherded NEPA from introduction 
to enactment.
    Washington's former senator, who played a leading role promoting 
development of western natural resources through support for multiple 
use of public lands, reclamation farming, and hydropower development, 
is the father of America's environmental policy. He knew what he, his 
constituents, and the country were dealing with. Here, from a statement 
he made in 1969, is how Senator Jackson explained to his colleagues in 
Congress the problem he was trying to solve:
          Over the years, in small but steady and growing increments, 
        we in America have been making very important decisions 
        concerning the management of our environment. Unfortunately, 
        these haven't always been very wise decisions. Throughout much 
        of our history, the goal of managing the environment for the 
        benefit of all citizens has often been overshadowed and 
        obscured by the pursuit of narrower and more immediate economic 
        goals.
          It is only in the past few years that the dangers of this 
        form of muddling through events and establishing policy by 
        inaction and default have been very widely perceived. Today, 
        with the benefit of hindsight, it is easy to see that in 
        America we have too often reacted only to crisis situations. We 
        always seem to be calculating the short-term consequences of 
        environmental mismanagement, but seldom the long-term 
        consequences or the alternatives open to future action.
          [T]he present problem is not simply the lack of a policy. It 
        also involves the need to rationalize and coordinate existing 
        policies and to provide a means by which they may be 
        continuously reviewed to determine whether they meet the 
        national goal of a quality life in a quality environment for 
        all Americans. Declaration of a national environmental policy 
        could, however, provide a new organizing concept by which 
        governmental functions could be weighed and evaluated in the 
        light of better perceived and better understood national needs 
        and goals.
          The introduction of these bills is a manifestation of public 
        and Congressional concern which is widely felt and widely 
        expressed. The concern is that we may be giving insufficient 
        public attention to one of the most serious threats to the 
        future well-being of our Nation and our civilization-the 
        mismanagement and degradation of our physical environment. 
        1
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    \1\ Hearing before the Committee on Interior and Insular Affairs, 
April 16, 1969, Introduction of S. 1075, S. 237 and S. 1752 91st Cong. 
first session.
---------------------------------------------------------------------------
    The public perception of impending environmental crisis was 
probably more acute and widespread in 1969 than it is today, when many 
environmental problems tend to be harder to see. A declining species or 
gradual change in ocean or atmospheric chemistry is not as apparent to 
the average person as a belching smokestack or burning river. I have 
heard NEPA criticized as being out of date. Written for a different, 
simpler era. It may be fair to say that the law was written in a 
simpler era, at least to the extent that the polarities of good and 
bad, dirty and clean, were in sharper contrast. But it badly 
shortchanges Senator Jackson and NEPA itself to say that the law was 
written for a simpler era and, as such, is not a good fit for today. I 
ask you to listen to what Senator Jackson said in 1969, explaining why 
his proposed legislation included an overarching statement of national 
environmental policy:
          As a nation, we have failed to design and implement a 
        national environmental policy which would enable us to weigh 
        alternatives, and to anticipate the undesirable side effects 
        which often result from our ongoing policies, programs and 
        actions.

                                * * * *

          A statement of environmental policy is more than a statement 
        of what we believe as a people and as a nation. It establishes 
        priorities and gives expression to our national goals and 
        aspirations. It serves a constitutional function in that people 
        may refer to it for guidance in making decisions where 
        environmental values are found to be in conflict with other 
        values. 2
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    \2\ Hearing before the Committee on Interior and Insular Affairs, 
April 16, 1969, Introduction of S. 1075, S. 237 and S. 1752 91st Cong. 
first session., Appendix 2.
---------------------------------------------------------------------------
    An expression of national goals and aspirations. Guidance in making 
decisions where values may be in conflict. A constitutional function. 
These attributes of the law do not go stale with time.
    The National Environmental Policy Act combines philosophy, policy 
and process. NEPA is best known for its process: it is the law that 
requires federal agencies to conduct environmental reviews and prepare 
environmental impact statements, a procedure that has been copied by 
many states and by nations around the world.
    NEPA is less well recognized for the truly remarkable and far-
sighted philosophy at its core, which is stated in NEPA Section 101. 
The statute defines a National Environmental Policy for the United 
States. How many Americans know that our country has a national 
environmental policy and that it has been the law of the land for three 
decades? Even NEPA practitioners who know that the policy exists often 
have trouble recalling its terms. [The text of Section 101 is 
reproduced in Appendix 1].
    NEPA Section 101 declares that it is and shall be the continuing 
policy of the federal government to create and to maintain conditions 
under which man and nature can exist in productive harmony. The federal 
government is to use all practical means to improve and coordinate 
federal plans, functions, programs and resources to achieve a wide 
range of social, cultural, economic, and environmental values. And NEPA 
is clear in stating that each American has a responsibility to 
contribute to the preservation and enhancement of the environment. The 
nation's environmental policy is written in expansive, hopeful terms 
that virtually all American would accept.
    NEPA's purpose usually has been characterized as ``better 
incorporation of environmental values in federal agency decision-
making.'' This is true, but it is only partly descriptive of NEPA and 
it does not do justice to the vision of the drafters of the law. They 
had something more encompassing in mind. Agency decision-making was to 
change to incorporate environmental values not for their own sake, but 
because doing so would improve our nation's governance. And improved 
governance would (to paraphrase the law) function in a manner 
calculated to foster and promote the general welfare, create and 
maintain conditions under which man and nature can exist in productive 
harmony, and fulfill the social, economic, and other requirements of 
present and future generations of Americans.
    In other words, people--families, businesses and communities--have 
been part of NEPA from the very beginning, and not as subordinates to 
environmental values, but as the beneficiaries of them and participants 
in their realization. The drafters of NEPA set a policy for the United 
States that expressly integrates environmental quality with the quality 
of our country's economy and culture. Section 101 articulates a 
national policy for the environment that is an elegant and compelling 
philosophy of balance, innovation, and personal responsibility. It 
comes as close as anything I know of to framing a set of environmental, 
economic, and social goals that most Americans could agree upon. It 
holds the potential to bring common purpose to our fellow citizens' 
dealings with each other and their government over natural resource and 
environmental issues.
    My advice to the Task Force can be summarized this way: NEPA was 
written to deal with the problem of uninformed, indifferent, or 
careless government action harming the human environment. It is an 
excellent statute. NEPA is inspired, forward looking, valuable, and 
entirely suitable as written to our country's contemporary needs. The 
risk of poorly informed government action is a non-partisan, 50-state, 
enduring problem, and NEPA is a vital tool in limiting that risk.
    I am well aware that not everyone sees the statute in a favorable 
light. We need to acknowledge that some of the criticism of NEPA is 
motivated by dissatisfaction with the degree to which environmental 
concerns limit economic development choices. Some interests simply 
believe that the law is too protective of environmental values, while 
others believe that it does too little.
    We must understand and respect those perspectives; people have 
different values and different interests. Yet when I hear NEPA 
criticized that way, three things come to mind.
    I remember the two most heated, personal denunciations of the law I 
have ever heard, both of which happened to come from Wyoming ranchers. 
Real ranchers. Hard core private property advocates.
    The first rancher attacked NEPA because the federal government was 
not doing enough to prevent recreational ORV users from tearing through 
his grazing allotment. They should be doing an EIS on those people and 
stopping them from destroying my pastures and ripping up the creeks! 
The second rancher was outraged and nearly desperate because saline 
groundwater pumped from a federally permitted coalbed methane well was 
flowing across his land, eroding pastures, and killing off the only 
trees for miles around. How can the feds let them do that to us? They 
should have done an EIS and stopped it! Third, without naming names, I 
will say that anyone who practices in the NEPA area knows of many, many 
instances where NEPA has been successfully invoked, in litigation or 
otherwise, by economic development interests against their private 
sector competitors.
    The real problem with NEPA is not that it is too green or not green 
enough. Most of the criticism of NEPA, whether the critic recognizes it 
or not, is rooted in the way the law is implemented, not in the fact 
that the law seeks protect the quality of the human environment. The 
problem is that parties with different values compete for primacy in 
agency decision-making and agencies sometimes do not administer or 
manage the competition effectively.
    Let me describe how NEPA is often experienced by regulated parties, 
interested citizens, and even other government agencies. At the risk of 
unfairly generalizing, the stereotypical federal government agency has 
limited financial and personnel resources, resents criticism, resists 
sharing authority, and rewards conformity and predictability. For these 
and other reasons--increasingly because of budgetary constraints--many 
agencies are reluctant to give the public a meaningful voice in agency 
decisions.
    When that happens, people feel left out and angry. Agency decisions 
made under NEPA are often challenged by parties who perceive their 
interests to have been ignored or handled without appropriate respect. 
Challenges come from all directions: ranchers downstream of federally 
permitted mining operations; communities facing loss of tax base due to 
land trades or closure of federal facilities; cities or states 
competing for water supplies; homeowners facing loss of property value 
or family safety due to new roads; environmentalists opposed to loss of 
natural places; developers denied economic opportunities.
    There is also another common experience of NEPA implementation. Let 
me again invoke the stereotypical government agency. Especially in 
those cases where the agency has responsibilities that implicate both 
economic and environmental values, the agency often does not know what 
to do when those values appear to be in conflict. Though equipped with 
professional expertise--scientists, engineers, planners, economists, 
lawyers--and a genuine commitment to public service, agencies often 
face competing legislative mandates, conflicting political influences, 
and varied understandings of the public interest. Inaction or 
indecision often seems the safest choice. In my practice, which largely 
consists of representing business and other private sector development 
interests on environmental matters, I regularly experience the intense 
frustration of businesspeople over the apparent inability or 
unwillingness of agencies to simply make a decision, any decision, even 
a ``no,'' in a reasonable time frame. Usually we can overcome the 
delay, but not always.
    These sorts of experiences with NEPA reveal two major problems in 
NEPA implementation. These problems lie at the heart of much of the 
criticism directed at the statute and explain why NEPA has yet to 
fulfill the vision of its drafters.
    The first problem is that the courts and federal agencies have 
mostly dismissed or ignored the law's statement of policy. 3 
The U.S. Supreme Court has declined to enforce NEPA's statement of 
purpose, though the courts have generally been willing to enforce the 
law's procedural requirements. Agencies have taken the cue from the 
Court and rarely paid more than lip service to achievement of NEPA's 
purposes, while pouring significant effort into NEPA's procedures. Yet 
NEPA is the National Environmental Policy Act, after all; and the 
policy is expressed clearly and forcefully in Section 101. It is there 
to be used, but it rarely plays a central role in decision-making.
---------------------------------------------------------------------------
    \3\ The judicial treatment of NEPA has been explored by numerous 
legal scholars. The articles in Appendix 2 are particularly useful.
---------------------------------------------------------------------------
    As a consequence, NEPA's procedures are often mistaken for its 
policy. Process (i.e., the environmental review mandated by Section 102 
of the law) was intended by the drafters of the statute to serve to 
fulfill the law's policy, not to substitute for it. Sections 101 and 
102 are complementary, not interchangeable. The strength of NEPA's 
policy statement has been under-used and under-recognized. The fact 
that the federal courts have declined to enforce the law's policy does 
not mean that the federal government should not attempt to achieve it. 
The thing we need the most to resolve problems and understand each 
other is a common language. NEPA has it, it is in Section 101, and we 
need to use it.
    The second major problem with NEPA is that federal agencies have 
not been adequately creative or strategic in deciding how to work with 
NEPA's provisions for public involvement. NEPA pushes agencies to be 
better informed and more thoughtful about their plans, and to involve 
the public, but it does not tell the agencies how to take optimal 
advantage of the thoughtfulness and knowledge of the American public in 
shaping agency plans. The NEPA process requires agencies to involve the 
public, but it does not say how best to engage informed interests and 
affected communities.
    The burden has largely fallen on federal agencies to decide what to 
do with the diverse opinions of interested parties who choose to 
express their views on a proposed federal action. Under the traditional 
model for NEPA implementation, agencies announce their plans, share 
their analyses of potential impacts of a range of options, solicit 
public comment, make decisions, deal with the fallout, if any, and move 
on to the next project. The agency's decision, though based on a 
collection of views and interests, is generally not a collective 
decision. As noted above, that means that parties too often feel 
aggrieved or alienated by the decision.
    Because many, though not all, decisions affecting the environment 
are made in the context of NEPA, NEPA often takes the blame for what 
is, in fact, not a problem with the law, but a problem with the style 
of governance that agencies follow. What prevents agencies from making 
timely decisions is not NEPA, it is the complexity of the decisions for 
which they are responsible. What prompts litigation is not NEPA, but 
the inadequate recognition or resolution of different values in the 
decision making process.
    NEPA, used strategically, can actually help address the problem of 
the disaffected citizen litigant and the problem of the indecisive or 
equivocal agency. These problems result from the way in which federal 
agencies organize themselves to make decisions on matters that affect 
the environment. By using NEPA better, the agencies can bring NEPA 
closer to the intent of the framers of the statute.
    Congress showed recognition of these problems with NEPA 
implementation in 1998 and the potential route to improvement when it 
directed the Morris K. Udall Foundation to create the U.S. Institute 
for Environmental Conflict Resolution as an independent, impartial 
federal institution to assist all parties in resolving environmental, 
natural resources, and public lands conflicts where a federal agency is 
involved, and ``to assist the Federal Government in implementing 
Section 101 of the National Environmental Policy Act of 1969.''
    In 2000, a bipartisan group of U.S. Senators from Idaho, Montana, 
Nevada and Wyoming asked the U.S. Institute to investigate ``strategies 
for using collaboration, consensus building, and dispute resolution to 
achieve the substantive goals of NEPA'' and to ``resolve environmental 
policy issues.'' The U.S. Institute conducted initial analytical work 
in response to the Senators' inquiry, then, in 2002, created a Federal 
Advisory Committee, formally known as the National Environmental 
Conflict Resolution Advisory Committee (NECRAC), to provide advice on 
future program directives--specifically how to address the U.S. 
Institute's statutory mandate to assist the federal government in 
implementing Section 101 of NEPA.
    The NECRAC members come from every sort of community across the 
country and have served at every relevant level of public and private 
sector leadership. They are a remarkable group. The Committee includes 
ranchers, foresters, a utility executive, environmentalists, tribal 
leaders, litigators, planners, politicians, former and current 
Congressional staff, grant makers, farmers, and scientists--they cover 
the map. Many Committee members have strong partisan political 
credentials. The Committee's membership also includes several of the 
most seasoned dispute resolution professionals in the country; 
including individuals who literally pioneered the field of 
environmental conflict resolution over 30 years ago. The members are 
veterans of some of the most intense battles in the country's natural 
resource and environmental wars--livestock grazing, air and water 
pollution, protected species, Indian rights, environmental justice, 
international boundaries, highway-building, forest management, water 
allocation.
    This group is so diverse it had every reason to fracture and spin 
off in different directions long before it could render useful advice 
to the U.S. Institute. But that didn't happen. The Committee held 
together and found common ground. Despite the times, the Committee 
never fell prey to partisan division. The Committee produced and 
unanimously approved a very substantial report that is literally at the 
printers today, though a near final draft is posted on the U.S. 
Institute's website, http://ecr.gov/necrac/reports.htm. I encourage the 
Task Force to consider the views of the National Environmental Conflict 
Resolution Advisory Committee as you move forward to determine how to 
improve NEPA. Allow me to summarize the group's work.
    The Advisory Committee:
      Analyzed the means by which environmental conflict 
resolution is employed by federal agencies, and, using detailed case 
studies, focused considerable effort on understanding the circumstances 
in which conflict resolution processes have helped agencies make 
decisions that earned broad and durable support from parties affected 
by or interested in the decision. The Committee considered cases where 
the U.S. Institute had been involved as well as others;
      Reviewed the language and legislative history of NEPA and 
federal court decisions interpreting the law;
      Surveyed federal agencies to determine whether and how 
agencies apply the national environmental policies articulated in 
Section 101 of NEPA;
      Developed a comparison between the principles and 
policies expressed in NEPA and the characteristics that define 
successful environmental conflict resolution;
      Met with community leaders and advocates to learn about 
their experiences with NEPA implementation; and,
      Identified the principles and practices that have proven 
effective at engaging those types of communities and interested parties 
who, though potentially affected by agency actions, typically lack the 
financial, technical or other resources that are needed to influence 
agency decisions or, irrespective of available resources, simply do not 
trust agencies to respect their interests.
    The Committee found that, three decades after NEPA was enacted, 
environmental protection has become a widely accepted social goal, and 
the nation has enjoyed many successes in conservation of public 
resources, reduction of pollution, and remediation of damage done by 
prior generations. Many of these achievements came about through NEPA-
governed decision processes. The traditional model for NEPA 
implementation is not a failure.
    The Committee also found that the traditional model for NEPA is 
certainly is not a complete success, either. The number of points where 
interests are coming into conflict on environmental matters is not 
decreasing and environmental issues appear to be increasing in scope 
and complexity. The decision-making success stories, though real, are 
shadowed by too many failures. The Committee reported that:
          Agency decisions affecting the environment are often highly 
        confrontational. Project and resource planning processes 
        routinely are too lengthy and costly. Environmental protection 
        measures are often delayed. Public and private investments are 
        foregone. Decisions and plans often suffer in quality. 
        Hostility and distrust among various segments of the public and 
        between the public and the federal government seem to fester 
        and worsen over time. The traditional model for NEPA is not 
        responsible for all these problems--indeed it is not even 
        applicable in all cases--but it does not take full advantage of 
        the many strengths of Section 101. NEPA, a tool meant to foster 
        better governance to help America find productive harmony 
        between people and nature, is now, in some cases, used or 
        experienced as a process available to delay or defer agency 
        decisions or as a negative intrusion into socially important 
        government and private sector initiatives.
          People are inevitably going to have different views about 
        federal actions potentially affecting the human environment, 
        and there is absolutely nothing wrong with that. It is a deeply 
        rooted American value that citizens and their government at all 
        levels should be in continuous dialogue aimed at successfully 
        reconciling our diverse interests and values. We are a country 
        that prides itself on diversity--a hallmark of a pluralistic 
        and democratic society. It should not be surprising or seen as 
        problematic that interests and values will come into conflict--
        the fact that they do is a vital aspect of societal growth and 
        fuels creative aspects of our collective lives. But freedom of 
        expression and freedom of thought and the right to petition for 
        redress, and ultimately the right to vote, are about more than 
        shouting into a void.
          Americans expect to be able to work things out and make 
        things better over time. It is not inevitable, and it is 
        clearly not desirable, that society's ability to constructively 
        address and resolve conflicts should languish or fail to adapt 
        to changing times. The current state of environmental and 
        natural resource decision-making is dominated by the 
        traditional model, which too often fails to capture the breadth 
        and quality of the values and purposes of NEPA. It cannot be 
        the best we can do, nor can it be what NEPA's drafters 
        intended.
Could a different approach, in appropriate circumstances, better 
reflect NEPA's policies and help our country achieve the law's valuable 
purposes? The U.S. Institute's Advisory Committee believes that we can, 
in fact, do a much better job.
    During the same three decades that have passed since NEPA was 
enacted, a new profession has emerged that is committed to development 
and application of conflict-avoidance and conflict-resolution 
techniques in the context of environmental decision-making and 
environmental disputes. ``Environmental Conflict Resolution,'' or 
``ECR,'' is best understood as a mechanism to assist diverse parties to 
gain an understanding of their respective interests and to work 
together to craft outcomes that address those interests in effective 
and implementable ways.
    ECR takes many forms and can be applied in many settings, but in 
the context of federal decision-making, it enables interested parties 
(including state, tribal, and local governments, regulated parties, 
affected communities, and citizens) to engage more effectively in the 
decision-making process. Interested parties are no longer merely 
commenters on a federal proposal, but act as partners in defining 
federal plans, programs, and projects. ECR offers a set of tools, 
techniques and processes that can complement traditional NEPA processes 
and improve the procedural and substantive quality of agency decisions.
    The Committee reviewed numerous case studies of environmental 
conflict and conflict resolution. Those studies revealed principles and 
practices of successful conflict resolution. These principles and 
practices significantly contribute to the establishment of appropriate 
levels of respect, trust, accountability, responsibility, and shared 
commitment. The key factors leading to these results are commitment of 
time and energy of all parties, balanced representation among 
interests, appropriate use of third party neutrals, significant 
autonomy for the decision making group and procedural fairness. 
Additional factors include reliance on an agreed scope of issues, 
careful consideration of ``implementability,'' and access to reliable, 
relevant information.
    The Advisory Committee found a striking similarity between the 
policies set forth in Section 101 of NEPA and the principles and 
practices that characterize effective environmental conflict 
resolution. Where NEPA calls for productive harmony, the protection of 
health and environmental quality, sustainability and general welfare, 
environmental conflict resolution practices call for balanced 
representation of affected interests and values. Where NEPA calls for 
social responsibility, intergenerational welfare, sustainability and 
stewardship, environmental conflict resolution calls for full 
consideration of the short- and long-term implications of agreements 
and decisions, responsible and sustained engagement of all parties and 
wide access to the best available information.
    Well designed and executed environmental conflict resolution 
processes are capable of producing federal agency decisions that 
reflect NEPA's principles. Common interests can be identified. The 
range of disagreement can be narrowed. Decisions can be made in a 
timely way and social and intellectual capital can be built. Federal 
officials become partners with affected interests in a process where 
the issue is ``owned'' by all participants without the forfeiture of 
government's legal limits and responsibilities.
    Said another way, NEPA's policies and environmental conflict 
resolution techniques are available to serve as mutually reinforcing 
tools, which work in tandem with NEPA's analytical requirements, to 
help the federal government make sound decisions. The policies framed 
in NEPA can provide a common language, while environmental conflict 
resolution practices can create the conditions under which a common 
language and productive strategies can be applied to reconcile 
different interests toward mutually agreed outcomes.
    The Committee placed particular emphasis on the importance and 
effectiveness of agency efforts to engage with potentially interested 
parties very early in the process of setting policy, defining programs, 
or framing projects. The investment of time, effort, and thought 
``upstream'' can reduce the risk of disputes ``downstream,'' when 
positions may have hardened and options narrowed. Early engagement with 
potentially affected parties will also facilitate consideration of 
matters on broad substantive and temporal scales.
    Mere involvement of appropriate interests is not enough, however, 
to improve decision-making. The decision-making process often can be 
improved if the involvement is governed by appropriate conflict 
resolution practices and principles and, where useful, guided by 
experienced facilitators or mediators. This is especially important in 
high conflict, complex, multi-party disputes. Where the process of 
making a federal decision involves the right parties, focuses on the 
full range of issues, uses scientific and other advice, and follows the 
appropriate conflict resolution principles and techniques, the odds are 
significantly improved that the quality of the decision will be higher 
and the degree of public support for agency programs will be 
strengthened.
    Federal agencies bear a special responsibility to ensure that such 
processes are appropriately designed and implemented. It may be far 
worse to attempt a poorly designed environmental conflict resolution 
process than to follow the traditional practice of agency decision-
making without any conflict resolution process. Well-managed 
environmental conflict resolution practices repair and build 
relationships and social capital, often critical to long-term 
implementation and administration of federal programs. Poorly 
structured processes can be detrimental in the long run, sowing or 
deepening distrust and disaffection.
    The U.S. Institute's Advisory Committee, while seeing great value 
in the use of environmental conflict resolution and awareness of NEPA's 
policy goals, recognized that there are limits. Environmental conflict 
resolution techniques will not solve all problems and not every party 
will accept NEPA's policies or interpret them in the same way. There 
will always be cases where brewing disputes cannot be avoided and where 
existing disputes must be resolved through litigation or political 
intervention. Timing, parties, external events, information, rules, and 
resources: The pieces have to fit together to create common ground.
    The Advisory Committee concluded, however, that the number and 
severity of ``intractable'' cases can be reduced significantly by 
proper use of environmental conflict resolution and awareness of NEPA's 
policy--not because the various techniques or statutory language 
possess any special remedial powers, but because our fellow citizens 
usually have the capacity to be creative and fair and to want good 
results for the Nation as a whole.
    The Advisory Committee made a series of recommendations to the U.S. 
Institute designed to promote the use of environmental conflict 
resolution techniques across the federal government along with 
increased awareness and use of Section 101 of NEPA. 4 I 
would translate those recommendations somewhat to put them in the 
context of the work of this Task Force. First, the U.S. Institute's 
work deserves your full support. This is a valuable agency with 
tremendous potential to help avoid, resolve, or at least lower the 
temperature of the conflicts that plague environmental and natural 
resource management and policy. Second, the agencies under the 
Resources Committee's jurisdiction, at a minimum, should be challenged 
to demonstrate that they are committed to improving their governance of 
decisions potentially affecting the environment by using environmental 
conflict resolution and NEPA Section 101 as important, early, integral 
components of their decision making process. Finally, the agencies need 
adequate financial resources to do this work. I would argue that, over 
time, the benefit of avoiding or resolving problems ``upstream'' will 
save many millions of dollars now thrown at paperwork exercises and 
litigation.
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    \4\ The Committee recommended that the U.S. Institute:
      Work with the Council on Environmental Quality to develop 
approaches to implementing Section 101 of NEPA through environmental 
conflict resolution;
      Develop a ``toolkit'' of management approaches for 
federal executives to transform agency culture in support of 
environmental conflict resolution and collaboration;
      Develop cross-agency training on environmental conflict 
resolution and collaboration;
      Identify ways to expand its leadership in developing 
applications of collaborative monitoring in the context of alternative 
dispute resolution and adaptive management;
      Collaborate with the Council on Environmental Quality to 
guide federal agencies and Affected Communities in the application of 
NEPA using the Affected Communities Subcommittee's recommended 
framework for environmental conflict resolution and collaboration;
      Continue to foster networks and partnerships that promote 
the best environmental conflict resolution practices and promote use of 
technology to facilitate sharing of lessons learned, science, 
literature and data; and,
      Obtain funding for and implement the U.S. Institute's 
participation grant program.
      The Committee also recommends that other agencies of 
government, at all levels, take advantage of the resources represented 
by effective environmental conflict resolution techniques and the 
principles and policy of NEPA to improve the quality of agency 
decisions and earn broader support from affected interests.
---------------------------------------------------------------------------
    NEPA can be used by agencies as a venue to bring interested parties 
together early. Miners and ranchers; host communities and military base 
planners; neighboring states sharing a river; neighborhoods and 
transportation engineers; environmentalists and foresters. Public 
involvement is more than simply allowing the public to comment on a 
draft EIS. One of the fundamental purposes of NEPA was to make our 
government smarter about what it does. Agencies do not have a monopoly 
on good ideas, useful information, or fair outcomes. The analytical 
requirements of NEPA can be carried out in a way that taps the 
knowledge, creativity, sense of responsibility, fairness and 
willingness to compromise that most of our fellow citizens bring to the 
table.
    In sum, NEPA is a valuable law, but its implementation needs to be 
improved to address real problems experienced by affected interests. 
The statute will perform at its best if the three key components of the 
law--policy, analysis, and public involvement--are regularly and 
reliably used in a complementary, mutually reinforcing way. We need to 
move beyond the current state where too often lots of paper is linked 
to a limited amount of public involvement with little or no tie to 
national environmental policy. It is an unstable structure, but it can 
be repaired with tools that are at hand. When we get policy, analysis, 
and public involvement working together, we can fulfill the vision and 
intentions of NEPA's sponsors.
    Thank you for this opportunity to testify. I will be happy to 
respond to questions.
                                 ______
                                 

                               Appendix 1

National Environmental Policy Act of 1969
Title I
Congressional Declaration of National Environmental Policy
Sec. 101 [42 USC 4331].
       (a) The Congress, recognizing the profound impact of man's 
activity on the interrelations of all components of the natural 
environment, particularly the profound influences of population growth, 
high-density urbanization, industrial expansion, resource exploitation, 
and new and expanding technological advances and recognizing further 
the critical importance of restoring and maintaining environmental 
quality to the overall welfare and development of man, declares that it 
is the continuing policy of the Federal Government, in cooperation with 
State and local governments, and other concerned public and private 
organizations, to use all practicable means and measures, including 
financial and technical assistance, in a manner calculated to foster 
and promote the general welfare, to create and maintain conditions 
under which man and nature can exist in productive harmony, and fulfill 
the social, economic, and other requirements of present and future 
generations of Americans.
       (b) In order to carry out the policy set forth in this Act, it 
is the continuing responsibility of the Federal Government to use all 
practicable means, consistent with other essential considerations of 
national policy, to improve and coordinate Federal plans, functions, 
programs and resources to the end that the Nation may--
           (1) fulfill the responsibilities of each generation as 
        trustee of the environment for succeeding generations;
           (2) assure for all Americans safe, healthful, productive, 
        and aesthetically and culturally pleasing surroundings;
           (3) attain the widest range of beneficial uses of the 
        environment without degradation, risk to health or safety, or 
        other undesirable and unintended consequences;
           (4) preserve important historic, cultural and natural 
        aspects of our national heritage, and maintain, wherever 
        possible, an environment which supports diversity, and variety 
        of individual choice;
           (5) achieve a balance between population and resource use 
        which will permit high standards of living and a wide sharing 
        of life's amenities; and
           (6) enhance the quality of renewable resources and approach 
        the maximum attainable recycling of depletable resources.
       (c) The Congress recognizes that each person should enjoy a 
healthful environment and that each person has a responsibility to 
contribute to the preservation and enhancement of the environment.
                                 ______
                                 

                               Appendix 2

                Law Review and Journal Articles on NEPA

      1.  Matthew J. Lindstrom, Procedures Without Purpose: The 
Withering Away of the National Environmental Policy Act's Substantive 
Law, 20 J. Land Resources & Envtl. L. 245 (2000).
      2.  Sara E. Baynard, The Extraterritorial Reach of NEPA and The 
Creation of a Foreign Policy Exemption, 28 Vt. L. Rev. 173 (2003).
      3.  Lori Hackleman Patterson, Comment, NEPA's Stronghold: A Noose 
for the Endangered Species Act?, 27 Cumb. L. Rev. 753 (1996).
      4.  Nicholas C. Yost, NEPA's Evolution: The Decline of 
Substantive Review, NEPA's Promise--Partially Fulfilled., 20 Envtl. L. 
533 (1990).
      5.  William H. Rodgers, Jr., Symposium on NEPA at Twenty: The 
Past, Present and Future of the National Environmental Policy Act: 
Keynote: NEPA at Twenty: Mimicry and Recruitment in Environmental Law, 
20 Envtl. L. 485 (1990).
      6.  Peggy Gentles & Donald N. Zillman, NEPA's Evolution: The 
Decline of Substantive Review: Article: Perspectives on NEPA in the 
Courts., 20 Envtl. L. 505 (1990).
      7.  Lois J. Schiffer, The National Environmental Policy Act 
Today, With An Emphasis on Its Application Across U.S. Borders, 14 Duke 
Env L & Pol'y F 325 (2004).
      8.  Sarah W. Rubenstein, Injunctions Under NEPA After Weinberger 
v. Romero-Barcelo and Amoco Production Co. v. Village of Gambell, 5 
Wis. Envtl. L.J. 1 (1998).
      9.  Josh Schnell, Note, Natural Resources Defense Council v. 
United States Department of the Navy: The District Court for the 
Central District of California Applies NEPA to the United States 
Exclusive Economic Zone for the First Time, 16 Tul. Envtl. L.J. 215 
(2002).
     10.  Michael C. Blumm, Symposium on NEPA at Twenty: The Past, 
Present and Future of the National Environmental Policy Act: 
Introduction: The National Environmental Policy Act at Twenty: A 
Preface, 20 Envtl. L. 447 (1990).
     11.  Paul S. Weiland, Amending the National Environmental Policy 
Act: Federal Environmental Protection in the Twenty-First Century, 12 
J. Land Use & Envtl. L. 275 (1997).
     12.  Katie Kendall, Note, The Long and Winding ``Road'': How NEPA 
Noncompliance for Preservation Actions Protects the Environment, 69 
Brooklyn L. Rev. 663 (2004).
     13.  David S. Shilton, NEPA's Evolution: The Decline of 
Substantive Review: Article: Is the Supreme Court Hostile to NEPA? Some 
Possible Explanations for a 12-0 Record, 20 Envtl. L. 551 (1990).
     14.  James L. Connaughton, Keynote Address, Modernizing the 
National Environmental Policy Act: Back to the Future, 12 N.Y.U. Envtl. 
L.J. 1 (2003).
     15.  Leslye A. Herrmann, Comment, Injunctions for NEPA Violations: 
Balancing the Equities., 59 U. Chi. L. Rev. 1263 (1992).
     16.  Nathan G. Alley & James T.B. Tripp, Colloquium Article, 
Streamlining NEPA's Environmental Review Process: Suggestions for 
Agenda Reform, 12 N.Y.U. Envtl. L.J. 74 (2003).
     17.  William H. Ferguson III, Note, Westlands Water District v. 
United States: Forging NEPA into a Double-Edged Sword Against A 
Biodiversity Statute, 8 Tul. Envtl. L.J. 293 (1994).
     18.  Jason J. Czarnezki, Comment, Defining the Project Purpose 
under NEPA: Promoting Consideration of Viable EIS Alternatives, 70 U. 
Chi. L. Rev. 599 (2003).
     19.  Oliver A. Houck, Book Review, Is That All? A Review of the 
National Environmental Policy Act, An Agenda for the Future, 11 Duke 
Env L & Pol'y F 173 (2000).
     20.  Jim Davis, Case Note, Can NEPA and the ESA Work Together? 
Designations of Critical Habitat for an Endangered Species Must Fulfill 
National Environmental Policy Act Requirements. Catron County Board of 
County Commissioners v. United States Fish and Wildlife Service, 32 
Land & Water L. Rev. 677 (1997).
     21.  David G. Perillo, Note, Designations of Critical Habitat 
Pursuant to the Endangered Species Act: Does NEPA Apply?, 7 Fordham 
Envtl. Law J. 397 (1996).
     22.  Paul J. Culhane, NEPA's Effect on Agency Decision Making: 
NEPA's Impacts on Federal Agencies, Anticipated and Unanticipated, 20 
Envtl. L. 681, (1990).
     23.  David J. Hayes & James A. Hourihan, NEPA Requirements for 
Private Projects, 13 B.C. Envtl. Aff. L. Rev. 61 (1985).
     24.  Lorna Jorgensen, Note, The Move Toward Participatory 
Democracy in Public Land Management Under NEPA: Is it Being Thwarted by 
the ESA?, 20 J. Land Resources & Envtl. L. 311 (2000).
     25.  L. Diane Schenke & Sharon Shutler, The Application of NEPA to 
Restoration Plans Under the Oil Pollution Act, 45 Baylor L. Rev. 345 
(1993).
     26.  Silvia M. Riechel, Note, Governmental Hypocrisy and the 
Extraterritorial Application of NEPA, 26 Case W. Res. J. Int'l L. 115 
(1994).
     27.  Douglas J. Rosinski, The Environmental Impact on Foreign 
Territory From a Proposed Federal Action, 4 S.C Envtl. L.J. 177 (1995).
     28.  Karen A. Klick, Note, The Extraterritorial Reach of NEPA's 
EIS Requirement After Environmental Defense Fund v. Massey, 44 Am. U.L. 
Rev. 291 (1994).
     29.  Wayne J. Carroll, International Application of the National 
Environmental Policy Act, 4 ILSA J Int'l & Comp L. 1 (1997).
     30.  Thomas J. Schoenbaum, Symposium, A Comparative Analysis of 
Vermont Yankee: A Preface to Three Foreign Views of Vermont Yankee, 55 
Tul. L. Rev. 428 (1981).
     31.  Stephen H. Kupperman, Note, Environmental Law--NEPA Held 
Inapplicable to the Revenue Sharing Act, 51 Tul. L. Rev. 156 (1976).
     32.  Melanie E. Kleiss, Note, NEPA and Scientific Uncertainty: 
Using the Precautionary Principle to Bridge the Gap, 97 Minn. L. Rev. 
1215 (2003).
     33.  Cynthia Carlson, NEPA and the Conservation of Biological 
Diversity, 19 Envtl. L. 15 (1988).
     34.  Erik Figlio, Stacking the Deck Against ``Purely Economic 
Interests'': Inequity and Intervention in Environmental Litigation, 35 
Ga. L. Rev. 1219 (2001).
     35.  Harvey Bartlett, Comment, Is NEPA Substantive Review Extinct, 
or Merely Hibernating? Resurrecting NEPA Section 102(1), 13 Tul. Envtl. 
L.J. 411 (2000).
     36.  Stark Ackerman, NEPA's Effect on Agency Decision Making: 
Article: Observations on the Transformation of the Forest Service: The 
Effects of the National Environmental Policy Act on U.S. Forest Service 
Decision Making, 20 Envtl. L. 703 (1990).
     37.  Thomas E. Digan, Comment, NEPA and the Presumption Against 
Extraterritorial Application: The Foreign Policy Exclusion, 11 J. 
Contemp. Health L. & Pol'y 165 (1994).
     38.  Stephanie Wagner, Recent Development, Douglas County v. 
Babbitt: NEPA Does Not Apply to the Creation of Critical Habitats Under 
the Endangered Species Act, 5 U. Balt. J. Envtl. L. 262 (1995).
     39.  Deirdre Goldfarb, Comment, NEPA: Application in the 
Territorial Seas, The Exclusive Economic Zone, The Global Commons, and 
Beyond, 32 Sw. U. L. Rev. 735 (2003).
     40.  Lynton K. Caldwell, Beyond NEPA: Future Significance of the 
National Environmental Policy Act, 22 Harv. Envtl. L. Rev. 203 (1998).
     41.  Margaret A. Shannon, Book Review, Will NEPA be ``An Agenda 
for the Future'' or Will It Become ``A Requiem for the Past''?: A Book 
Review of the National Environmental Policy Act: An Agenda for the 
Future, 8 Buff. Envt'l. L.J. 143 (2000).
     42.  Seventh Annual Pace National Environmental Law Moot Court 
Competition: Brief for Appellant, United States Department of the 
Interior, 12 Pace Envtl. L. Rev. 635 (1995).
     43.  James Jay Tutchton, Case Note, Robertson v. Methow Valley 
Citizens Council and the New ``Worst Case Analysis'' Regulation, 8 UCLA 
J. Envtl. L. & Pol'y 287 (1989).
     44.  Robert Orsi, Comment, Emergency Exceptions from NEPA: Who 
Should Decide?, 14 B.C. Envtl. Aff. L. Rev. 481 (1987).
     45.  Browne C. Lewis, It's A Small World After All: Making the 
Case for the Extraterritorial Application of the National Environmental 
Policy Act, 25 Cardozo L. Rev. 2143 (2004).
     46.  Jean M. Emery, Comment, Environmental Impact Statements and 
Critical Habitat: Does NEPA Apply to the Designation of Critical 
Habitat under the Endangered Species Act?, 28 Ariz. St. L.J. 973 
(1996).
     47.  Melaney Payne, Case Note, Critically Acclaimed but Not 
Critically Followed--the Inapplicability of the National Environmental 
Policy Act to Federal Agency Actions: Douglas County v. Babbitt, 7 
Vill. Envtl. L.J. 339 (1996).
     48.  Heather N. Stevenson, Comment, Environmental Impact 
Assessment Laws in the Nineties: Can the United States and Mexico Learn 
from Each Other?, 32 U. Rich. L. Rev. 1675 (1999).
     49.  Stephen M. Johnson, NEPA and SEPA's in the Quest for 
Environmental Justice, 30 Loy. L.A. L. Rev. 565 (1997).
     50.  Amy J. Sauber, Comment, The Application of NEPA to Nuclear 
Weapons Production, Storage, and Testing: Weinberger v. Catholic Action 
of Hawaii/Peace Education Project., 11 B.C. Envtl. Aff. L. Rev. 805 
(1984).
     51.  Myron L. Scott, Forest Service Planning: Defining NEPA Out of 
Existence: Reflections on the Forest Service Experiment with ``Case-By-
Case'' Categorical Exclusion, 21 Envtl. L. 807 (1991).
     52.  William C. Moorhouse, Note, The National Environmental Policy 
Act, U.S. Counter-Narcotic Policies in Colombia, and Whether Recent Aid 
Should Require an Environmental Impact Statement, 26 Suffolk Transnat'l 
L. Rev. 133 (2002).
     53.  Joan Newman, Comment, A Consideration of Federal Preemption 
in the Context of State and Local Environmental Regulation, 9 UCLA J. 
Envtl. L. & Pol'y 97 (1990).
     54.  Timothy Patrick Brady, Comment, ``But Most Of It Belongs to 
Those Yet to Be Born:'' The Public Trust Doctrine, NEPA and the 
Stewardship Ethic, 17 B.C. Envtl. Aff. L. Rev. 621 (1990).
     55.  James A. Kent & Kevin Preister, Using Social Ecology to Meet 
the Productive Harmony Intent of the National Environmental Policy Act, 
7 Hastings W.-N.W. J. Env. L. & Pol'y 235 (2001).
     56.  Douglas J. Rosinski, Comment, South Carolina Battles Against 
the Department of Energy for Storage of Spent Nuclear Fuel at the 
Savannah River Site, 5 S.C Envtl. L.J. 157 (1997).
     57.  Mary Elizabeth Nelson, Note, Rejection of Risk Under NEPA: 
Stress and People Against Nuclear Energy, 33 Am. U.L. Rev. 535 (1984).
     58.  Silvia L. Serpe, Note, Reviewability of Environmental Impact 
Statements on Legislative Proposals After Franklin v. Massachusetts, 80 
Cornell L. Rev. 413 (1995).
     59.  Jennifer L. Byrne, Note, Alaska Wilderness v. Morrison: The 
Return of Reasonableness to NEPA Review?, 26 Envtl. L. 1287 (1996).
     60.  Recent Case, Administrative Law--Administrative Procedure 
Act--D.C. Circuit Holds That Trade Representative's Failure to Prepare 
Environmental Impact Statement for NAFTA is Not Reviewable Under the 
Administrative Procedure Act.--Public Citizen v. United States Trade 
Representative, 5 F.3d 549 (D.C. Cir 1993), 107 Harv. L. Rev. 1819 
(1994).
     61.  Victor B. Flatt, A Tribute To Honorable Raymond L. Sullivan: 
Article: The Human Environment of the Mind: Correcting NEPA 
Implementation by Treating Environmental Philosophy and Environmental 
Risk Allocation as Environmental Values Under NEPA, 46 Hastings L.J. 85 
(1994).
     62.  Patrick A. Parenteau & Dean B. Suagee, Fashioning a 
Comprehensive Environmental Review Code for Tribal Governments: 
Institutions and Processes, 21 Am. Indian L. Rev. 297 (1997).
     63.  Note, EIS Supplements for Improperly Completed Projects: A 
Logical Extension of Judicial Review Under NEPA, 81 Mich. L. Rev. 221 
(1982).
     64.  Jonathan M. Cosco, Note, NEPA for the Gander: NEPA's 
Applications to Critical Habitat Designations and Other ``Benevolent'' 
Federal Action, 8 Duke Env L & Pol'y F 345 (1998).
     65.  Seventh Annual Pace Environmental Law Moot Court Competition: 
Brief for Appellee-Respondent, Sunpeace, 12 Pace Envtl. L. Rev. 675 
(1995).
     66.  Jeffrey E. Gonzalez-Perez & Douglas A. Klein, The D.C. 
Circuit Review: September 1992 - August 1993: Environmental Law: The 
International Reach of the Environmental Impact Statement Requirement 
of the National Environmental Policy Act, 62 Geo. Wash. L. Rev. 757 
(1994).
     67.  Kristine Meindl, Case Note, Kootenai Tribe of Idaho v. 
Veneman: The Roadless Rule: Dead End or Never Ending Road?, 14 Vill. 
Envtl. L.J. 151 (2003).
     68.  Kevin H. Moriarty, Note, Circumventing the National 
Environmental Policy Act: Agency Abuse of the Categorical Exclusion, 79 
N.Y.U.L. Rev. 2312 (2004).
     69.  Joel S. Jacobs, Compromising NEPA? The Interplay Between 
Settlement Agreements and the National Environmental Policy Act, 19 
Harv. Envtl. L. Rev. 113 (1995).
     70.  Jeffrey A. Berger, False Promises: NEPA's Role in Airport 
Expansions and the Streamlining of the Environmental Review Process, 18 
J. Envtl. L. & Litig. 279 (2003).
     71.  Recent Development, Fourth Circuit Grants Standing but Denies 
an Injunction Sought by the Governor of South Carolina to Prevent the 
Transportation of Plutonium into the State, 24 J. Land Resources & 
Envtl. L. 129 (2004).
     72.  Matthew William Nelson, Comment, NEPA and Standing: Halting 
the Spread of ``Slash-and-Burn'' Jurisprudence, 31 U.C. Davis L. Rev. 
253 (1997).
     73.  Jill E. Horner, Note, People Against Nuclear Energy v. United 
States Nuclear Regulatory Commissions: Potential Psychological Harm 
Under NEPA, 32 Cath. U.L. Rev. 495 (1983).
     74.  R. David Kitchen, Case Comment, NEPA's Overseas Myopia: Real 
or Imagined? Natural Resources Defense Council, Inc. v. Nuclear 
Regulatory Commission, 71 Geo. L.J. 1201 (1983).
     75.  D. Kevin Dunn & Jessica L. Wood, Note, Substantive 
Enforcement of NEPA Through Strict Review of Procedural Compliance: 
Oregon Natural Resources Council v. Marsh in the Ninth Circuit, 10 J. 
Envtl. L. & Litig. 499 (1995).
     76.  Joan R. Goldfarb, Comment, Extraterritorial Compliance with 
NEPA Amid the Current Wave of Environmental Alarm, 18 B.C. Envtl. Aff. 
L. Rev. 543 (1991).
     77.  Thomas O. McGarity, Implementing NEPA: Some Specific Issues: 
Article: Judicial Enforcement of NEPA-Inspired Promises, 20 Envtl. L. 
569 (1990).
     78.  Seventh Annual Pace National Environmental Law Moot Court 
Competition: Brief for Appellee and Amicus, State of New Union, 12 Pace 
Envtl. L. Rev. 707 (1995).
     79.  Tracey Colton Green, Providing for the Common Defense versus 
Promoting the General Welfare: the Conflicts Between National Security 
and National Environmental Policy, 6 S.C Envtl. L.J. 137 (1997).
     80.  Thomas P. Rowland, Note, Metcalf v. Daley: The Makah Get 
Harpooned by NEPA, 36 Gonz. L. Rev. 395 (2000).
     81.  Richard M. Whitaker, Environmental Aspects of Overseas 
Operations, 1995 Army Law. 27 (1995).
     82.  Jennifer L. Davis, Comment, National Environmental Policy 
Act--Submission of the North American Free Trade Agreement Without 
Environmental Impact Statement To Congress Held Unreviewable, Public 
Citizen v. United States Trade Representative, Suffolk Transnat'l L. 
Rev. 775 (1995).
     83.  Korey A. Nelson, Comment, Judicial Review of Agency Action 
Under the National Environmental Policy Act: We Can't See the Forest 
Because There Are Too Many Trees, 17 Tul. Envtl. L.J. 177 (2003).
     84.  Jeffrey M. Lovely, Comment, Protecting Wetlands: 
Consideration of Secondary Social and Economic Effects by the United 
States Army Corps of Engineers in Its Wetlands Permitting Process, 17 
B.C. Envtl. Aff. L. Rev. 647 (1990).
     85.  Robert P. Frank, Comment, Delegation of Environmental Impact 
Statement Preparation: A Critique of NEPA's Enforcement, 13 B.C. Envtl. 
Aff. L. Rev. 79 (1985).
     86.  Richard Heisler, Comment, A Whale of A Tale: NRDC v. U.S. 
Navy and the Attempt to Exempt the Exclusive Economic Zone from the 
National Environmental Policy Act, 10 Sw. J.L. & Trade Am. 125 (2003).
     87.  Robert L. Fischman, The EPA's NEPA Duties and Ecosystem 
Services, 20 Stan. Envtl. L.J. 497 (2001).
     88.  Mary K. Fitzgerald, Comment, Small-Handles, Big Impacts: When 
Should The National Environmental Policy Act Require An Environmental 
Impact Statement?, 23 B.C. Envtl. Aff. L. Rev. 437 (1996).
     89.  Sandra P. Montrose, Comment, To Police the Police: Functional 
Equivalence to the EIS Requirement and EPA Remedial Actions Under 
Superfund, 33 Cath. U.L. Rev. 863 (1984).
     90.  Paula A. Kelly, Comment, Judicial Review of Agency Decisions 
Under the National Environmental Policy Act of 1969--Strycker's Bay 
Neighborhood Council, Inc. v. Karlen, 10 B.C. Envtl. Aff. L. Rev. 79 
(1982).
     91.  Kourtney Twenhafel, Comment, Freeport McMoran's Midas Touch: 
Testing the Application of the National Environmental Policy Act to 
Federal Agency Action Governing Multinational Corporations, 4 Tul. J. 
Int'l & Comp. L. 303 (1996).
     92.  George Cameron Coggins & Jane Elizabeth Van Dyke, 
Implementing NEPA: Some Specific Issues: Article; NEPA and Private 
Rights in Public Mineral Resources: The Fee Complex Relative?, 20 
Envtl. L. 649 (1990).
     93.  The D.C. Circuit Rreview August 1999 - July 2000: Recent 
Decision of the United States Court of Appeals for the District of 
Columbia Circuit: Environmental Law, 69 Geo. Wash. L. Rev. 644 (2001).
     94.  Peter Bucklin, The Importance of Standing: The Need to 
Prioritize Standing Review Under the National Environmental Policy Act 
of 1969, 3 J.L. & Pol'y 289 (1994).
     95.  Case Note, Environmental Law--Retroactive Application of the 
National Environmental Policy Act, J. D. C., Jr., 39 Tenn. L. Rev. 735 
(1972).
     96.  Comment, NEPA's Role in Protecting the World Environment, 131 
U. Pa. L. Rev. 353 (1982).
     97.  Peter Fitzgerald & Vania J. Leveille, Note, When the National 
Environmental Policy Act Collides with the North American Free Trade 
Agreement: The Case of Public Citizen v. Office of the United States 
Trade Representative, 9 St. John's J.L. Comm. 751 (1994).
     98.  Maria C. Holland, Comment, Judicial Review of Compliance with 
the National Environmental Policy Act: An Opportunity for the Rule of 
Reason, 12 B.C. Envtl. Aff. L. Rev. 743 (1985).
     99.  The D.C. Circuit Review August 1998 - July 1999: Recent 
Decisions Environmental Law, 68 Geo. Wash. L. Rev. 728 (2000).
    100.  Loretta V. Chandler, Comment, Taking the ``Hard Look'': 9th 
Circuit Review of Forest Service Actions under NEPA, NFMA, and NHPA, 4 
Great Plains Nat. Resources J. 204 (2000).
                                 ______
                                 
    Miss McMorris. Thank you very much.
    [Applause.]
    Miss McMorris. Next is Doug MacDonald.

            STATEMENT OF DOUG MacDONALD, SECRETARY, 
         WASHINGTON STATE DEPARTMENT OF TRANSPORTATION

    Mr. MacDonald. Thank you, Congresswoman. I submitted my 
testimony, but I think it's more interesting just to follow on 
the remarks.
    I've been Secretary of Transportation in Washington state. 
And we have two responsibilities. The first is to provide a 
transportation systems that work for our communities. And the 
second is to provide transportation systems that meet our 
citizens' goals just as strongly held that our environment be 
protected (unintelligible) by what we do with transportation.
    NEPA is absolutely fundamental to our doing both of those 
things. NEPA, in our view, is one of the most important 
statutes passed in the second half of the 20th century. It's 
like the Civil Rights Act. It's fundamental to who we want to 
be as a people and what we want to do. But NEPA has got some 
problems. And I couldn't agree more that the problem is to look 
at the implementation issue not the fundamental purpose. The 
fundamental purpose is exactly right.
    And I would also like to take up--I've never--we've never 
met before. We are reorganizing how we talk about working with 
the public in this state around the notion of engagement. I 
don't--the two words seem to be exactly right. It is just the 
point of engaging people in public decisionmaking that is 
NEPA's fundamental purpose and what we must recover from NEPA 
which in some instances we are (unintelligible) losing.
    I want to make three small points about NEPA. I'm sure 
others will add more. Number one, if you want NEPA to be 
improved, we have to improve the ability of people to use NEPA. 
And that means that the time for these 2,000-page documents 
that no one can read and sit in the library untouched by any 
ordinary citizen or public official who is supposed to take a 
view and then make a decision--those days have got to stop.
    In our state we try to move that process by the draft 
Environmental Impact Statement that we used for Alaskan Way 
Viaduct project. It doesn't look like any other EIS in the 
country. And the main reason is we designed it so people could 
read it. And that is a radical notion at this point in time.
    We found great support from the Department of Environmental 
Quality on this and some resistance from Federal agencies who 
think it doesn't have all the right checklists covered. We like 
to think that the prime checklist would be whether it was 
written in English so it could tell a story about what would 
have to happen for the project to be achieved. It's good. It's 
bad. And how it would work for the people of the community it 
serves.
    We'd like to encourage you to look at the notion of a 
spreading notion called the Reader Friendly Environmental 
Impact Statement. And we think if we could do that we would 
respond to exactly the point Mr. Jensen made that it's time for 
the public to try to rebuild trust in government. And that 
means the government needs to try to talk simply and clearly 
with people about what they're doing.
    The second point I want to make has to go to one of NEPA's 
great powers which has also been a problem. And that is the 
spread of NEPA which was originally designed to assess a 
project to decide whether it was to be a good project so that 
it now embraces this huge amount of detail about the specific 
provisions, the specific permits under specific aspects under 
environmental laws. And we find in order to analyze a project 
for NEPA, we virtually have to design a project and get a 
chicken-and-egg problem where we can never get out of the 
details (unintelligible) the fundamental question of whether we 
should do a project. And if we should do a project then let's 
write the permits under the Federal laws and state laws that 
protect our environment.
    But we have so jumbled everything up that we are now 
spending years developing analysis when what we should be doing 
is try to figure out what's the right choice for our 
communities based on the issues we have to solve and the values 
that we hold.
    We think this is a very technical problem. It is easy to 
state the vision for how it might work better. But we have to 
untangle in some respects NEPA assessment from the specific 
requirements of the Endangered Species Act from the Clean Water 
Act from the Clean Air Act from the--and now a whole range of 
new health issues and so on which are very important, but we 
can't do NEPA assessment in permit writing all at the same time 
in our view.
    The third problem we have is fitting NEPA's role for 
Federal agencies against the local and state decisions that 
people want to make in their own communities about such 
sensitive matters as growth management. Unlike Montana, who as 
we've spoken earlier, we in Washington state have a very strong 
Growth Management Act. It is not universally popular. It is our 
law. It is implemented by our communities. And in local 
processes we have adopted comprehensive management growth plans 
which we try to fashion for our own communities.
    We find in NEPA that many of the judgments about what our 
community is to be shaped like and should look from a growth 
management standpoint are now being second-guessed by people 
who I'm afraid I would have to call bureaucrats in the Federal 
government. We have no bureaucrats left in the state 
government. But there are still one or two in Federal 
government. And we do sometimes find that people want to come 
to our state and readjust how we are looking at the priorities 
we have set for our communities and do that through a whole new 
start in the NEPA process to fashion another set of visions on 
what our community should look like.
    Now, whether it's the right vision is not easy to state. We 
are dealing with many issues of which there are many 
viewpoints. But we believe that having government be based 
where government lives and where people's lives are affected 
means that this is an important deference that NEPA should be 
paying and sometimes Federal agencies are losing in the NEPA 
process to local citizens and local governments as they make 
the decisions about how their communities should be shaped.
    We'd love to explore further with the Committee some of 
those ideas. We have some others. But for the sake of time I'll 
stop there. We have to remember that we must have NEPA. We 
must, however, move more quickly. We have gridlock on important 
decisions that must be made because we are spending years doing 
things that people of common sense could do more quickly with 
goodwill and good information and a notion that decisions must 
be made.
    I'm (unintelligible) from the '70s remembering that not to 
choose is to choose. We have things that must be corrected in 
our environment. We have roads we cannot build that will make 
water quality better. We are cooperating with the Sierra Club 
on important projects in this state where we know that highway 
improvements can benefit wildlife habitat.
    We want to get to the place where good things can be done 
to make--to match up our citizens' expectations both for 
transportation and the environment. We need NEPA to help. NEPA 
is there for that purpose. We've got to cut away at some of the 
thickets of implementation issues which have made NEPA a less 
useful tool than it should be for our decisionmaking processes. 
Thank you.
    [The prepared statement of Mr. MacDonald follows:]

             Statement of Douglas B. MacDonald, Secretary, 
             Washington State Department of Transportation

    Thank you, Mr. Chairman, for convening and Representative McMorris 
for leading this Task Force and for holding this hearing so that people 
in our state can share with you a spectrum of our views.
    I am Secretary of Transportation in a state where our citizens 
expect two goals to be met. They expect our transportation system to 
serve our state's economy and move people and goods efficiently in and 
between our communities. They also expect our transportation system and 
its improvements to protect and enhance environmental values that are 
strongly cherished in our state.
    NEPA was passed in 1970 with what seems to have been the original 
intent of helping us to achieve both those two goals. NEPA is the 
foundation for harmonizing the natural and built environments within 
the context of earth-friendly social and political institutions. We are 
fond of saying that we regard NEPA as one of Congress' most important 
initiatives in the second half of the 20th Century.
    However, we also believe that over more than three decades problems 
and tendencies have emerged in the implementation of NEPA that are 
inconsistent with NEPA's original vision and detract from its 
usefulness. In those respects, there are certainly opportunities to 
make constructive course corrections for NEPA. We think these are 
opportunities to improve how NEPA is working today, not undercut its 
valuable role.
    NEPA's core messages were clear and simple. Decision makers should 
understand and consider the environmental consequences of their 
proposed actions. Citizens should have access to assessment and 
disclosure of the environmental consequences and be able to use the 
results as communities and their officials try to make good choices of 
whether or not to undertake a project.
    These messages can still be found in NEPA, but the trends of NEPA 
implementation often leave them deeply hidden by procedures that are 
too long and complicated and documents and reports that no ordinary 
citizen, much less a busy public official, would ever be able to 
understand.
    So, one of the innovations and changes we have urged is that the 
documents prepared under NEPA be simpler and clearer, telling a story 
about a project and what will be its costs and benefits.
    Recently our draft Environmental Impact Statement for the Alaskan 
Way Viaduct Replacement project--a major project in our state--took 
this course. Some have criticized it but others, including the Council 
on Environmental Quality (CEQ) have supported this effort to try and 
put citizens back in touch with NEPA and NEPA back in touch with 
citizens.
    We hope you will join the CEO in supporting what we call the 
``reader-friendly'' approach to make these documents easier for people 
really to use. Specifically, Congress can assist this effort by 
communicating its support for the flexibility allowed by NEPA, and 
opposing the continuing rigid, checklist approach which breed complex 
multi-layered documents.
    Second, we are concerned about the way that practice under NEPA has 
allowed the Environmental Impact Statement to become larger and larger 
in scope until it is virtually an environmental umbrella document used 
to tease out, negotiate, settle and explain virtually every detailed 
feature of how permits will be given for a project.
    NEPA should instead support a threshold decision whether or not a 
project seems likely to be a good project. That should involve analysis 
to a reasonable depth to allow the project to pass the ``hard look'' 
test advocated by federal court decisions.
    We think that NEPA environmental assessment of a project should in 
most cases be separated out from the actual settling and drafting of 
the terms and conditions of permits under laws like the Clean Water Act 
or the Endangered Species Act.
    But today NEPA implementers at federal agencies, instead of 
focusing on desired outcomes, want every detail of a project. For 
example, federal resource agencies staff are asking us to document all 
of the precise steps to build a new bridge, in order to determine 
whether there might be an adverse effect on an endangered or threatened 
species.
    That requires a lot of detail and indeed sometimes a large measure 
of project design at a point in the process where final design may be 
years away. While too much design at the wrong time is very costly, 
there is great promise in reaching early agreement among the 
transportation agency, federal resource agencies, tribes, NGOs and the 
public on desired environmental outcomes, which is what NEPA should 
facilitate.
    This is a complicated subject and our formulation is much over-
simplified. But trying to do all the work at once, and before a 
decision is made about the wisdom of a project, is one of the reasons 
why the cost in money, and even more importantly, in time, seems to 
have spun totally out of control.
    We recommend looking for ways for permit writers under the 
individual permitting laws to go back to writing permits--not trying to 
drive their specific agency agendas into the EIS process--which often 
results in making the process overly technical, overly rigid and 
conservative in its judgments, and overly opaque to regular citizens.
    Finally, we believe that particularly at a number of offices of the 
Environmental Protection Agency--one of them is here in this state and 
we believe there are others elsewhere--EIS ``reviewers'' have taken up 
substantive agendas that are not sanctioned in NEPA or any other 
federal law. The employees holding these ``reviewer'' responsibilities 
have great power, because they can grant or withhold ratings of EIS 
that are very important in whether an EIS can survive public scrutiny.
    The special issue we have is that in transportation the 
``reviewer'' function is held by someone who is personally antagonistic 
to transportation improvements that build mobility for people who use 
automobiles. Why? Because more roads mean more cars mean more sprawl 
and sprawl is a bad thing.
    The Washington State legislature has passed landmark growth 
management legislation that vests especially in local government with 
some state management the decisions about how growth will be managed. 
The law is complicated and not universally popular. It has supporters 
and critics. However, it is our law, in our state, and it makes land 
use judgments the purview largely of local government. Local 
governments have exercised their responsibilities to fill in the 
details of how growth will be managed in our separate cities and 
counties.
    EPA, however, discounts and even disregards those judgments as its 
``reviewers'' insist that new roads and other facilities that actually 
are consistent with local growth management designations will not pass 
the screen of the EPA's reviewers' personal opinions and biases. We 
think this is not NEPA's function and that the Environmental Protection 
Agency should be constrained from allowing its agency employees from 
participating in this fashion in ways that are contradictory to local 
land use judgments already made by our communities.
    We feel this particularly because, as officials who care about 
transportation and the environment, the barriers to good transportation 
that these EPA employee judgments give rise to often have the effect, 
in our view, of worsening congestion, driving up housing prices and 
actually helping to create, rather than discourage, highly dispersed 
land use patters that made transportation less efficient.
    We believe that when a project is demonstrated to produce 
environmental effects in the land use area that are consistent with 
land use plans adopted by our local governments under the power of our 
state's growth management act, that that should be the end of the 
discussion.
    Our communities are better served by using NEPA as the means to 
achieve agreement among the transportation agency, federal resource 
agencies, tribes, NGO's and the public about the best environment 
outcomes.
    We suggest that NEPA in and of itself is adequate and useful. But 
through the interpretation of federal agencies NEPA has become in many 
instances a blunt instrument that results in frustrating public 
involvement and makes it much more difficult to arrive at thoughtful 
tradeoffs among transportation needs, project costs, community values, 
and environmental issues.
                                 ______
                                 
    Miss McMorris. Thank you. Really appreciate you being here.
    [Applause.]
    Miss McMorris. Bob, go ahead.

           STATEMENT OF BOB GEDDES, GENERAL MANAGER, 
           PEND OREILLE PUBLIC UTILITY DISTRICT NO. 1

    Mr. Geddes. Thank you for opportunity to be here today. I 
am Bob Geddes, General Manager of a small public utility 
district that serves our county of about 12,000 residents. I 
have with me Mark Cache, our Director of Regulatory 
Environmental Affairs. Mark is the guy who gets to deal with 
the actual day-to-day ups and downs of NEPA. And brought him 
along to have some input, if necessary, also.
    In trying to get a new license for our hydro project, which 
is a 60 megawatt hydro project on the Pend Oreille River, we 
have spent about over 70 years now. And I had a report from 
staff the other day that to get this far in the process, we 
have spent nearly $10-and-a-half million.
    NEPA is not to blame for all of that but obviously part of 
that. And we just feel that there needs to be as--as many of 
the comments we've heard here already, that a better 
coordination with the agencies to help this particular process 
along for re-licensing our project.
    So, I'll submit the following comments, most of them around 
the re-license effort that we are following.
    In relation to that hydro project, obtaining a new license 
is generally considered to involve the potential for a 
significant environmental impact, and an EIS or EA is typically 
required. After an agency issues a final EIS or EA that issues 
the record of decision. Even though not a requirement of NEPA, 
several agencies have policies that allow the administrative 
appeal process if NEPA review is triggered.
    Under Section 4(e) of the Federal Power Act the Federal 
Energy Regulatory Commission is required to accept any license 
condition issued by a conditioning agency deemed necessary for 
protection of Federal land.
    In the case of the Box Canyon re-licensing, those agencies 
involved for us were the Department of Interior and the U.S. 
Forest Service. The very nature of obtaining a new license and 
the submittal of conditions by the agency triggers the NEPA 
process for us and for other licensees around the northwest and 
around the Nation that are really getting into this process 
now. We're on the front edge of this, as you've heard many 
times.
    In 2003, the Forest Service changed its policy with respect 
to NEPA compliance and the hydro re-licensing process. 
Currently the Forest Service maintains that it is no longer 
required to prepare its own NEPA document and issue a record of 
decision because they rely on the EIS that is done by FERC. 
Their reasoning was that the development of the Federal Power 
Act, Section 4(e) conditions does not constitute an independent 
agency action because the NEPA action regarding licensing of a 
hydro project is first responsibility.
    The Department of Interior has never completed a NEPA 
document when filing their conditions under the Federal Power 
Act in hydro licensing proceedings. They also rely on FERC's 
EIS.
    Our experience in the re-licensing project, the process has 
been that the Box Canyon Project, Interior filed with FERC 
their final conditions for the project on May of 2004 under the 
Federal Power Act Section 4(e) provision. FERC followed with 
issuing a final EIS in September of 2004. Then the Forest 
Service filed their final conditions in January of 2005 after 
the final EIS was completed.
    Interestingly enough, FERC's EIS on the Box Canyon Project 
did not endorse many of the agency's conditions and therefore 
many of those conditions remain unsupported by a final record 
of decision.
    Under CEQ regulations, as an alternative to issuing its own 
NEPA document, the agencies can review and adopt FERC's EIS or 
become cooperating agency in connection with the FERC prepared 
EIS. However, there is no indication that they adopted FERC's 
EIS. In fact, the Forest Service and Interior filed comments 
later in this process noting that they do not support the 
findings of FERC's EIS.
    Also, they are not a cooperating agency. They are a party/
intervener and FERC has specifically rejected the proposition 
that intervener can also act as a cooperating agency because 
that would violate the Administrative Procedures Act.
    Finally, in the conditions filed by the agencies, that is a 
requirement that a NEPA document be completed for the 
subsequent implementation of each and every condition when it 
involves Federal lands. This is in addition to the NEPA process 
that FERC would conduct prior to issuing the new license or 
approving the implementation plan under the new license.
    FERC's responsibility under the Federal Power Act also 
includes a developmental analysis, meaning they are required to 
review not only the environmental issues but also operational 
costs and socioeconomic issues. FERC's EIS in this case, for 
Box Canyon, did not include the District's rate information and 
impacts on the rates that were shown in a socioeconomic report 
done independently by a specialist for us in the field of 
economics.
    So, really what's broken and what can be fixed? We have a 
couple of suggestions.
    The Forest Service and Interior rely on FERC--FERC's NEPA 
document for their actions. But FERC's record of decision does 
not support final conditions. There is no accountability 
between the agencies, and there's no recourse for us except to 
go to court.
    I really can't believe that that's what Congress intended 
when this process was set up. There should be better 
cooperation, we think, between the agencies so that would allow 
us to work with them to get to a final point.
    There is a lack of proper NEPA process up front from the 
agencies when filing their conditions for the new license, but 
a duplication of the NEPA review afterwards when the condition 
is implemented. There again, we think better consistency is 
needed between the agencies.
    Socioeconomic consequences of the agency conditions are not 
a factor in the NEPA process. In our case, we have shown that 
the implications for the re-licensing of Box Canyon are 
enormous on power rates, loss of jobs and overall impact to our 
county. We think that the socioeconomic impact should be 
integrated into the NEPA process.
    It's just a fact of life with all decisions we make. We 
make those kind of determinations: Is the cost worth it? We're 
not going to get out of the conditions but there needs to be a 
reasonable point for what is being spent on those things too.
    What is needed is better coordination between the agencies. 
When one Federal agency relies on another's NEPA document then 
they should be bound to support the results or, at a minimum, 
prepare a separate NEPA document to support any decision in 
conflict with the other agency's conclusions. Clearly the 
agencies should be working together for a better decision and 
not against each other that then leaves the public empty-handed 
at the end of process.
    Simply our two recommendations are that one coordinated 
NEPA review by all the agencies should be enough and the 
socioeconomic impacts should be part of the NEPA analysis.
    We, too, believe that NEPA process in concept is a good 
idea. We don't think it needs to be gutted. We just think there 
is room for some improvement here that would help in areas like 
ours.
    Thank you for the opportunity to comment.
    [The prepared statement of Mr. Geddes follows:]

        Statement of Bob Geddes, Public Utility District No. 1 
                         of Pend Oreille County

Background:
    NEPA is a foundational national environmental statute applicable to 
nearly all actions taken or approved by federal agencies. NEPA requires 
that before a federal agency takes a major action it must disclose the 
environmental impact of the action and evaluate alternatives that would 
have fewer environmental costs. If the action may have a significant 
impact on the quality of the human environment, the agency must prepare 
a detailed environmental impact statement (EIS) in accordance with CEQ 
regulations. If an EIS is not required, an agency must still prepare an 
environmental assessment (EA) to support a finding of no significant 
impact (FONSI).
    In relation to a hydroelectric project, obtaining a new license is 
generally considered to involve the potential for significant 
environmental impacts, and EIS or EA is typically required. After an 
agency issues a final EIS or EA, it then issues a ``record of 
decision'' (ROD).
    Even though not a requirement of NEPA, several agencies have 
policies that allow an administrative appeal process if a NEPA review 
is triggered.
    Under Section 4(e) of the Federal Power Act (FPA), the Federal 
Energy Regulatory Commission (FERC) is required to accept any license 
condition issued by a conditioning agency deemed necessary for 
protection of federal lands. In the case of Box Canyon Dam relicensing 
those agencies are the Dept. of Interior and the USDA Forest Service.
    The very nature of obtaining a new license and the submittal of 
conditions by the agencies triggers the NEPA process.
    In 2003, the USDA Forest Service (Forest Service) changed its 
policy with respect to NEPA compliance in the hydroelectric relicensing 
process. Currently, the Forest Service maintains that it is no longer 
required to prepare its own NEPA document and issue a record of 
decision because they rely on the FERC EIS.
    Their reasoning was that the development of Federal Power Act 
Section 4(e) conditions does not constitute an independent agency 
action because the NEPA action regarding licensing of a hydroelectric 
project is FERC's responsibility.
    The Department of Interior (Interior) has never completed a NEPA 
document when filing their conditions under the FPA in a hydroelectric 
license proceeding. They, too, rely on FERC's EIS.
Our Experience: The Box Canyon Hydroelectric Case
    In the FERC relicensing process for the Box Canyon Hydroelectric 
Project, Interior filed with FERC their final conditions for the 
project on May 2004 under the FPA Section 4(e).
    FERC followed with issuing a final EIS in September 2004.
    The Forest Service filed their final conditions January 2005, after 
the final EIS was completed.
    Interestingly, FERC's EIS on the Box Canyon hydroelectric project 
did not endorse many of the agencies conditions, thus the conditions 
remain unsupported by a record of decision.
    Under CEQ regulations, as alternative to issuing its own NEPA 
document, the agencies can review and adopt FERC's EIS or become a 
``cooperating agency'' in connection with the preparation of the FERC 
EIS.
    However, there is no indication that they adopted FERC's EIS. In 
fact, the FS and Interior filed comments noting that they do not 
support the findings of FERC's EIS.
    Also, they are not a cooperating agency; they are party/intervener 
and FERC has specifically rejected the proposition that an intervener 
can also act as a cooperating agency because such a stance would 
violate the Administrative Procedures Act (APA).
    Finally, in the conditions filed by the agencies, there is a 
requirement that a NEPA document be completed for the subsequent 
implementation of each condition when it involves federal lands. This 
is in addition to the NEPA process that FERC would conduct prior to 
issuing the new license or approving the implementation plan under the 
new license.
    FERC's responsibility under the FPA also includes a developmental 
analysis, meaning they are required to review not only the 
environmental issues but also operational costs and socio-economical 
issues. FERC's EIS did not include the District's rate information and 
impacts on rates that were shown in a socio-economical report done by a 
specialist in the field of economics.
Conclusion: What's Broken? Can it be Fixed?
      The FS and Interior rely on FERC's NEPA document for 
their actions but FERC's record of decision does not support their 
final conditions. There is no accountability and the only recourse for 
the licensee is court. Was that what was intended by Congress in 
adopting the NEPA process?
      There is a lack of proper NEPA process upfront from the 
agencies when filing their conditions for the new license but a 
duplication of the NEPA review afterwards, when the condition is 
implemented. Is there any consistency in the NEPA process?
      Socio-economical consequences of the agency conditions 
are not a factor in the NEPA process. In our case, we have shown that 
the implications are enormous on power rates, loss of jobs and overall 
impact on the community. Socio-economic impacts should be integrated 
into the NEPA process.
      What is needed is better coordination between agencies. 
When one federal agency relies on another agency's NEPA document, then 
they should be bound to support the results, or at a minimum, prepare a 
separate NEPA document to support any decision in conflict with the 
other agency's conclusions. Clearly, the agencies should be working 
together for a better decision and not against each other and leave the 
public left empty handed.
      One coordinated NEPA review by all involved agencies 
should be enough.
      Socio-economic impacts need to be considered as part of 
the NEPA analysis.

Attachment A: Letter to Department of Interior to Prepare a NEPA 
Document excerpts Pg. 1-5.

Appendix B: Letter to Department of Interior to Prepare a NEPA Document 
excerpts Pg. 1-4.
                                 ______
                                 
                              Attachment A
March 17, 2005

Mr. Willie R. Taylor
Director, Office of Environmental
Policy and Compliance
United States Department of the Interior
Office of the Secretary
Washington, D.C. 20240

(Via Federal Express)

Re:  Box Canyon Hydroelectric Project-FERC Docket No. P-2042-013 
Request for U.S. Department of the Interior to Prepare a NEPA Document 
and Issue a Record of Decision regarding its Modified Conditions and 
Prescriptions Filed Pursuant to Sections 4(e) and 18 of the Federal 
Power Act on May 20, 2004

Dear Mr. Taylor:

    This letter is being submitted on behalf of the Public Utility 
District No. 1 of Pend Oreille County, Washington (``District''), 
Licensee for the Box Canyon Project (FERC No. 2042-013). On May 20, 
2004, the Department of the Interior (``DOI'') filed its modified 
conditions and prescriptions (``MCPs'') under sections 4(e) and 18 of 
the Federal Power Act (``FPA'') 1 with the Federal Energy 
Regulatory Commission (``FERC'') for the Box Canyon Project. However, 
FERC's Environmental Impact Statement (``EIS'') does not endorse many 
of DOI's MCPs, and in turn, DOI is highly critical of FERC's EIS. Thus, 
DOI's MCPs remain unsupported by a Record of Decision (``ROD'') in 
violation of the requirements of the National Environmental Policy Act 
(``NEPA'') 2 and the Council on Environment Quality 
(``CEQ'') regulations thereunder. 3 Further, DOI has failed 
to issue a supplemental EIS supporting its MCPs and has thus improperly 
denied the District an opportunity to file an administrative appeal of 
DOI's MCPs in violation of NEPA and due process.
---------------------------------------------------------------------------
    \1\ 16 U.S.C. Sec. Sec. 797(e) and 811.
    \2\ 42 U.S.C. Sec. 4321, et seq.
    \3\ 40 C.F.R. Sec. 1500, et seq.
---------------------------------------------------------------------------
    As will be discussed herein, DOI's failure to comply with NEPA is 
unlawful. First, due to the mandatory nature of Sec. 4(e) conditions 
and Sec. 18 fishway prescriptions, DOI is the action agency for 
purposes of NEPA, not FERC, and therefore DOI retains the 
responsibility to see to it that its MCPs are supported by a NEPA 
decision document. Moreover, DOI cannot avoid its responsibilities to 
issue a supporting NEPA document because in this instance it has not 
properly relied on or ``adopted'' FERC's NEPA document. DOI is 
attempting to selectively rely upon FERC's EIS on an issue-by-issue 
basis as a supporting NEPA document for some purposes, while at the 
same time rejecting it and declaring it inadequate wherever it is 
inconsistent with DOI's MCPs. DOI cannot have it both ways.
    The purpose of this letter is to demonstrate that by failing to 
issue its own NEPA decision document, DOI has not fulfilled its 
responsibilities under NEPA; and to suggest two options DOI could 
undertake to bring itself into compliance with the requirements of 
NEPA. The first option would require DOI to retract all of its 
criticism of the FERC EIS and properly ``adopt'' it and its 
recommendations and withdraw the Sec. 4(e) and Sec. 18 MCPs that the 
FERC EIS does not endorse. Alternatively, should DOI wish to stand by 
its criticism of the FERC EIS, it must issue its own supplemental EIS 
that provides the necessary support for its MCPs that the record 
currently lacks. Following this, DOI must prepare a Record of Decision 
that will allow access to an administrative appeal process that DOI has 
improperly foreclosed through its arbitrary and capricious policy.
I. Background
A. The NEPA Requirements
    NEPA is the foundational national environmental statute applicable 
to nearly all actions taken or approved by federal agencies. NEPA 
requires that before a federal agency takes a major action, it must 
disclose the environmental impact of the action and evaluate 
alternatives that would have fewer environmental costs. With the 
limited exception of the President, the Congress and the courts, NEPA's 
requirements apply to all agencies of the federal government. 
Specifically, NEPA Section 102(2) requires federal agencies to include 
an environmental document in ``every recommendation or report 
on...major Federal actions significantly affecting the quality of the 
human environment.'' 4
---------------------------------------------------------------------------
    \4\ 42 U.S.C. Sec. 4332 (2)(C).
---------------------------------------------------------------------------
    Under the CEQ regulations that implement NEPA, 5 an 
agency must first prepare an environmental assessment (``EA'') if an 
agency's regulations do not require the preparation of a full EIS. 
6 If the EA establishes that the agency action may have a 
significant effect on the environment, an EIS must be prepared. 
7 Otherwise, the agency must issue a ``finding of no 
significant impact'' (``FONSI'') accompanied by a ``convincing 
statement of reasons'' to explain why a project's impacts are 
insignificant. 8 Since the issuance of a new license for a 
hydroelectric project is generally considered to involve the potential 
of significant environmental impacts, an EIS or EA is typically 
required. 9 After an agency issues a final EIS, it then 
issues a ``record of decision'' (``ROD'') that notifies the public of 
its decision and triggers the administrative appeals process. 
10
---------------------------------------------------------------------------
    \5\ 40 C.F.R. Part 1500.
    \6\ National Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 
730 (9th Cir. 2001) (citing 40 C.F.R. Sec. 1501.4).
    \7\ Id.
    \8\ Id.
    \9\ Confederated Tribes and Bands of Yakima Indian Nation v. 
F.E.R.C., 746 F.2d 466 (9th Cir. 1984).
    \10\ 40 C.F.R. Sec. 1505.2.
---------------------------------------------------------------------------
B. DOI's NEPA Practice and Policy
1. The DOI Manual
    Under its current practices, when an action is initiated by a 
bureau of the DOI, then that bureau prepares environmental documents.
        NEPA applies to Department and bureau decision making and 
        focuses on major Federal actions significantly affecting the 
        quality of the human environment. 11
---------------------------------------------------------------------------
    \11\ Department of the Interior Department Manual, Part 516, 
Chapter 2.2(F) (May 27, 2004).
---------------------------------------------------------------------------
    By contrast, when another agency is the lead agency, DOI only 
provides ``review and comment.'' 12 DOI does not prepare 
environmental documents for hydroelectric projects that are licensed by 
FERC because DOI considers the ``major federal action'' to be FERC's. 
Instead, DOI reviews and comments on FERC's NEPA document and submits 
its mandatory conditions and prescriptions pursuant to the FPA. Chapter 
7 of Part 516 of DOI's Departmental Manual (``Review of EISs and 
Project Proposals by Other Federal Agencies'') conveys this process. 
Section 7.2 states:
---------------------------------------------------------------------------
    \12\ See generally, id. at Part 516 and specifically Chapter 7.
---------------------------------------------------------------------------
        The Department considers it a priority to provide competent and 
        timely review comments on EISs and other environmental or 
        project review documents prepared by other Federal agencies for 
        their major actions which significantly affect the quality of 
        the human environment. All such documents are hereinafter 
        referred to as environmental review documents. The term 
        environmental review document as used in this chapter is 
        separate from and broader than the term environmental document 
        found in 40 CFR 1508.10 of the CEQ Regulations. These reviews 
        are predicated on the Department's jurisdiction by law or 
        special expertise with respect to the environmental impact 
        involved and shall provide constructive comments to other 
        Federal agencies to assist them in meeting their environmental 
        responsibilities. (Emphasis added).
    This language appears to be based on section 102(C) of NEPA, which 
provides: ``Prior to making any detailed statement [EIS], the 
responsible Federal official shall consult with and obtain the comments 
of any Federal agency which has jurisdiction by law or special 
expertise with respect to any environmental impact involved.'' Indeed, 
its Manual indicates that DOI considers itself bound by the 
requirements of NEPA 13 and specifically states:
---------------------------------------------------------------------------
    \13\ See id. at Chapter 1.1.
---------------------------------------------------------------------------
        The Department hereby adopts the CEQ Regulations implementing 
        the procedural provisions of NEPA [Sec. 102(2)(C)] except where 
        compliance would be inconsistent with other statutory 
        requirements. 14
---------------------------------------------------------------------------
    \14\ Id. at 1.7(B).
---------------------------------------------------------------------------
2. DOI's Environmental Review Memorandum No. ERM00-2
    In 2000, the Director of DOI's Office of Environmental Policy and 
Compliance issued a memo regarding ``Departmental Participation in 
Hydroelectric Power Licensing by the Federal Energy Regulatory 
Commission.'' 15 In the memo, the Director states:
---------------------------------------------------------------------------
    \15\ ERM00-2 (March 27, 2000).
---------------------------------------------------------------------------
        Following an extensive Secretarial hydropower initiative (1998-
        2000) to improve bureau coordination, a number of existing 
        Departmental policies and practices in this area were revised 
        and a number of new policies and practices were introduced. In 
        addition, measures are provided to coordinate legal and 
        technical review and to assure the development of a sound 
        administrative record in FERC licensing proceedings. 
        16
---------------------------------------------------------------------------
    \16\ Id. at section 1.
---------------------------------------------------------------------------
    Regarding mandatory conditions and prescriptions, the Director 
states:
    (1)  Section 4(e) of the FPA requires FERC to accept any license 
terms and conditions, which the Secretary deems necessary for the 
protection and utilization of a reservation under the Department's 
supervision. The project must occupy land within the reservation.... 
The Department's comments will specifically identify any Section 4(e) 
conditions and be supported by substantial evidence in the record....
    (2)  Section 18 of the FPA requires FERC to accept any license 
terms and conditions for the construction, maintenance, and operation 
of such fishways as may be prescribed by the Secretary. Departmental 
comments will specifically identify any Section 18 prescriptions and be 
supported by appropriate fisheries information and substantial evidence 
in the record.... 17
---------------------------------------------------------------------------
    \17\ Id. at section 4(B).
---------------------------------------------------------------------------
    Thus DOI, by its own admission, is bound by the requirements of 
NEPA, the CEQ regulations thereunder and the requirement that its MCPs 
be supported in the record by substantial evidence. As will be seen 
however, DOI's application of its policy in the Box Canyon relicensing 
violates these very requirements.
                                 ______
                                 

                              Attachment B

March 4, 2005

Ms. Linda Goodman
Regional Forester
U.S. Department of Agriculture
Forest Service Pacific Northwest Region
333 SW First Avenue
Portland, OR 97204

Re:  Box Canyon Hydroelectric Project-FERC Docket No. P-2042-013 
Request for U.S. Forest Service to Prepare a NEPA Document and Issue a 
Record of Decision regarding Conditions and Recommendations Filed 
Pursuant to Sections 4(e) and 10 of the Federal Power Act on January 
12, 2005

Dear Ms. Goodman:

    This letter is being submitted on behalf of the Public Utility 
District No. 1 of Pend Oreille County, Washington (``District''), 
Licensee for the Box Canyon Project (FERC No. 2042-013). On January 12, 
2005, the Forest Service (``FS'') filed its final conditions under 
section 4(e) of the Federal Power Act (``FPA'') 1 with the 
Federal Energy Regulatory Commission (``FERC'') for the Box Canyon 
Project. In the past, pursuant to its prior practice and policies, FS 
provided an opportunity to file an administrative appeal of final 4(e) 
conditions pursuant to 36 C.F.R. Part 215, which applies to FS 
decisions documented in a Record of Decision (``ROD'') following 
preparation of an environmental analysis as required by the National 
Environmental Policy Act (``NEPA'').
---------------------------------------------------------------------------
    \1\ 16 U.S.C. Sec. 797(e).
---------------------------------------------------------------------------
    However, in a memorandum dated May 12, 2003, the FS announced a 
change in its policy regarding its role in the hydropower licensing 
process. Under the new policy the FS purportedly ``relies'' on FERC's 
NEPA analysis, instead of its own, to support its section 4(e) 
conditions. As a result, the FS no longer issues a separate ``NEPA 
decision document'' to support its conditions, and as a consequence of 
this change in policy, these conditions are no longer subject to appeal 
under Part 215 of the FS's regulations.
    FS has attempted to justify its new policy that it no longer needs 
to issue an appealable NEPA decision document on two grounds: (1) the 
NEPA ``action'' is actually FERC's and not the FS's; and (2) instead of 
issuing its own NEPA document as it had traditionally done, FS will 
instead rely on the document prepared by FERC. As will be outlined 
below, neither justification is warranted.
    FS's first justification fails due to the mandatory nature of 4(e) 
conditions; FS remains the action agency for purposes of NEPA, not 
FERC. FS's second argument fails because FS has not properly relied on 
or ``adopted'' FERC's NEPA document. FS is attempting to selectively 
rely upon FERC's Final Environmental Impact Statement (``FEIS'') on an 
issue-by-issue basis as a supporting NEPA document for some purposes, 
while at the same time rejecting it and declaring it inadequate 
wherever it is inconsistent with FS's 4(e) conditions. FS cannot have 
it both ways.
    The purpose of this letter is to demonstrate that FS's new policy 
is inconsistent with the requirements of NEPA and to suggest two 
options FS could undertake to bring itself back in compliance with the 
requirements of NEPA. The first option would require FS to retract all 
of its criticism of the FERC FEIS and properly ``adopt'' it and its 
recommendations and withdraw the 4(e) conditions that the FERC FEIS 
does not endorse. Alternatively, should FS wish to stand by its 
criticism of the FERC FEIS, it must return to its prior policy of 
issuing its own EIS that provides the necessary support for its 4(e) 
conditions. Following this, FS must prepare a Record of Decision that 
will reopen access to the administrative appeal process that FS has 
improperly foreclosed through its arbitrary and capricious 2003 policy 
change.
I. Background
A. NEPA Requirements and FS's Practices
    NEPA is the foundational national environmental statute applicable 
to nearly all actions taken or approved by federal agencies. NEPA 
requires that before a federal agency takes a major action, it must 
disclose the environmental impact of the action and evaluate 
alternatives that would have fewer environmental costs. With the 
limited exception of the President, the Congress and the courts, NEPA's 
requirements apply to all agencies of the federal government. 
Specifically, NEPA Section 102(2) requires federal agencies to include 
an environmental document in ``every recommendation or report 
on...major Federal actions significantly affecting the quality of the 
human environment.'' 2
---------------------------------------------------------------------------
    \2\ 42 U.S.C. Sec. 4332 (2)(c).
---------------------------------------------------------------------------
    Under the Counsel on Environment Quality (``CEQ'') regulations that 
implement NEPA, 3 an agency must first prepare an 
environmental assessment (``EA'') if an agency's regulations do not 
require the preparation of a full environmental impact statement 
(``EIS''). 4 If the EA establishes that the agency action 
may have a significant effect on the environment, an EIS must be 
prepared. 5 Otherwise, the agency must issue a ``finding of 
no significant impact'' (``FONSI'') accompanied by a ``convincing 
statement of reasons'' to explain why a project's impacts are 
insignificant. 6 Since the issuance of a new license for a 
hydroelectric project is generally considered to involve the potential 
of significant environmental impacts, an EIS or EA is typically 
required. 7 After an agency issues a final EIS, it then 
issues a ``record of decision'' (``ROD'') that notifies the public of 
its decision and triggers the administrative appeals process.
---------------------------------------------------------------------------
    \3\ 40 C.F.R. Part 1500.
    \4\ National Parks & Conservation Ass'n v. Babbitt, 241 F.3d 722, 
730 (9th Cir. 2001) (citing 40 C.F.R. 1501.4).
    \5\ Id.
    \6\ Id.
    \7\ Confederated Tribes and Bands of Yakima Indian Nation v. 
F.E.R.C., 746 F.2d 466 (9th Cir. 1984).
---------------------------------------------------------------------------
B. FS's Prior Practice and Policy Were Consistent with the Requirements 
        of NEPA
    Prior to 2003, FS's policies and practices were consistent with the 
NEPA requirements outlined above. In FS's own Hydroelectric Handbook, 
Sec. 32.53b ``Documentation for the 4(e) Report,'' FS stated:
        When an Environmental Impact Statement is Necessary. If the 
        proposed project may have a significant impact on the quality 
        of the human environment as it relates to National Forest 
        System lands, it is necessary to prepare an environmental 
        impact statement (EIS) before responding with a 4(e) report 
        containing conditions or making a recommendation concerning the 
        project's compatibility with National Forest purposes. In that 
        case inform FERC, in the initial 4(e) report, that there are 
        significant impacts and request designation as a cooperating 
        agency. Prepare the 4(e) report containing conditions after 
        issuance of the final EIS and record of decision (sec. 52.11 
        and sec. 54.43).
    In Sec. 32.6(2)(b) ``Decision Documents,'' the FS Hydroelectric 
Handbook, FS stated:
        Restate the decision in the 4(e) report cover letter (sec. 
        52.21). If an environmental impact statement was necessary, 
        issue a separate record of decision according to the procedures 
        in FSH 1909.15 section 47 (sec. 32.53b). If an environmental 
        assessment was prepared, issue a decision notice and finding of 
        no significant impact (sec. 32.7).
    Furthermore, under its prior regulations, FS listed the types of 
agency decisions that were subject to appeal and included the 
following:
    (a)  Project and activity decisions documented in a Record of 
Decision [ROD] or Decision Notice [DN], including those which, as a 
part of the project approval decision, contain a nonsignificant 
amendment to a National Forest Land and Resource Management Plan (36 
CFR 219.10). 8
---------------------------------------------------------------------------
    \8\ 36 C.F.R. Sec. 215.7 (2002).
---------------------------------------------------------------------------
    As indicated above, decisions subject to appeal had to have a ROD 
or DN, which meant that the decision had to be supported by either an 
environmental impact statement or an environmental assessment and 
declaration of no significant impact prepared by the FS. Thus, under 
its traditional practice in a hydroelectric relicensing, FS would issue 
an ROD pursuant to NEPA that would give interested parties access to an 
administrative appeal of its final 4(e) conditions.
                                 ______
                                 
    [Applause.]
    Miss McMorris. Thank you. Ms. Kimbell.

       STATEMENT OF ABIGAIL KIMBELL, REGIONAL FORESTER, 
                 REGION 1, U.S. FOREST SERVICE

    Ms. Kimbell. Thank you. Madam Chairperson and members of 
the Task Force, my name is Gail Kimbell. I'm the Regional 
Forester for the Northern Region of the U.S. Forest Service.
    The Northern Region comprises 25 million acres on 13 
National Forests and Grasslands in Idaho, Montana and North 
Dakota and is headquartered in Missoula, Montana.
    Previously, I served as Associate Deputy Chief for the 
National Forest System in Washington, D.C. And 20 years ago I 
served as District Ranger in Kettle Falls. So, it's nice to be 
here.
    I'm joined today by Mike Oliver, who's my Deputy Director 
of Public and Governmental Affairs, by Kim (unintelligible), 
who's the Resource Forester at Sullivan Lake on the Colville 
National Forest, and by Rick Braswell who is the Forest 
Supervisor on the Colville National Forest.
    I'm here today to address concerns regarding the ability of 
the Forest Service to respond to restoration and forest health 
needs in a timely manner. During the past two decades, forests 
and grasslands in the Northern Region have experienced 
protracted drought accompanied by associated wildfires and 
forest insect epidemics.
    To assess forest health of the national forests of the 
Northern Region, one need only drive Interstate 90.
    Traveling west from Billings, Montana, you can view the 
Custer National Forest in the distance to the south. You drive 
through big timber at Livingston on the Gallatin National 
Forest, and you start looking closer at pockets of dead trees.
    As you climb up out of Livingston, you go through a pass 
with some very interesting rock formations but where most of 
the pines are dead. You continue west through the Gallatin 
National Forest through Bozeman and on to Butte. As you drop 
down into Butte, look south onto the Beaverhead-Deerlodge 
National Forest into the Basin Creek watershed, which supplies 
the City of Butte with its water. Look that nearly every tree 
is dead. I always make a wish that a lightning bolt doesn't 
strike anywhere near for the sake of all the residents of Butte 
and certainly for those with homes in the path of the 
prevailing winds.
    You'll continue north and west, you'll see more beetle 
killed timber and trees across the Beaverhead-Deerlodge 
National Forest. There are many privately held forested lands 
all along here that have experienced the very same drought, the 
very same insect infestations. Many have been treated to 
removed the dead and dying trees. There will be much of the 
same as you continue onto the Lolo National Forest, and in 
addition you'll see clear evidence of recent forest fires. 
Again, some lands have been treated to remove the killed trees.
    Coming into Missoula, you see slopes of purple and yellow 
depending on the season. Pretty from a distance, but up close 
you find that it's knapweed, leafy spurge and yellow toadflax. 
All invasive species. Further down the Clark Fork River, the 
hillsides are covered with pockets of trees, large and small, 
of trees that have succumbed to insects. You'll also be driving 
through grossly overstocked stands of trees highly susceptible 
to wildfire with homes mixed in.
    You'll come through Superior and then climb to Lookout 
Pass. Perhaps the toughest sight is the big sign welcoming you 
to Idaho with a backdrop of extensive stands of dead trees on 
the Idaho Panhandle National Forest. I can understand why 
Governor Kempthorne is not thrilled with that view.
    The forest health issues are real and the impacts are 
extensive. So, what are we doing about this? A lot. Is it 
enough to effect ecological change? Perhaps not.
    The District Rangers across the Northern Region have been 
very active with communities developing community wildfire 
protection plans and designing hazardous field reduction 
projects. They have used the Categorical Exclusions and other 
tools provided by the Healthy Forest Initiative and the 
authorities in Title I of the Healthy Forests Restoration Act. 
They're also using all the old tools as well.
    We are currently using the most current science available 
from our own research branch and from the universities in 
Montana and Idaho to help design our projects. And, yes, we 
continue to be challenged on many of our decisions in both our 
own administrative review process and in the courts. In fact, 
we currently have at least 23 vegetation management projects in 
litigation today.
    To respond to these challenges requires more staff time, 
more documentation. Our limited resources are employed to 
defend the decisions so crucial to restoring ecosystems.
    There is no special budget for litigation, no special team 
of resource specialists. The same resource specialist charged 
with environmental analysis on future projects must delay 
work--must delay that work to prepare extensive administrative 
records for legal challenges.
    Several speakers before me noted the stack of boxes behind 
you. That, in fact, is an administrative record. That's the 
administrative record from the Colville National Forest for a 
road access project. It was for the construction of 1.88 miles 
of road and .81 miles of road reconstruction to access private 
lands adjacent to the Sullivan Lake Ranger District on the 
Colville National Forest.
    This was over a 10-year period. And, yes, it involves the 
complex intertwining with the Endangered Species Act, the Clean 
Water Act and others. And this is the administrative record. 
The good folks from the Colville brought it in on a dolly 
today. It's 16,000 pages. And, I'm sorry, the district judge 
who reviewed this said it had been studied to death and for a 
small impact, and he didn't want to see it again.
    In my testimony, there is attached an Exhibit 1. And I have 
a larger copy of that photo. This photo demonstrates the 
judicial review requirements for documentation of the 
administrative record for a project on the Helena National 
Forest in Montana. The original EIS was 592 pages. It seems 
paltry compared to the 15,000 pages in the administrative 
record. Judicial review also requires the record be submitted 
in electronic format. Electronic formats are extensive with 
hundreds of hyperlinks that must be carefully inspected to 
insure all supporting documents are appropriately referenced. 
As the required analysis and documentation increases, these 
limited resources must also be committed to reassessing 
projects adding another layer of delay--level of delay.
    Delays in restoration and forest health treatments compound 
the problem. More acres become more susceptible to catastrophic 
wildfire, insect, diseases and weeds continue to spread. 
Another example is the Jimtown project also on the Helena 
National Forest. This project proposed to thin and underburn 
about 900 acres and underburn 220 acres to make ponderosa pine 
stands less prone to stand replacing wildfires and protect 
private property in the wildland-urban interface.
    There are 15 residences on inholdings in this area.
    There is extensive public involvement. There were ground 
visits to the 22 property owners in and around the area. And 
the Environmental Impact and Decision Notice were released in 
May of 2001.
    There were a series of delays. Court date was set for 
October 2003, but it burned in July of 2003. And it burned 
quite hot on National Forest, and it did not burn on the 
private lands that had been treated along with it--or just 
before it. We were trying to mimic the work that had been done 
on the private lands.
    The decisions made in the courts can themselves have some 
serious impacts. The National Environmental Policy Act is sound 
policy for evaluating proposals, alternatives and 
(unintelligible) for involving the public and for disclosing 
environmental effects and presenting the rationale for 
decisionmaking. But the Act in its implementing regulations 
lack definitive standards.
    Just recently a project from the Idaho Panhandle National 
Forest was considered in Idaho District Court and was upheld. 
It was appealed to the United States Court of Appeals for the 
9th Circuit, and a panel of judges overturned the lower court 
and in their ruling said they were raising the bar for 
evaluation of cumulative effects.
    My resource specialists work hard to meet the goals and 
expectations but that bar keeps moving. There are no standards 
in the law to make the regulations and judges are free to set 
their own. Still there is hope.
    I see a change in the way interest groups of all kinds want 
to come together and effect a better future for the resources 
and for their communities. They all talk of sustaining healthy 
forest and grasslands. Just this week the Bitterroot National 
Forest (unintelligible) the draft Environmental Impact 
Statement for a project in the vicinity of the community of 
Sula. This response----
    Mr. Cannon. Madam Chairman, I apologize for interrupting. 
But I need to--I have to catch a plane a little later, and I 
noticed that we're significantly over time here. And I didn't 
mean to interrupt, Ms. Kimbell, but--may I just suggest that 
the Chair consider an instruction to panelists.
    Miss McMorris. OK. I appreciate the testimony. If you can 
wrap up, I want to get some time in here for questions. It's 
very good.
    Ms. Kimbell. The Northern Region will continue to do what 
we can, working with all the interested parties, with all the 
new tools and lots of the old ones too.
    Collaborative community planning is not an inexpensive or 
quick process. But it's a very necessary process. And we're 
very excited about the results of many of our collaborative 
efforts with communities across the Northern Region.
    This concludes my statement. I'll be happy to answer any 
questions you may have.
    [The prepared statement of Ms. Kimbell follows:]

          Statement of Abigail R. Kimbell, Regional Forester, 
                  USDA Forest Service, Northern Region

    Madam Chairperson and Members of the Task Force;
    My name is Gail Kimbell. I am Regional Forester for the USDA Forest 
Service Northern Region, which comprises 25 million acres on 13 
National Forests and Grasslands, in Idaho, Montana and North Dakota. I 
am based in Missoula, Montana. Previously, I served as Associate Deputy 
Chief for the National Forest System in Washington, D.C.
    I am here today to address you about the concerns regarding the 
ability of the Forest Service to respond to restoration and forest 
health needs in a timely manner. During the past two decades, Forests 
and Grasslands in the Northern Region have experienced protracted 
drought accompanied by associated wildfires and forest health issues 
such as invasive species and stress induced insect epidemics.
    To assess forest health of the National Forests and Grasslands in 
the Northern Region, one need only drive Interstate-90. From Billings 
you can view the Custer National Forest in the distance and then the 
Gallatin National Forest up close. As you climb out of Livingston, you 
start noting all the dead pine in amongst the very cool rocks on the 
pass. As you drive into Butte, you can look south into the city's Basin 
Creek watershed on the Beaverhead-Deerlodge National Forest and 
fervently hope a lightning bolt doesn't strike anywhere near. Going 
further west, you drive through parts of the Helena National Forest and 
onto the Lolo National Forest, intermixed with private lands of many 
ownerships. You'll note acres and acres of burned forest. You will also 
see abundant understories of purple and yellow characterizing the 
presence of spotted knapweed, leafy spurge and yellow toadflax, all 
invasive pest species. Keep driving I-90 down the Clark Fork River 
through Missoula and then on to Superior. There you will see pockets or 
hillsides of dead trees or trees exhibiting stress as you continue on 
up the pass. Perhaps the toughest sight is the big sign ``Welcome to 
Idaho'' as you cross onto the Idaho Panhandle National Forests with the 
spectacular backdrop of extensive stands of dead trees. I can 
understand why Governor Kempthorne is not thrilled with that view. My 
point here is that the forest health issue is real and the impacts are 
extensive. We are working in cooperation with Forest Service Research, 
the State of Idaho and State of Montana using the Forest Inventory and 
Analysis (FIA) process to develop quantitative data that will help 
determine the magnitude of various forest health problems. This, along 
with the application of other science based evaluation provides a 
foundation for the collaborative processes that are used to spend 
taxpayer dollars in the highest priority places.
    Yes, we are being challenged on our decisions in the Northern 
Region. Many go on to court. In fact, we have 44 projects in some stage 
of litigation right now. These projects represent an array of forest 
and rangeland management needs including 16 green timber sales, 5 
salvage timber sales, 2 fuels reduction projects, 4 grazing allotments 
and combinations of these activities. The balance of the projects in 
litigation cover a wide range of management activities such as 
easements, access, travel management, threatened and endangered 
species, and mining. Adequately responding to these challenges 
continues to require more extensive environmental analysis and more 
documentation. It is also important to note that each time we go 
through the appeal process or the courts, much of our limited resources 
are employed to defend the decisions we feel are crucial to restoring 
ecosystems and addressing forest health concerns. There is no special 
budget for litigation, no special team of resource specialists. The 
same resource teams that are charged with completing required analysis 
on current and future projects must delay that work to prepare 
extensive administrative records for legal challenges.
    Please refer to Exhibit (1). This photo demonstrates judicial 
review requirements for documentation of the administrative record for 
the Clancy-Unionville project on the Helena National Forest in Montana. 
The original Environmental Impact Statement was a sizeable 592 pages 
with the appendices, but this seems paltry compared to over 15,000 
pages now in the administrative record. Judicial review also requires 
this record be submitted in electronic format in addition to this 
mountain of paperwork. These electronic records are extensive with 
hundreds of hyperlinks that must be carefully inspected to ensure all 
the supporting documents are appropriately referenced. As the required 
analysis and documentation increases, these limited resources must also 
be committed to re-assessing projects that have previously been 
initiated thus adding another level of delay.
    Delays in restoration and forest health treatments compound the 
problem as more acres move into conditions that promote invasions of 
exotics, leave forests susceptible to insect and disease and predispose 
ecosystems to unwanted wildfire. An example of how process delays can 
negate the advantages of appropriate treatment is the Jimtown project 
on the Helena National Forest in Montana. This project proposed to thin 
and underburn about 900 acres and underburn 220 acres to make ponderosa 
pine stands less prone to stand replacing wildfires and protect private 
property in the wildland-urban fire interface.
    The project involved extensive public involvement. Letters were 
sent to the 22 property owners in the immediate area of the project and 
the District Ranger met with 12 of the landowners individually on the 
ground. The public participation was conducted in cooperation with the 
rural fire district. Public meetings and field trips to the area were 
held and were attended by County officials, landowners and other 
interested parties. The project also received letters of support from 
Lewis and Clark County Disaster and Emergency Services and the Tri-
County Fire Working Group (A coalition of federal, state and local fire 
officials from Lewis and Clark, Jefferson and Broadwater counties).
    An Environmental Impact Statement and Decision Notice were released 
in May of 2001. The project was subsequently appealed. At the appeals 
resolution meeting, eight individual landowners requested the 
appellants withdraw their appeal, which they did not. The project 
decision was upheld in August of 2001. The appellant filed a complaint 
with Federal District Court to permanently enjoin the project which was 
granted. A hearing date was set for October of 2003; however, in July 
of 2003, approximately 45% of the project area burned in a running 
crown wildfire. The chronology (Exhibit 2) of this project shows how 
process and procedural delays hamper the ability to get on top of 
forest health restoration needs especially when treatment needs are 
time sensitive. Often delay is the objective of individuals or groups 
that do not want to see any trees harvested. This is particularly true 
with fire and insect salvage. Usually the value of any forest product 
is greatly reduced before the final disposition of the appeals and 
litigation.
    Still, the Forest Service is starting to see a change in the way 
communities are working together with land managers to address the most 
important priorities that must be addressed if we are to sustain 
healthy forest and range lands. People want something better for Idaho 
and Montana and I am sensing there is an evolution underway in the 
manner in which interest groups are willing to come together and talk. 
This week, the Northern Region released the Draft Environmental Impact 
Statement for our first project developed under HFRA. This project was 
developed in a collaborative manner with the community of Sula, Montana 
and it responds to the needs outlined in the Community Fire Protection 
Plan.
    The Forest Service and other federal agencies are working hard to 
address these ecosystem health issues. These are huge problems and many 
factors such as weather and other natural processes are out of our 
control. However, we are making progress using new tools we have been 
given by Congress and the Administration. We are doing lots of 
community collaboration and environmental analysis. We've completed 
over 100 projects using Categorical Exclusions (CEs) from the Healthy 
Forests Initiative (HFI). We have several project proposals ongoing 
using the authorities under Title I from the Healthy Forests 
Restoration Act (HFRA) and have initiated another based on the Council 
on Environmental Quality's Guidance for Environmental Assessment of 
Healthy Forest Projects on the Butte Ranger District of the Beaverhead-
Deerlodge National Forest.(http://www.fs.fed.us/r1/bdnf/)
    The Northern Region leads the nation in application of Forest 
Stewardship Contracting. Projects such as the Clearwater Stewardship 
Pilot project on the Lolo National Forest are producing tangible 
results in forest health restoration while helping local economies. 
This project included 640 acres of selective timber harvest, much of 
which was in the wildland-urban fire interface around the town of 
Seeley Lake, Montana. We are making good use of all these new 
authorities where it is appropriate. We also recognize the tools have 
size and other legal limitations, so there are still places where 
treatments need to be applied on a landscape level.
    The Northern Region will continue to do what we can, working with 
all the interested parties, using the tools we have been given. 
Undoubtedly, everyone is interested in healthy, diverse and vibrant 
ecosystems that are managed in a sustainable manner. We need to focus 
our efforts and resources on what we collectively agree are good for 
the land and not continue to expend an inordinate amount of time mired 
in process. We believe the President's Healthy Forests Initiative and 
the new authorities provided under HRFA put us on a strong path toward 
addressing these problems and focusing on solutions that ultimately 
improve the health of the land.
    This concludes my statement. I will be glad to answer any questions 
you may have.
    NOTE: Exhibit 1 has been retained in the Committee's official 
files.
                                 ______
                                 
                               Exhibit 2

                      Task Force on Improving NEPA

              Testimony of Regional Forester Gail Kimbell

                  April 23, 2005 - Spokane, Washington

                 Chronology Jimtown Vegetation Project

May 2000         Scoping initiated for project. The purpose of the 
        project is to create sustainable conditions less prone to 
        stand-replacing fire within a ponderosa pine forest.
May 2001         Decision Notice issued. The decision implements 860 
        acres of forest thinning using timber harvest with subsequent 
        underburning and 220 acres of underburning alone.
June 2001        Native Ecosystems Council appeals the decision.
August 2001      Regional Forester affirms the decision, appeal denied.
October 2001     Native Ecosystems Council files a complaint in 
        District Court to permanently enjoin the project.
July 2003        A human-caused fire which originated within the 
        Jimtown Project area was reported about noon west of the 
        Jimtown Road. By nightfall the fire had jumped the county road, 
        forced evacuation of the area residents, taken out the power 
        for the nearby community of York, and burned about 600 acres. 
        The fire ultimately burned just over 1,000 acres and cost $1 
        million to suppress.
                Approximately 50% of the project area slated for 
        thinning was burned in a mixed lethal fire or running crown 
        fire. The fire spread was quite rapid and fire intensity was 
        severe. For that reason, firefighting activities were 
        essentially limited to slurry drops by air tankers and flanking 
        actions by ground forces with more aggressive action along 
        defensible spaces on private property. FS personnel have 
        concluded that completion of the fuel reduction actions tied to 
        the Jimtown project would have allowed firefighters to safely 
        take more direct action against a lower intensity ground fire, 
        resulting in much quicker control with fewer burned acres.
March 2004      The U.S. District Court issues an order denying Native 
        Ecosystem Council's motion for Summary Judgement.
March 2004      Native Ecosystem appeals the District Court ruling to 
        the Ninth Circuit Court.
February 2005   Ninth Circuit panel hears oral argument of the case. As 
        of 4/19/05, the case is awaiting disposition.
                                 ______
                                 
    Miss McMorris. Thank you very much. Really appreciate it.
    [Applause.]

             STATEMENT OF MICHAEL KAKUK, ATTORNEY, 
                    KAKUK LAW OFFICES, P.C.

    Mr. Kakuk. Madam Chair, members of the Task Force, Michael 
Kakuk from Helena, Montana. I'm an attorney in private 
practice. And I will get you folks back on time.
    I represent the Montana Contractors' Association, which is 
highway contractors, the Montana Building Industries 
Association, home builders, the Montana Association of Realtors 
and the Western Environmental Trade Association, which is a 
trade association composed of development, construction, 
extractive and motorized recreation. But I'm not here 
representing them today. I'm here on own time. So, any of my 
comments should not be attributed to any of my clients, simply 
myself. But for these clients, I would not be here.
    As far as my clients are concerned, there's two goals to 
the National Environmental Policy Act or the Montana 
Environmental Policy Act and that would be the opportunity for 
public involvement. And I liked Mr. Jensen's comments about 
public engagement. I'm hoping that's going to go someplace. And 
the other goal is to understand the potential impacts of your 
actions. However, some of the perceived issues that were coming 
out of the implementation of trying to reach these two goals, 
and I again agree with Mr. Jensen, that these are symptoms. 
These are not the root cause.
    These are the symptoms.
    Never ending study. We've heard of that. How do you know 
when we're done with an environmental review? The judge tells 
you you're done. We've got inappropriate level of review. The 
level of review, whether it's an EA or an EIS or a mitigated 
EA, is not (unintelligible) so much by the level of potential 
impacts as it is by the level of public and privacy regarding 
that proposed project.
    And, three, we have inappropriate use. I'm a member of the 
American Federation of Musicians, you'd think I'd know 
feedback, right.
    We're seeing inappropriate use of the environmental policy 
reviews. For example, we've got Highway 93 in Montana, one of 
the most deadly stretches of highway in the country. And the 
Montana Department of Transportation said we've got to go from 
two to four lanes. And we had people living down south of 
Missoula that said, well, go ahead and do that. But we want you 
to study the impacts of growth.
    And not only do we want you to study it, we want the 
Federal Highway Commission to actually regulate growth 
alongside those roads. That's inappropriate.
    You can go ahead and study it. There is a connection 
between building roads and growth. Of course there is. But the 
control should come from the local government. And, again, we 
don't have a growth management act at a statewide level. And 
local government's very difficult to get them to do basic 
planning and zoning. And that again goes back to this idea of 
public engagement. If we can get a more creative dialog, I 
think some of these things are going to go away.
    So, what have we done in Montana?
    You'll see on page 2 of my testimony that one--the first 
thing we did was increase due process protections for project 
sponsors. Not cutting the public out, just making sure the 
project sponsor has the opportunity to be as involved in the 
process as the public.
    Second, we clarified the distinction that in Montana you 
cannot--the agency may not withhold, deny or impose conditions 
on any permit based on MEPA. I don't care what you find in the 
Montana Environmental Policy Act, you can't mitigate or deny 
based on that. You've got to have it.
    You've got to have that authority in your underlying 
statutes, the Water Quality Act, the Air Quality Act, et 
cetera.
    Montana Environmental--and that P doesn't stand for 
protection. This is not a protection act; this is a policy act. 
And we felt that going beyond that was actually 
unconstitutional delegation of legislative authority. That was 
changed in 2001.
    What have we seen? We've actually seen a decrease in 
lawsuits regarding this. Now, it's anecdotal. I didn't have the 
time to actually go through and do a statistical analysis. I 
can't sit here and say that but for this change we wouldn't 
have seen the decrease in lawsuits. But the agencies are 
telling me--and I checked with the agencies.
    I even checked with the environmental organization as well, 
one, the Montana Environmental Information Center before I came 
here said this is my role. What would you like me to tell them 
about? And I'm seeing a decrease in lawsuits. Again, anecdotal.
    OK. So, what's next? Very interested in Mr. Jensen's three-
part approach. Getting back to the policy. We've got the same 
policy in Montana. And it isn't applied because it is so broad 
and it's nebulous. Difficult to put qualifiers on it. And, 
again, I really like the idea of this going from public 
involvement to public engagement.
    If we can take the heat down, I think things are going to 
smooth out. But until that happens, the first thing we're going 
to do this interim we're looking at more modifications. Though 
I have to tell you the last thing we did this year in 2005 just 
a couple weeks ago, we put a clear trigger. How do you go from 
an EA to an EIS? We know that if it's significant, you're going 
to do significant impacts, you do an EIS. How do you make that 
determination?
    We're now requiring in Montana that there is a written 
determination by the agency based on material evidence 
identified in the determination that there will be a 
significant impact or a potential for significant environmental 
impact before the agencies can charge the sponsor for this EIS.
    What's next? We're looking at side boards. We've got to 
help the agencies determine when they are finished. What makes 
a valid environmental document.
    Two, we're going to--we're looking at categorizing impacts; 
primary, secondary, tertiary. For example, the tertiary impacts 
maybe that doesn't trigger an EIS. Maybe tertiary impacts are 
raised but not analyzed. And, third, we're looking at the 
distinction between the actual substantive laws, the regulatory 
laws, and NEPA and the state act.
    NEPA predates our Water Quality Act and our Air Quality 
Act. Those two acts have taken a lot of the responsibilities 
that were under MEPA and they've included it in the substantive 
acts themselves. Maybe it's time to contrast and compare and 
making sure that those twin goals which my clients support and 
endorse public involvement, public engagement, and look before 
you leap are met in an efficient and effective manner. Thank 
you.
    [The prepared statement of Mr. Kakuk follows:]

                        Kakuk Law Offices, P.C.

                       40 West 14th St., Suite 2D

                            Helena, MT 59601

                             April 20, 2005

Representative Cathy McMorris
Chairwoman
Task Force on Improving NEPA
Committee on Resources

Re: NEPA/MEPA -- A Montana Perspective

Dear Representative McMorris:

    Thank you for the invitation to address the Task Force on Improving 
NEPA regarding my experiences with the National and State Environmental 
Policy Acts. I hope that these brief comments will prove useful. It's 
important to note that while I have represented many clients and their 
associations regarding environmental issues, these comments are my own 
and should not be attributed to any other person or organization.
Environmental Review Goals
      Opportunity for public involvement
      Understand the potential impact of the action
Perceived Implementation Issues
      Never ending study
          Increased cost
          Delays
            *  Short Montana construction season
          Agencies have no clear stopping point
      Inappropriate issues
          Sewer extension--road impacts
          Road construction--water quality impacts
          Road construction--land use issues
      Inappropriate level of review
          EIS not warranted for non-regulatory impacts
Montana's Response
      Increased due process protection. (See Attachment 1.)
          Project alternatives proposed by the agency must be 
        reasonable, technologically achievable, and economically 
        feasible.
          Agency must consult with project sponsor regarding 
        alternatives identification.
          Sponsor may request a review of the agency's 
        alternatives identification before the appropriate board.
          Agency director must endorse any findings of 
        significance.
          Sponsor may request a review of the agency's findings of 
        significance before the appropriate board.
          Clear time limit, and time limit extension process, for 
        review completion.
          Sponsor may request a review of the agency's time limit 
        extensions before the appropriate board.
          Agency must conduct a meaningful ``no-action'' 
        alternative review, looking at all impacts of the project's 
        non-completion.
          Agency must consider regulatory impacts on private 
        property.
          Sponsor may appear before the EQC or agency director to 
        discuss the review process issues.
          In any challenge to an agency's MEPA decision, the 
        burden of proof is on the challenger to show that the review 
        was inadequate.
          Court may not consider evidence not submitted to the 
        agency during the review process and must remand back to the 
        agency for consideration.
          Court may only set aside MEPA decision with clear and 
        convincing evidence that the decision was arbitrary or not in 
        compliance with the law.
      Clarification between substantive and procedural agency 
authority, i.e., the agency may not withhold, deny, or impose 
conditions on any permit or other authority to act based on MEPA.
      EIS trigger, i.e., the agency must make a written 
determination, based on material evidence identified in the 
determination, that there will be a significant environmental impact or 
a potential for a significant environmental impact.
Next Steps
      Get the agencies out of the ``weighing game'', e.g. no 
significance determinations.
      Ensure compliance with MEPA goals of ``public 
involvement'' and ``hard look'' through other means: web sites, 
regulatory statutes, etc.
    Thank you again for the opportunity to appear before the Task Force 
and I appreciate your attention to these important matters.

                               Sincerely,

                       Michael S. Kakuk, Attorney

                                 ______
                                 
75-1-201. General directions--environmental impact statements. (1) The 
legislature authorizes and directs that, to the fullest extent 
possible:
    (a) the policies, regulations, and laws of the state must be 
interpreted and administered in accordance with the policies set forth 
in parts 1 through 3;
    (b) under this part, all agencies of the state, except the 
legislature and except as provided in subsection (2), shall:
    (i) use a systematic, interdisciplinary approach that will ensure:
    (A) the integrated use of the natural and social sciences and the 
environmental design arts in planning and in decisionmaking that may 
have an impact on the human environment; and
    (B) that in any environmental review that is not subject to 
subsection (1)(b)(iv), when an agency considers alternatives, the 
alternative analysis will be in compliance with the provisions of 
subsections (1)(b)(iv)(C)(I) through (1)(b)(iv)(C)(III) and, if 
requested by the project sponsor or if determined by the agency to be 
necessary, subsection (1)(b)(iv)(C)(IV);
    (ii) identify and develop methods and procedures that will ensure 
that presently unquantified environmental amenities and values may be 
given appropriate consideration in decisionmaking, along with economic 
and technical considerations;
    (iii) identify and develop methods and procedures that will ensure 
that state government actions that may impact the human environment are 
evaluated for regulatory restrictions on private property, as provided 
in subsection (1)(b)(iv)(D);
    (iv) include in each recommendation or report on proposals for 
projects, programs, and other major actions of state government 
significantly affecting the quality of the human environment a detailed 
statement on:
    (A) the environmental impact of the proposed action;
    (B) any adverse environmental effects that cannot be avoided if the 
proposal is implemented;
    (C) alternatives to the proposed action. An analysis of any 
alternative included in the environmental review must comply with the 
following criteria:
    (I) any alternative proposed must be reasonable, in that the 
alternative must be achievable under current technology and the 
alternative must be economically feasible as determined solely by the 
economic viability for similar projects having similar conditions and 
physical locations and determined without regard to the economic 
strength of the specific project sponsor;
    (II) the agency proposing the alternative shall consult with the 
project sponsor regarding any proposed alternative, and the agency 
shall give due weight and consideration to the project sponsor's 
comments regarding the proposed alternative;
    (III) if the project sponsor believes that an alternative is not 
reasonable as provided in subsection (1)(b)(iv)(C)(I), the project 
sponsor may request a review by the appropriate board, if any, of the 
agency's determination regarding the reasonableness of the alternative. 
The appropriate board may, at its discretion, submit an advisory 
recommendation to the agency regarding the issue. The agency may not 
charge the project sponsor for any of its activities associated with 
any review under this section. The period of time between the request 
for a review and completion of a review under this subsection may not 
be included for the purposes of determining compliance with the time 
limits established for environmental review in 75-1-208.
    (IV) the agency shall complete a meaningful no-action alternative 
analysis. The no-action alternative analysis must include the projected 
beneficial and adverse environmental, social, and economic impact of 
the project's noncompletion.
    (D) any regulatory impacts on private property rights, including 
whether alternatives that reduce, minimize, or eliminate the regulation 
of private property rights have been analyzed. The analysis in this 
subsection (1)(b)(iv)(D) need not be prepared if the proposed action 
does not involve the regulation of private property.
    (E) the relationship between local short-term uses of the human 
environment and the maintenance and enhancement of long-term 
productivity;
    (F) any irreversible and irretrievable commitments of resources 
that would be involved in the proposed action if it is implemented; and
    (G) the details of the beneficial aspects of the proposed project, 
both short-term and long-term, and the economic advantages and 
disadvantages of the proposal;
    (v) in accordance with the criteria set forth in subsection 
(1)(b)(iv)(C), study, develop, and describe appropriate alternatives to 
recommend courses of action in any proposal that involves unresolved 
conflicts concerning alternative uses of available resources;
    (vi) recognize the national and long-range character of 
environmental problems and, when consistent with the policies of the 
state, lend appropriate support to initiatives, resolutions, and 
programs designed to maximize national cooperation in anticipating and 
preventing a decline in the quality of the world environment;
    (vii) make available to counties, municipalities, institutions, and 
individuals advice and information useful in restoring, maintaining, 
and enhancing the quality of the environment;
    (viii) initiate and use ecological information in the planning and 
development of resource-oriented projects; and
    (ix) assist the environmental quality council established by 5-16-
101;
    (c) prior to making any detailed statement as provided in 
subsection (1)(b)(iv), the responsible state official shall consult 
with and obtain the comments of any state agency that has jurisdiction 
by law or special expertise with respect to any environmental impact 
involved and with any local government, as defined in 7-12-1103, that 
may be directly impacted by the project. The responsible state official 
shall also consult with and obtain comments from any state agency with 
respect to any regulation of private property involved. Copies of the 
statement and the comments and views of the appropriate state, federal, 
and local agencies that are authorized to develop and enforce 
environmental standards must be made available to the governor, the 
environmental quality council, and the public and must accompany the 
proposal through the existing agency review processes.
    (d) a transfer of an ownership interest in a lease, permit, 
license, certificate, or other entitlement for use or permission to act 
by an agency, either singly or in combination with other state 
agencies, does not trigger review under subsection (1)(b)(iv) if there 
is not a material change in terms or conditions of the entitlement or 
unless otherwise provided by law.
    (2) The department of public service regulation, in the exercise of 
its regulatory authority over rates and charges of railroads, motor 
carriers, and public utilities, is exempt from the provisions of parts 
1 through 3.
    (3) (a) In any action challenging or seeking review of an agency's 
decision that a statement pursuant to subsection (1)(b)(iv) is not 
required or that the statement is inadequate, the burden of proof is on 
the person challenging the decision. Except as provided in subsection 
(3)(b), in a challenge to the adequacy of a statement, a court may not 
consider any issue relating to the adequacy or content of the agency's 
environmental review document or evidence that was not first presented 
to the agency for the agency's consideration prior to the agency's 
decision. A court may not set aside the agency's decision unless it 
finds that there is clear and convincing evidence that the decision was 
arbitrary or capricious or not in compliance with law.
    (b) When new, material, and significant evidence or issues relating 
to the adequacy or content of the agency's environmental review 
document are presented to the district court that had not previously 
been presented to the agency for its consideration, the district court 
shall remand the new evidence or issue relating to the adequacy or 
content of the agency's environmental review document back to the 
agency for the agency's consideration and an opportunity to modify its 
findings of fact and administrative decision before the district court 
considers the evidence or issue relating to the adequacy or content of 
the agency's environmental review document within the administrative 
record under review. Immaterial or insignificant evidence or issues 
relating to the adequacy or content of the agency's environmental 
review document may not be remanded to the agency. The district court 
shall review the agency's findings and decision to determine whether 
they are supported by substantial, credible evidence within the 
administrative record under review.
    (4) To the extent that the requirements of subsections 
(1)(b)(iv)(C)(I) and (1)(b)(iv)(C)(III) are inconsistent with federal 
requirements, the requirements of subsections (1)(b)(iv)(C)(I) and 
(1)(b)(iv)(C)(III) do not apply to an environmental review that is 
being prepared by a state agency pursuant to this part and a federal 
agency pursuant to the National Environmental Policy Act or to an 
environmental review that is being prepared by a state agency to comply 
with the requirements of the National Environmental Policy Act.
    (5) (a) The agency may not withhold, deny, or impose conditions on 
any permit or other authority to act based on parts 1 through 3 of this 
chapter.
    (b) Nothing in this subsection (5) prevents a project sponsor and 
an agency from mutually developing measures that may, at the request of 
a project sponsor, be incorporated into a permit or other authority to 
act.
    (c) Parts 1 through 3 of this chapter do not confer authority to an 
agency that is a project sponsor to modify a proposed project or 
action.
    (6) (a) (i) A challenge to an agency action under this part may 
only be brought against a final agency action and may only be brought 
in district court or in federal court, whichever is appropriate.
    (ii) Any action or proceeding challenging a final agency action 
alleging failure to comply with or inadequate compliance with a 
requirement under this part must be brought within 60 days of the 
action that is the subject of the challenge.
    (iii) For an action taken by the board of land commissioners or the 
department of natural resources and conservation under Title 77, 
``final agency action'' means the date that the board of land 
commissioners or the department of natural resources and conservation 
issues a final environmental review document under this part or the 
date that the board approves the action that is subject to this part, 
whichever is later.
    (b) Any action or proceeding under subsection (6)(a)(ii) must take 
precedence over other cases or matters in the district court unless 
otherwise provided by law.
    (7) The director of the agency responsible for the determination or 
recommendation shall endorse in writing any determination of 
significance made under subsection (1)(b)(iv) or any recommendation 
that a determination of significance be made.
    (8) A project sponsor may request a review of the significance 
determination or recommendation made under subsection (7) by the 
appropriate board, if any. The appropriate board may, at its 
discretion, submit an advisory recommendation to the agency regarding 
the issue. The period of time between the request for a review and 
completion of a review under this subsection may not be included for 
the purposes of determining compliance with the time limits established 
for environmental review in 75-1-208.

75-1-208. Environmental review procedure. (1) (a) Except as provided in 
subsection (1)(b), an agency shall comply with this section when 
completing any environmental review required under this part.
    (b) To the extent that the requirements of this section are 
inconsistent with federal requirements, the requirements of this 
section do not apply to an environmental review that is being prepared 
jointly by a state agency pursuant to this part and a federal agency 
pursuant to the National Environmental Policy Act or to an 
environmental review that must comply with the requirements of the 
National Environmental Policy Act.
    (2) A project sponsor may, after providing a 30-day notice, appear 
before the environmental quality council at any regularly scheduled 
meeting to discuss issues regarding the agency's environmental review 
of the project. The environmental quality council shall ensure that the 
appropriate agency personnel are available to answer questions.
    (3) If a project sponsor experiences problems in dealing with the 
agency or any consultant hired by the agency regarding an environmental 
review, the project sponsor may submit a written request to the agency 
director requesting a meeting to discuss the issues. The written 
request must sufficiently state the issues to allow the agency to 
prepare for the meeting. If the issues remain unresolved after the 
meeting with the agency director, the project sponsor may submit a 
written request to appear before the appropriate board, if any, to 
discuss the remaining issues. A written request to the appropriate 
board must sufficiently state the issues to allow the agency and the 
board to prepare for the meeting.
    (4) (a) Subject to the requirements of subsection (5), to ensure a 
timely completion of the environmental review process, an agency is 
subject to the time limits listed in this subsection (4) unless other 
time limits are provided by law. All time limits are measured from the 
date the agency receives a complete application. An agency has:
    (i) 60 days to complete a public scoping process, if any;
    (ii) 90 days to complete an environmental review unless a detailed 
statement pursuant to 75-1-201(1)(b)(iv) is required; and
    (iii) 180 days to complete a detailed statement pursuant to 75-1-
201(1)(b)(iv).
    (b) The period of time between the request for a review by a board 
and the completion of a review by a board under 75-1-
201(1)(b)(iv)(C)(III) or (8) or subsection (10) of this section may not 
be included for the purposes of determining compliance with the time 
limits established for conducting an environmental review under this 
subsection or the time limits established for permitting in 75-2-211, 
75-2-218, 75-10-922, 75-20-216, 75-20-231, 76-4-125, 82-4-122, 82-4-
231, 82-4-337, and 82-4-432.
    (5) An agency may extend the time limits in subsection (4) by 
notifying the project sponsor in writing that an extension is necessary 
and stating the basis for the extension. The agency may extend the time 
limit one time, and the extension may not exceed 50% of the original 
time period as listed in subsection (4). After one extension, the 
agency may not extend the time limit unless the agency and the project 
sponsor mutually agree to the extension.
    (6) If the project sponsor disagrees with the need for the 
extension, the project sponsor may request that the appropriate board, 
if any, conduct a review of the agency's decision to extend the time 
period. The appropriate board may, at its discretion, submit an 
advisory recommendation to the agency regarding the issue.
    (7) (a) Except as provided in subsection (7)(b), if an agency has 
not completed the environmental review by the expiration of the 
original or extended time period, the agency may not withhold a permit 
or other authority to act unless the agency makes a written finding 
that there is a likelihood that permit issuance or other approval to 
act would result in the violation of a statutory or regulatory 
requirement.
    (b) Subsection (7)(a) does not apply to a permit granted under 
Title 75, chapter 2, or under Title 82, chapter 4, parts 1 and 2.
    (8) Under this part, an agency may only request that information 
from the project sponsor that is relevant to the environmental review 
required under this part.
    (9) An agency shall ensure that the notification for any public 
scoping process associated with an environmental review conducted by 
the agency is presented in an objective and neutral manner and that the 
notification does not speculate on the potential impacts of the 
project.
    (10) An agency may not require the project sponsor to provide 
engineering designs in greater detail than that necessary to fairly 
evaluate the proposed project. The project sponsor may request that the 
appropriate board, if any, review an agency's request regarding the 
level of design detail information that the agency believes is 
necessary to conduct the environmental review. The appropriate board 
may, at its discretion, submit an advisory recommendation to the agency 
regarding the issue.
    (11) An agency shall, when appropriate, consider the cumulative 
impacts of a proposed project. However, related future actions may only 
be considered when these actions are under concurrent consideration by 
any agency through preimpact statement studies, separate impact 
statement evaluations, or permit processing procedures.
                                 ______
                                 
    Miss McMorris. Thank you. Thank you very much.
    [Applause.]

STATEMENT OF JOHN ROSKELLEY, MEMBER, EASTERN WASHINGTON GROWTH 
                 MANAGEMENT ACT HEARINGS BOARD

    Mr. Roskelley. Madam Chair and distinguished members of the 
Task Force, my name is John Roskelley. And I was a Spokane 
County Commissioner from 1995 to 2004. I currently serve on the 
Eastern Washington Growth Management Hearings Board. I'm here 
to testify in support of the National Environmental Policy Act. 
And I will be done when that red light pops on.
    Lewis and Clark explored the west 200 years ago. They were 
in awe of this country's pristine rivers, endless forests and 
abundant wildlife. Today they would turn over in their graves 
if they were to see what 200 years of our stewardship has done 
to our environment. They would embrace and strengthen the NEPA.
    The National Environmental Policy Act is one of the most 
important environmental laws this nation's government has 
passed to the benefit of its people and the environment. No 
other law protects this nation's greatest assets; its water, 
air and natural resources, and yet allows reasonable use of 
these resources.
    As it is stated in the purpose of the Act, the NEPA is a 
policy which encourages productive and enjoyable harmony 
between man and his environment. Those who wrote the law in 
1969 took into consideration that there has to be a degree of 
compromise between our citizens' societal needs and the degree 
of impact of those needs on the environment. As a responsible 
society, we need to find a balance, a harmony, as written by 
Congress, between man's wants and the environment he needs to 
sustain life.
    The NEPA is about democracy. Congress, in its wisdom, 
declared that is the continuing policy of the Federal 
government, in cooperation with state and local governments, 
and other concerned public and private organizations to create 
and maintain conditions under which man and nature can exist in 
productive harmony. They included present and future 
generations of America. Here, Congress explicitly states that 
not only are governments responsible to protect the 
environment, the people of this nation have a definite role to 
play in this policy as well.
    One of the key components in the NEPA concerns the public. 
The NEPA is designed to ensure broad opportunities for public 
involvement. Congress realized when they wrote the Act that 
they represented their constituents, but who better than local 
citizens would be able to address the impacts of Federal 
actions in their area. The United States is an enormous 
country, well over 250 million people. Not everyone will be 
happy with certain decisions concerning their home area, but at 
least the opportunity is there for them to express their 
opinion.
    The NEPA is also the law not only requires Federal agencies 
to look before they leap, but also forces these agencies to 
think outside the box. The NEPA's requirement that 
decisionmakers prepare and provide the public with an adequate 
range of alternatives is the mechanism that forces agencies to 
look beyond the ``our way or the highway'' approach.
    Most experts consider the law's requirement to study, 
develop and describe appropriate alternatives to recommended 
courses of action to be the very heart of the Act. Not only 
does the development of alternatives help result in better 
decisions on the ground, the process educates the public as to 
the potential risks and benefits these various alternatives 
could have on the environment and communities.
    On a personal level, the NEPA has allowed me the 
opportunity for the past 20 years to monitor timber sales and 
other actions in the panhandle of north Idaho. I'm on their 
contact list. I have used our national forests for decades for 
elk, deer and bear hunting. As the years went by, my hunting 
areas were decimated by inappropriate logging techniques and 
opened up to four-wheelers and snowmobiles by road building. I 
fought back the only way possible: Monitoring individual timber 
sales in areas I was familiar with. The NEPA required the 
agencies to create alternatives and allows me to voice my 
concerns.
    The NEPA fulfills its mission. It has proved to be 
effective and requires Federal agencies to look to the future 
when designing or implementing large projects or actions. I 
suggest Congress investigate the 133-year-old Mining Act rather 
than the NEPA. The Mining Act----
    [Applause.]
    Mr. Roskelley. The Mining Act has cost taxpayers billions 
and destroyed millions of acres, yet Congress refuses to take 
on the powerful mining industry.
    I have traveled extensively throughout the world, spending 
months in places like Pakistan, India, Tibet, Nepal and Bhutan. 
And it has been my experience, whether the country is led by a 
president or a dictator or a king, that how they take care of 
their environment is symbolic of how they take care of their 
citizens. In other words, I would not like to live in some of 
those countries.
    Congress needs to stay the course and enthusiastically 
support the National Environmental Policy Act and strengthen 
it. Generations will thank you for your vision. Thank you.
    [The prepared statement of Mr. Roskelley follows:]

              Statement of John Roskelley, Board Member, 
          Eastern Washington Growth Management Hearings Board

    Madame Chair and distinguished members of the Task Force, my name 
is John Roskelley. I was a Spokane County Commissioner from 1995 to 
2004 and currently serve on the Eastern Washington Growth Management 
Hearings Board, which is a quasi-judicial Board that ``hears and 
determines'' appeals concerning counties, cities comprehensive plans, 
the Shoreline Management Act and State Environmental Policy Act.
    The National Environmental Policy Act is one of the most important 
environmental laws this nation's government has passed to the benefit 
of its people and environment. No other law protects this nation's 
greatest assets; its water, air and natural resources, and yet allows 
reasonable use of these resources. As is stated in the Purpose of the 
Act, NEPA is a policy which encourages ``productive and enjoyable 
harmony between man and his environment.'' Those who wrote the law in 
1969 took into consideration that there has to be a degree of 
compromise between our citizen's societal needs and the degree of 
impact of those needs on the environment. As a responsible society, we 
need to find a balance, a harmony, as written by Congress, between 
man's wants and the environment he needs to sustain life.
    NEPA is about democracy. Congress, in its wisdom, declared that it 
is ``the continuing policy of the Federal Government, in cooperation 
with State and local governments, and other concerned public and 
private organizations...to create and maintain conditions under which 
man and nature can exist in productive harmony, and fulfill the social, 
economic, and other requirements of present and future generations of 
Americans.'' Here, Congress, the representatives of the people, 
explicitly state that not only are governments responsible to protect 
the environment, the people of this nation have a definite role to play 
in this policy as well.
    One of the key components in NEPA concerns the public. NEPA is 
designed to ensure broad opportunities for public involvement. Congress 
realized when they wrote the Act that they represented their 
constituents and who better would be able to address the impacts of 
federal actions in their area. The United States is an enormous 
country, with well over 250 million people. Not everyone will be happy 
with certain decisions concerning their home area, but at least the 
opportunity is there for them to express their opinion.
    NEPA is also the law that not only requires federal agencies to 
``look before they leap,'' but also forces them to do something that 
can be challenging inside the federal bureaucracy--to think outside of 
the box. NEPA's requirement that decision makers prepare, and provide 
the public with, an adequate range of alternatives is the mechanism 
that forces agencies to look beyond the ``our way or the highway'' 
approach. Most experts consider the law's requirement to ``study, 
develop, and describe appropriate alternatives to recommended courses 
of action'' to be the very heart of the Act. Not only does the 
development of alternatives help result in better decisions on the 
ground, but it educates the public as to the potential risks and 
benefits various approaches being contemplated in a major federal 
action that could adversely impact the environment and communities.
    Although I can't say I was an enthusiastic supporter of the North-
South Spokane Freeway, especially where it has now been located, I had 
ample opportunity to express my concerns thanks to NEPA. Through NEPA, 
the public was able to not only participate in the process, but 
substantially improve this Federal highway project. The process is long 
and it involves listening to the public and sister agencies, but NEPA 
prevents many mistakes that would cost the public a lot more in the 
long run.
    In the case of the North-South Freeway, the NEPA allowed the public 
to help choose the location and route for this road based on where the 
least damaging impacts to the community was likely to occur. Rather 
than eliminate hundreds of single family homes along the Nevada or 
Crestline corridors, both alternative routes, citizen input convinced 
the transportation planners to move the freeway to an railroad 
corridor, saving those homes and creating the potential for commercial 
development in another area of town.
    NEPA fulfills its mission. It has proven to be effective and 
requires Federal agencies to look to the future when designing or 
implementing large projects or actions. I suggest Congress investigate 
the 133 year-old Mining Act, rather than the NEPA. The Mining Act has 
cost taxpayers billions and destroyed millions of acres, yet Congress 
refuses to take on the powerful mining industry.
    I have traveled extensively throughout the world, spending months 
in places like Pakistan, India, Tibet, Nepal and Bhutan. It has been my 
experience, whether the country is led by a president, dictator or 
king, that how they take care of their environment is symbolic of how 
they take care of their citizens. In other words, I would not like to 
live in some of those countries. Congress needs to stay the course and 
enthusiastically support the National Environmental Policy Act and 
strengthen it. Our children and our children's children will thank you 
for your vision.
    Thank you.
                                 ______
                                 
    Miss McMorris. I also want to recognize Judy Olson is here 
from Senator Murray's office. She's the District Director. 
Thanks, Judy.
    At this time, we're going to open it up for questions.
    And we'll have five minutes for each Member. And we'll just 
go back and forth between the Republicans and the Democrats.
    So, Mr. Cannon, if you want to start.
    Mr. Cannon. Thank you, Madam Chair. And, Ms. Kimbell, I 
would like to apologize for interrupting you. There ought to be 
a more gracious way to do that, but under the circumstances 
there's not. And again I apologize. I'm going to have to leave 
quite soon.
    Could I ask you one question. Just if you're aware--there's 
been some studies. Are you aware of what the cost incurred by 
the Forest Service is in anticipation of or for litigation? 
Have you seen any of those studies?
    Ms. Kimbell. I have seen a number of studies. And yet just 
in having had a lot of personal experience with our budgeting 
and tracking systems, I don't know that we have real accurate 
numbers, where we could talk about what exactly litigation 
costs. There are a lot of hidden costs in responding to 
litigation.
    Mr. Cannon. Just for the group and for the discussion here. 
I've seen numbers between 48 and 58 percent of the department's 
budget. Is that consistent with your experience.
    Ms. Kimbell. I would think that would be high. But it is--
but it is----
    Mr. Cannon. The 58 percent would be the high end including 
loss of the activity that goes into the permitting process. Is 
48 percent high in your experience? Prior to the Act?
    Ms. Kimbell. It's a very difficult number to ascertain 
because you need to be able to value the loss of resources, as 
I talked about with the loss of commercial value and different 
resources when there are delays in the litigation process.
    Mr. Cannon. The reason I suggest that number, this is a--we 
spend an inordinately large amount of money on talking and 
thinking and analyzing and not enough money--I think everybody 
in this room is going to agree that we don't spend enough money 
on actually helping the forests.
    In fact, Utah was I think the first state to actually do 
forest wilderness. We're very proud of that. And I don't 
think--if we ask for vote--and I'm going to ask for a vote 
later on--but if we ask for a vote on this issue, I don't think 
anybody would want to tradeoff our watersheds and our forests 
for litigation preparation.
    You know, I was a real fan of Scoop Jackson's. And I just 
want to (unintelligible) momentarily. He did many things and he 
did them very well and had a great balanced idea. But he was 
also famous for his determination that America be powerful, 
both economically and militarily, and in virtually every other 
way. I suspect he actually would like to encourage mining in 
America. I'm not sure if he'd want to discourage it, just 
reviewing the Mining Act. We may have to do that at some point. 
Maybe do it in--and do it in a way that would improve the way 
we use our land. But personally you should all know that I like 
the idea of mining and getting the resources here.
    But on the other hand, I was also a big fan of Mo Udall who 
was the Chairman of the House Interior and Insular Affairs 
Committee when NEPA was passed. I think he was Chairman then. 
And his brother, Stewart Udall, was the Secretary of the 
Interior at the time. And my first job as a lawyer was working 
for Stewart (unintelligible), who I still call a close friend.
    So, I was sort of intrigued by what Mr. MacDonald said when 
he focused on the purpose of NEPA. And here's where we're going 
to ask you guys for some involvement here. Like somebody on the 
outside had a sign saying how can you hear if you don't hear, 
and you can't hear if people don't speak. So, we'd like to have 
at least some feedback on this.
    How many of you all are familiar--you've heard Mr. 
MacDonald. How many of you feel like you're fairly familiar 
with the language of Section 101 of NEPA, which is the Purpose.
    [Show of hands.]
    Mr. Cannon. We want a little more participation. I think 
that Mr. Inslee said there were about 120 green stickers. I 
haven't counted them all, but--you heard--in fact, Mr. 
MacDonald, would you just sort of repeat what the purpose of 
NEPA is.
    Mr. MacDonald. I'm happy to give you my sense. It's to 
develop information about environmental consequences, the 
governmental action, so that the people who have to make 
decisions about what to do can make wise decisions. And so that 
the citizens can see how those decisions are made on what basis 
and can participate with public officials.
    Mr. Cannon. I'm going to cut you off because we actually 
have the Purpose here, so--because I want everybody to vote. 
OK.
    And that is the--The purposes of the Act are to declare a 
national policy to encourage productive and enjoyable harmony 
between man and his environment; to promote efforts which will 
prevent or eliminate damage to the environment and biosphere 
and stimulate the health and welfare of man; to enrich the 
understanding of the ecological systems and natural resources 
important to the Nation; and to establish a Council on 
Environmental Quality.
    So, with that statement out in front--and we're all 
familiar with it--can I just ask how many of you believe those 
words and think that those are appropriate framework or context 
for the National Environmental Policy Act.
    [Show of hands.]
    Mr. Cannon. I think that that's--that's almost unanimous. 
Is anyone opposed to that approach?
    I just want the record here of this hearing to reflect that 
we have a consensus on a framework. And I hope that we are able 
in our legislative and (unintelligible) processes to come up 
with a way to stay within that framework and help things work a 
little better. Because we have--we are doing things to the 
environment today--I think, Mr. MacDonald, you said that not 
acting is acting. Things are happening in our environment today 
that we need to be able to deal with more judiciously, more 
quickly, and in a way that actually enhances the environment 
for all of us. Thank you.
    Miss McMorris. Thank you very much. Mr. Inslee.
    Mr. Inslee. Thank you. Mr. Geddes, I wanted to ask you 
about your Box Canyon concerns a little bit. And the best I get 
a sense of what you're talking about is that the agencies were 
not coordinated that you had different decisions. And in fact 
one decision did not support the other by a different agency. 
That's the way I would characterize what I heard is the 
agencies were really not coordinating their decisionmaking. Is 
that a fair kind of characterization.
    Mr. Geddes. Yes, it is.
    Mr. Inslee. Now, this happened in 2001, 2002, 2003, 2004, 
all the way to 2005. It's going on. Is that kind of a fair----
    Mr. Geddes. Yes.
    Mr. Inslee. And who was the President during those years?
    Mr. Geddes. [No response.]
    Mr. Inslee. I'll fill in. It was President Bush. And the 
reason I ask you this is that isn't it the responsibility of 
the President of the United States in a circumstance like this 
to pick up the phone and knock some heads together, agency 
heads, and tell them to coordinate their activities so that we 
could get a responsible decision and the agencies that are 
consistent with one another. And that apparently has not 
happened. Why has it not happened?
    Mr. Inslee. Why hasn't the leader of the executive branch 
got these two agencies to work together?
    Mr. Geddes. I can't answer it. I don't know why it hasn't 
happened.
    Mr. Inslee. Have you called the President? This is a 
serious question. I mean, this is a serious question to me 
whether you've tried to use the elected officials to get the 
agencies to do the job that they should do.
    Mr. Geddes. Actually, I have in the last couple of years 
have spent way more time in Washington, D.C., than I care to. 
We have----
    Mr. Inslee. That's not a majority, I hope.
    Mr. Geddes. We have made some efforts in that area, some 
serious effort, to work politically through this with some 
success and obviously not the ultimate success.
    Mr. Inslee. Well, let me just suggest to you that--that 
what I'm hearing is not necessarily a failure of the statute 
that's drafted by Henry Jackson. But it's a failure of the 
executive branch to insist that these Federal agencies get 
their act together and work together in a consistent way, which 
I think may be able to be resolved by the executive branch 
headed by the President George Bush. I encourage you to at 
least think about that.
    One other issue, if I can. We had a bill go through 
Congress Thursday, the Energy Bill. And there was a provision 
in it that affected hydroelectric re-licensing. And I'm not 
actually positive whether it was changed to the NEPA or the--or 
the licensing. I think it was just a licensing provision 
referred rather than NEPA. And it--what it did is it said that 
if there was--if the licensee, the applicant, disagreed with 
the decision by the agency, the licensee would have the right 
to appeal the decision to an expedited process. But nobody else 
could. Nobody else in this room could. None of the people with 
green stickers.
    None of the environmental community. None of the tribes.
    None of the faith community. Nobody except the licensee.
    Now, I have a little problem with that because to me just 
allowing the licensee to ask for an appeal right isn't fair 
when you're not asking or allowing any of the citizens to do 
that.
    What's your reaction to that issue? How should we think 
about it when it comes time to looking at NEPA.
    Mr. Geddes. I can understand your concern in that. We were 
interested in seeing that kind of an approach in the Federal 
reform area. I think it's a balance to--an effort to balance 
the mandatory conditioning authority that the agencies now have 
under the 4(e) conditions.
    We are simply dictated to in the 4(e) conditioning 
authority. FERC is the final agency there, but they have to 
accept the 4(e) conditions that are submitted by the Interior 
and Forest Service, in our case, and include them in the 
license, whether they've gone through NEPA review or not.
    And in this case they have not.
    Mr. Inslee. Would you ever suggest to this panel that we 
adopt a law to allow the licensee to have a right, for 
instance, to appeal that other citizens do not have?
    Mr. Geddes. [No response.]
    Mr. Inslee. I hope you're going to say no. It's a 
rhetorical question.
    Mr. Geddes. OK. I'm sensing there's more to your question. 
So, what is the rest of it.
    Mr. Inslee. No. I'm just--it's a serious question.
    Do you think when we're looking at NEPA, broadly speaking, 
should we ever give, you know, the licensee or the applicant 
who wants to build a mine or a dam or a building or whatever 
else, give them a right to a hearing or an appeal that the 
citizens would not have?
    Mr. Geddes. No, that wouldn't seem fair. No.
    Mr. Inslee. I'm with you on that. I (unintelligible) to 
Congress later.
    Mr. MacDonald, I'm intrigued by your--your efforts of 
making the EIS's readable. And looking at yours in the Viaduct 
(unintelligible) about 160 pages and pretty easy reading and 
comprehensible. Tell us how you achieved that. What obstacles 
you had. And how we think about that in Federal----
    Mr. MacDonald. The first obstacle we had was to convince 
all the consultants that they should go to an (unintelligible) 
writing course. And we did that. And the second obstacle we had 
was to engage people who could draw pictures of the thing, 
because pictures are worth a thousand words. The third thing we 
had was to address the document.
    Who is the audience for the document? And we decided that 
the audience for the document was people who were going to use 
the viaduct, not the permit writers and not just the judge but 
the judge's clerk. But we had to draft the documents so that 
the people who wanted to use it could read it.
    And then we worked on it for a long time. And wrote it and 
rewrote it. And we actually got a lot of people signing it. 
There were a lot of our friends at the Federal Highway 
Administration. They saw the value of trying to get people 
together in a program.
    Now, (unintelligible) programs. Even people here in Spokane 
know it's a long way from rebuilding a road. You're going to 
have to pay for it. But what we do what we can do is get 
citizens together about how it will serve the community and 
what will happen with fish in Elliott Bay or with air quality 
to the neighbors in ways that they can make good, solid 
consensus, common sense judgments about what to do.
    Miss McMorris. Thank you. What I'm thinking is I'll just go 
back and forth.
    Mr. Inslee. Thank you.
    Miss McMorris. Mr. Gohmert.
    Mr. Gohmert. Thank you. I appreciate all the testimony and, 
of course, we want to hear from anybody that wants to be heard. 
Obviously our time is limited in this hearing. But anybody that 
wants to submit anything in writing, please do so.
    You know, I've seen an ad that ran in the paper about this. 
And it seemed like it was doing a bit of fear mongering, saying 
that now what's--there's a move afoot spearheaded by California 
Congressman Richard Pombo to weaken the National Environmental 
Policy Act to silence our say in what the government does to 
our property, parks, waterways, lands and wildlife. We can't 
let that happen. You know. We want to hear from people. And I'm 
telling you what so that people understand where I'm coming 
from. I don't need this job. I've got three daughters that I 
could do a whole lot better for if I were not in public 
service. And the day I feel like I'm not going to help make 
this place better for my kids, I'm going home. I'm not--I'm 
away from home today trying to participate in this process. I 
do want to hear.
    And as a former judge for a lot of years, credibility to me 
is so important. So, you got to be careful when you're saying 
I'm not going to use all my time. I'm going to be short and go 
over it hurts credibility. When you say something that kind of 
mongers fear, you know, like I'm sure--surely, Mr. Roskelley, 
you didn't mean that we all need to quit and go home and set up 
another task force.
    Maybe you did.
    Mr. Roskelley. Absolutely not.
    Mr. Gohmert. To review the National Mining Act.
    Because you said we ought to be spending our time doing 
that and not doing this. What you're telling me, you're wasting 
your time. You ought to be back home with your kids instead of 
wasting it here. Let somebody review the Mining Act.
    I mean--so words have meaning. I'd encourage you to please 
be careful because I think most of us do want to create a 
better world and better environment we're living in.
    Secretary MacDonald, as a judge one of the things I had to 
keep pounding on lawyers was that they like to copy and paste. 
And, you know, computers have been bad about that. They allow 
people to make a copy of this, paste it on here, and before you 
know it, you've got this huge ridiculous report.
    And the thing that I pounded into people that came before 
me--and I'm wondering if we may need some restrictions to get 
people to use--or to create EIS's that actually can be read. 
But my slogan was, and nobody came to understand it, ``Longer 
is lazier.'' If you want a long document, you're just copying 
and pasting just to create--you know, just to tear down trees, 
just so you can have this big record. That's lazy.
    And if you want--if you go beyond a certain number of pages 
then that's too lazy and your document loses credibility. If 
you want it better and to be considered as credible then it 
ought to be shorter. And you ought to go through and, like you 
all did, edit, edit, edit until you get it succinctly where 
people can understand it. So, I appreciate the efforts there.
    Ms. Kimbell, let me ask you, you talked about the trees--
all the dead trees and beetles. Could you tell me how you feel 
Federal law prevents you from helping create more healthy 
forests.
    Ms. Kimbell. Federal law doesn't prevent us from creating 
healthier forests. There's only so far that budget and time 
will allow. And we've--given the extended drought that we've 
experienced here in the Northwest and with the stress on trees, 
the trees are dying faster than we're able to respond. So, 
we're prioritizing our work and working directly with 
communities that have concerns about their communities from a 
wildfire perspective. And that's where we're prioritizing our 
work.
    Mr. Gohmert. Well, when you talked about the beetle 
infestation, I got the impression that you were saying 
somebody's laws were preventing you from going in and 
preventing the spread of those beetles that were killing off 
all the forests.
    Ms. Kimbell. I intended to give an impression of an 
assessment of health of the forests in the Northern Region.
    We are experiencing pretty extensive beetle attacks. And 
we've had some very extensive wildfires that are getting to 
those overstocked stands.
    No. There are no Federal laws preventing us from treating 
lands. There are some different considerations that we have to 
take certainly in planning for treatment of different areas.
    Mr. Gohmert. Well, you'd agree that our goal is healthy 
forests. And it's a matter of getting there. So, when you talk 
about, you know, all the dead trees, I'm just trying to get 
what we do in Washington to help you locally, which is where 
things need to happen where people know what's going on, make 
the forests healthy. If there's a beetle infestation, then go 
stop it. What do we need to do to help you do that.
    Ms. Kimbell. The local level people are very committed and 
working together just for interest of working together every 
day to help make--for a healthier forest. We do have this 
difference--or we have a lack of standards in the law and the 
regulations that would give people both communities and my 
resource professionals a target to work against.
    Mr. Gohmert. So, you're saying we need better standards.
    Ms. Kimbell. We need better standards in the regulations 
for the implementation of the National Environmental Policy 
Act.
    Mr. Gohmert. Do you have any recommendations in that 
regard.
    Ms. Kimbell. Certainly, for----
    Mr. Gohmert. I'd be interested, if you would submit any in 
writing. I mean, it's easy to say we all need to come together. 
But we need something that we can work on from Washington.
    Ms. Kimbell. In fact, I can submit that to the Chairwoman 
next week.
    Mr. Gohmert. Thank you.
    Miss McMorris. That would be great. Thank you.
    I wanted to just go back to Mr. Jensen. And I appreciated 
your big picture analysis and I think many in the room did. 
Could you just describe some of the on-the-ground problems that 
we've run into and if you have some thoughts. Related to--I 
think you were wanting to comment on possibly----
    Mr. Jensen. I have an on-the-ground problem.
    Mr. Geddes' point about hydropower licensing. It's a good 
example but it's not quite the predictable one.
    The Federal agencies set mandatory conditions on hydropower 
licenses. They don't review those conditions under NEPA before 
they hand them off to FERC. FERC reviews them under NEPA, but 
they have no discretion as to those conditions.
    There are elements throughout government where agencies who 
are doing things, you know, put quotes around it, for the 
environment, think that NEPA doesn't apply to those things for 
the environment. When I talked about the Purpose, Section 101, 
being taken out of NEPA, that's evidence of the problem. 
Because the response by the hydropower industry in the most 
recent legislation can be understood as an effort to get an 
alternative analysis, get public involvement, get engagement in 
that part of the hydropower licensing decision that sets these 
conditions. There really isn't a meaningful opportunity. You 
either believe in the conditions or you don't. The fact is that 
mandatory conditions don't get scrubbed through NEPA.
    It's an artifact of the way the laws were written. It 
wasn't an intentional design. It's fixable by administrative 
action. The agencies won't want to do it because it's time and 
it's effort. But if the Forest Service has to think about how 
it manages forests, the people who are setting 4(e) conditions, 
mandatory conditions under the Federal Power Act, ought to be 
thinking about those conditions. You know, ought to be getting 
public involvement.
    There are good conditions and bad conditions from whatever 
perspective you take. That's an on-the-ground problem. It's an 
in-the-agency problem. But for the hydropower industry, it's a 
real issue. And it's driven--this misapplication of NEPA has 
driven a tremendous amount of advocacy and rhetoric around 
hydropower licenses. And a lot of the legislature we've see in 
the last ten years, if somebody had really sat down and thought 
about it, it would have been about fixing resource agency NEPA 
process and not about fixing Federal hydropower licensing.
    I'll say this is gratuitous in a way. But FERC has done a 
better job, Federal Energy Regulatory Commission, has done a 
better job than virtually any other agency in trying to figure 
out how to implement NEPA. And it's an artifact of the way 
Congress has piled responsibilities on that agency.
    There are very few other agencies that have to think about 
as many things concurrently as FERC does when they're issuing a 
hydropower license or the other major areas, interstate natural 
gas lines. They go through--that agency does virtually all of 
the NEPA compliance, virtually all of the Clean Water Act 
compliance, virtually all the Endangered Species compliance.
    It's one of the few places in government where, for the 
most part, one brain has to get around all of the issues.
    And it's natural in the hydropower context because when you 
put a big chunk of concrete in the middle of a river, 
everybody's values are implicated; energy, environment, 
recreation, residents. So, FERC has done a very good job.
    This is an outliner in the FERC process. And it's one that 
deserves some attention. It may have a fault that addressed in 
the legislation. I think there might be a more direct way of 
getting there.
    You asked for on-the-ground examples. The--NEPA doesn't 
write bloated EIS's. Agencies write bloated EIS's. The EIS's 
get like that when agencies don't know what they're doing, 
don't know how to decide about what they're doing, or when 
they're uncomfortable with the facts of what they're doing.
    And so you just start papering stuff. And it goes on and on 
and on. It's not ill will. It's not contempt for parties. It's 
not bad--it's not a bad attitude. It's just confusion in the 
agencies, 99 percent of the time. Because they're under such 
pressure. They have resource constraints. They don't know which 
way to jump.
    I'll give you an example. I assume you're going to head 
down to the (unintelligible) southwest. I practice a lot of 
NEPA law. One of my clients had been ordered by a state agency 
to build power line that would cross the border between U.S. 
And Mexico. The region needed additional transmission support. 
The power kept going out. And the state decided that the place 
to put the power line was on Federal land.
    Miss McMorris. I'm going to have to ask you to wrap up.
    Mr. Jensen. I'm sorry. OK.
    The state ordered the utility to put the power line on 
Federal land. Federal land agency hadn't been consulted.
    You can imagine that the NEPA process run by that Federal 
agency decided whether to issue a right-of-way for a line it 
didn't ask for, that the state had imposed on it. Went on and 
on and on. When you get down to--if you get to Arizona, that's 
one to look at.
    Miss McMorris. Good.
    Mr. Jensen. But Delay, confusion, excess paper and people 
being frozen out of the process, whether it be the project 
proponent, such as my clients are, or they're the neighbors.
    Ms. Kimbell. Madam Chairman, may I provide a very quick 
comment.
    Miss McMorris. Sure. Very quick and then I'll have to move 
on.
    Ms. Kimbell. There are many, many layers of law. Many, many 
layers of regulations. And I think, you know, with the previous 
FERC example, you know, those 4(e) conditions come from the 
forest planning process, which has tremendous public 
involvement and who does go through administrative review, very 
often goes through litigation. So, they do go through a NEPA 
process, and yet there are many overlapping laws and it 
certainly deserves a look.
    Miss McMorris. Thank you. OK. Mr. Inslee, do you have any 
other questions.
    Mr. Inslee. Ms. Kimbell, I want to ask you about this 
cumulative impact issue. You indicated its difficult in that 
regard. And I've got to tell you, I am deathly afraid of the 
condition of our forests in basically the entire western United 
States with the huge insect infestations. It has some thinning 
issues. And we have this incredible drought. It's been on us 
for six or seven years in the western United States, grossly 
speaking.
    The best evidence that I've been able to see suggests that 
we're in a period of climate change globally. And the evidence 
suggests that this has the potential and maybe the probability 
of putting us in a regimes much more frequent droughts in the 
western United States. Which I understand stress of trees make 
them more susceptible to insect infestation.
    Now, this is caused by a cumulative impact of our carbon 
dioxide issues throughout the world, not just America. It's a 
cumulative effect. About as cumulative as you get.
    Now, some of us think that this is a major environmental 
issue we should deal with. And that Congress and the agencies 
need the science to decide and make decisions on energy, 
whether it's going to result in more global warming 
(unintelligible) drought (unintelligible) more insect 
infestation.
    So, to do that, I--you know, I would think we need actually 
more cumulative information than we have right now, because 
frankly the Congress has--it's like an ostrich.
    It's doing absolutely nothing about this problem, which I 
think is affecting our forests.
    How do we dovetail your concern about a moving target on 
what is a cumulative impact and where we set that bar compared 
to this issue? Do you have any thoughts?
    Ms. Kimbell. I think you've got a double pronged thing 
going there in that one part of that is the science. The 
science of what's happening on the forested stands across the 
United States. What's happening with differences in climate 
with climate shifts, climate--perhaps climate change. And we 
work very, very closely with Forest Service research. In fact, 
most of the research that's done on things like 
(unintelligible) is done by the United States Forest Service. 
It's done in concert with different universities.
    In the work that we do, we--and when we analyze the facts, 
we work closely with forest research with the local 
universities, in my case with the Universities of Montana, 
Idaho and North Dakota, in analyzing the effects of our 
projects.
    The other piece is where is there a standard, a standard of 
cumulative effects. There is a standard that can measured in 
process that isn't a measure of science but rather a measure of 
using that available science and using it in your analysis to 
develop your project and to make your decision.
    Mr. Inslee. Mr. Jensen was talking about problems in the 
implementation of the Act. He said it several times that he 
foresees bigger problems in the implementation of the Act than 
the statute itself. And he has ascribed some of that to lack of 
training, lack of understanding by the agency employees about 
their requirements. Or I think he added a discomfort with what 
was going on, too. That might be a little pejorative, but I 
think that's what he said.
    Tell us about your budgetary situation. Is the budget a 
concern in your ability, for instance, to train and really 
bring your employee staff to be really knowledgeable of the 
standards--the difficult standards you have? Is that an issue 
you have now.
    Ms. Kimbell. Budget for training is a matter of 
prioritizing where you put your training dollars. And that is 
not the specific issue I don't believe. It is when--in my case, 
I have 23 vegetation management projects that are in litigation 
now. There was a decision made several months ago that changes 
the bar. It raised the bar for analysis for all those 23 
projects that were completed some years ago. So, in order for 
those projects to be able to meet that--they are not going to 
meet that current raised bar because of the decision made at 
the 9th Circuit.
    That's been something that over my 31-year career has been 
happening on a pretty regular basis. That bar keeps raising so 
all those projects that were completed in recent years may not 
meet that bar by the time it gets in front of a judge.
    Mr. Inslee. Thank you.
    Miss McMorris. I want to just thank all the panelists for 
being here. I have found your comments to be very helpful. And 
I think we all did. I recognize you all have busy schedules and 
taking your time today is very helpful to us.
    We may have some additional questions that we'll submit to 
you in writing. And I'd just appreciate it if you would respond 
to those questions in writing as we move through the next six 
months of this Task Force work.
    We're on a goal of being out of here by 1:00 o'clock.
    So, I'm going to go ahead and get the next panel up so we 
can try to stay on track.
    Miss McMorris. On the second panel, we have Duane Vaagen. 
He's President of Vaagen Brothers Lumber.
    Luke Russell, Director of Environmental Affairs for Coeur 
d'Alene Mines Corporation. He joins us from Idaho to talk about 
NEPA's role in projects in Idaho and Alaska.
    William D. Kennedy, Chairman, Board of Directors of the 
Family Farm Alliance. He comes to us from Klamath Falls, 
Oregon, to tell us about how NEPA can affect farming.
    Craig Urness, General Counsel of Pacific Seafood Group who 
will tell us about NEPA's role in fisheries conservation and 
management.
    Janine Blaeloch, Director of the Western Land Exchange 
Project. Janine has extensive experience with NEPA in the land 
exchange's context and is here to share some of those with us.
    And last, but certainly not least, is Paul Fish, President 
of Mountain Gear, Incorporated, a locally based and rapidly 
growing business here in Spokane. And he will share his 
perspective on public participation.
    The Task Force welcomes all of you.
    As I mentioned earlier, it's the policy of the Resources 
Committee to swear in witnesses. So, I'll just ask you to stand 
and raise your right hand at this time.
    [Witnesses sworn.]
    Miss McMorris. Thank you. Let the record reflect that the 
witnesses answered in the affirmative.
    And, once again, I'll just point out this is the clock. 
Each one has been given five minutes to make their opening 
comments. And I'm going to try to keep us better on track so we 
can have more questions. And your testimony will appear in full 
for the record.
    So, Mr. Vaagen, will you please begin.

             STATEMENT OF DUANE VAAGEN, PRESIDENT, 
                     VAAGEN BROTHERS LUMBER

    Mr. Vaagen. Thank you, Task Force Chairwoman McMorris and 
other members of the Task Force. Five minutes for 35 years is 
awful quick. But I'll do my best here.
    I'm the President of Vaagen Brothers Lumber in Colville, 
Washington. I appreciate the opportunity to testify before this 
hearing about NEPA. Vaagen Brothers dates back over 50 years in 
Colville. Two guys, my dad and uncle, started it making 
railroad ties. They grew to Colville, Chewelah and Spokane, 
Washington. And hit high strides in the early '80s with 
operations further, too, with Republic and Ione employing 500 
employees.
    But in the recent years, we've had to adjust quickly. We're 
down to Colville. We're back at 135. Unfortunately Republic and 
Ione have been (unintelligible) and that's because of the 
process, policy and people, some of our own.
    We have adjusted to small diameter logs to treat the small 
diameter stands (unintelligible). (Unintelligible) works very 
well. We also have a (unintelligible) plant and we make our own 
energy. We've done this out of where this situation was take us 
last 50 years. And we would like to salvage the burnt logs and 
the dead wood. But there is a delay. And if you don't get them 
before they're worthless, they are worthless.
    We are in forest health crisis. It appears it's getting 
worse every year with no--or with a lack of vision, leadership 
or direction. Despite the efforts of Healthy Forests 
Restoration Act, the problem is worsening faster than our 
constrained ability to solve it. I believe the inaction is 
driven by the analysis paralysis that has created--is created 
at this time by the NEPA.
    Wildfires average 5 million acres in this country every 
year. We salvage and rehabilitate less than 5 percent of those 
acres, as we disagree on how to treat them. Gifford Pinchot, 
the founder of the U.S. Forest Service, said that the 
cornerstone of conservation was to prevent waste of forest 
resources. We are now wasting our resources because of an 
environmental analysis process that can't recognize a dying 
forest from the dead trees.
    I would like to give a couple examples to the Task Force. 
North of us here about 70 miles (unintelligible) is--there was 
a fire at Mt. Leona in 2002. 5,000 acres. There was a debate on 
what we could do with that. The Republic mill was 
(unintelligible) to shutting down but later did. We agreed on 
1200 acres to salvage, and in the last few weeks we settled on 
225 acres. That produced about a week-and-a-half run for the 
Republic mill. If we would have salvaged 80 percent, we'd have 
half a year.
    The following year at Togo, 2003, 5,000-acre fire. This 
time we had done much better. I don't know how they got 
(unintelligible) with the NEPA, but it was very fast. We 
salvaged 1200 acres, about 10 million feet. That was enough for 
a two months' supply at Colville. If we'd done 80 percent, it 
probably would have been enough for almost a year. And at this 
time we only have about a 2- to 3-month supply of Federal 
timber contract.
    Anybody that relies on 50 percent on Federal timber is out 
of business or is going out of business. So, we either have to 
further downsize, move to another place of need, or fold up the 
tent if something isn't changed soon. There is a time factor 
that is important.
    So, why can't the dead and the dying trees be salvaged? 
Well, we think NEPA is part of it. We think it does need some 
streamlining. It used to be EIS, EA's. There's just so many 
delays. And with small diameter stands, it's a big issue. They 
don't have a very long shelf life. Very, very short shelf life. 
A matter of six months.
    On the Colville National Forest, we have about 300,000 
acres in need of thinning. The solution is to treat all these 
stands before wildfires devastate them. We have the technology. 
We have the infrastructure. We can treat that within 20 years. 
But the problem that we're dealing with NEPA, we don't see it 
when we get there. I would like to see somebody help us with 
this situation.
    We have a local stewardship group, when we talk about 
public involvement. It's very unique. It's called the Northeast 
Washington Forestry Coalition. It's made up of community 
business, elected officials, environmental and forest 
representatives. After two years of collaboration, intense 
collaboration, we all agree that the Colville Forest needs to 
thin 10 to 15,000 acres of trees annually. With NEPA in its 
current form, we're struggling to get that done.
    We'd like to help the Forest Service, but it's like sending 
your athletes to the Olympics with handcuffs behind their back. 
We're just not getting there.
    So, we need the regulations to settle the shock and the 
turmoil. The cost for the Federal government is $121 per 
thousand, probably runs us about $20 per thousand. And we have 
a state SEPA, which is State Environmental Policy Act. And that 
makes business difficult but you stay in business.
    If you had to rely on NEPA and Federal timber supply, 
you're out of business.
    I would offer four recommendations. I'm going to brief 
here.
    Miss McMorris. Thank you.
    Mr. Vaagen. Reform NEPA to expedite salvage and 
rehabilitation projects that will treat areas within six months 
of forest fires and bug infestation.
    Two: Require Federal agencies to consider the environmental 
impacts of not taking action on a specific project.
    Three: Require our land managers to treat and manage our 
dying forests which will help ensure that the current 
infrastructure and capacity of our industry will remain. 
Without the infrastructure in place, the risk of catastrophic 
fire and managing our forests becomes nearly impossible.
    And four: Promote and streamline NEPA approvals for large-
scale and long-term stewardship programs on the national 
forests. NEPA analysis procedures are limiting our ability to 
undertake these common-sense stewardship programs.
    And five. Encourage and streamline NEPA requirements for 
small local community forest thinning projects that are 80 
acres and under.
    And I also have a report that I would like to submit and 
testimony of a program I did two weeks ago in Coeur d'Alene.
    [The prepared statement of Mr. Vaagen follows:]

     Statement of Duane Vaagen, President, Vaagen Bros. Lumber Inc.

    Good morning Task Force Chairwoman McMorris, and other members of 
the Task Force, my name is Duane Vaagen, and I am the President of 
Vaagen Bros. Lumber, (VBL) located in Colville, Washington. I sincerely 
appreciate the opportunity to testify before you today on the very 
important issue of streamlining and improving the National 
Environmental Policy Act (NEPA). This issue is of critical importance 
to efforts to conserve watersheds and wildlife habitat, and to protect 
people and property, in and around our national forests and other 
public lands in northeast Washington.
    The history of Vaagen Bros Lumber, Inc. dates back to the 1950's 
when Bert and Bud Vaagen began making railroad ties. Over the next 20 
years, they grew the business and employed 135 people with operations 
in Colville, Chewelah, and Spokane, Washington. They also were the 
first in the area to put in a biomass cogeneration plant in the late 
1970's. These independent sawmillers hit full stride in the mid 1980's, 
with 3 operations in Colville, Ione, and Republic, Washington, 
eventually employing 500 employees. With the pullback of federal timber 
programs in the early 1990s, VBL had to adjust quickly to stay in 
business.
    VBL became a leader in the development of small log technology and 
forest thinning, and innovation has always been a corner stone for our 
company's success. Today, our only active operation is our state-of-
the-art sawmill, co-generation facility, and small log handling 
facility located in Colville that employs 135 people full-time. 
However, without a program to restore forest health and thin small 
diameter stands on federal lands, VBL will have to shrink our operation 
further, move to another area of need, or just fold up the tent.
    We are in a forest health crisis that appears to be getting worse 
every year with no apparent vision, leadership, and direction. Despite 
recent efforts like the Healthy Forests Restoration Act, the problem is 
worsening faster than our constrained ability to solve it. Simply 
stated, insect and disease epidemics from over-stocked stands lead to a 
dying forest. Dead forests lead to catastrophic wildfire. This leads to 
communities and lives being threatened or destroyed from out-of-control 
wildfires. This problem has been building momentum and gaining severity 
for the past 15 years.
    I believe that this inaction is being driven by the analysis 
paralysis that has been created by the National Environmental Policy 
Act. Each of us has a responsibility to care for our national forests, 
unfortunately, the very laws that were intended to ensure for that care 
are actually preventing us from taking action. It is not right and 
every American should be appalled by the federal government's 
mismanagement of our public lands.
    Wildfires are burning an average of over 5,000,000 acres per year 
annually. Sadly, less than 5% of those forests are being salvaged and 
rehabilitated and vast tracts of our damaged forests, watersheds, and 
wildlife habitat are being left to rot, re-burn, and degrade. Gifford 
Pinchot, the founder of the U.S. Forest Service, said that the 
cornerstone of conservation was to prevent waste of forest resources. 
We are now wasting our resources because of an environmental analysis 
process that can't recognize a dying forest form the dead trees.
    I would like to give the Task Force a good example of what I'm 
talking about. In 2002, 5,000 acres burned on Mt. Leona on the Colville 
National Forest located less than 15 miles from our mill in the tiny 
town of Republic, which was the town's largest employer. As a result of 
the initial cumbersome NEPA process, it was determined that only 1,500 
acres would be salvaged. Additional NEPA process delays and appeals 
further reduced this to only 220 acres that were actually salvaged, and 
this only happened because of the attention of high level officials at 
the Department of Agriculture. Salvaging only 4 percent of the burned 
and devastated area, over a year after the burn occurred, resulted in 
less than 2 weeks worth of timber for the Republic mill. Salvaging 80% 
of the Mt. Leona Fire would have kept that mill running for 1 year and 
provided funds for the restoration of the forest. NEPA failed both the 
forest and the local community.
    In another instance, the 2003 Togo wildfire fire resulted in 5,000 
acres being burned with only 1,200 acres being salvaged. In this case, 
the 10 million board feet that was salvaged represented a 2-month 
supply for our small-log sawmill in Colville. Again, had we salvaged 
80% of this fire, this would have generated 80 million board feet or 
over 1-year supply for the Colville mill and provided money to 
rehabilitate the forest, wildlife habitat, and watersheds.
    Why can't burnt, dead, and dying wood be salvaged? I believe that 
answer is NEPA. Burnt wood has a commercial value for 1-2 years. After 
that, restoration of the forest can only be accomplished at a high cost 
to the federal treasury; a cost that government does not presently have 
the means to provide. Presently, the Forest Service NEPA process, 
complete with inevitable protests, lawsuits, and analysis paralysis, 
usually takes 1.5 to 2 years leaving little to no value to the dead 
timber. The fact of the matter is the Colville National Forest is dying 
and burning-up at least twice as fast as it is being salvaged. It is a 
sad state of affairs when we now see that VBL could operate solely on 
the dead and burned timber on the Colville, without ever cutting a 
green tree, yet NEPA constrains federal land managers from restoring 
our national forests to benefit clean air, clean water, and wildlife 
habitat, let alone providing jobs in our local communities. We can and 
must do better than this.
    I previously said the problem is gaining momentum and getting 
worse. On the Colville National Forest, there are approximately 300,000 
acres of forest in need of thinning. The solution is to treat all of 
these stands before wildfires devastate these areas. We have the 
current capability, and current infrastructure, to treat all of these 
acres within 20 years. Unfortunately, the application of NEPA is 
preventing us from being good stewards of our forests and the 
communities that depend upon them.
    Sadly, we are presently treating less than 1% of the acres needed 
each year. We have a local stewardship collaboration group called the 
Northeast Washington Forestry Coalition. It is made up of elected 
officials, community business, environmental, and forest 
representatives. We have concluded after 2 years of collaboration that 
the Colville National Forest needs to thin 10,000 to 15,000 acres 
annually. With NEPA in its current form, it is virtually impossible for 
the Forest Service to address the backlog, let alone get ahead of 
mortality on our forests.
    NEPA regulations have the agency in shock and turmoil. The cost of 
putting timber sales up on the Colville is now a staggering $121.00 per 
thousand board feet. The majority of this cost is associated with NEPA 
compliance. By comparison, that is the entire cost of local private 
wood delivered to our mill in Colville. I will tell you that we have 
local and state regulations, including a State Environmental Policy Act 
(SEPA) that are very difficult, but we can work with them and stay in 
business. To rely on USFS timber for 50% or more of your supply is the 
kiss of death for our businesses and local communities!
    What I find interesting is that our good neighbors to the west, the 
Colville Confederated Tribes, coincidentally have the same amount of 
timber management acres as the Colville National Forest. They have an 
exemplary forest management program. They also have to comply with 
NEPA. Their annual harvest is 75 million feet. The Colville National 
Forest is approximately 25 million feet and is now forecasted to 
decline to about half this amount within 2 years. As a further 
comparison, the tribe has one NEPA Coordinator while the adjoining 
Okanogan National Forest has 31 people.
    I keep hearing that the National Forest System needs more funding 
and people to treat the forest. When the analysis paralysis first set 
in, we were told that the Forest Service needed to complete ``bigger 
and better'' Environmental Assessments (EA). When EAs were being 
successfully challenged in court, we were told that ``bigger and 
better'' Environmental Impact Statements (EIS) would get the process 
moving again. These ``bigger and better'' documents have only presented 
those who wish to stop all land management activities more procedural 
targets to challenge in court. Quite frankly, without improvements to 
NEPA, I have little hope that our trusted federal land managers will be 
able to get back to managing our national forests, as envisioned by 
Gifford Pinchot.
    I am a practical person. For me, common sense dictates that we ask 
what are the environmental consequences of not treating and restoring 
our national forests? In my view, smoke-filled air, wasted natural 
resources, impaired watersheds, and destroyed wildlife habitats are the 
antithesis of the protections originally envisioned by NEPA. 
Unfortunately, the federal agencies aren't even considering the impact 
of not taking action in NEPA process. Simply put, NEPA is killing the 
very forest that it seeks to protect. Unfortunately, nobody is 
apparently asking this common sense question.
    As I said earlier, it is your job and mine to restore our national 
forests and protect our local communities. I would like to offer the 
following solutions as a first step:
    1.  Reform NEPA to expedite salvage and rehabilitation projects 
that will treat areas within 6 months of forest fires and bug 
infestation.
    2.  Require federal agencies to consider the environmental impact 
of NOT taking action on a specific project
    3.  Require our land managers to treat and manage our dying 
forests, which will help ensure that the current infrastructure and 
capacity of our industry will remain. Without this infrastructure in 
place, reducing the risk of catastrophic fire and managing our forests 
becomes nearly impossible
    4.  Promote and streamline NEPA approvals for large-scale and long-
term stewardship programs on national forests. NEPA analysis procedures 
are limiting our ability to undertake these common-sense stewardship 
programs.
    5.  Encourage and streamline NEPA requirements for small local 
community forest thinning projects that are 80 acres and under.
    Finally, I would like to introduce into the record a presentation 
that I gave just last week to the second annual international Small Log 
Conference. As part of this conference, over 120 participants from all 
over the world toured our facility in Colville. Without exception, 
there was unanimous agreement that what we're doing at Colville is part 
of the answer, not the problem, in restoring our forests. 
Unfortunately, as now implemented, the same cannot be said about NEPA.
    Thank you for the opportunity to testify and I would be happy to 
attempt to answer any questions that you might have.
                                 ______
                                 
    Miss McMorris. Thank you. Thank you very much.
    Mr. Russell.

             STATEMENT OF LUKE RUSSELL, DIRECTOR, 
        ENVIRONMENTAL AFFAIRS, COEUR D'ALENE MINES CORP.

    Mr. Russell. Ms. McMorris, members of the Committee. Thank 
you very much for the opportunity to be here. My name is Luke 
Russell. I'm the Environmental Director for the Coeur d'Alene 
Mines Corporation located in Coeur d'Alene just across the 
state line. And based on an earlier comment, I see I brought a 
hundred of my closest friends.
    Coeur d'Alene Mines is an international mining company. We 
have operations throughout the world but also in Idaho, Alaska 
and Nevada. My personal experience includes over 22 years 
working with NEPA on the permitting, reclamation of hard rock 
mines.
    As it's been stated earlier, the original intent of NEPA 
was simple and appropriate. Environmental considerations must 
be included in the decisionmaking process of Federal agencies. 
We've already heard testimony with regard to the extensive 
litigation, delays and escalating costs which have created a 
lot of uncertainty in the business climate today. It's very 
difficult to make a business decision.
    As part of my job, I'm asked to review mergers, 
acquisitions. And the first thing I'm asked is, How long will 
it take and what will it cost to permit. In most jurisdictions 
of the world, I can answer that with a high level of certainty. 
In the United States, however, that's a very difficult decision 
and, as we heard earlier, the bar is moving.
    I'd like to give you a few examples of my company's 
experience with NEPA.
    In the early '80s, we permitted a mine called the Thunder 
Mountain Mine. It's located in central Idaho in the cherry stem 
of the Frank Church River of No Return Wilderness. It was an 
open pit, a cyanide heap leach operation. The company spent 
about $360,000 on baseline environmental studies getting ready 
for the EIS. The EIS itself cost about $160,000. That mine was 
built, operated and closed successfully.
    Fast forward to 1992. My company permitted an underground 
mine in Alaska outside of Juneau. The company spent about $10.8 
million in engineering and environmental studies. And the EIS 
itself cost $1.3 million. That process took four years. And the 
gold prices dropped from about 500 to $380 an ounce. The 
company needed to retool the project and redesign it due to the 
economic conditions.
    Five years later, we proposed a new plan of operation. And 
the Forest Service conducted a supplemental EIS to tier off 
that first EIS. That project, again, engineering and 
environmental studies was about 4.4 million. And that 
supplemental EIS was $1.6 million.
    Some of the reasons I think for this expanding time and 
escalation in cost you've already heard. Inefficient scoping. 
Most issues are considered significant due to the threat of 
litigation and appeals. Alternatives are sometimes carried in 
analysis that are not economically viable that are akin to 
(unintelligible) who forced to carry an alternative that had a 
negative 15 percent rate of a return because of the concern, 
again, of appeal and litigation.
    Well, how can this Task Force help improve NEPA.
    First, I believe that the statute (unintelligible) and the 
regulations need a very hard look and an overhaul. We need 
certainty in the business climate. And in this process we'd 
recommend that the statute and its implemented regulations have 
mandatory timeframes. The public, the applicant, the agencies 
need to be involved, but they can't be an never ending process. 
There needs to be mandatory timeframes.
    A screening process. NEPA envisioned that there would be 
scoping that would identify the significant issues for analysis 
and then dismiss those that were insignificant. As I mentioned, 
alternatives that are studied must be viable. Recommend that 
the Act take a good hard look at the (unintelligible) of the 
Clean Water Act where they look at practicability. For an 
alternative to be considered practical, it needs to be capable 
of being implemented after taking into account the cost, 
existing technology and logistics in light of the overall 
project purpose and balance of relevant environmental 
considerations.
    Cooperating agencies. We heard already that the agencies 
sometimes don't engage until very late in the process. The 
statute should be revised to ensure and encourage and enforce 
all agencies involved with interest in the decisionmaking get 
involved early.
    We've also heard about due process for the process 
proponent. The applicant needs to be involved. With our project 
in Alaska, the U.S. Forest Service said we could not be an 
active participant or other publics, NGO's, environmental 
organizations would also have to be active participants. It 
seems crazy that the project proponent would not be active in 
the process of a NEPA valuation.
    One final recommendation is we go to court. That's the way 
the decisions are made. We recommend that NEPA consider 
establishing under counsel environmental regulations the 
creation of an ombudsman with decisionmaking authority, where 
parties could go to resolve conflicts rather than go to court.
    Conclusion. A year or so ago, former EPA Administrator 
Whitman stood on the shores of Lake Coeur d'Alene and said what 
we need is more progress and less process.
    Two weeks ago, I sat with a NEPA coordinator for a project 
in Alaska. And he said don't talk to me about project changes. 
Whether they're good or bad, we're tied to the process. Clearly 
such focus away from better decisionmaking and paralysis by 
process was not the original intent of NEPA.
    Thank you for your time this morning.
    [The prepared statement of Mr. Russell follows:]

      Statement of Luke Russell, Director, Environmental Affairs, 
                    Coeur d'Alene Mines Corporation

INTRODUCTION
    On behalf of Coeur d'Alene Mines Corporation, I am pleased to 
present testimony today before this Task Force formed to examine 
potential improvements in the National Environmental Policy Act (NEPA).
    Coeur d'Alene Mines Corporation, based in Coeur d'Alene Idaho, is 
the world's largest primary silver producer, as well as a significant, 
low-cost producer of gold. The Company has mining interests in Idaho, 
Alaska, and Nevada as well as in Argentina, Australia, Chile and 
Bolivia. The company has extensive experience with the NEPA process in 
Idaho, Alaska as well as in Nevada in the permitting and closure of 
hard rock mining projects.
    My experience includes over 22 years working with NEPA in the 
permitting, reclamation and closure of hard rock mines in the western 
United States. I have worked in government and in industry and am 
currently the Environmental Director for the company.
    The National Environmental Policy Act was passed at the dawn of our 
countries environmental awareness. In the late 1950's President 
Eisenhower created a commission to develop a 10 year plan for America. 
Of the 15 listed priority items the environment was not one of them. 
Then came two important publications: Silent Spring and Night Comes to 
the Cumberland. These were clarion calls for the public consciousness 
on the environment and for federal agencies to seriously consider 
environmental effects of its actions. The passing of NEPA created the 
Council on Environmental Quality (CEQ) and lead to creation of the 
Environmental Protection Agency along with several environmental legal 
centers which through litigation helped defined the law we have today. 
This began a continuum of environmental awareness by our society, 
American industry, including mining, and the federal regulatory 
agencies.
    The original intent of NEPA was simple and appropriate: Federal 
agencies must ensure that environmental amenities and values be given 
appropriate consideration in decision making, along with economic and 
technical considerations. Federal actions significantly affecting the 
quality of the human environmental are to include a detailed statement 
which has became known as the Environmental Impact Statement (EIS), on 
the environmental impact of the proposed action, any adverse 
environmental affects, alternatives to the proposed action, 
relationship between local short-term uses and enhancement of long-term 
productivity, as well as any irreversible and irretrievable commitments 
of resources associated with the proposed action. The Act was 
envisioned to supplement existing federal authorities and programs.
    The simplicity of the law, however, may have lead to its 
shortcomings. While the statute includes no judicial review provision 
the early court decisions set the course that NEPA would not be 
enforced by the federal agencies charged with considering the 
environmental affects of its decisions, but by the courts. Thus NEPA is 
implemented and enforced by costly and time consuming litigation.
    NEPA's brief and often vague provisions have provided the courts 
opportunity to create extensive NEPA ``common law''. For example, the 
statute does not specify:
      The definition of a significant impact to the ``human 
environment'' which then triggers preparing an EIS,
      The timeline for completing an EIS,
      The scope of an impact statement and level of necessary 
baseline study,
      The level of analysis in relation to scope of project,
      The range and extent of alternatives an agency must 
consider,
      When an agency must hold hearings as part of its 
environmental review process and who may have standing in such 
hearings,
      Whether agencies may decide not to prepare an EIS. The 
CEQ has authorized agencies to make a decision that an EIS is not 
required, but the courts have placed limitations on whether this 
decision can be made.
    The federal courts have thus been left to define and enforce the 
act. The courts have been influenced by the hard look doctrine, as the 
purpose of NEPA was to ensure federal agencies consider environmental 
values in decision making. Agencies today are driven by this fear of 
appeal or litigation. The result is a longer and more costly process, 
not necessarily the making of better decisions.
    As a part of my job, I participate in evaluations of potential 
mergers and acquisitions of mining projects throughout the world. In 
considering a new project the first thing I am asked is how long will 
it take and what will it cost to get it permitted. I can answer this 
questions will a high degree of confidence in most jurisdictions around 
the world, with the exception of the United States. When I first began 
working with NEPA in the mid 1980's the time and cost to prepare an EIS 
for a mining project took about 18 months and cost about $250,000-
$300,000. Today an EIS for a mining project may take 5-8 years and cost 
$7-8 million or more, before factoring in expected appeals and 
litigation of the ultimate decision. Thus, it is very difficult to make 
business decisions in the U.S. under the current permitting environment 
on federal lands.
CASE HISTORIES
    In the mid-1980's, Coeur developed the Thunder Mountain Mine in 
Central Idaho which was located in the cherry stem of the Frank Church 
River of No Return Wilderness area on private and U.S. Forest Service 
administered lands. The project was an open pit mine and cyanide heap 
leach operation. It was located upgradient of Outstanding Resource 
Waters (ORW) that supported steelhead and salmon fisheries. The company 
spent approximately $360,000 in baseline studies for the EIS while the 
NEPA third-party contractor costs were approximately $160,000. The 
project was operated and closed successfully.
    In comparison, in 1992 a Final EIS and Record of Decision (ROD) 
were issued for the company's Kensington Project in Alaska, culminating 
a four-year environmental baseline and EIS analysis. The cost of the 
engineering and environmental baseline programs involving freshwater 
quality and fisheries, wildlife, geotechnical, and the marine 
environment, to mention only a few categories, was approximately $10.8 
million with the attendant third-party EIS totaling $1.3 million. The 
project was not built because gold prices had fallen from nearly $500/
oz. to about $380/oz. during this exhaustive NEPA analysis; and one of 
the cooperating agencies, EPA, took the position that the project as 
designed would not meet water quality standards.
    In 1997, the company retooled the project to address improving the 
project economics and agencies concerns. Only a Supplemental EIS was 
determined to be required by the USFS lead agency. However, the cost of 
this ``supplemental'' analysis was an additional $4.4 million and $1.6 
million more was spent for engineering and environmental studies and 
the SEIS.
    Once again, while the highest engineering and environmental design 
standards were maintained throughout the process, the price of gold had 
further declined to about $290/oz. Once again, an optimization program 
was initiated by Coeur to reduce capital and operating costs, and 
maintain environmental performance. A second Supplemental EIS was 
required for the scaled-down project, and in 2004 the Final 
Supplemental EIS was issued. The cost: approximately $4 million in 
engineering feasibility studies and a new environmental baseline 
program, and $1.7 million for the Supplemental EIS.
    One reason for this expanding time and escalation in cost to 
complete NEPA is there are now very few issues an agency is willing to 
consider insignificant, due to concern about having their decision 
appealed. NEPA intended agencies to scope a project to identify and 
eliminate from detailed study the issues which are not significant. 
Applicants today, however, are required to fund exhaustive study and 
analysis on almost every issue. We are expected to prove effects are 
negative and then mitigate for any change in the environment whether or 
not it would have a significant impact to the environment.
    There is nothing in NEPA that requires mitigation for environmental 
effects. While mitigation is addressed under other federal laws 
including the Clean Water Act, federal agencies in response to fear of 
litigation are attempting to require mitigation or compensation under 
the Act for even temporary effects. This is contrary to the originally 
intent of the law.
    NEPA intended to encourage agency cooperation however, this is not 
mandatory nor is it happening very well. For example at the Beartrack 
Mine Project near Salmon, Idaho the National Marine Fisheries Services 
(NMFS) did not engaged in the NEPA process. They also did not engage 
during the public comment period in the Corps 404 permit process. Yet, 
after the close of the NEPA process and a week after the close of the 
Corps 30 day public notice on the wetland mitigation plan for the 
project, NMFS provided comments that the ROD be reopened and the 404 
permit should be denied. This lead to company, state and federal 
agencies embarking on a multi year and 1/2 million dollar effort to 
address NMFS concerns; Concerns that were ultimately proven to be 
overstated.
    There is increasing emphasis by federal agencies to use consensus 
based management in the NEPA process. This involves seeking that all 
potential stakeholders come to agreement on the scope of NEPA analysis 
and alternatives for consideration. The NEPA process was intended to 
involve and inform the public, but ultimately the decision must be made 
by the federal agencies, not by a vote of the participants.
    Another reason for escalating time and costs to complete NEPA has 
been pressure on agencies to require all other permits and approvals be 
obtained before completing the NEPA process. This presents a catch 22 
scenario. This strategy by project opponents only adds to the cost and 
time to compete NEPA. For example, again from our Kensington mine, the 
Forest Service's 2004 ROD was appealed on the basis that other 
permitting processes had not yet been completed. While the Regional 
Forester denied this appeal it created project and investment 
uncertainty, caused delay in the processing of other state and federal 
permits, and added to the cost as the third party contractor that 
assisted in preparing documents for review by the regional forester. 
NEPA was not intended to be the master approval of a project but rather 
ensure environmental effects be given appropriate consideration in the 
decision making process
    NEPA was intended to be a forwarding looking to guide federal 
decision making through evaluation of environmental impacts, along with 
economic and technical aspects, of proposed actions. Our Rochester Mine 
in Nevada has been an operating a surface mine since 1988 and has 
undergone several NEPA analyses. The mine is fully developed and the 
area of impact defined by as built drawings. We are nearing the end of 
the mine's life and have an approved reclamation and closure plan for 
the project by the state and Bureau of Land Management. Now that the 
mine is nearing closure we have been required to embark on an EIS for 
closure. The no-action alternative will be the currently approved 
reclamation plan for the project. We must question what major federal 
decision will be made under these circumstances that requires an EIS? 
Requiring an EIS after a mine is developed and operated, only adds cost 
and uncertainty to the project.
    These examples illustrate the uncertainty, delay and associated 
escalating costs in the federal permitting process as a result of NEPA. 
As a consequence many companies, including mining companies, look 
overseas for their project investments. Figure 1 provides data 
presented in the recent National Academy of Sciences review of hardrock 
mining regulation and clearly illustrates the declining trend in the 
number of plans of operations being filed for mining projects. I am 
confident these trends are continuing today. For most projects, the 
time, cost and uncertainty of obtaining approvals is simply too great 
in the United States and mining investment looks elsewhere. The 
cumbersome NEPA process is key to this circumstance. What has been lost 
over the years is the balanced look as envisioned under NEPA to 
consider environmental, economic and technical considerations.
    A year or so ago, former EPA Administrator Whitman stood on the 
shores of Lake Coeur d'Alene and stated that what was needed in the 
environmental debate today was progress and less process. Two weeks 
ago, I sat with the NEPA coordinator on our project in Alaska and was 
told we were not talking about more or less impact of proposed project 
changes, but that we were tied to process. Clearly such focus away from 
better decision making and paralysis by process was not the original 
intent of NEPA.
RECOMMENDATIONS
    How can this Task Force help improve NEPA?
    First, the statute is in need of major overhaul not simply a tune 
up. Some key areas this Task Force could evaluate in improving NEPA 
include:
    1)  Mandatory timelines. The NEPA process typically begins by the 
applicant entering into a memorandum of agreement with the lead agency 
that outlines funding and contractor selection to prepare the EIS. This 
typically includes a schedule for completing the statement. Yet, 
neither the schedule nor cost is considered binding by the agencies. 
There is no enforcement mechanism in NEPA to ensure that project 
schedules are met and costs to perform the analysis are appropriate to 
the level of decision to be made. An updated Act should include 
enforceable time limits to complete the NEPA process timely.
    2)  Local Government Involvement. Local communities, most affected 
by federal decisions, tend to be disenfranchised from the NEPA process. 
They find it difficult to become cooperating agencies. The federal 
agencies may not recognize them as they don't have a land use plan, or 
they lack the resources to participate. While the BLM has recently 
initiated a program to reach out to local communities the NEPA statute 
needs to be amended to formally include local communities and 
governments in this role.

        The benefits of granting cooperating agency status to local 
governments include; disclosure of relevant information early in the 
analytical process, receipt of technical expertise, avoidance of 
duplication with state, tribal and local procedures, and establishment 
of a mechanism for addressing intergovernmental issues. Such status 
would neither enlarge nor diminish the decision making authority for 
either federal or non-federal entities.
    3)  Criteria for Standing. For the price of a postage stamp a party 
can appeal a NEPA decision even if they were not actively involved in 
the process. The statute should be amended to clarify that parties must 
be involved throughout the process in order to have standing in an 
appeal.
    4)  Cooperating Agencies. The intent of NEPA was to ensure agency 
coordination in making federal decisions that significantly affect the 
human environment. In practice, however, some federal agencies are seen 
as less than cooperating. EPA for instance has had a track record of 
not providing meaningful comment until very late in the process. This 
leads to delay and additional cost as the lead agency then tries to 
address their comments or concerns very late in the game. As discussed 
previously, the National Marine Fisheries Services also has a track 
record of weighing in very late in the process to escalate Endangered 
Species Act issues or concerns. The statute should be modified to 
clarify that federal agencies with an interest must also be engaged 
throughout the NEPA process.
    5)  Applicant Involvement. The current NEPA process minimizes the 
role of the applicant. The applicant is expected to pay for the third 
party analysis and has the technical expertise to assist in evaluation 
of technical and economic aspects of the proposal as well as reasonable 
alternatives. Yet, the role of applicants is generally minimized due to 
perceived biases in the evaluation. During the recent supplemental EIS 
for our Kensington project the U.S. Forest Service took the position 
that Coeur, as the applicant, could not actively participate in the 
process, or other ``publics'' such as the Sierra Club or other NGO's 
would also need to be afforded a seat at the table. The statute should 
be amended to clarify that the applicant is to have standing as an 
integral player in the NEPA evaluation process.
    6)  NEPA Baseline Data. A plan of operation that will trigger a 
NEPA analysis typically is prepared using considerable amounts of 
baseline information on project aspects like climate, geology, 
hydrology and engineering evaluations used in designing the proposed 
project. Once NEPA is triggered however, federal agencies tend to 
minimize this information and then begin anew to obtain baseline 
environmental and engineering information. This duplication adds to the 
cost and time required to compete NEPA. The statute should be revised 
to allow early baseline information to be utilized in the formal NEPA 
process.
    7)  Scope of Analysis, NEPA makes no distinction between level of 
analysis for a new project, an existing project, or a project entering 
into closure. A 20 acre mine may go through the same rigorous process 
as a 2000 acre mine. The analysis should be commensurate with federal 
decision to be made and status of a project. The analysis must consider 
not only the environment, but cost and technology as well.
    8)  Litigation Bonds. Under other legal precedents a litigating 
party may be asked to post a bond for delays in a project in order to 
avoid frivolous lawsuits. Such a provision does not exist under NEPA. 
If a party firmly believed it had grounds to challenge a federal 
decision following NEPA, then it should be reasonable for them to post 
a bond should their challenge be overturned.
    9)  Screening Process. NEPA envisioned that the scoping process 
would identify and eliminate from detailed study the issues which are 
not significant or which have been covered by prior environmental 
review (Sec. 1506.3). Yet in practice the agencies commit a large 
amount of time, resources and applicants money, evaluating alternatives 
and issues raised by agencies or the public that are not significant, 
simply to try to avoid future litigation. Again at our Kensington 
project one alternative that was carried throughout the analysis and 
required exhaustive analysis had an estimated negative 15% return on 
investment for the company. This analysis obviously did not balance the 
environmental, economic or technical considerations as required under 
NEPA. The law needs to be fixed to require the consideration of 
economic criteria in determining reasonably alternatives for the 
analysis.

        The accepted regulatory concept of practicability, as taken 
from the Clean Water Act implementing regulations, should be 
incorporated into the NEPA regulatory framework. For a project 
alternative to be considered, it should be required to be supported by 
feasibility and engineering studies, and be capable of being 
implemented after taking into account: a) cost, b) existing technology, 
and c) logistics in light of the overall project purposes to be 
balanced with relevant environmental considerations.
    10)  NEPA Ombudsman. One option that may deserve consideration 
would be to create within CEQ an Ombudsman with decision making 
authority to resolve conflicts within the NEPA process. This would 
provide a much needed balance to the pressures put on agencies by 
environmental law centers, NGO's and by applicants so the original 
intent of consideration of environment, cost, and technology was being 
made.
CONCLUSION
    The original intent of NEPA was simple and appropriate: Federal 
agencies must insure that environmental amenities and values be given 
appropriate consideration in decision making, along with economic and 
technical considerations. The implementation of the Act has been and 
continues to be bogged down in unnecessary analysis, litigation and 
escalating costs. The Act needs an overhaul to return to its original 
purpose and some suggestions for doing so have been presented herein. I 
thank you for the opportunity to comment before this Task Force today.
                                 ______
                                 


                                 

    Miss McMorris. Thank you for being here. Mr. Kennedy.

          STATEMENT OF WILLIAM D. KENNEDY, CHAIRMAN, 
          BOARD OF DIRECTORS, THE FAMILY FARM ALLIANCE

    Mr. Kennedy. Chairwoman McMorris and all members of the 
Task Force. My name is Bill Kennedy. And I've traveled here 
today from Klamath Falls, Oregon, on behalf of the Family Farm 
Alliance. The Alliance is focused on one mission, to ensure the 
availability of reliable, affordable irrigation water supplies 
to Western farmers and ranchers.
    Our ranch is operating one of 1400 family farms and ranches 
that depend on water supplies from the Klamath Irrigation 
Project. Our ranch is designated as a private wildlife refuge 
for their operation stronghold.
    The members of the Family Farm Alliance have many examples 
of how onerous and expensive processes associated with NEPA 
compliance contributed to halting the development of otherwise 
feasible water supply enhancement projects in the western 
states. As a matter of fact, just last week our President, Pat 
O'Toole, provided two detailed case studies relative to this 
matter to the House Subcommittee on Water and Power at an 
oversight hearing in Washington, D.C.
    Today I want to provide a sobering example that 
demonstrates the apparent double-standard agencies sometimes 
exhibit when it comes to NEPA compliance. In my example, 
compliance with NEPA by Federal agencies was bypassed to the 
detriment of my entire community. I'm talking, of course, about 
the 2001 curtailment of Upper Klamath Lake water to the 
landowners in the Klamath Irrigation Project. Proper treatment 
of NEPA in 2001 would have served to protect our rights and 
livelihoods, prevent destruction of the human environment and 
their communities and avoid outright catastrophe.
    For 90 years, Klamath Project reservoirs and diversion 
facilities were operated to serve the authorized irrigation 
purpose of the Klamath Project. There were no downstream 
river--Klamath River flow requirements; no minimum upper lake 
reservoir requirements. The focus on the project was to 
optimize irrigation diversions.
    In 1995, Reclamation announced that it would develop a plan 
for the long-term operation of the Klamath Project. The Klamath 
Project Operations Plan, or KPOP, was to define water 
allocation scenarios in various year types. Reclamation also 
stated that it would prepare an analysis of environmental 
impacts under NEPA prior to adopting the KPOP.
    In 1997, Reclamation made a fundamental change in the 
operation of the Klamath Irrigation Project. In 1997 the 
Project was operated to increase flows in the Klamath River and 
to maintain high lake levels in the Upper Klamath Lake 
reservoir.
    The change in operations led to a lawsuit under NEPA. Water 
users in 1997 contended that the change in operating criteria 
required an EIS under NEPA. The court admonished Reclamation to 
comply with NEPA with respect to any such future plans 
regarding Project operations.
    Reclamation at that time represented that it would conduct 
NEPA review in the future and, in particular, it would complete 
an EIS for long-term operations of the Project by 1999.
    Move forward to 2001. Four years have elapsed since 
Reclamation's commitment to comply with NEPA and two years have 
passed since Reclamation represented to the court that it would 
complete an EIS for long-term operation of the project.
    NEPA requires Federal agencies to prepare an EIS before the 
implementation of major Federal actions significantly affecting 
the quality of the human environment. The Federal government in 
2001 fulfilled none of the NEPA obligations. Instead they 
merely adopted an Operating Plan in 2001 that ultimately harmed 
our rural communities.
    One of NEPA's goals is to facilitate widespread discussion 
and consideration of the environmental risks and remedies 
associated with a project, thereby augmenting the informed 
decisionmaking process. NEPA is a deliberate command that the 
consideration of environmental factors not be shunted aside in 
the bureaucratic shuffle.
    The Committee should be aware that in 2001 when a lawsuit 
was filed by water users claiming violations of NEPA and 
seeking immediate water deliveries, the court in its 
preliminary injunction found there was likely not a violation 
of NEPA because the Endangered Species Act would trump NEPA.
    In effect, the multi-year delay in evaluating potential 
impacts to agricultural communities and wildlife led to a 
situation where such impacts did not have to be evaluated at 
all. We were told that impacts to our environment, our 
communities, our wildlife, do not count.
    In summary, the issuance of the Biological Opinions and the 
adoption of the 2001 Klamath Project Operations Plan were 
subject to full NEPA compliance, which Reclamation admitted it 
did not undertake. Even though the EA prepared by Reclamation 
disclosed potential environmental effects from Project 
operations that could prove significant, Reclamation did not 
issue a finding of no significant impact. Additionally, 
Reclamation admitted that it not prepare an EIS prior to the 
issuance of the 2001 plan.
    Federal agencies cannot pick and choose when they will 
comply with NEPA, or do so in a way that will destroy families, 
social structures, communities and the environment. A massive 
change in historical operations does require NEPA compliance.
    We have several recommendations about how NEPA can be 
applied in an arbitrary fashion. On the one hand, an advocacy 
group points out that NEPA has not been adequately addressed 
and the court shuts down the intended action. On the other 
hand, in my case, a judge agrees with the plaintiff that NEPA 
has not been implemented and still allows for the action in 
question to continue.
    While the 2001 Klamath/NEPA issue is personally frustrating 
to me, I can tell you that the Family Farm Alliance is very 
concerned with this issue from a broader policy standpoint, 
especially as it relates to the development of new water supply 
enhancement proposals. We have a few specific recommendations 
that we hope the Task Force will consider as it deliberates 
this matter. And many of them have already been stated--or are 
found in my written testimony.
    In conclusion, I believe that the 2001 Klamath Basin crisis 
opened the eyes of many policymakers and agency managers in 
rural communities throughout the United States.
    We are seeing improved coordination and cooperation on the 
Basin, particularly from local officials employed by the Bureau 
of Reclamation and the U.S. Fish and Wildlife Service. 
Cooperative efforts are important for moving projects through 
NEPA and permitting processes. Establishing working 
relationships with agencies involved in the NEPA process and 
permitting critical. Good cooperation and communications 
between agencies and groups with an understanding of each 
participant's expectations will help in future problem 
resolution.
    Keep it out of the court. Thank you.
    [The prepared statement of Mr. Kennedy follows:]

         Statement of William Kennedy, Chairman of the Board, 
                          Family Farm Alliance

    Chairwoman McMorris and Members of the Task Force:
    My name is Bill Kennedy, and I traveled here today from Klamath 
Falls, Oregon on behalf of the Family Farm Alliance. The Alliance 
advocates for family farmers, ranchers, irrigation districts, and 
allied industries in seventeen Western states. The Alliance is focused 
on one mission--To ensure the availability of reliable, affordable 
irrigation water supplies to Western farmers and ranchers.
    The ranch that I operate is one of 1,400 family farms and ranches 
that depend on water supplies from the Klamath Irrigation Project 
(``Project''). I sit on the Board of Directors for several irrigation 
districts, and I'm also a board member of the Klamath Water Users 
Association.
    I am encouraged that the Task Force on Improving the National 
Environmental Policy Act (NEPA) has been formed to address the current 
state of this important environmental law. While the Task Force will 
likely hear many stories of how agency interpretation of NEPA 
compliance has slowed or even stopped development of projects 
throughout the West, I would like to give you a slightly different 
perspective today. The members of the Family Farm Alliance have many 
examples of how onerous and expensive processes associated with NEPA 
compliance contributed to slowing and complicating the development of 
otherwise feasible water supply enhancement projects in Western states. 
In fact, the president of the Alliance--Patrick O'Toole of Savery, 
Wyoming--recently provided two detailed case studies relative to this 
matter to the House Subcommittee on Water and Power at an oversight 
hearing last week in Washington, D.C.
    However, today I want to provide another, even more serious example 
that demonstrates the apparent double-standard agencies sometimes 
exhibit when it comes to NEPA compliance. While NEPA can sometimes be 
employed by agency staff in a manner that makes development very 
difficult and expensive, in my situation, compliance with NEPA by 
federal agencies was bypassed, to the detriment of my entire community. 
I am talking, of course, about the 2001 curtailment of Upper Klamath 
Lake water to the landowners in the Klamath Irrigation Project. We 
believe that a proper treatment of NEPA in 2001 would have served to 
protect our rights and livelihoods, prevent destruction of the human 
environment and their communities, and avoid outright catastrophe. 
Ultimately, however, the federal government chose to operate Project 
facilities in a way that eliminated any and all deliveries of water for 
Klamath Project irrigation on 170,000 acres of land. In addition, two 
national wildlife refuges went dry.
    The heart of this matter is a change in the operating criteria or 
rules for the Klamath Project announced on April 6, 2001, well into the 
normal irrigation season. Instead of operating to serve irrigation 
water needs, the Klamath Project that year was to be operated to cause 
water shortage and devastate water users, ignoring all other water use 
and activities in the Klamath Basin.
Klamath Project Farming
    Thousands of people--family farmers and ranchers, their employees, 
and agriculture-related businesses--make their living directly from 
farming and ranching in the Klamath Project. In turn, their activities 
support the communities of Malin, Merrill, Bonanza, Tulelake, Newell, 
and Klamath Falls.
    The irrigated farm land of the Klamath Project includes about 
230,000 acres. Of this, the great majority is served from diversions 
from Upper Klamath Lake and points immediately below on the Klamath 
River. Another area is served via Lost River and the two smaller 
reservoirs on the Lost River System--Clear Lake and Gerber Reservoirs. 
Farmland in the Klamath Project produces well over $100 million 
annually in direct revenue, and generates roughly $300 million in 
economic activity, supporting the farm families, farm workers, 
businesses and local communities. In addition, there are two national 
wildlife refuges in the Klamath Project area: Lower Klamath National 
Wildlife Refuge and Tulelake National Wildlife Refuge. The refuges have 
rights inferior to irrigation for water, but rely on the same delivery 
system for water as irrigation. The refuges are heavily dependent on 
``return flows'' from irrigated agriculture in the Klamath Project.
    Klamath Project irrigation and refuges are, of course, only some of 
the many uses of water in the much-larger Klamath Basin. Upstream of 
Upper Klamath Lake, there is an estimated 200,000 acres of irrigated 
land and other uses that divert water. Downstream, on tributaries to 
the Klamath River in California, there are large areas of irrigated 
lands, particularly in the Shasta and Scott River Valleys, and an out-
of-basin export to the Central Valley of California from the Trinity 
River that, in the recent past, amounted to one million acre-feet of 
water per year. Nevertheless, in the long history of the Klamath 
Project up to 2001, the water supply has ordinarily been sufficient to 
meet these uses, and there have been only a few years when water 
shortage occurred to either Klamath Project irrigation or refuges. 
These shortages occurred late in the irrigation season when forecasted 
supplies did not fully materialize.
Historic Operations
    For 90 years, Klamath Project reservoirs and diversion facilities 
were operated to serve the authorized irrigation purpose of the Klamath 
Project. There were no downstream Klamath River flow requirements or 
minimum Upper Klamath Lake reservoir elevations binding on Klamath 
Project irrigation users. The focus of Project operations was to 
optimize irrigation diversions. Upper Klamath Lake reservoir elevations 
were the result of releases for power generation, judged against 
irrigation. Clear Lake and Gerber Reservoirs have also been operated 
historically to conserve water for, and provide water to, the 
irrigation districts on the east side of the Klamath Project.
Demand for Change in Purposes of Operation
    Starting in the 1990's, political and regulatory demands have 
affected activities at the Klamath Project. For example, in 1988, the 
short nose sucker and the Lost River sucker, two species that live in 
Upper Klamath Lake, were designated as endangered under the Endangered 
Species Act (ESA). Biological opinions issued by the U.S. Fish and 
Wildlife Service in 1992 and 1994 concerning operation of the Klamath 
Project identified Reasonable and Prudent Alternatives (RPAs) to avoid 
jeopardy to suckers. When the suckers were listed, there had been no 
mention whatsoever of reservoir elevations as a factor affecting sucker 
populations. Nonetheless, these biological opinions included minimum 
reservoir elevations to protect the suckers. These operating elevations 
were adopted by the Bureau of Reclamation (Reclamation). The reservoir 
elevations pertaining to Upper Klamath Lake generally allowed the 
Project to operate for its intended purposes. During the mid-1990's, a 
court found the reservoir elevations pertaining to sucker populations 
in Clear Lake and Gerber Reservoirs to be arbitrary and capricious, and 
they were invalidated in a succession of decisions.
    In late 1994, demands were made by various parties that Reclamation 
reprioritize and reallocate water. In particular, demands were made 
that Reclamation take steps to increase both Klamath River flows (as 
measured at Iron Gate in California) and Upper Klamath Lake reservoir 
elevations above and beyond the adopted ESA lake levels. The demand was 
that new flow requirements and lake elevations be set with Klamath 
Project irrigation and refuges eligible for only the amount of water 
left over.
    In 1995, Reclamation announced that it would develop a plan for the 
long-term operation of the Klamath Project. The Klamath Project 
Operations Plan (``KPOP'') was to define water allocation scenarios in 
various year types. Reclamation also stated that it would prepare an 
analysis of environmental impacts under NEPA prior to adopting a KPOP. 
The KPOP was to be adopted before the 1996 irrigation season. A draft 
long-term KPOP was prepared but not released. Instead, a water 
``advisory'' was released for 1996, and Reclamation stated that it 
would prepare a long-term KPOP and Environmental Impact Statement (EIS) 
by 1998.
Changes to Klamath Project Operations
    In 1997, Reclamation made a fundamental change in the operation of 
the Klamath Irrigation Project. Prior to that time, Project reservoirs 
and other facilities were operated to ensure irrigation deliveries; the 
authorized purpose of the Project. In 1997, priorities were reversed, 
such that the Project was operated to increase flows in the Klamath 
River and to maintain high lake levels in the Upper Klamath Lake 
reservoir, with only the water left over being available for irrigation 
and wildlife refuges that the Project had previously served for nearly 
a century. In more blunt terms, the Project was operated in a manner to 
promote the potential for water shortages.
    The change in operations led to a lawsuit under NEPA. Water users 
in 1997 contended that the change in operating criteria required an EIS 
under NEPA. The matter did not come before the court until July of 
1997, by which time the court concluded that there would not be any 
injury (i.e., there turned out to be enough water to meet irrigation 
and wildlife refuge needs during the irrigation season in 1997). The 
court admonished Reclamation, however, to comply with NEPA with respect 
to any such future plans regarding Project operations.
    Reclamation, at that time, represented that it would conduct NEPA 
review in the future and, in particular, that it would complete an EIS 
for long-term (multi-year) operations of the Klamath Project by 1999. 
The NEPA claim was ultimately dismissed as moot. In the stipulation for 
dismissal, Reclamation represented that it would comply with NEPA for 
its future operations plans. The stipulation also recognizes that for 
purposes of the NEPA analysis, the ``baseline'' for determining impacts 
would be full agricultural water deliveries.
2001 Operations Plan
    By 2001, four years had elapsed since Reclamation's commitment to 
comply with NEPA and two years had passed since Reclamation represented 
to the court that it would complete an EIS for long-term operation of 
the Project. However, that year the federal agencies sought to bypass 
both their legal duties to the water users and NEPA, based on 
provisions of the ESA. The resulting action was based, in part, on the 
amazing conclusion that such shortages are a ``reasonable and prudent'' 
alternative that fulfills the purposes of the Project.
    On April 6, 2001, Reclamation announced another one-year change in 
the historic operation of the Project. That change ultimately had dire 
repercussions for our community. On that day, USFWS and NMFS each 
issued new biological opinions (for suckers and newly-listed coho 
salmon, respectively) for Klamath Project operations. To achieve the 
Klamath River flows at Iron Gate in California and the Upper Klamath 
Lake elevations specified as ``reasonable and prudent alternatives'' in 
these opinions would result in no water whatever for 170,000 acres in 
2001. The same date, Reclamation issued a plan adopting these 
standards, literally triggering disaster.
    NEPA requires federal agencies to prepare an EIS before the 
implementation of ``major Federal actions significantly affecting the 
quality of the human environment.'' The federal government in 2001 did 
not fulfill their NEPA obligations. Instead, they merely adopted an 
Operating Plan in 2001 that ultimately harmed our family farms and 
rural communities.
Impacts to the Community
    The types of economic, human, and environmental suffering 
threatened by the 2001 Plan were catastrophic. Hundreds of farm and 
ranch families without income experienced hardship trying to support 
themselves. Their ability to pay bills and service debt was impaired. 
Collateral (land, equipment) was forfeited. Bankruptcy occurred. 
Similar types of impacts occurred for farm employees, and for the 
owners and employees of the agriculture related businesses. Long-term 
supply arrangements were lost because of nonperformance. The demand for 
social services increased. Some people simply moved out.
    City parks, schoolyards, and cemeteries went without water. Farm 
fields became fields of weeds and dust. Tremendous wind-borne soil 
erosion occurred, impairing land productivity and causing air 
pollution.
    Irrigated farmland provides food and habitat for the abundant 
waterfowl, deer, antelope, and other species. This value was also lost. 
Tragically, two of the nation's premier national wildlife refuges were 
left without water for wetlands and waterfowl habitat.
    Increased chemical use needed to control weeds and pests has 
occurred in the years since 2001. Fields left fallow in 2001 showed 
decreased production in subsequent years.
    The harm to the Upper Klamath Basin was overwhelming, and we are to 
this day feeling its effects.
NEPA Disregarded
    As previously noted, NEPA requires the preparation of an EIS before 
the implementation of actions significantly affecting the quality of 
the human environment. One of NEPA's goals is to facilitate widespread 
discussion and consideration of the environmental risks and remedies 
associated with a project, thereby augmenting an informed decision-
making process. NEPA is a deliberate command that the consideration of 
environmental factors not be shunted aside in the bureaucratic shuffle. 
The requirement for pre-decision environmental review applies both to 
new projects and changes to an ongoing project.
    In addition to the discussion of impacts of an action, core 
elements of an EIS are the identification of alternatives and 
mitigation measures. If an agency is uncertain whether an EIS is 
required, before making any decision to go forward with a federal 
action, the agency must prepare an environmental assessment (EA). If 
the agency determines, based on the EA, that a proposed action has the 
potential to ``significantly affect the quality of the human 
environment,'' then the agency must prepare an EIS. But the agency must 
prepare at least an EA and ``convincing'' findings in the record before 
concluding that impacts will not be significant. Otherwise, the failure 
to prepare an EIS is inconsistent with the law.
    In the 2001 Klamath Project case, there was no EIS and no EA, and, 
it would appear, no NEPA compliance.
The 2001 Plan Represented ``changes in the programmed operation of an 
        existing Project.''
    The 2001 Operating Plan was a revision to the ongoing management of 
the Klamath Project. In addition to revising the water allocation 
scheme, the authorized purposes of the Project were subordinated to 
guaranteeing Klamath Lake reservoir elevations and flows at a specific 
location in the Klamath River. Regardless of the purpose of the change, 
the reallocation was a dramatic change from historic operation of the 
Klamath Project, and NEPA should have applied.
    In 1996, Reclamation committed to NEPA compliance for both annual 
and long-term plans. The federal government took no action to comply 
with NEPA before deciding to adopt the 2001 Plan. Four years had 
elapsed since the court admonished the federal government to comply 
with NEPA for its changes from historic operations. The completion of 
an EIS slipped and slipped again, and, in 2001, the agencies proposed 
to devastate farm families, Klamath Project communities, and the 
environment without any meaningful or public consideration of impacts 
or alternatives.
The 2001 Plan Was a Major Federal Action
    The decision to adopt the 2001 Plan was a major federal action. It 
had the potential to dramatically affect the environment. Proper timing 
of environmental review is one of NEPA's central themes. The purpose of 
such early review, of course, is to prevent the proposal from gaining 
such momentum that the government loses the ability to avoid or 
minimize significant environmental effects, and so that delayed 
environmental review becomes a post-hoc rationalization for the 
project.
    On April 6, the day of issuance of the 2001 Operations Plan, 
Reclamation did not release any NEPA documentation. Reclamation first 
produced an Environmental Assessment (``EA'') only after water users 
filed a lawsuit.
    Unfortunately, the preparation of an EA does not necessarily 
constitute NEPA compliance. For actions that cause significant adverse 
effects, an EIS must be prepared, analyzing impacts, mitigation, and 
alternatives. If the agency concludes there are no significant impacts, 
it must prepare a Finding of No Significant Impacts (``FONSI''). In 
2001, there was no doubt whatever that the impacts from change in 
operation of the Project would be monumentally significant.
    The federal government admitted that they failed to complete the 
required NEPA review before issuing the 2001 Plan. They further claimed 
that the 2001 Plan represented an annual operations plan for a 
continuously operating reclamation project, and so they should not have 
to complete NEPA review for the Plan. The 2001 Plan represented a 
complete abandonment of the authorized purpose of the Project and a 
major change in historical operations as recognized by the court 
previously. Thus, the 2001 Plan was a ``major federal action'' 
requiring an EIS under NEPA.
    Reclamation's concession that the issuance of the 2001 Plan was 
subject to NEPA appears to suggest that Project operations may be 
subject to NEPA''. but only a little bit of NEPA.
Finding of the Court
    The Committee should be aware that when a lawsuit was filed by 
water users claiming violations of NEPA and seeking immediate water 
deliveries, the court in its preliminary injunction ruling found there 
was likely not a violation of NEPA because the ESA would trump NEPA. 
That preliminary ruling was effectively the end of that case because it 
was our only hope for obtaining historic water deliveries in 2001.
    In effect, the multi-year delay in evaluating potential impacts to 
agricultural communities and wildlife led to a situation where such 
impacts did not have to be evaluated at all. We were told that impacts 
to our environment, our communities, our wildlife, do not count.
    The further irony, of course, is that the National Academy of 
Sciences later confirmed that the water allocations to ESA-listed fish 
in the Klamath River and Upper Klamath Lake were not scientifically 
justified, meaning the severe impacts to our community which did not 
count and were not considered, were not necessary.
Summary
    In summary, the issuance of the Biological Opinions and the 
adoption of the 2001 Klamath Project Operations Plan were subject to 
full NEPA compliance, which Reclamation admitted it did not undertake, 
much less complete. Even thought the EA prepared by Reclamation 
``disclosed potential environmental effects from Project 
operations...that could prove significant,'' Reclamation did not issue 
a FONSI. Additionally, Reclamation admitted that it ``did not prepare 
an EIS prior to the issuance of the 2001 Plan either.''
    Federal agencies cannot pick and choose when they will comply with 
NEPA, and do so in a way that will destroy family farms, social 
structures, communities, and the environment. A massive change in 
historical operations requires NEPA compliance.
    Klamath water users believe Reclamation had an obligation to 
consider and protect the contractual rights of water users. Indeed, 
Reclamation admitted that in its aborted NEPA process, it intended to 
look at its contractual obligations to water users, and would have 
evaluated, as potential alternatives, means by which those rights could 
have been protected. However, when it abandoned NEPA, it also abandoned 
even a superficial effort to consider its contractual obligation and 
the rights of Project water users. And it did this without any analysis 
or justification whatsoever.
Recommendations
    It is difficult for me to come away from the events of 2001 and 
offer up meaningful lessons learned. For the purposes of today's 
hearing, I believe the example I have just laid out demonstrates that 
NEPA ``like so many federal laws and regulations--can be applied to any 
situation in a manner that is largely dependent on the demeanor of the 
agency staff that has jurisdiction in the manner. It is clear that NEPA 
can be applied in an arbitrary fashion. On the one hand, an advocacy 
group points out that NEPA has not been adequately addressed and the 
court shuts down intended actions. In another case, a judge agrees with 
a plaintiff that NEPA has not been implemented, and still allows for 
the action in question to continue.
    So, the best advice we have to offer in these situations is to 
stress the importance of developing sound, working relationships with 
the federal agencies in your neighborhood.
    While the 2001 Klamath NEPA issue is personally frustrating, I can 
tell you that the Family Farm Alliance is very concerned with this 
issue from a broader policy standpoint, especially as it relates to the 
development of new water supply enhancement proposals. We have a few 
specific recommendations that we hope the Task Force will consider as 
it deliberates this matter:
    1.  NEPA analyses should require that value be assigned to 
continued agricultural production in a project area.
    2.  Impacts of drought and continuing water demands must be 
assessed and built into the NEPA process.
    3.  Anything that can be done to streamline the overall permitting 
process (NEPA, ESA, Clean Water Act, etc.) should be encouraged. The 
federal government should consider developing a binding ``pre-
application'' meeting, where the project proponents and all applicable 
federal agency representatives are present to provide a realistic, 
initial assessment of whether or not ``stopper'' issues or other 
regulatory-related fatal flaws will make permitting a prolonged and 
expensive endeavor.
    4.  Agency work on biological opinions should be required to keep 
pace with development of NEPA compliance documents. This could lead to 
improved regulatory streamlining and minimization of big surprises at 
the ``end'' of long and expensive regulatory processes.
    5.  Congress should consider legislation that would allow the 
state's legislative and planning process to be considered in 
establishing purpose and need for construction of dam and reservoir 
projects.
    6.  If Congress is unwilling to expand the state's role in 
establishing the purpose or need for a project, the project sponsor and 
the state must work within existing guidelines to maximize 
opportunities. Working within either existing or expanded federal 
guidelines would facilitate the NEPA analysis, from which all other 
permitting processes will tier. The challenge will be to convince 
regulators, during the permitting process, that the benefits of 
constructing a proposed future project outweigh the adversities; 
consequently, there is a justifiable ``purpose and need'' for the 
project.
    7.  Developing a reasonable range of alternatives is also very 
important in project planning and the NEPA process. Alternatives must 
meet the need and purpose for the project and must be capable of being 
implemented. It is important to use the NEPA process to help determine 
the most appropriate alternative from the set of reasonable 
alternatives.
    8.  Cooperative efforts are important for moving projects through 
the NEPA and permitting processes. State and local sponsors should 
become cooperating agencies in the NEPA process if possible and if not, 
should be allowed to serve on the project EIS interdisciplinary team.
    Dam and reservoir projects are complex and often controversial. A 
dedicated local sponsor or project proponent and a documented ``purpose 
and need'' are minimum requirements for success.
Conclusions
    I do not expect that the events of 2001 in the Klamath Basin will 
be resurrected. I believe that the 2001 crisis opened the eyes of many 
policy makers and agency managers. We are seeing improved coordination 
and cooperation in the Klamath Basin, particularly from local officials 
employed by the Bureau of Reclamation and the U.S. Fish and Wildlife 
Service. Cooperative efforts are important for moving projects through 
NEPA and permitting processes. Establishing working relationships with 
the agencies involved in the NEPA process and permitting is critical. 
Good cooperation and communications between agencies and groups, with 
an understanding of each participant's expectations, will help in 
future problem resolution.
    Thank you.
                                 ______
                                 
    Miss McMorris. Thank you very much. Mr. Urness.

          STATEMENT OF CRAIG URNESS, GENERAL COUNSEL, 
                     PACIFIC SEAFOOD GROUP

    Mr. Urness. Thank you. Members of the Task Force, my name 
is Craig Urness. What I will testify to today will have a 
familiar ring but will relate to our ocean off the West Coast 
here.
    I'm the General Counsel for subsidiaries of Pacific Seafood 
Group, one of the larger processors and distributors and fresh 
and frozen seafood on the West Coast. Our group is 
headquartered in Oregon and has companies in that state, as 
well as in Alaska, Washington, California, Nevada, Texas, Utah 
and British Columbia. We employ over 1700 full-time workers, 
including seven here in Spokane at our distribution facility 
and over 100 up in Mukilteo, Washington, as well.
    Our premise here is very simple. And while we look at it 
with regard to the Act that governs our fishery's management, 
it would seem to have broader policy implications and that is, 
simply put, that if an Act itself provides substantially or 
completely for the requirements and policy objectives of NEPA, 
then NEPA should not be required in addition to.
    At Pacific Seafood, because we rely heavily on the 
availability of wild-harvested seafood to meet our customers' 
needs and to keep our coastal processing plants busy, fisheries 
conservation and management issues are, of course, very 
important to us. We need to ensure that the species we process 
and sell are available both now and into the future. At the 
same time, fisheries managers must provide timely and efficient 
regulations based on the best scientific information available. 
We therefore work with the Pacific Fishery Management Council, 
one of the eight Federal bodies established in 1976 under the 
Magnuson-Stevens Fishery Conservation and Management Act. And 
it is here at the heart of fisheries conservation management 
that we see the National Environmental Policy Act acting as a 
roadblock rather than promoting sound decisionmaking.
    In order to be practical and effective, fishery management 
decisions must be made on a timely basis and with the most up-
to-date data possible. You do not want to allow harvest of a 
fish stock based on old information, as you run the risk of 
either over-harvesting a stock that has declined or forcing 
fishermen to discard their catch because fish are far more 
numerous than had been previously assumed. In some cases, fish 
species are both migratory and subject to rapid fluctuations in 
population, size and availability. Pacific whiting, one of our 
major products, is a good example.
    The Magnuson-Stevens Act requires the regional councils to 
carefully scrutinize the available scientific data, take steps 
to keep harvest at sustainable levels, consider all 
socioeconomic environmental impacts, and make all decisions 
through a very open and public process. Up to about five years 
ago, the rigorous requirements of the Magnuson-Stevens Act were 
considered sufficiently analogous to the NEPA process so as to 
avoid the need for lengthy, expensive EIS statement.
    Beginning about the year 2000, the U.S. Department of 
Commerce, which oversees Federal fisheries management through 
its National Marine Fisheries Service, found itself defending 
against several lawsuits on fisheries conservation and 
management issues. Attorneys routinely began alleging violation 
of NEPA. And not surprisingly, several of these complaints were 
granted on that basis. As a result, the regional fishery 
management councils now produce an EIS for every fishery 
regulation.
    There are many, many fisheries on our west coast and in our 
nation. And these decisions must be made quickly to be 
effective both environmental purposes and for a rational use of 
our resource.
    Let me give you some examples of how the NEPA requirements 
are affecting our fisheries conservation and management.
    The timeframe for decisionmaking has become so long that we 
are operating on outdated scientific information. Before NEPA 
requirements, we could use catch data and scientific 
information from 2004 to prepare a stock assessment in 2005 
that could be used to set harvest levels beginning in January 
of 2006. Today, after NEPA, that same 2004 data sets harvest 
levels in 2007. In other words, we're using three-year-old data 
for most species to determine how much fish we can catch. This 
is no way to currently manage fisheries.
    This is another example. Pacific Council has been grappling 
with a complex restructuring of the groundfish fishery. The 
effort started two years ago and is not expected to produce 
results until at least 2009. Now, I'm a part of that process. 
And that is the best case scenario. This assumes that the 
Council will be able to afford the complex NEPA analysis 
requirements. In frustration a number of fisherman and 
processors are now considering legislative relief. While we'd 
rather support the process, an industry-developed approach to 
rationalizing the fishery with strong conservation controls 
seems to be the only quick way to sustain economic viability.
    Even the most inconsequential regulatory changes are 
delayed. One of our fishermen wanted to change some gear.
    The Council advised the fishermen simply that you better 
wait until next year because the cost and time to do this would 
be too great.
    Last, but not least, as a result of an expired NEPA 
analysis that didn't consider that there would be more fish in 
the ocean of a particular species, last year 130,000 metric 
tons of Pacific whiting were set off limits. A negative impact 
on our coastal communities of over $25 million, with no 
additional environmental benefit. In fact, it is much more 
likely that it had a negative environmental impact because of 
the nature of the species that was left in the ocean.
    When the Task Force makes its final recommendations, I hope 
it will consider the provisions of section 3 of H.R. 3645, 
introduced by Congressman Young of Alaska in the 108th 
Congress. The bill offered a rational approach by deeming the 
fisheries management decisions made following the strict 
provisions of the Magnuson-Stevens Act are in compliance with 
NEPA. And whether enacted as separate legislation, part of a 
package of NEPA reforms, or through the reauthorization of 
Magnuson-Stevens, this legislative approach will restore the 
ability of our fisheries managers to timely conserve and manage 
our fish stocks.
    Thank you very much.
    [The prepared statement of Mr. Urness follows:]

              Statement of Craig Urness, General Counsel, 
                         Pacific Seafood Group

    Mr. Chairman, Members of the Task Force, my name is Craig Urness. I 
am the General Counsel for subsidiaries of Pacific Seafood Group, one 
of the larger processors and distributors of fresh and frozen seafood 
on the west coast. Our group is headquartered in Oregon and has 
companies in that state, as well as in Alaska, Washington, California, 
Nevada, Texas, Utah and British Columbia. We employ over 1700 full-time 
workers, including seven at our sales and distribution facility here in 
Spokane.
    Because we rely heavily on the availability of wild-harvested 
seafood to meet our customers' needs and to keep our coastal processing 
plants busy, fisheries conservation and management issues are very 
important to us. We want to ensure that the species we process and sell 
are available both now and in the future. At the same time, we need 
fisheries managers to provide timely and efficient regulations, based 
on the best scientific information available. We therefore work--both 
directly and through the West Coast Seafood Processors Association--
with the Pacific Fishery Management Council, one of the eight federal 
bodies established in 1976 under the Magnuson-Stevens Fishery 
Conservation and Management Act to manage our nation's marine 
fisheries. And it is here, at the heart of the fisheries conservation 
and management process, that we see the National Environmental Policy 
Act--NEPA--acting as a roadblock rather than promoting sound decision-
making.
    In order to be practical and effective, fishery management 
decisions must be made on a timely basis and with the most up-to-date 
data possible. You don't want to allow harvest of a fish stock based on 
old information, as you run the risk of either over-harvesting a stock 
that has declined, or forcing fishermen to discard their catch because 
fish are far more numerous than assumed. In some cases, fish species 
are both migratory and subject to rapid fluctuations in population size 
and availability; Pacific whiting, one of our major products, is a good 
example.
    The Magnuson-Stevens Act requires the regional councils to 
carefully scrutinize the available scientific data, take steps to keep 
harvest at sustainable levels, and make all decisions through a very 
open and public process. Until about five years ago, the rigorous 
requirements of the Magnuson-Stevens Act were considered sufficiently 
analogous to the NEPA process so as to avoid the need for lengthy, 
expensive, environmental impact statements. Beginning about the year 
2000, the U.S. Department of Commerce--which oversees federal fisheries 
management through its National Marine Fisheries Service--found itself 
defending against several lawsuits on fisheries conservation and 
management issues. As a matter of course, the plaintiffs' attorneys 
routinely alleged violation of NEPA, a charge with which many judges 
are sympathetic. And, not surprisingly, several of these complaints 
were granted. As a result, the regional fishery management councils now 
have to produce an environmental impact statement--EIS--for every 
fishery regulation.
    As a practical matter, most fisheries harvest decisions offer two 
extremes: no fishing, and the maximum amount that scientists say you 
can catch and still allow relative population stability. As a fisheries 
manager, you pick a point someplace in between that recognizes 
scientific uncertainty and maximizes economic and social benefits. But 
that's not good enough for NEPA; instead, you have to have an 
identifiable range of alternatives, analysis of the good and bad of 
each alternative, and a rationale for rejecting all the alternatives 
that you didn't include, no matter how unrealistic they are. And if you 
have an annual fishing season, you have to do this each and every year.
    Let me give you some examples of how the NEPA requirements are 
affecting fisheries conservation and management on the west coast:
    Example 1: The time frame for decision-making has become so long 
that we are operating on outdated information. Prior to the imposition 
of NEPA requirements, we could use catch data and scientific 
information from 2004 to prepare a stock assessment in 2005 that would 
then be used to set harvest levels beginning January, 2006. Now, after 
NEPA, that same 2004 catch data and 2005 stock assessment are used to 
set harvest levels for 2007; in other words, we are using 3 year old 
data for most species to determine how much fish we can catch. This is 
no way to manage fisheries. While NEPA is not entirely to blame, it 
adds considerably to the length of time needed without adding to the 
knowledge base.
    Example 2: The mind-numbing paper-work requirements erode support 
for fisheries management. The Pacific Council has been grappling with a 
complex restructuring of the groundfish fishery. The effort started two 
years ago and is not expected to produce results until at least 2009. 
This assumes that the Council will be able to afford the complex NEPA 
analysis requirements. In frustration, a group of fishermen and 
processors is now considering specific legislative relief to cut 
through the Gordian knot of NEPA compliance. While they would rather 
support the Council process, they see an industry-developed approach to 
rationalizing their fishery with strong conservation controls as the 
only hope to sustain economic viability.
    Example 3: The most inconsequential regulatory changes are delayed. 
At Council meeting held earlier this month, one fisherman who delivers 
fish to our company sought a minor regulatory change in the description 
of fishing gear. The current regulations were promulgated in the 
1980's; since that time, advances in technology and the desire to 
reduce bycatch and deploy environmentally friendly nets have led to 
significant modifications in how fishing gear is built and used. The 
request was to change the gear definitions in regulations to match what 
is commonly used so fishermen would not be cited for using illegal 
gear. The advice received from federal regulatory staff was to make the 
request next year because the time and effort required under NEPA to 
address this minor regulatory change was so great that it might not get 
done if handled separately, rather than as part of a larger regulatory 
package.
    Example 4: Complying with NEPA costs us real dollars. We manage our 
commercial and recreational groundfish fishery with a complicated set 
of science-based regulations involving harvest limits and closed areas 
bounded by water depths in order to protect sensitive species of fish. 
Last year, our harvest of Pacific whiting was capped at numbers below 
biologically acceptable levels because the NEPA analysis done the 
previous year did not anticipate an increase in fish numbers. As a 
result, over 130,000 metric tons of fish were set off limits to U.S. 
fishermen--a negative impact on our coastal communities of over $25 
million, with no additional environmental benefit. On other occasions, 
closed areas could not be modified because scientifically calculated 
boundary lines had not been analyzed under NEPA in the previous year.
    In sum, we have an already complex fisheries management system that 
bases its conservation measures on science but that is collapsing under 
the weight of NEPA's administrative paperwork burden. NEPA does not 
lead to better, or even different, fisheries conservation decisions; 
these are based on science. It does lead to costs, to delays, to extra 
work, and to decreased revenue for coastal communities.
    When the Task Force makes its final recommendations, I hope it will 
consider the provisions of section 3 of H.R. 3645, introduced by 
Congressman Young of Alaska in the 108th Congress. That bill offered a 
rational approach by deeming that fisheries management decisions made 
following the strict provisions of the Magnuson-Stevens Act are in 
compliance with NEPA. Whether enacted as separate legislation, part of 
a package of NEPA reforms, or through the re-authorization of the 
Magnuson-Stevens Act, this legislative approach will restore the 
ability of our fisheries managers to conserve and manage fish stocks 
without drowning in paperwork.
    Thank you for inviting me to testify today. I would be happy to 
answer any questions.
                                 ______
                                 
    Miss McMorris. Thank you. Thank you for being here.
    Ms. Blaeloch.

            STATEMENT OF JANINE BLAELOCH, DIRECTOR, 
                 WESTERN LAND EXCHANGE PROJECT

    Ms. Blaeloch. Madam Chairwoman, thank you for inviting me 
to testify on the role of the National Environmental Policy 
Act. My name is Janine Blaeloch. I'm Director of the Western 
Land Exchange Project, the Seattle based, non-profit 
organization that monitors Federal land exchanges, sales, and 
conveyances across the West. My organization works with NEPA 
every day, mainly helping local citizens learn how to use NEPA 
to participate in decisions regarding their public lands.
    NEPA is primarily a tool of democracy and disclosure.
    The statute and its regulations provide a clear, consistent 
structure for citizens to participate in decisions affecting 
the environment and to understand the possible impact of a 
project. Under NEPA one not only can advocate in favor of or 
against a project, but is invited to provide substantive 
knowledge that can help the agency make a better decision.
    Our group sees this occur every day, literally, where local 
citizens offer unique knowledge that informs land exchange and 
other public land decisions.
    Our group scrutinizes scores of projects every year, but we 
challenge very few of them. Indeed, as currently interpreted, 
NEPA does not allow us to dispute a project just because we 
think it is harmful but only if the process itself has not been 
properly followed. When the public is given good information, 
fair alternatives, and the opportunity to give input, 
challenges are not necessary nor will they, unfortunately, be 
successful.
    But if implementation is poor, controversy and opposition 
will arise. One such case was the Huckleberry Land Exchange of 
the late 1990s here in Washington state, between the Forest 
Service and the Weyerhaeuser Timber Company. The Muckleshoot 
Indian Tribe, an environmental group, and a community group 
challenged the EIS for this land exchange because the 
significance of the traded lands was totally obscured in the 
environmental analysis. Not only was old-growth forest being 
exchanged for Weyerhaeuser clearcuts, but so was an ancient 
trail that the ancestors of the Muckleshoot Indians had used 
for thousands of years. The outcome of the challenge was an 
improved analysis, the exclusion of the Indian trail and 
important ecological areas, including virtually all of the old-
growth forest, and a slightly smaller land exchange.
    More important than the specific outcomes have been the 
longer-term improvements in the Forest Service's land exchange 
proposals, environmental studies and decisions that we have 
witnessed. Because NEPA has made room for citizen involvement 
and knowledge, land exchange proposals and decisions have 
visibly improved since our challenge of the Huckleberry Land 
Exchange eight years ago. In this way, NEPA is unquestionably 
fulfilling its purpose.
    Most of the people our organization works with do not 
necessarily identify themselves as environmentalists. But we 
found that when a favorite place is about to be traded or sold, 
citizens of all persuasions are inspired to mobilize. They soon 
learn that the most dependable tool they have at their disposal 
is the National Environmental Policy Act.
    An example from outside this region illustrates the 
eagerness with which people engage in these decisions. In the 
Arizona's Verde Valley, a congressional land trade has failed 
to pass for several years in a row. The developer proposing the 
exchange had gone to Congress because he did not want to wait 
the two to three years it would take to get through the NEPA 
process for the exchange. More than five years later no one was 
happy.
    Verde Valley citizens there have wanted a NEPA process, 
including an analysis of alternatives that could forestall 
adverse impacts on groundwater in their area. Citizen interest 
has been so intense that in 2003 Senator McCain, the bill's 
sponsor, was compelled to call a meeting in the small town of 
Camp Verde and an astonishing 600 people showed up. The Senator 
had to ask the fire marshal to suspend the fire code as people 
filled the aisles of the high school gym.
    The phrase that most stands out for me in Title I of NEPA 
is section C, in which Congress recognizes that each person 
should enjoy a healthful environment and has a responsibility 
to contribute to its preservation and enhancement. This part of 
NEPA is fulfilled in citizen action. Citizens may end up 
disappointed in a result, but our organization has yet to 
encounter anyone who regretted participating or who did not 
feel empowered by NEPA.
    Americans want to be part of our government's decisions. To 
alter this cornerstone of civic engagement would betray those 
who have already given of their time and energy and those who 
have yet to discover this priceless tool of democracy.
    Thank you again for allowing me to testify.
    [The prepared statement of Ms. Blaeloch follows:]

                Statement of Janine Blaeloch, Director, 
                     Western Land Exchange Project

    Madame Chairwoman, thank you for inviting me to testify on the role 
of the National Environmental Policy Act. My name is Janine Blaeloch. I 
am Director of the Western Land Exchange Project, a non-profit public-
interest organization that monitors federal land exchanges, sales, and 
conveyances across the West. My organization works with NEPA every day, 
mainly through helping local citizens learn how to use NEPA responsibly 
and effectively to participate in decisions regarding their public 
lands.
    NEPA is primarily a tool of democracy and disclosure. The statute 
and its regulations provide a clear, consistent structure for citizens 
to participate in decisions affecting the environment and to understand 
the possible impacts of a project. Under NEPA, one can not only 
advocate in favor of or against a proposal or an alternative, but is 
invited to provide substantive knowledge that could help the agency 
make a better decision. We see examples of this every day, where local 
citizens offer unique knowledge that informs land exchange decisions.
    Our organization scrutinizes scores of projects every year, but we 
challenge very few of them. Indeed, NEPA does not allow us to dispute a 
project just because we think it is harmful, but only if the process 
itself has not been followed properly. When the public is given good 
information, fair alternatives, and the opportunity to give input, 
challenges are not necessary (nor will they be successful).
    On the other hand, if implementation is poor, controversy and 
opposition will arise. One such example was the Huckleberry Land 
Exchange of the late 1990s, here in Washington State, between the 
Forest Service and Weyerhaeuser Timber Company. The Muckleshoot Indian 
Tribe, an environmental group, and a community group challenged the EIS 
for this land exchange because the significance of the traded lands was 
totally obscured in the environmental analysis. Not only was old-growth 
forest being exchanged for Weyerhaeuser clearcuts, but so was an 
ancient trail that the ancestors of the Muckleshoot Indians had used 
for thousands of years. The outcome of the challenge was an improved 
analysis, the exclusion of the Indian trail and important ecological 
areas--including virtually all of the old-growth forest--and a slightly 
smaller land exchange.
    In a trade that followed in 1998, between Plum Creek Timber and the 
Forest Service, a ``streamlining'' of the NEPA process had dire 
results. Because the government had agreed to complete an expedited EIS 
for the I-90 Land Exchange, several errors and oversights occurred that 
in fact ended up delaying the project significantly. Chief among those 
errors was to shortcut the wildlife surveys on the federal trade 
lands--and after the deeds had been exchanged, Plum Creek biologists 
discovered that the Forest Service had traded to the company a nesting 
area of the Marbled Murrelet, a listed threatened species. Also 
overlooked in the sped-up process were the concerns of citizens in 
Randle, Washington, a distressed former logging community whose 
watershed was being traded to the company. More such obstacles resulted 
in the trade being largely reversed. Had an adequate NEPA process been 
implemented in the first place, bad decisions and small disasters could 
have been avoided.
    In our experience, NEPA rarely stops a project altogether, but it 
can substantially improve the outcome. When we challenged the Crown 
Pacific Land Exchange in central Oregon, a quick settlement resulted in 
the preservation of 3,000 acres of rare eastside old growth. Again, the 
exchange ended up being only slightly smaller, but citizen 
participation in the decision vastly improved the outcome for the 
environment.
    More important than the specific outcomes in these exchanges have 
been the longer-term improvements in the Forest Service's land exchange 
proposals, environmental studies, and decisions. Because NEPA has made 
room for citizen involvement and knowledge, land exchange proposals and 
decisions have visibly improved since our challenge of the Huckleberry 
Land Exchange 8 years ago. In this way, NEPA is unquestionably 
fulfilling its purpose.
    Most of the people our organization works with do not identify 
themselves as environmentalists, but when a favorite place is about to 
be traded away, citizens of all persuasions are inspired to mobilize. 
They soon learn that the only dependable tool they have at their 
disposal is the National Environmental Policy Act.
    I would like to add two examples from outside this region that 
illustrate the eagerness with which Americans engage in these 
decisions. Citizens of Mayer, Cordes Junction, and Dewey, Arizona had 
to school themselves in the NEPA process when the Bureau of Land 
Management announced a plan to dispose of 17,000 acres in their area 
for subdivision development. The nearby Agua Fria River has already run 
dry for seven years, and the impacts to groundwater could be 
disastrous. Through the public involvement mechanisms of NEPA--no 
appeals, no litigation--the communities have compelled the BLM to back 
up and take a more prudent approach.
    Just 35 miles away, in Arizona's Verde Valley, a congressional land 
trade has failed to pass for several years in a row. The developer 
proposing the exchange had gone to Congress because he did not want to 
wait the two to three years it would take to get through the NEPA 
process for the exchange. More than five years later, no one is happy.
    Verde Valley citizens want a NEPA process, including an analysis of 
alternatives that could forestall adverse impacts on groundwater in 
their area. Citizen interest has been so intense that in 2003 Senator 
McCain, the bill's sponsor, was compelled to call a meeting in the 
small town of Camp Verde and an astonishing 600 people showed up. The 
Senator had to ask the Fire Marshall to suspend the fire code as people 
filled the aisles of the high school gym.
    On its website, the Task Force seems to imply that one purpose of 
NEPA was to avoid litigation, but in searching the preambles and 
purposes statements in the statute, I see no such idea. Instead, there 
are references to ``restoring and maintaining environmental quality,'' 
``man and nature...exist[ing] in productive harmony,'' and other 
positive, forward-looking goals. I am afraid that the leaders of the 
Task Force may be less interested in following NEPA's intent than in 
freely re-interpreting it to its detriment.
    The phrase that most stands out for me in Title I of NEPA is 
section (c), in which Congress recognizes that each person should enjoy 
a healthful environment and has a responsibility to contribute to its 
preservation and enhancement. This is the part of NEPA is fulfilled in 
citizen action. Citizens may end up disappointed in a result, but our 
organization has yet to encounter anyone who regretted participating or 
who did not feel empowered by NEPA. Americans want to be part of our 
government's decisions. To alter this cornerstone of civic engagement 
would betray those who have already given of their time and energy and 
those who have yet to discover this priceless tool of democracy.
    Thank you for your consideration.
                                 ______
                                 
    Miss McMorris. Thank you for coming.
    [Applause.]
    Miss McMorris. Mr. Fish.

              STATEMENT OF PAUL FISH, PRESIDENT, 
                      MOUNTAIN GEAR, INC.

    Mr. Fish. Madam Chair and distinguished members of the Task 
Force. My name is Paul Fish. I'm the President of Mountain 
Gear, a retailer of outdoor gear based here in Spokane. For the 
record, I'd like to register my opposition to any amendments to 
the National Environmental Policy Act.
    I started my business in 1983 as a way to get more people 
out to enjoy our region. I have a passion for adventure, and 
selling outdoor gear seemed like a great way to make a living. 
Mountain Gear is a growing company. We employ over 80 people, 
and we're part of the $18 billion per year outdoor recreation 
industry.
    As a business person, I'm here to talk about the importance 
of NEPA in protecting the region's natural places. The lakes, 
rivers, mountains and forests of the Northwest serve as 
important habitat, provide recreational opportunities and jobs 
for the people in the area. As such they are an invaluable 
resource, and decisions regarding them should be made with care 
and a critical eye for their long-term viability as provided 
for currently under NEPA.
    While I make my living helping people recreate on our 
public lands, I believe that everyone should leave the land so 
that others can use it and enjoy it later. An understanding of 
potential impacts of actions is key to ensuring that we do not 
damage the land. This is the key element of NEPA, ensuring the 
government and the public understand the impacts of Federal 
actions on our environment.
    Our economy depends upon a healthy environment.
    Recently Spokane adopted the fitting slogan, ``Near nature, 
near perfect.'' This is the reflection of the importance of the 
Spokane River and the nearby mountains, to our quality of life 
and the economy of this region. Not only do we explore these 
places during our free time, they are compelling reasons to 
bring new businesses and visitors to the area.
    I recently held a dinner for outdoor businesses and 
economic development interests to discuss the possibility of 
creating a recreation business cluster here. We discussed goals 
and methods to grow our businesses and bring new like 
businesses to the region. It was clear the business leaders in 
our community understand the intrinsic link between a healthy 
environment and a healthy economy.
    NEPA's good for our communities, our environment and good 
for business. NEPA helps ensure that we manage our natural 
resources for the benefit of everyone by requiring that the 
government is accountable for its decisions. The heart of NEPA 
is its requirements for public participation and that a wide 
range of alternatives be considered, including those that will 
minimize possible damage to our health, environmental and our 
quality of life.
    NEPA is currently being implemented in the re-licensing of 
Avista's dams on the Spokane River. The NEPA analysis ensures 
that considerations such as water quality, flows for kayakers 
and fish, water for our waterfalls and many other issues are 
fully analyzed and disclosed to the public for their review and 
comment. As a result, the public has actively participated in 
the re-licensing of the Avista dams.
    Further, NEPA is one of the only laws that ensures that the 
Federal agencies fully consider the impacts of their actions on 
our nation's invaluable historic and cultural resources. For 
example, NEPA requires that the Forest Service must consider 
and evaluate how their timber sales might impact the Lewis and 
Clark Trail. Protecting the Trail benefits everyone and 
enhances the tourism and recreational economies of rural areas.
    As I earlier stated, I oppose any amendments to weaken 
NEPA. Some businesses cut corners to generate short-term 
returns. But short-term thinking can have disastrous 
consequences, especially when it comes to spending taxpayers' 
money on projects that might harm citizens or their 
environment. This is not good for our environment or for 
business.
    Over the past few years, there have been several 
limitations placed on protections that NEPA provides to 
communities in order to speed up the process, including 
sidestepping NEPA by creating categorical exclusions. This 
limits the information available as well as the opportunity to 
provide public review, essentially cutting the interested 
public out of the process.
    Limiting public involvement, restricting information and 
weakening environmental review won't avoid controversy and 
certainly don't improve projects. Likely it will increase 
divisiveness and risk additional resource damage that's bad not 
only for my business but for the region in the long haul.
    NEPA's promise of review and public involvement must be 
safeguarded, not sacrificed in the name of expediency. Some 
would blame NEPA for delaying projects, but examining projects 
in detail, predicting outcomes and thereby providing good 
information for decisions is good business sense.
    Rather than amending or otherwise circumventing NEPA, I 
would urge (unintelligible) the Federal agencies responsible 
for implementing the law get the resources they need to do the 
job right and in a timely manner.
    Business and the environment can and must exist in a 
sustainable manner. NEPA has proven to be the key to smart 
sustainable management of our environment. To weaken this 
protection for short-term gain under the guise of streamlining 
would be irresponsible to the people and the communities of 
this great country. Furthermore, as a businessman I firmly 
believe it would weaken our economy in the long haul. Thank 
you.
    [The prepared statement of Mr. Fish follows:]

         Statement of Paul Fish, President, Mountain Gear Inc.

    Madame Chair and distinguished members of the Task Force, my name 
is Paul Fish. I am the founder and President of Mountain Gear Inc., a 
multi-channel retailer of outdoor recreation equipment based in 
Spokane. For the record, I would like to register my opposition to any 
amendments of the National Environmental Policy Act (NEPA).
    I started this business in 1983 as a way to get more people out to 
enjoy the spectacular places in our region. I have a passion for 
adventure, and selling outdoor gear seemed like a great way to make a 
living. Mountain Gear is a growing company, we employ over 80 people 
and it is part of the Eighteen billion per year recreation industry 
that relies on our Nation's public lands and waters.
    As a business person, I'm here to talk about the importance of NEPA 
in protecting this region's natural places. The lakes, rivers, 
mountains, and forests of the Northwest serve as important habitat for 
fish and wildlife, provide recreational opportunities and jobs for 
citizens. As such they are an invaluable resource and decisions 
regarding them should be made with care and with a critical eye for 
their long term viability as provided for currently under NEPA.
    While I make my living helping people recreate on our public lands, 
I believe that everyone should leave the land so that others, including 
our children, can use it and enjoy it later. Knowledge and an 
understanding of potential impacts of actions is key to ensuring that 
we do not damage the land--this is one of the key elements of NEPA--
ensuring that the government and its citizens understand the impacts of 
federal actions on this Nation's natural resources.
    The economy of the Inland Northwest depends upon a healthy 
environment. Recently, Spokane adopted the fitting slogan ``Near 
nature, near perfect.'' This is a reflection of the importance of the 
Spokane River, the nearby mountains, and the sagebrush steppe to our 
quality of life and the economy of this region. Not only do we explore 
these places during our free time, they are compelling reason to bring 
new businesses and visitors to the area. I recently held a dinner at my 
home for regional outdoor businesses and economic development interests 
to discuss the possibility of creating an outdoor recreation business 
cluster. We discussed goals and methods to grow our businesses and 
bring new like businesses to the Spokane area. It was clear that 
business leaders in this community understand the intrinsic link 
between a healthy environment and a healthy economy.
    NEPA is good for our communities, our environment and good for 
business. EPA helps ensure that we manage our natural resources for the 
benefit of everyone by requiring that the government is accountable in 
its decision making process and allowing the public a voice in that 
decision making process. The heart of NEPA is its requirements of 
public participation and that a wide range of alternatives be 
considered--including those that will minimize possible damage to our 
health, environment or quality of life.
    NEPA is currently being implemented in the relicensing of Avista's 
dams on the Spokane River. The NEPA analysis ensures that 
considerations such as water quality, flows for kayakers and fish, 
water for our waterfalls and many other issues are fully analyzed and 
disclosed to the public for their review and comment. The public has 
actively participated in the relicensing of the Avista dams. Without 
NEPA and the public input it requires, the low flows that dry up our 
famous falls every summer might have continued.
    Further, NEPA is one of the only laws that ensure that federal 
agencies fully consider the impacts of their actions on our Nation's 
invaluable historic and cultural resources. For example, NEPA requires 
that the Forest Service must consider and evaluate how their timber 
sales impact the Lewis and Clark Trail. Protecting the Trail benefits 
everyone and, frankly, benefits the tourism and recreational economies 
of many rural areas.
    As I stated earlier, I oppose any amendments to weaken NEPA. In 
business, it is not uncommon to cut corners to generate short term 
returns. But short term thinking can have disastrous consequences, 
especially when it comes to spending taxpayer money on projects that 
might harm citizens or their environment. This is not good for our 
environment or for business. Over the past few years, there have been 
several significant limitations placed on the protections that NEPA 
provides to communities in order to speed up the NEPA process, 
including side stepping NEPA by creating categorical exclusions for 
certain types of projects. This severely limits the information 
available, as well as the opportunities to provide public review for my 
customers and interested businessman like myself; essentially cutting 
us out of the process. Limiting public involvement, restricting 
information, and weakening environmental review won't avoid controversy 
or improve projects, it will increase divisiveness and risks and 
additional resource damage that is bad not only for my business but for 
the region over the long haul.
    NEPA's promise of project review and public involvement must be 
safeguarded, not sacrificed in the name of expediency. Some would blame 
NEPA for delaying projects, but examining projects in detail and 
predicting outcomes and thereby providing good information for 
decisions is good business sense. Rather than amending or otherwise 
circumventing NEPA, I would urge you to ensure that the federal 
agencies responsible for implementing the law get the resources they 
need to do the job right and in a timely manner.
    Business and the environment can and must coexist in a sustainable 
manner. NEPA has proven to be the key to smart sustainable management 
of our environment. To weaken this protection for short term gain under 
the guise of streamlining would be irresponsible to the people, 
communities of this great country. Furthermore, as a businessman I 
firmly believe it would weaken our economy in the long haul.
    Thank you
                                 ______
                                 
    Miss McMorris. Thank you, Mr. Fish.
    [Applause.]
    Miss McMorris. OK. We're going to move onto questions now. 
Mr. Vaagen, you referenced, I think, this presentation--Whose 
job is it? Would you like that included in the record?
    Mr. Vaagen. Please.
    Miss McMorris. OK. Without objection, so ordered.
    [NOTE: The information submitted for the record has been 
retained in the Committee's official files.]
    Miss McMorris. Then I wanted to go back to you, Duane.
    I commend the efforts that you're undertaking right now to 
work with the environmental groups and industry in northeast 
Washington to really take a look at what's going on in the 
Colville National Forest. And I wanted you to just comment on 
what do you believe is really preventing you from moving to 
treat and protect the national forest.
    Mr. Vaagen. Candidly----
    Mr. Gohmert. We prefer that. Candid.
    Mr. Vaagen. The agency does have their hands tied behind 
their backs. I believe in the public involvement and people. 
And it's been that way for years and years. And we've gotten 
better mostly every year. The problem is this paralysis and 
going in circles. Whose job is it? Whose risk is it?
    I probably won't be around before this gets solved. It's 
been going on for 35 years. We've been at this a long time. The 
agency cannot move quick enough with NEPA analysis. If you have 
forest that die in an instant in a fire and it's destroyed 
within a year of any commercial value, a year-and-a-half to 
two-year analysis is not going to work. It's a waste of time so 
don't go there. Just let us designate it something else, 
barren, dead and that's it.
    I just think--we're trying to restore a healthy forest, and 
it's getting unhealthier by the year. You drive around in this 
area and you see it whether you know the difference between 
forest species and types and stands and elevation, you just see 
an orange tree. What's worse than an orange tree is a complete 
black tree, and not burned. One after it loses its needle it's 
down to 10 percent moisture content, and that's great fuel.
    British Columbia has a beetle problem that's as big as the 
State of Washington. That's where we see a fire in five years. 
Washington state is the only state in this area that hasn't had 
a major fire in the last seven years. Our time is coming, 
unfortunately. And we need to prevent them instead of reward 
them.
    I just think it's a constrain in the analysis. And other 
people--is it their responsibility? And what's the output? Who 
has the pride and compassion? It's all the people. But who 
lives here? It's the people in the community who have been here 
for generations. They're going to admire and protect that 
environment and that forest.
    Others come in and they leave.
    Miss McMorris. Do you think that there's a better process 
or a simpler process that could replace the environmental 
assessment.
    Mr. Vaagen. Well, I think it worked before. I think as long 
as it's tailored and used for its intended purpose, it works. 
If it's used as a tool or a ploy to stop something, then we 
need to call it something else.
    Miss McMorris. OK. Mr. Russell, under Federal law Federal 
agencies are responsible for completing the NEPA analysis. Is 
it your impression that agencies are shifting the cost to the 
applicant, or how are they funding those costs.
    Mr. Russell. Well, our experience has been that (inaudible) 
start the process with (inaudible) understanding you pay for 
the NEPA analysis, which is in principle fine. It's when we go 
onto ad nauseam analysis on alternatives that are unviable on 
issues that are not significant to the human environment may 
reflect some biases of agency individuals that may be against 
the particular project. Very difficult to nail down what those 
costs may be to chase those types of issues through the NEPA 
analysis.
    So, certainly the cost is escalating to the applicant.
    But there is a burden on the agencies as well. Because they 
bring in all their resource (unintelligible) to the NEPA 
process. But if we had definitive timeframes and scopes, then 
that process is manageable and it's not a huge diversion from 
their other duties. And they do have other duties in their 
Federal roles.
    Miss McMorris. OK. Thank you. Are you ready to go next.
    Mr. Inslee. I'm always ready.
    Miss McMorris. OK.
    Mr. Inslee. Madam Chair, I'd like to submit for the record. 
I have this CD here with a copy of (unintelligible) CQ 
regulations. And (unintelligible) also letters and friends of 
the Clearwater, I'd like to (unintelligible).
    Miss McMorris. Absolutely. Without objection so ordered.
    [NOTE: The information submitted for the record has been 
retained in the Committee's official files.]
    Mr. Inslee. Mr. Vaagen, this is not a question. I just want 
to say I'm heartsick about the situation of the forests in our 
state. And I think they're very dire and will become more dire. 
And I think one of the reasons is that our climate is changing 
dramatically. And I just want to let you know that that's 
something I care about deeply. And I really believe that the 
Federal government is not doing its job at really assessing the 
depth of that problem, number one, and number two, really doing 
anything meaningful to respond to it.
    And I can tell you I have (unintelligible) those in 
Congress, and they have done nothing to respond to this local 
issue which is effecting our forests with trees right here in 
the county. That's a statement more than anything else.
    Mr. Russell, I wanted to ask you for your expertise and if 
you could help us maybe on this issue with--issue of Hauser, 
Idaho, where there was this railroad sighting facility or fuel 
loading facility. And the railroad (unintelligible) apparently 
(unintelligible) without any NEPA compliance is my 
understanding.
    Can you share any guidance as to how that happened, if you 
know at all. And this may be outside your area.
    Mr. Russell. It is. And on the risk of being out of bounds, 
I am not that directly involved with that. Because there is the 
Federal Transportation Act. The question is a major Federal 
decision and that would trigger NEPA. From the state level 
where they were seeking authorization, there is no NEPA 
requirement at the county level. That issue for permits and 
approvals.
    I personally believe the county did a pretty darn good job 
of the process of reviewing that and stipulating, I think, to 
some 33 conditions before it failed. Was in the construction 
quality assurance and quality control which is mind boggling to 
me personally and has given a concern raised by the community 
and the local county commission. I think it was a construction 
implementation problem.
    Mr. Inslee. Yeah, I don't know the circumstances. I am 
concerned about that where you cite something in the state that 
might not have (unintelligible) environmental protections. It 
gets in the aquifer. My citizens in my state.
    This is one reason to have some Federal (unintelligible). 
And I have to assume there is some Federal committee. And I'm 
going to try to get to the bottom of this and share that 
information with the panel as to how this happened. Because it 
could be a very significant issue.
    [Applause.]
    Mr. Inslee. Mr. Urness, could you give us any guidance. I'm 
sensitive to this issue of information kind of stale.
    Just to let you know. I have been bragging about the 
Pacific decisionmaking, and I think our goal is to get to the 
rest of the oceans to come up to our level of decisionmaking 
for its biological compliance.
    So, we'd like to do anything that would remove something 
that would encourage the other fisheries to come up to our 
level of compliance of biological issues. I'm sensitive to 
your--what you're telling us is that decisions are made on 
stale information.
    What would you suggest to try to accelerate the 
decisionmaking (unintelligible), one, public input and, two, 
requirement of fair assessment alternatives by these agencies.
    Mr. Urness. Magnuson-Stevens lists sort of the premise 
again of our whole position. This particular regulatory scheme, 
Magnuson-Stevens provides for significant public involvement. 
And, again, up until 1980, Magnuson-Stevens and the Fisheries 
Management Councils did not go through the additional NEPA 
process. It was felt that their process in and of itself was 
public enough and it was able to involve the entire range of 
decisions.
    By definition, in a fishery you have two ranges of 
decisions. You don't fish a stock or you fish it to its optimum 
yield. And it's all based on best scientific information 
available.
    Where NEPA creates the issue in our setting, not dissimilar 
to a burned down forest, where not quite as severe because you 
can still assess and catch fish, but you're doing it on three-
year-old data. The ocean conditions, as we know--look at this 
year's salmon run versus last year.
    Those salmon are out there somewhere. They didn't just 
disappear. But the ocean conditions change drastically and 
quickly. And three-year-old data may cause us to overfish the 
same species that was said to be healthy three years ago.
    Under the previous Magnuson-Stevens we were under a two-
year window. That's still not fast enough really. But you are 
right. The Pacific Fisheries Management Council is among the 
leaders of the eight regional councils. I would agree with 
that.
    Mr. Inslee. Do you think this is--could we--if we had more 
resources for these fishery agencies, would that help 
accelerate this decisionmaking or not? Do you think that's an 
issue or not.
    Mr. Urness. Certainly you could throw more resources at the 
agency and more support. But I don't think that that will 
increase the timeline. I think it would--my opinion is it would 
simply add to the bureaucracy.
    Mr. Inslee. So, what you're suggesting is maybe it needs 
both, some type of a timeline and maybe resources.
    Mr. Urness. Possibly. The timeline, again--I'm not against 
NEPA. The position that I have with respect to fisheries 
management is if NEPA can be fully utilized or if NEPA--all of 
the policies of NEPA are incorporated in them--and if this was 
subsequently enacted law, of course. And so it does have 
arguably everything that NEPA requires within it in and of 
itself. And at NEPA additional regulations on top is what's 
causing the delay. That's my problem. I don't know if I'm 
answering your question.
    Mr. Inslee. Yeah. With this detail we'll talk about this in 
depth in the next couple months.
    Mr. Fish, I just wanted to thank you for coming and to find 
out where all my kids' tuition money went. I appreciate that.
    Mr. Fish. Appreciate that.
    Miss McMorris. Mr. Gohmert.
    Mr. Gohmert. Thank you, Madam Chairman. Again we appreciate 
your time in coming out. And this is important, I think, that 
we hear from folks.
    First of all, is Julie Gelasso (phonetic), is she--yes. OK. 
Do you mind if I make this part of the record?
    Ms. Gelasso. I'd appreciate it since you were asking for 
public input.
    Mr. Gohmert. Yeah. And that's what I'd like. I wasn't going 
to do it unless you said it was OK. But I'd like to and I 
appreciate the input.
    Miss McMorris. OK. So, without objection, so ordered.
    [NOTE: The information submitted for the record has been 
retained in the Committee's official files.]
    Mr. Gohmert. Thank you. That has to do with a project at 
the head of the Spokane River. And I haven't been to Coeur 
d'Alene since '69 at the Boy Scout jamboree up there.
    It was beautiful.
    Ms. Gelasso. Farragut.
    Mr. Gohmert. At Farragut, right. It was a beautiful area. I 
really enjoyed that. The hospitality there was wonderful as 
well.
    Let me go back Mr. Urness and follow up on Congressman 
Inslee's question. What specifically would you say we should do 
to improve that? Because obviously if--you know, if they've got 
data from 2004 and by 2007 there is an extreme shortage in one 
type of fish, well, we don't need to be having an order that 
says go by 2004.
    How do we improve that? I mean specifically. Not in 
generalities. Not just put resources or let's--do you think 
just putting a timeline on is adequate.
    Mr. Urness. The specific fix I believe is for either if--if 
in the NEPA reform process is, one, to recognize that certain 
acts conform to the NEPA standards and policies. Recognize 
that.
    Now, there may be fisheries management decisions within the 
fisheries management councils that may involve a broader 
spectrum where NEPA may be appropriate. But for the vast 
majority of the fisheries management decisions that are made, 
the process that is very public and very scientific base and 
considers a range of alternatives, by the Act's definition and 
its own words, to add this additional layer of analysis, which 
is effectively how Department of Commerce has initiated it--and 
it's out of fear of lawsuits because of these activities that 
really didn't occur until 2000 that they may be over-cautious 
in pursuing the additional NEPA analysis. When in fact prior to 
that fisheries management--and, again, I would agree with 
Congressman Inslee, the Pacific Regional Council is a leader 
that said even two years, which is what we were under before, 
that's a long time in managing fisheries that we have out here, 
or anywhere for that matter.
    Mr. Gohmert. Well, and you mentioned the range of 
alternatives. And that's been used by other witnesses as well. 
Some saying fair alternative. Some saying wide range of 
alternatives. But what the statute 1502.14 says itself is 
vigorously explore and objectively evaluate all reasonable 
alternatives. And for alternatives which were eliminated from 
detailed study then you've got to give reasons why they were 
eliminated.
    So, a wide range, it seems to me, if that's what people 
adopt, it's just going to take a whole lot more time.
    Whereas it's what's reasonable. And if there is something 
that is reasonable that's excluded, you got reasons and that 
can be questioned in public.
    Mr. Kennedy, let me go back to you and talking about 
litigation. We just heard--well, we heard a lot about that. But 
there was--in the Klamath litigation you mentioned a judge was 
finding that ESA would trump NEPA. I realize you're not an 
attorney, but what was the basis for finding that? Do you 
recall.
    Mr. Kennedy. The good news is I'm not an attorney, and the 
bad news is that I'm not an attorney.
    But in regards to that specific situation it was the most 
frustrating scenario. We were in a year--it was not the driest 
year on record. Yet the (unintelligible) and a lot of our 
adversaries were claiming that it was because of the drought 
that we weren't getting the water that we had stored in our 
reservoir. A judge said, yeah, you're right. NEPA wasn't 
applied correctly. Don't worry about it. The ESA will take care 
of it anyway.
    And that was really, really frustrating. Because we spent 
hundreds of thousands of dollars (unintelligible) where we were 
trying to use NEPA the way it was, what I believe, intended to 
be used as, to consider involvement from--from the communities 
large--I think if you look at all of the suggestions that have 
been talked about today, no one is advocating for dismantling 
NEPA or the ESA. And the Family Farm Alliance certainly 
advocates for strengthening and modernizing both the Endangered 
Species Act and NEPA, and also very soon the Clean Water Act.
    [Applause.]
    Miss McMorris. Going back just a follow-up, Mr. Kennedy. So 
then, how did the Bureau of Reclamation justify their decision 
to not undertake, much less complete, the NEPA review.
    Mr. Kennedy. To be quite honest, I don't think they had an 
excuse. They said they didn't do it. And they didn't. They 
didn't comply with it. They didn't enforce it.
    The local Reclamation office, the management office in 
Klamath Falls is under the mid-pacific region. And the mid-
pacific region is that of Sacramento. They were handed a 
mandate prior to January 19th of the year 2001 that sort of 
sent this bomb off. The bomb was handed to the new 
administration. And the environmental assessment that was done 
on the Klamath project operation for that year is what 
initiated the dismantling of our irrigation deliveries, which 
was the purpose of our project that was built in 1905.
    Miss McMorris. Would you talk just a little bit further 
about your idea of this binding pre-application meeting and how 
you envision that working and how that might help.
    Mr. Kennedy. That's a concept that several people have 
talked about. I think that something similar was mentioned here 
earlier in the first panel that there be an obsmen--can't say 
it--obsmen.
    Miss McMorris. Ombudsmen.
    Mr. Kennedy. Anyway, you have a process that is very 
considerate and very deliberate and complete. Doesn't take eons 
to go through. And it's binding. It's something contrary or as 
an alternative to running through a court where you're going to 
have a judge sitting on the bench making the decision on a 
natural resource issue that he doesn't really have a clue 
about. That's what that is all about.
    Miss McMorris. In your experience, were the local water 
agencies considered cooperating agencies.
    Mr. Kennedy. We've for years and years requested what is 
called intervener status in the process. And we have yet to be 
formally recognized as having that status in any of the 
processes including this.
    Miss McMorris. OK. I wanted to go to Ms. Blaeloch and just 
ask--you stated in your testimony that NEPA rarely stops a 
project altogether. And I recognize that the law doesn't. But 
it's the challenges to the process that do stop projects. And I 
just wondered if you agreed or--and if you think that 
litigation is the best way for us to really think through how 
we're going to best protect the environment in--within--when 
we're thinking about these projects.
    Ms. Blaeloch. I think it does delay projects sometimes. But 
it tends not to stop them. And it will, in our experience, 
might alter a project after litigation. But normally the way 
that the courts--I'm not an attorney--but the way that the 
courts have interpreted NEPA so far is that it's a procedural 
law rather than a substantive law.
    And so they will not normally make a judgment against a 
decision but only the way the decision was arrived at, whether 
or not procedures were followed.
    And I don't think anyone would prefer to go through 
litigation. But the problem is not, as someone mentioned 
earlier, the law. It's noncompliance with the law. So, the 
reason that people sue is because other people have broken the 
law. And so I think that goes back to the inconsistencies of 
the implementation of NEPA. And need of education among agency 
staff in how to responsibly, efficiently and in compliance with 
the law implement it.
    If we really had that, we'd have a lot less litigation. But 
as long as people are not complying, then citizens will find it 
necessary to challenge the agencies to comply.
    Miss McMorris. What has started out, in my opinion, as very 
well intended has now resulted basically in most projects 
either agencies not taking action for fear of a lawsuit or the 
projects being ended up in court.
    And part of my goal is to just figure out is there a better 
way than doing so much of this through the court action.
    Ms. Blaeloch. And I agree. I would love to see really 
consistent, faithful NEPA implementation. And one of the things 
that--speaking in the arena of my--of the projects that we look 
at, which are land exchanges, sales, conveyances over the 11 
western states, which encompasses usually about 70 projects 
that we're monitoring at one time, and about 300 projects that 
are proposed every year.
    As I remarked in my testimony, largely as a result of the 
Huckleberry litigation, which was a real shock to the Forest 
Service, you know, instead of just standing back on their 
heels, the Forest Service, which is an agency that I regularly 
criticize, decided, you know what; we're going to do something 
about this. Because we don't want to have to come to a 
standstill on land exchanges. And they were receiving a huge 
amount of grief over this issue.
    And so what they did in response to that litigation was 
they went through a major two-year process that rewrote their 
implementation guidelines for land exchange analysis. They 
started talking to the public about land trades, which they had 
previously treated as sort of complex, secret real estate 
transactions. And they just stepped up and said we're going to 
try to do this right.
    And so our experience has been normally there are not very 
many EISs that come out, maybe one a year on a land trade, 
maybe two. Mainly they're environmental assessments. And there 
are very few legal challenges.
    And in my opinion, it's largely--and I'm talking about the 
Forest Service here, not the other land management agencies. 
It's because the Forest Service really decided that they wanted 
to get their act together. And they started writing consistent 
guidelines for their staff on how to implement NEPA for land 
trades.
    Who knew? You know. I didn't expect it to happen. But it 
was a really positive outcome of what happened to be unexpected 
litigation.
    Miss McMorris. Mr. Urness wanted to make a comment, I 
think. And then----
    Mr. Urness. I do have a comment. I'll be very brief because 
I want to make sure I--within the context of Magnuson-Stevens 
and NEPA, what--the point I want to just make sure I'm getting 
home clearly is it is having the unintended effect of worsening 
a process and worsening the ability of decisionmakers to apply 
good environmental decisions and socioeconomic decisions.
    Because the Act itself provides that decisionmakers and the 
public need to make their decisions on the best available 
science. This gets back to this--we're now doing it on a two-
year delay. But NEPA has created a three-year delay.
    If the Act itself provides that the process is public, 
(unintelligible) anything because that's not what we want to 
do. The intent is to have a timely use of the information that 
we have. Otherwise our policies are not as effective as they 
could be. I just want to make sure I got that across.
    Miss McMorris. Very good. Mr. Inslee.
    Mr. Inslee. Thank you. Mr. Russell, you were telling us 
about this mine--you were telling a story about a particular 
mine. I think you said in Alaska, I think. And you had about 
$1.6 million costs of (unintelligible). Is that what you said.
    Mr. Russell. Correct.
    Mr. Inslee. What mine was that.
    Mr. Russell. It's called the Kensington Mine.
    Mr. Inslee. Kensington.
    Mr. Russell. Kensington.
    Mr. Inslee. So, give us--assuming that that project went 
through, what would be the value of minerals taken out of that 
over the lifetime of the mine, if you're--I'm trying to get 
some sense of the scope of the project.
    Mr. Russell. The proposal was that the mine would mine a 
million ounces over ten years; 100,000 ounces a year. That 
would depend on the price of gold and the cost to produce.
    Mr. Inslee. So with today's prices, what's the gross value 
of that.
    Mr. Russell. The gross value would be somewhere at $4-and-
a-half million. That's the gross value. That doesn't account 
for the cost to permit, the cost to construct it or the cost to 
operate. Those would all be subtracted from that.
    Mr. Inslee. So would the gross value be 4-and-a-half 
million and you said 1.6 million in the permitting process.
    Is that what you're saying?
    Mr. Russell. I'm sorry. I think I misspoke if I said $4-
and-a-half million. It would be considerably more than that. It 
would be $450 an ounce times a million ounces.
    Mr. Inslee. So, it's 450 million.
    Mr. Russell. Correct.
    Mr. Inslee. So, you'd be taking about $450 million of the 
gold out, and you have an investment of $1.6 million in the 
permitting process.
    Mr. Russell. Well, no.
    Mr. Inslee. Is that right or not.
    Mr. Russell. No. That was just the EIS piece. Then we spent 
10.8 million on the environmental studies and engineering the 
first time, the first EIS. And that is just to get to the point 
that you could get authorization from the Forest Service to 
construct the project. That doesn't include your capital costs 
or your operating costs.
    Mr. Inslee. So, that would be about 7-and-a-half percent of 
the value of the minerals you take out of the mine; is that 
about right? I'm doing quick math.
    Mr. Russell. Well, that's--again, that's gross value. It 
doesn't account for the cost--you know, the capital costs of 
that original project was about 200 million. And the cost to 
operate was about $350 an ounce that first (unintelligible).
    Mr. Inslee. But in any event, you're spending about 7-and-
a-half percent. That doesn't make the project uneconomical 
then; is that a fair statement? Because I assume that's the 
case that you're pursuing it.
    Mr. Russell. Oh, we're pursuing it. But certainly the 
difficulty we saw was not only the cost but the time that it 
took to get through the process, where we lost a window of 
opportunity when gold was $500 an ounce.
    Mr. Inslee. But let me ask you kind of a hard question. Mr. 
Russell, you made a comment about needing to reform the mining 
laws in this country. And I share this view in at least one 
respect. I have always found it very troublesome that everybody 
in this room pay their taxes on April 15, I think--I'm going to 
check on that actually. And yet this one industry takes our 
gold out of our mountains and doesn't pay any meaningful 
royalty to the--back to the taxpayers for their asset.
    Now we have a representative of the industry suggesting 
that we in some sense make it easier to take our gold out of 
our mountains and not pay us anything for the ore because we 
haven't brought up to speed this 1872 archaic Act that was 
really (unintelligible).
    How are we to take that? How should we feel about that, 
while the industry still refuses to pay the taxpayers the 
royalty for their asset.
    Mr. Russell. Provided that the subject is germane to NEPA--
the mining industry----
    Mr. Inslee. Well, let me explain to you, sir, just so you 
know the nature of my question. And I think that's an important 
comment you made. It's germane to NEPA because industry is here 
and asking the panel to make it easier to take our ore out of 
our mountains and not pay us anything for it. So, that's sort 
of----
    [Applause.]
    Mr. Inslee. That's how I think it's relevant.
    Mr. Russell. Well, the industry has been over the last 
several years supportive of mining law reform, not to abolish 
the mining law. And there's been quite a bit of debate on this 
issue of royalty, taxes or fees.
    The controversy, in my view--and I'm not a mining law 
expert--is that it's not how it would be assessed on the gross 
value. As you try to make this analogy of a very profitable 
mine without considering the cost of capital, the volatility in 
the mineral price during the 10-year mine life, versus a net 
proceeds type of system where you truly do have a, quote, 
unquote, profit that you pay some royalty or fee back to the 
Federal government.
    That is the mining--the National Mining Association's been 
proposing that for quite a while. But the issue is where do 
you--when do you assess that particular (unintelligible).
    Mr. Inslee. I think it would be helpful to resolve this 
issue to--and where we can move onto some of these other 
issues. And I say that very sincerely because we answer to the 
public. And when I go to the public and say the industry wants 
relief from some of these issues to help in the NEPA process, 
the response is not warmly received frequently because of this 
issue.
    And I hope that in some sense you could help find a 
resolution of this to get some royalty pay at a reasonable 
basis. That's just a--kind of a hope.
    Do I have any time left?
    Miss McMorris. We'll go around again.
    But, Mr. Russell, I wanted just to follow up. Thinking of 
the mining industry and I guess from my perspective the fact 
that you are mining metals that are very important to our 
country in a variety of perspectives and important to our 
industry.
    I wanted to ask if you could--can you quantify or do you 
have numbers on, just in general, how much you spend on 
permitting in this country and give us a comparison as--if you 
can, as to the cost compared in this country versus other 
countries and the time lines. And--and I guess it concerns me 
when you think about metals, and many of these are so important 
to us, individually and to our industries, again, we see mining 
companies more and more going overseas.
    Mr. Russell. We certainly see it in overseas. They have 
laws----
    Miss McMorris. Excuse me, real quick. One other item I'd 
like you to address is environmental standards in our country 
versus in other countries too.
    Mr. Russell. I guess I'll start there. The countries that 
we do business in have laws that are very similar to NEPA, 
where a statement on the environmental effect of the proposed 
project, alternatives to that are assessed. Those countries 
that we operate in have mandatory timeframes, where that 
process needs to be complete.
    So, our view is that the environmental standards and 
requirements are not much different country to country versus 
the U.S. It's the way they get applied and it's the process.
    So, for example, in Chile, which has environmental impact 
statute, has all the same requirements under Clean Air and 
Clean Water. But you can get through that process by statute by 
the number of days that that particular law allows. But you 
don't get tied up then into numerous appeals and litigation. 
And so you can't get the--so the cost of doing the baseline 
work and environmental work is less because the agencies are 
not concerned about the threat of being appealed. So, not all 
I's are dotted and T's crossed.
    I mean there's significant issues which is what NEPA was 
intended are addressed. And we find that those operations are 
done in a way that does not adversely effect the environment 
and does provide very important minerals, tax base and 
employment opportunities.
    An earlier speaker said the (unintelligible) environment is 
poverty. And we would certainly agree with that. The mineral 
involvement is one of the only industries that creates wealth 
and creates good-paying jobs in our economy.
    Miss McMorris. Thank you. I apologize, Mr. Gohmert. I took 
your time. So----
    Mr. Gohmert. You didn't take my time. I hope I'm still 
going to get it.
    Miss McMorris. Yes. I--what I'm going to do is give you the 
next--I'll switch five minutes with you. Right? OK. It's your 
turn.
    Mr. Gohmert. Thanks. I'm glad we get to follow up on some 
of these things.
    You know, Mr. Fish, you made a comment early in your 
presentation, something to the effect that you wanted to 
register your opposition to any change in NEPA. And if I 
understood you correctly when you said that, that caused me 
great concern. And then later you said you opposed any change 
that would weaken NEPA. I can go along with you there. But if 
it's opposition to any change at all, then I have some serious 
concerns about your objectivity.
    Mr. Fish. I believe we should have the NEPA document up on 
the board because I--looking at it, it's--looking at the 
purpose, it's really sound law. I would say I'm against any 
change that--any amendment to it that would weaken it. And I 
would be against any change to the core paragraph----
    Mr. Gohmert. To that policy. Sure. I think we're in 
agreement on it. OK.
    I mean, it reminded me--you know, the true story about the 
lady that wanted to cook her ham just like her mother did. She 
had a great recipe. And, you know, you all recall the story. 
The first thing the recipe called for is to cutoff the first 
two inches of the small end.
    And then some lady years later wanted a copy of that 
recipe. And she called over and said, Why do you cutoff those 
two inches on the small end? And she said, I don't know. That's 
my mother's recipe. So, she called her mother and said, Why did 
you--why does the recipe call for cutting off those two inches? 
And she said, Because when we were growing up, we never had a 
pan big enough to put the ham in there.
    And so, I mean, we need to go back time to time see what 
the reason was for some of the laws and see if we need to fix 
them.
    Mr. Fish. We can also--without changing I guess I'd say 
there is a purpose to the law there. And that's what's 
important here. And what I hear is a lot of industry people 
that are saying, hey, I see--I see exclusions to the law.
    I want mining industries out. I think that guts the law if 
we let an industry out from under it.
    Mr. Gohmert. Well, and I can see why you might feel that. 
But like, for example, with fishing, I think it's ridiculous to 
be making decisions based on three-year-old data. That needs to 
be streamlined. We could be hurting the environment more than 
helping.
    But my time is pretty limited. Let me just hit a couple 
things I was hoping to. In the----
    Miss McMorris. I think I had two minutes that--of your time 
originally that I could actually give to you right now.
    Mr. Gohmert. But, you know, litigation is something that 
I--I've dealt a great deal with, and in having been an attorney 
and then a judge and a chief justice.
    And we just went through the budget process in Congress. 
And, of course, that doesn't allocate money, it just gives a 
framework. But that's--it's a tough issue to decide what kind 
of costs litigation is going to have on your budget whether 
you're a business or you're not for profit.
    And I was curious, Ms. Blaeloch, you mentioned the--the 
effects that you felt like were good things that arose out of 
litigation. How do you all go about budgeting? Do you budget 
for litigation? Do you litigate and then, you know, raise money 
to take care of it? How do you go about doing that?
    Ms. Blaeloch. Well, in the Huckleberry case, we had a 
public interest attorney who did that case for us. And he did 
not charge us any money.
    Mr. Gohmert. Super. See, now there's evidence that not all 
attorneys are bad people. They did it without charge.
    But, I mean, let's face it. There's an awful lot of 
charge--awful lot of costs to litigation. There just is. And I 
didn't know how you all went about handling that.
    I was going to ask the same thing with some of the other 
folks.
    Ms. Blaeloch. We don't have a budget for litigation.
    We have filed--our group itself has filed two cases. We 
just got a staff attorney three years ago. We have only three 
staff. We have a less than $200,000 budget.
    It's staff time. It's staff salary that goes to litigation. 
There's only one staff person who does litigation.
    I think a lot of the costs associated with litigation that 
people complain about are costs to the government. And, again, 
I would say if the government didn't break the law, they 
wouldn't be sued. And that's--they would not have to sustain 
the costs of litigation.
    Mr. Gohmert. Of course that presupposes you win every case, 
which doesn't normally happen for anybody.
    But I'm curious, Mr. Russell, what about you all's 
situation on litigation? How do you budget for litigation that 
occurs.
    Mr. Russell. That's a good question. We--in our particular 
company, we know that these decisions will be either appealed 
or litigated. It's difficult to budget for that under SEC rules 
that do you know for sure you're going to be litigated. No, we 
don't. So, we expect it (unintelligible). Put it into our hours 
in the budget and our cost of the project. Once the appeal is--
the litigation is filed, then we have to go back to our board 
and ask for some more money to participate.
    Mr. Gohmert. And pardon my ignorance. One of my greatest 
strengths is also the greatest weakness. I'm not afraid of 
embarrassing myself in front of people. But is there no--
whether it's a royalty fee, something paid to the Federal 
government for the use of mining Federal land.
    Pardon my ignorance, but I don't know. Is there nothing 
paid for that.
    Mr. Russell. Under the current mining law, there is not a 
royalty for mining (unintelligible) and hard rock minerals. 
There are certainly taxes paid to local economies as a result 
of a mining project. A project that may be several hundred 
million capital costs, several hundred jobs, the tax base from 
those is all a benefit to the local economy. But under the 
current mining law, there is not a----
    Mr. Gohmert. I mean, is there--like in oil and gas, we have 
oil and gas in east Texas. There are lease payments, things 
like that. Is there any lease payment or anything like that.
    Mr. Russell. There can be depending on a specific project, 
yes.
    Mr. Gohmert. OK. I'm just curious. Thank you. I know I've 
past my time.
    Miss McMorris. Thank you.
    Mr. Inslee. Can I ask a couple more.
    Miss McMorris. Absolutely.
    Mr. Inslee. Thank you very much. I wanted to express some 
congressional fallibility. I earlier said that 10 million was 
7-and-a-half percent of 450 million. It's closer to 2 percent. 
My apologies for failing law school.
    [Unintelligible]. There was a GSA study that looked at 
compliance and related issues particular to salvage sales and 
thinning projects, particularly thinning projects. And they 
concluded, as I recall, that they felt that one of the major 
problems where--where there was--when litigation did ensue or 
there were citizen complaints was a lack of training of the 
Forest Service personnel and a lack of consistency of standards 
that the Forest Service gave their managers to make decisions.
    And, in fact, (unintelligible) GSA--GAO which is the 
investigatory arm for the Congress, they felt that they were--
there was a certain upper management failure to give 
decisionmakers standards by which to make decisions. And that 
was leading to chaos and having--and citizens being very upset.
    And my perception is that the Service is doing a little 
better job trying to get now standardized decisionmaking 
protocols for their decisionmakers in the field. That's 
improving. That was a problem and it is improving.
    What's your--do you have any comment on that or not?
    Mr. Vaagen. I think you hit part of the nail, maybe on the 
edge here. I think they're playing defense because they're 
given so many tasks to accomplish for all these people.
    We pay stumpage for timber no matter what the diameter is. 
And we hear that the small thinnings don't pay. That's not 
true. We've been through a generation or two of people. And you 
ask me where technology is and are we finding solutions and 
answers and making progress. And we are.
    So, what I'm saying is they don't know what the latest is 
and what works. We're for a healthy forest and a good habitat, 
clean water and clean air and all those things. The answers are 
out there. We've got to find those. I hope that's what your 
Committee does.
    And one of the things with the Forest Service, every year 
everything changes. The model changes. Everything everybody 
wants me to do changes. So, we never finish anything because 
NEPA is a year-and-a-half to two-year compliance on a project.
    I'm wondering about the tribe. They go through NEPA too. 
Our good neighbors to the west, the Colville Tribe. 
(Unintelligible) NEPA coordinator but they have committees. And 
they went through a two-year EIS on the whole reservation, the 
same size as the Colville National Forest. They treat or 
harvest 75 million feet; the Colville Forest is 25. And I think 
it's going to go to under 10. I don't think we're going to 
improve until we hit bottom. And I don't think we hit bottom 
yet. I just want to survive until we hit bottom.
    But this healthy forest and thinning thing has arrived.
    I really hope you dig deep and find solutions for that. I 
think they're here right now.
    Mr. Inslee. Well, I got to tell you, I--I mean, I 
(unintelligible) about this. I really do believe this has--
there have been significant management failures in the Forest 
Service. It's a difficult challenge. I understand that.
    But there has been a lack of executive standardization in 
decisionmaking. And I think that is improving. That's my 
perception.
    Just a quick question of Mr. Urness. Have you given any 
thought to programmatic EIS's? Is that one approach that would 
help or not, as far as this timing in the decisionmaking.
    Mr. Urness. Again, I'm not a member of the Fisheries 
Council. I am part of the public participation. I do know that 
certain of the decisionmaking processes do use programmatic 
EIS. I do know that they currently do that. I can't answer much 
beyond that.
    Mr. Inslee. Great. Thank you.
    Miss McMorris. Mr. Gohmert, do you have any further 
questions?
    Mr. Gohmert. Our time is at an end.
    But I would like to thank everybody for your participation 
and being here. And a lot of times we see groups and their eyes 
are glazed over. And, you know, you feel like you're wasting 
time. But everybody has been alert. And--and, again, if you 
have something you would like for us to consider, please submit 
it in writing. The Chair has indicated that would be 
appropriate. The (unintelligible) can be included. Because we 
do want to hear from you. And I don't think any of us want to, 
like Mr. Fish, weaken the reason for NEPA. But we got to take a 
look at some of these things and see if the circumstances like 
a (unintelligible) is changed and it's time to change the law 
in order to better effectuate the purpose for it.
    So, thank you all for being here. Thank you for your 
participation. Thank you, Madam Chairman.
    Miss McMorris. Thank you. Thank you for coming.
    Do you want to say anything before we wrap up?
    Mr. Inslee. I just want to thank the panel. Very 
interesting. Thanks for folks who were interested enough to 
come out on a beautiful day.
    I just want to echo my colleague's thoughts that if you 
have any opinions about this and share them with us, we will 
make sure they were distributed. I think it is important that 
you do that for this Task Force to be successful, to get a full 
flavor of the public insight. It is very important to know what 
the public thinks. We could only handle 12 witnesses today. And 
I know we've got a lot more people here. So, let us know what 
you think about all this. Thank you.
    Miss McMorris. Very good. And I want to thank my colleagues 
who traveled to my neck of the woods to be here today. Really 
appreciate you staying here and staying for three long hours.
    The hearing record on this one will remain open for ten 
days. There's a website that has been set up. You can access it 
through the House Resources Committee. We encourage you to 
offer your thoughts, your comments regarding NEPA.
    And to the panelists, thank you again. As with the first 
panelists, we may have additional questions for you that we'll 
submit in writing. And we would just ask for you to answer in 
writing.
    You know, today we've heard from small business owners, 
public sector entities, NEPA experts, those representing the 
environmental community. Although, you know, I always hesitate 
to give you that because I consider myself a very--I'm--I 
consider myself an environmentalist. And what I am doing is 
trying to do what is best for the environment too.
    It concerns me. And I--I support--I think we--we look--we 
look up here today and we see division of NEPA.
    But--and that NEPA law. And we talked about, you know, who 
here wants--Mr. Cannon asked the question: Who wants to change 
the NEPA law.
    But when you consider that every--nearly every word in that 
NEPA law has been litigated. And then every step now, as a 
result of those, that litigation is being litigated. I only 
offer that we shouldn't close the door. We should be willing to 
at least consider is there a better way to protect the 
environment, to make these decisions in such a way that do take 
into account the environment but do also recognize that we want 
to make--that--that these projects are done in such a way that 
protect the environment but also can move forward. So, that's 
not just a delay after delay, which adds cost.
    So, with that we're going to close for today. This Task 
Force will be operating for six months. We're going to go 
around the country. Really appreciate everyone being here. 
You've been a great audience. And the meeting is adjourned.
    [Whereupon, at 1:30 p.m., the Committee Task Force was 
adjourned.]

    [Additional information submitted for the record follows:]

    [A statement submitted for the record by Michael Anderson, 
Senior Resource Analyst, The Wilderness Society, follows:]

        Statement submitted for the record by Michael Anderson, 
            Senior Resource Analyst, The Wilderness Society

    The Wilderness Society is a national environmental organization 
founded in 1935, with its headquarters in Washington, D.C. and with 
approximately 200,000 members. The Society is dedicated to protecting a 
national network of wild lands and fostering an American land ethic. It 
fulfills its mission through education, analysis, and advocacy. The 
Society works to ensure the wise management and protection of America's 
public lands, including our national forests, grasslands, parks, 
refuges, and lands administered by the Bureau of Land Management. This 
testimony focuses primarily on national forest policy.
    The National Environmental Policy Act (NEPA) is the primary legal 
basis for public involvement and consideration of environmental issues 
in federal public land management. Known as the ``Magna Carta'' of 
environmental laws, NEPA guarantees that Americans affected by a 
federal action will get the best information about its impacts, a 
choice of good alternatives, and the right to have their voice heard 
before the government makes a final decision.
    In the Pacific Northwest, NEPA has played a key role in protecting 
the quality of life that is vitally important to the region's economic 
future. The federal government owns and manages 28 percent of all lands 
in the State of Washington and 53 percent of Oregon. As federal 
agencies with ``multiple-use'' mandates, the U.S. Forest Service and 
Bureau of Land Management undertake myriad activities on their lands 
that, cumulatively, have far-reaching consequences for the region's 
environmental, social, and economic well-being.
    During the 1970s and ``80s, for example, the Forest Service and BLM 
systematically clearcut the ancient forests of western Oregon and 
Washington under a logging policy aimed at liquidating the forests and 
replacing them with even-aged tree plantations. As new information 
became available about the unique ecological characteristics and values 
of ancient forests, federal land managers were required by NEPA to re-
examine their understanding of the environmental consequences of 
logging. The end-product of the NEPA process was the Northwest Forest 
Plan, which established a regional network of Late Successional 
Reserves and Riparian Reserves to sustain the northern spotted owl, 
coho salmon, and thousands of other species that rely on ancient 
forests.
    Our experience in the Northwest has demonstrated that NEPA saves 
time and money in the long run by reducing controversy, building 
consensus, and ensuring that a project is done right the first time. 
For the past six years, The Wilderness Society has been actively 
involved in the Lakeview Stewardship Group, a collaborative effort in 
southern Oregon aimed at restoring a portion of the Fremont National 
Forest and providing socio-economic benefits to communities in Lake 
County. Working with its partners in the Lakeview collaboration, the 
Forest Service has successfully implemented numerous projects, 
including salvage timber sales, with minimal controversy or delay. The 
NEPA process has provided much useful information to those involved in 
the Lakeview Stewardship Group, as well as providing the opportunity 
for participation by organizations and individuals that are not part of 
the collaboration.
    Unfortunately, through a series of regulatory actions that 
drastically curtail NEPA implementation, the Bush Administration has 
greatly diminished public participation and environmental consideration 
in federal land management. The anti-NEPA regulatory actions affecting 
Forest Service management of national forests include:
      Categorical exclusion from NEPA documentation of 
hazardous fuel reduction projects up to 1,000 acres in size;
      Categorical exclusion of salvage timber sales up to 250 
acres;
      Categorical exclusion of green timber sales up to 70 
acres;
      Categorical exclusion of land and resource management 
plans.
    The categorical exclusion of Forest Service management plans from 
NEPA documentation is the most recent--and perhaps the most 
devastating--administrative attack on the role of NEPA in national 
forest management. On January 5, 2005, the Department of Agriculture 
issued regulations overhauling the national forest planning process 
required by the National Forest Management Act of 1976. The regulations 
allow the Forest Service, for the first time, not to prepare an 
environmental impact statement or assessment when it revises or amends 
its forest plans. Consequently, the public will not be able to comment 
on any alternatives to the agency's proposed plan or be informed by any 
analysis of the plan's potential environmental effects. Instead, the 
regulations require every national forest to adopt an ``Environmental 
Management System''--a way of auditing an organization's environmental 
performance that evidently provides no opportunity for public 
involvement.
    The Administration claims that getting rid of NEPA will reduce the 
amount of time and government expense devoted to forest planning and 
will allow the Forest Service to accomplish more and better land 
management. However, the reality is that successful public land 
management requires public trust and support, or at least acceptance, 
of the land managers' plans and proposals. Limiting public involvement 
and weakening environmental review do not foster trust, avoid 
controversy, or improve projects. Furthermore, circumventing NEPA is 
likely to cost more time and money in the long-run to fix ill-
considered projects or repair resources damaged by hastily and poorly 
planned government actions. NEPA helps ensure that federal agency plans 
and projects are done right the first time.
    Past congressional efforts to carve out exemptions or create 
special rules for reduced NEPA compliance, such as those contained in 
the Salvage Rider of 1995 and the Healthy Forests Restoration Act of 
2003, have never achieved their intended results on public lands. That 
is because the American people do not want to sacrifice environmental 
quality or jeopardize the well-being of future generations for the 
short-term economic gains resulting from ``streamlined'' review of 
environmentally damaging activities on public lands.
    In conclusion, The Wilderness Society urges the Resources Committee 
and Congress not to tinker with NEPA. It has proven to be an effective 
law in protecting the environment and continues to play an essential 
role in fostering informed public participation in the Pacific 
Northwest and across the nation. Rather than looking for more ways to 
change NEPA, Congress should provide adequate funding for NEPA 
implementation and exercise its oversight responsibilities by taking a 
hard look at the ways in which the Bush Administration is dismantling 
NEPA.
                                 ______
                                 
    [A letter submitted for the record by Richard Artley, 
Grangeville, Idaho, follows:]

                             April 30, 2005

Dear NEPA Task Force,

    Thank you for allowing me to submit my written testimony for the 
Congressional record on the NEPA.
    I recently retired from the U.S. Forest Service. I spent 16 years 
as the NEPA coordinator and NEPA advisor for the Nez Perce National 
Forest. I reviewed each NEPA document (either EA/DN or EIS/ROD) before 
it was signed and finalized by the responsible official. If during my 
review, I saw a NEPA document that would not stand up in court and had 
probable adverse environmental effects, I sent it back to the District 
Ranger for rework. This happened many times during my reviews.
    You see, the NEPA is a law that forces a government agency to look 
before it leaps. This is only common sense. I am quite proud that the 
Nez Perce National Forest is in much better ecological health due to my 
reviews. I saw some project proposals that were so bad, that if they 
had been implemented, the environmental damage clearly would have been 
major and long-lasting. In fact, the damage would have been so major 
and long-lasting that it would have been impossible for man to fix. The 
only possible fix would have been nature working by herself for several 
hundred years. Had there not been a strong NEPA, this ecological damage 
would have happened again and again and again and again....
    The motivating factor for people to destroy the environment was 
(and is) big money extracting natural resources. Timber, minerals and 
grass for grazing were the big three. The problem is, the corporations 
doing the extraction did not own the land or the natural resources on 
the land. This land and resources are owned by the public. Corporations 
should consider it a right to trash public resources for their own 
private financial gain. Corporations are only allowed access to these 
public resources because of backroom meetings between senior Forest 
Service managers and politicians. If the corporations are happy, the 
politicians are happy also.
    Since this land and natural resources are owned by 293 million 
Americans, NEPA dictates that the public has a say in what happens to 
their lands. It just makes sense that the owner of an asset has a say 
in what happens to the asset. If the NEPA were changed to take the 
public owners out of the process, it would be tragic.
    There is no need to improve or streamline the NEPA. It's working 
quite well right now. Limiting public involvement and weakening 
environmental analysis would only make our wonderful public forests 
look like they had been used for air force bombing practice. It would 
also result in much more money being spent by the government to fight 
loosing court battles...when the money could be spent in a more 
effective way elsewhere.
    Lastly, the major criticism of NEPA is that it takes to long. This 
is true, a good environmental analysis with the necessary fieldwork and 
inventory takes time. What the detractors of NEPA do not understand is 
that this is time very well spent.
    I am very strongly in favor of keeping the NEPA exactly as it is 
now.
    Again, it all comes down to money. If this were put to a vote of 
the American citizens, most would vote in favor of healthy public 
forestlands unmarred by the hand of man, when their other choice is 
increasing the corporate bottom line.

                               Sincerely,

      Richard Artley, 415 East North 2nd, Grangeville, Idaho 83530

                                 ______
                                 
    [A letter submitted for the record by Barbara Coyner, 
Princeton, Idaho, follows:]







    [A statement submitted for the record by Doug Heiken 
follows:]

   Statement submitted for the record by Doug Heiken, Oregon Natural 
    Resources Council, P.O. Box 11648, Eugene OR 97440, 541-344-0675

    Please accept the following comments from Oregon Natural Resources 
Council (ONRC) on the proposed changes to NEPA. Please make sure these 
comments are included in the official record. ONRC uses NEPA on a daily 
basis to represent the interests of approximately 6,000 members and 
tens of thousands of like-minded people who share our mission to 
protect and restore Oregon's wildlands, wildlife, and water as an 
enduring legacy. In our view, NEPA is not broken and does not need 
``fixing.'' In fact, NEPA is the embodiment of Democracy as it applies 
to important decisions affecting our common natural heritage. NEPA 
allows us to become informed of decisions affecting the environment and 
allows us to provide meaningful and well-informed public comment on 
projects that directly affect our health, welfare, and quality of life.
    ONRC's primary goals are to protect and restore healthy ecosystems 
on federal forest lands in Oregon. The long record of past agency 
management clearly shows that prior to the passage of NEPA the Forest 
Service and BLM failed to protect public values such as clean water and 
air, fertile soil, and abundant wildlife, and the evidence shows that 
after NEPA was adopted this situation slowly but surely changed to the 
betterment of our nation and its people. While it is hard to prove the 
causation behind this correlation, it only makes sense that public 
involvement helps achieve public values and public objectives.
    The vast majority of Oregonians drink surface water that flows from 
federal forest lands. Public involvement is therefore sensible from the 
most fundamental level of public health. Virtually every Oregonian has 
had formative experiences on public forest lands, whether it was 
camping on the Oregon Coast with family, rafting the whitewater of the 
magnificent Rogue River, hiking the Pacific Crest Trail with a church 
group, or climbing Mt Hood with friends, Oregonians are connected with 
the public lands and they have every right to fully participate in 
decisions affecting their cherished public lands.
    NEPA is the guarantee that Americans affected by a federal action 
will get the best information about its impacts, a choice of sound 
stewardship alternatives, and the right to have their voice heard 
before the government makes a final decision. NEPA ensures balance, 
common sense and openness in federal decision-making, it is an 
effective tool to keep 'Big Government' in check. NEPA is an effective 
means of ensuring accountability by federal managers, whether they are 
distant bureaucrats or potentially corrupt local managers.
    At the heart of NEPA is its requirement that alternatives must be 
considered--including alternatives that will minimize possible damage 
to our health, environment quality of life, or to protect human life 
from a wildfire. Comparing the relative merits of several alternatives 
is a core requirement of rational decision-making. Absent this 
requirement, the decision-maker might propose a ``good'' alternative, 
but might miss the opportunity to consider a ``great'' alternative 
suggested by the public, a cooperating agency, or a scientific 
reviewer.
    By making sure that the public is informed and that alternatives 
are considered, NEPA has stopped some harmful projects and made 
countless projects better. Cutting corners on NEPA review can have 
serious adverse consequences, especially when it comes to spending 
taxpayer money on projects that might harm citizens or their 
environment. The value of our common air and water cannot be under-
estimated. The value of ``ecosystem services'' is in the trillions. We 
must not diminish these services without fully and consciously 
considering the consequences.
    NEPA conserves public resources. Less waste is likely when federal 
decision-makers operate in the daylight where the public can see what 
they do. NEPA also saves time and money in the long run by reducing 
controversy, building consensus, and ensuring that a project is done 
right the first time. Limiting public involvement and weakening 
environmental review won't avoid controversy or improve projects.
    NEPA requires federal agencies to use accurate scientific analysis 
and respond to opposing viewpoints, which ensures that federal managers 
use modern standards and ensures that they don't put blinders on and 
ignore relevant information that has a bearing on the decision. NEPA 
requires consideration of cumulative effects, which simply means that 
federal managers should make decisions within the context of what 
happened before and what might happen later, and that the left hand 
should know what the right is doing.
    There is no need to improve NEPA...because it works. A recent 
example might help. Several years ago, the Umpqua National Forest's 
Diamond Lake Ranger District proposed to log thousands of acres of 
mature and old-growth forest (some even in inventoried roadless areas) 
around Lemolo Reservoir in the High Cascades. In the course of all 
stages of NEPA participation (scoping, public meetings and site tours, 
Draft EIS, Supplemental Draft EIS, Final EIS, ROD) the public was able 
to convince the Forest Service to modify the project so that it could 
eventually move forward with a modified design. The project was 
administratively appealed, but appellants agreed to withdraw the appeal 
in exchange for some changes to the design of temporary roads to be 
constructed and assurances about protecting some large trees. If not 
for NEPA, this project would certainly have ended up in a contentious 
lawsuit.
    Another example relates to the government's keen interest in 
wildland/urban fuel reduction. NEPA ensures that the trade-offs between 
fuel reduction and wildlife habitat and water quality are fully 
disclosed carefully considered. NEPA also helps ensure that fuel 
reduction efforts are effective in terms of reducing fire hazards. It 
is well known that thinning forests can reduce fire hazard by reducing 
surface fuels and ladder fuels, but it is much less well known that 
thinning can also make fire hazard worse by moving fuels form the 
canopy to the ground where they are relatively more available for 
combustion during a fire, and by increasing sunlight at ground level 
which reduces fuel moisture and stimulates the growth of future ladder 
fuels. When properly used, NEPA helps the decision-maker design fuel 
reduction efforts to optimize the competing values (e.g. reducing fire 
hazard vs. increasing fire hazard, degrading water quality, degrading 
wildlife habitat, compacting soil, etc.) (NOTE: The recent changes to 
HFRA that allow consideration of fewer NEPA alternatives run counter to 
this important function of NEPA.)
    Please carefully review the following highly relevant press release 
from the period when Chief Bosworth tried to address these issues.
    http://www.onrc.org/press/040.bushattack.html

For Immediate Release: June 12th, 2002

For More Information Contact:
Doug Heiken, Oregon Natural Resources, Council p. 541-344-0675
James Johnston, Cascadia Wildlands Project, cell. 541-554-1151
Jasmine Minbashian, NW Old-Growth Campaign, cell. 360-319-3111
Mitch Friedman, Northwest Ecosystem Alliance, p. 360-671-9950 x13
    Environmental Safeguards Under Attack By The Bush Administration
      conservationists defend the ``environmental bill-of-rights''
    Eugene, OR--Conservationists responded to a report issued by Dale 
Bosworth, Chief of the U.S. Forest Service, who will testify before the 
House Resources Committee Wednesday, June 12th about environmental laws 
that seem to prevent the Forest Service from achieving its resource 
extraction goals (i.e logging targets). Bosworth released a report 
titled ``Process Predicament'' which amounts to a long list of examples 
of Forest Service ineptitude, but the report includes not a single 
recommendation to fix the problem.
    ``Today's hearing is a set-up for the Bush administration to cook 
up a ``solution'' to the problem that will undoubtedly be a timber 
industry `wish list' to weaken our environmental safeguards,'' said 
Doug Heiken of Oregon Natural Resources Council. ``The bottom line is 
that the Bush administration is doing industry's bidding by attacking 
environmental safeguards to make it easier for the timber industry to 
destroy our public land legacy.''
    ``The real problem is that the Forest Service continues to propose 
destructive projects in sensitive areas like roadless areas, old-growth 
and watersheds that supply clean drinking water,--said Jasmine 
Minbashian of the Northwest Old-Growth Campaign ``The real solution is 
to stop logging in these sensitive areas and begin to restore the 
damage from logging excesses of the past. Restoration is something that 
everyone can get behind, so it won't get bogged down in analysis.''
    The solution to gridlock, according to conservationists, is to 
continue to uphold the core principles of informed decision-making and 
accountability and expect federal forest managers to decide not to log 
mature and old-growth forests and instead begin helping rural 
communities restore public forests and watersheds. Good decisions that 
restore the forest will be approved quickly without controversy and 
lawsuits, while bad decisions that destroy old-growth, should be 
stopped and held accountable.
    ``Before we irreversibly destroy an old-growth forest or a blue-
ribbon trout stream, it is perfectly reasonable to expect an open and 
honest decision-making process,'' said Doug Heiken of Oregon Natural 
Resources Council. ``Even if it takes a little more time, requirements 
for informed and accountable decisions are a small price to pay to 
protect our children's public land heritage. We must not relax 
environmental safeguards for the convenience of the timber industry or 
the bureaucrats.''
    ``Environmental review shines a bright light on the dark truth of 
forest destruction, species extinction, and impaired water quality,'' 
said Mitch Freidman of Northwest Ecosystem Alliance. ``The Bush 
administration wants to pull the wool over the eyes of the public and 
ignore the serious consequences of forest destruction. Clean air, clean 
water and healthy forests are too important to sacrifice for the 
convenience of the timber industry.''
    James Johnston of Cascadia Wildlands Project points to the 
Northwest Forest Plan, which requires logging some of the last ten 
percent of old-growth forests in Oregon and Washington: ``'Analysis 
paralysis' is a Forest Service term for public input. The problem isn't 
the process, it's the product. The public doesn't support an old-growth 
product. We need to focus on restoring forest health, not logging 
dwindling old-growth forests.''
    ``Millions of American's get their drinking water from rivers and 
streams that flow from the National Forests. Do we want to weaken our 
environmental laws to make it easier for the timber industry to pollute 
our drinking water?'' rhetorically asked Regna Merritt of Oregon 
Natural Resources Council.
  Background Information on Procedural Safeguards for the Environment
The real source of gridlock
    Agency ``gridlock'' is primarily the result of two things: (1) 
well-founded public opposition to controversial projects in sensitive 
areas such as old growth, roadless areas, drinking watersheds, and 
important habitat areas, and (2) the agencies' own bureaucratic 
incompetence. The federal courts have found the Forest Service to be in 
violation of environmental laws on numerous occasions.
Environmental safeguards are mostly procedural
    Dale Bosworth recently said that the accumulation of congressional 
mandates, laws and regulations has led to ``analysis paralysis'' within 
the agency. To understand this criticism one has to understand the 
nature of our environmental laws. Our environmental laws rarely if ever 
say, ``thou shall not pollute and destroy...'' Our nation's principle 
environmental safeguards are processes and procedures intended to 
achieve decisions that are fully informed and accountable. The most 
basic premise of federal environmental law is that a federal decision-
maker must ``look before they leap.''
    The U.S. Constitution does not protect the environment. 
Congressional acts like the National Environmental Policy Act are like 
a ``due process clause'' for the environment. It's the closest thing we 
have to a Bill-of-Rights for the environment. These processes and 
procedures are the main way for the public to hold the government 
accountable for protecting our public land, air, and water. To suggest 
that we weaken our environmental Bill-of-Rights shows just how extreme 
the Bush administration is.
    Table of federal environmental processes, their sources in the law, 
and their reasonable purposes.



Note: These laws are primarily directed to federal decisions affecting 
public land, not private decisions affecting private lands.
Conservationists have a solution.
    The obvious solution to the ``process predicament'' is to avoid 
logging in sensitive areas. Last month conservation groups presented 
the Bush Administration with a blueprint for increasing planning 
efficiencies. On May 2, 2002 Doug Heiken of Oregon Natural Resources 
Council gave a presentation to the Intergovernmental Advisory Committee 
(chartered under the Northwest Forest Plan) in which he said:
    Focusing on less controversial thinning projects in young managed 
stands instead of logging mature and old-growth forests will 
automatically streamline project planning processes without weakening 
federal environmental laws:
    a) Fewer wildlife surveys will be required because the old-growth 
species generally do not occur in the young tree plantations, so 
surveys will be triggered much less often. All species associated with 
young forests were taken off the Northwest Forest Plan survey list in 
2001;
    b) The agencies can typically prepare concise Environmental 
Assessments for restoration projects, instead of more lengthy 
Environmental Impact Statements that are required under the National 
Environmental Policy Act for projects with significant impacts such as 
logging in roadless areas or old growth;
    c) Consultation under the Endangered Species Act will go more 
smoothly because restoration-oriented thinning projects generally have 
long-term benefits that outweigh potential short-term negative impacts. 
If thinning is part of a comprehensive restoration effort including 
roads, streams, and uplands, then ``What's good for the forest, should 
be good for the fish & wildlife;'' and
    d) Appeals and litigation will be minimized or eliminated if the 
agencies focus on non-controversial projects.
    [The complete statement is available on request from Doug Heiken 
[email protected]]
    The timber industry is cashing in their chips.
    The northwest timber industry donated more than one million dollars 
to Republicans in one 48 hour period during the last presidential 
campaign and expects favors from the Bush administration.

PORTLAND, Oregon, May 22, 2000 (ENS)--Texas Governor George W. Bush, a 
Republican candidate for president, raised $1.7 million last week from 
timber executives and other major donors in Oregon. A dozen executives 
from the timber industry contributed $100,000 each to the Republican 
Party in exchange for a 45 minute meeting with Bush. The executives 
aired grievances about federal policies toward their industry, 
including the Northwest Forest Plan crafted in 1993 by President Bill 
Clinton. U.S. Senator Gordon Smith, an Oregon Republican, set up the 
fundraising meeting so that Bush could ``see their faces, hear their 
plea and understand better the plight of rural Oregon.'' The executives 
reportedly wanted reassurance that, as president, Bush would listen to 
Senator Smith, a timber supporter and chair of Bush's campaign in 
Oregon.
           Among the participants in the meeting were Howard Sohn, 
        owner of Sun Studs, Don Johnson of D. R. Johnson Lumber and 
        John Hampton of Hampton Affiliates. The meeting was held hours 
        before a fund raising gala with donors offering $15,000 to 
        $20,000 for the Republican Party and a chance to meet Bush. The 
        Portland ``Oregonian'' reported that the $1.7 million raised 
        sets a record for any Oregon campaign event.
    http://ens.lycos.com/ens/may2000/2000L-05-22-09.html
    ``The timber industry, on the other hand, is encouraged. During the 
presidential campaign, industry executives got the Republican Party's 
attention with a $1.5 million fund-raiser in Portland, Ore. About a 
dozen timber company executives and industry lobbyists met in December 
with some of Bush's key natural resources officials to discuss land 
management policies.''
Katherine Pfleger, Associated Press, December 29, 2001
    Since Bush entered office, industry has repeatedly filed lawsuits 
against various environmental laws and sought to negotiate with 
``friends'' in the Bush administration to undo environmental 
requirements. In one case the Bush administration, in response to a 
lawsuit filed by the suburban sprawl industry (a.k.a. the Homebuilders 
Association), agreed to rescind critical habitat designations for 19 
stocks of threatened and endangered salmon. The Bush administration 
agreed to this even before the court had a chance to rule on the merits 
of the case and even though conservation groups were denied their 
request to intervene in the lawsuit. See: http://www.earthjustice.org/
news/display.html?ID=338
    The timber industry currently has suits pending to remove both the 
Spotted Owl and Marbled murrelet from the threatened species list, and 
to get rid of requirements to survey and protect wildlife on federal 
forests.

Oregon Natural Resources Council
5825 North Greeley, Portland, OR 97217-4145
Telephone: (503) 283-6343 (voice); (503) 283-0756 (FAX)
                                 ______
                                 
    [A statement submitted for the record by David Kliegman 
follows:]

    Statement submitted for the record by David Kliegman, Executive 
                 Director, Okanogan Highlands Alliance

    The Okanogan Highlands Alliance (OHA) is a locally based public 
interest organization in Washington State, that has been following 
resource issues since the early 1990's, and has put a great deal of 
effort into understanding projects the impact people and the 
environment. We hope you will carefully consider and enter the 
following testimony submitted on behalf of OHA and incorporate it into 
your review the role of NEPA in the States of Washington, Oregon, 
Idaho, Montana and Alaska.
    The public relies on NEPA so that Americans affected by a federal 
action will get the best information about its impacts, a choice of 
good alternatives, and the right to have their voice heard before the 
government makes a final decision.
    NEPA is an important check to helps balance, common sense and 
openness in federal decision-making, it is an effective tool to keep 
'Big Government' in check.
    At the heart of NEPA is its requirement that alternatives must be 
considered--including those that will minimize possible damage to our 
health, environment or quality of life. NEPA also lets Americans have a 
say before the government makes its final decision about a project.
    By making sure that the public is informed and that alternatives 
are considered, NEPA has stopped some damaging projects or made them 
better.
    NEPA provides a ``look before you leap'' opportunity to federal 
decision makers. Cutting corners in this process would have disastrous 
consequences, especially when it comes to spending taxpayer money on 
projects that might harm citizens or their environment.
    NEPA works as it is, there is no need to improve it at this time.
    Limiting public involvement and weakening environmental review 
won't avoid controversy or improve projects.
    NEPA saves time and money in the long run by reducing controversy, 
building consensus, and ensuring that a project is done right the first 
time.
    NEPA's promise of project review and public involvement should be 
protected, not sacrificed in the name of speed.
    ``[I]t is the continuing policy of the Federal government, in 
cooperation with State and local governments, and other concerned 
public and private organizations, to use all practicable means and 
measures...in a manner calculated to foster and promote the general 
welfare, to create and maintain conditions under which man and nature 
can exist in productive harmony, and fulfill the social, economic, and 
other requirements of present and future generations of Americans.''
    --The National Environmental Policy Act, Section 101(a), 42 U.S.C., 
4331(a)
    Thank you for the opportunity to submit testimony. Please enter 
this testimony into the record of the role of NEPA.

Sincerely,

David Kliegman, Executive Director, Okanogan Highlands Alliance
PO Box 163, Tonasket, WA 98855
phone/fax 509/485-3361
email: [email protected]
website: http://www.okanoganhighlandsalliance.org
``Pure water is more precious than gold!''
                                 ______
                                 
    [A letter submitted for the record by Penny Lind, Executive 
Director, Umpqua Watersheds, follows:]
                           Umpqua Watersheds
  umpqua watersheds, inc., po box 101, 539 se main st., roseburg, or 
                                 97470

                PHONE: 541-672-7065 / FAX: 541-672-7652

          [email protected] / www.umpqua-watersheds.org

                              May 2, 2005

Representative Peter DeFazio
151 W 7th Ave. #400
Eugene, Oregon 97401

Dear Representative DeFazio,

    The National Environmental Policy Act (NEPA) is under attack by the 
Bush administration. As you know, NEPA is one of America's bedrock 
environmental laws. Thirty-five years ago President Nixon signed this 
Act into law and today it is considered the most important 
environmental law that includes the public in decision-making.
    At the heart of NEPA is its requirement that alternatives must be 
considered, administrative appeals must be answered and courthouse 
doors must remain open. The results of NEPA outcomes secure our natural 
treasures by giving representation with public involvement.
    NEPA also saves time and money in the long run by reducing 
controversy, building consensus, and ensuring that a project is done 
right the first time. Cutting corners would have disastrous 
consequences, especially when it comes to spending taxpayer money on 
projects that might harm citizens or their environment.
    Umpqua Watersheds has been involved in NEPA processes for the last 
10 years. At each point in the process of the Act we have experienced 
diverse positive and challenging outcomes for our forests, rivers and 
communities. Most recently, we came to agreement with the Umpqua 
National Forest at the administrative appeal stage to settle on the 
Lemolo Project. The results will be restoration, some protections and 
jobs as opposed to controversy and environmental injustice.
    Please support a strong, democratic NEPA and do not allow limits to 
public involvement, or environmental review.

                            Sincere thanks,

                     Penny Lind, Executive Director

Submitted into testimony to the NEPA Task Force at: 
[email protected]

cc: Representative Cathy McMorris, NEPA Task Force member

    Umpqua Watersheds is dedicated to the protection and restoration of 
the watersheds in the Umpqua River basin and beyond.
                                 ______
                                 
    [A letter submitted for the record by Mary O'Brien (Ph.D., 
Botany), Eugene, Oregon, follows:]

April 28, 2005

Re:  NEPA Task Force hearing on the Role of NEPA in the States of 
Washington, Oregon, Idaho, Montana, and Alaska.

    Thank you for participating in the NEPA Task Force and spending 
Saturday, April 23, 2005 in Spokane, WA. I traveled to the hearing from 
Eugene, Oregon. As a staff scientist with various non-governmental 
organizations for the past 23 years, I have worked with the National 
Environmental Policy Act (NEPA) almost every day. Its regulations are 
essential to our nation, which has the technological capability, money, 
and population size capable of causing irreparable environmental 
destruction. NEPA regulations are the embodiment of democracy, 
foresight, and a commitment to long-term local, national, and global 
quality of life.
    Please enter these comments into the NEPA Task Force record on the 
hearing on the Role of NEPA in the States of Washington, Oregon, Idaho, 
Montana, and Alaska.
    I wish to later (page 5) comment on a theme raised by essentially 
all presenters, but first comment on a concern raised by the following 
presenters:
      Abigail Kimbell (Regional Forester, Region 1 U.S. Forest 
Service)
      Duane Vaagen (President, Vaagen Brothers Lumber)
      Luke Russell (Director, Environmental Affairs, Coeur d' 
Alene Mines Corp.)
      Craig Urness (General Counsel, Pacific Seafood Group)
    The common complaint these presenters made regarding NEPA is the 
time (and thus also money) that is spent on preparing NEPA documents 
and reaching decisions.
    There are (1) inherent (good) reasons and (2) unnecessary (not 
good) reasons NEPA processes take time. I urge the NEPA Task Force to 
clearly separate these reasons and to address only the unnecessary 
reasons some NEPA processes take time.
A. Good Reasons for NEPA Processes Taking Time
    1.  Looking before you leap takes time. NEPA was DESIGNED to be a 
``look before you leap'' process. We face countless ecological problems 
nationally and globally because we plunged ahead with new enterprises 
and technologies. Look at eastern Europe, where industrialization took 
place with extraordinary energy and speed. Today, in some Russian 
cities, the life expectancy of males is 45 because of the resulting, 
persistent pollution. Here in the Pacific Northwest at Hanford Nuclear 
Reservation, we plunged into nuclear weapons creation, and are today 
essentially incapable of stanching the radioactive and toxic pollution 
(e.g., chromium) leaking into the Columbia River from hastily-dumped 
wastes. One could debate whether the haste at bomb-making and willy-
nilly waste disposal was justified by extraordinary WW II concerns, but 
the reality is that the haste made waste that so far eludes 
containment, let alone clean-up. Haste in ordinary circumstances 
generally has the same results.
    2.  Assessing alternatives takes time. Alternatives assessment is 
the heart of the NEPA process. It takes time to truly consider 
alternatives, analyze them, and make changes to old agency habits when 
new alternatives seem a wiser course of action. Assessing alternatives 
for energy use and production; transportation; drought; climate change; 
invasive species; mining; fisheries; urban sprawl; goods movement--- 
all deserve the full play of American creativity, innovation, and 
foresight at both the local and national level. To shortcut 
alternatives assessment (including reasonable alternatives brought to 
the NEPA process by communities, coalitions, or individuals) is to 
shortcut thinking.

       As a member of various coalitions throughout the past 23 years, 
I have participated in the preparation of NEPA alternatives for 
vegetation management, comprehensive management planning, gypsy moth 
treatments, transportation projects, forest health projects, livestock 
grazing permits, and forest planning. In every case, the alternatives 
we have developed have positively affected the outcome of the 
decisionmaking, and have ultimately resulted in expressed appreciation 
by the agencies. I would be glad to describe each of these experiences 
in more detail if you request.
    3.  Public participation (democracy) takes time. Allowing the 
public to help define the issues at hand in a particular decisionmaking 
process that affects their communities, nation, and/or future 
generations; contribute to alternatives that will be analyzed; and join 
in the debate on alternatives is the essence of democracy. Democracy 
means government by the public. Obviously the lead agencies for any 
given project or undertaking need to make the final decision, but the 
question is whether the agencies will do this with democratic 
creativity or bureaucratic authoritarianism.
    4.  Examining relevant scientific information takes time. NEPA 
provides for the examination of complex ecological effects--not only 
immediate, direct effects, but also indirect and cumulative effects. As 
a society and in the Pacific Northwest, we have, during the past 
century, been learning about some of the indirect and cumulative 
environmental, cultural, and economic effects of building dams without 
fish ladders; removing keystone predators and engineers from 
watersheds; building nuclear power plants without nuclear waste 
storage; combining storm runoff and domestic sewage in one set of 
pipes; dumping PCB-filled electrical transformers on the ground; 
building roads on coast range slopes that will fail in rain-on-snow 
events; straightening channels that don't allow rivers to rejuvenate 
watersheds; dumping mining tailings in rivers; and building urban 
transportation systems around single-occupancy vehicles and oil.
    5.  Public access to courts takes time. Under NEPA and the 
Administrative Procedures Act, American citizens do not have to stand 
by while agencies make inaccurate claims, fail to consider reasonable 
alternatives that have been brought to them, or ignore uncomfortable 
scientific information.

       Luke Russell of Coeur d'Alene Mines Corporation reported to the 
NEPA Task Force that in Chile, a NEPA-equivalent system allows mining 
decisions to be made quickly because agencies don't have to ``worry 
about being appealed.'' He urged mandatory time frames as in Chile.

       I asked Environmental Law Alliance Worldwide about the realities 
of mining environmental assessment and mandatory timelines in Chile. 
Pamela Meunier, attorney with FIMA (Fiscalia del Medio Ambiente) in 
Chile quickly responded by email (27 April 2005) with the following 
note on environmental assessment and a World Bank reference to 
mandatory timelines:
        A recent World Bank report notes that, while the recently 
        passed ``Basic Law'' on the environment looks good in theory, 
        the government agencies ``do not have the capacity to 
        adequately meet the responsibilities assigned to them by the 
        law.''

        The report goes on to note the absence of regulations, the 
        administrative obstacles for proper environmental assessment 
        and the lack of systematic analysis or availability of 
        environmental information necessary to assess or enforce 
        environmental standards. In some cases, the Bank warns that 
        timelines imposed on Environmental Assessments may ``allow 
        environmentally harmful projects to proceed that previously 
        would have been stopped...'' Chile: Managing Environmental 
        Problems: Economic Analysis of Selected Issues, Dec. 1994, 
        World Bank

       More specifically, regulation of arsenic has recently been 
rolled back under heavy pressure from the mining industry. 
Environmental assessment, despite years of promised implementation, is 
still only carried out on a voluntary basis, with little or no 
substantive participation from key stakeholders. Basic water quality 
and quantity rights are severely restricted, affecting native and 
commercial fisheries, as well as human health in many communities. 
[Emphases added]
    6.  It takes time to change unwise habits. When NEPA is working, 
then agencies seriously consider new management options to 
unnecessarily destructive practices, policies, or projects; and devise 
new approaches. But agencies, like individual people, do not easily 
change habits, even if the habits are abusive or self-defeating. The 
only kind of decisions that happen rapidly are those on auto-pilot. If 
auto-pilot is environmentally and socially sound, then that's fine. But 
auto-pilot is not wise if it is having unnecessary, significant, 
adverse environmental or public impacts. It takes time to change 
entrenched, bad habits.
    It is to be expected that Mr. Russell of Coeur d'Alene Mines wants 
to get his mining permits quickly. But look at the long-term human and 
environmental degradation that has been caused by heap leach gold 
mining; Butte mine tailings in Montana streams; mesothelioma deaths 
from asbestos production in Libby, Montana..
    It is to be expected that Mr. Vaagen wants to get access to logs on 
public lands as quickly as he can. But look at the long-term forest 
health degradation we are facing throughout the Pacific Northwest due 
often in large degree to massive clearcutting, single-aged tree 
plantations, steep-slope logging roads, fire suppression in support of 
logging, and/or introduction of invasive species and root pathogens.
    It is to be expected that Mr. Urness of Pacific Seafood Group wants 
rapid access to ocean fish, but look at the global collapse of 
fisheries and the diseases being spread to native fish by fish farm 
wastes.
    It is to be expected that Ms. Kimball of Region 1 Forest Service 
wants to act rapidly in the face of drought and insect outbreaks in the 
forests she manages. She is convinced that rapid logging and spraying 
are the actions to take, but many scientists provide evidence that this 
type of management will not necessarily lead to or support long-term 
health of diverse forest types that depend on diverse fire regimes, Old 
Growth, native fish and wildlife; or that it will help forests resist 
invasive species.
    Clearly, NEPA law, policies, and regulations are designed to have 
agency and project proponents pause before undertaking harvesting, 
logging, mining, spraying, straightening, damming, constructing, 
selling off public lands, and other such significant extractive, 
corrective, and/or development activities. NEPA declares we are not 
doomed, as a species, to endlessly repeat or add to global degradation. 
NEPA regulations are our agreement, as a society, to be thoughtful and 
democratic. That takes time.
B. Bad Reasons for NEPA Processes Taking Time
    Whenever a presenter raises concerns to the NEPA Task Force about 
the length of time or money that has been involved in a ``NEPA'' 
process or in getting to a Final EIS and Record of Decision, it is 
important to ask follow-up questions to find out why the process has 
taken so long. In my 23 years of experience with NEPA, some processes 
have taken years because of reasons not attributable to NEPA or its 
regulations.
    For instance, I was involved in a 9.5 year (1994-2003) process with 
the Wallowa-Whitman NF regarding a new Hells Canyon Comprehensive 
Management Plan EIS. The Forest Service initially ignored the 
reasonable Native Ecosystems Alternative that had been submitted by a 
coalition of individuals, organizations, and tribes during scoping. The 
Forest then developed a Final EIS without considering the Native 
Ecosystems Alternative. Six days before sending the FEIS to the 
printer, the Forest was finally convinced they would not survive a 
legal challenge, and agreed to issue a new DEIS with the Alternative in 
it. Neither the Final EIS nor ROD, which were substantially improved 
over the first DEIS, were litigated. The process would have been at 
least 50% shorter had the Forest followed NEPA process and included the 
reasonable Native Ecosystem Alternative in the first DEIS.
    However, when Gail Kimbell (Regional Forester, U.S. Forest Service 
Region 1) showed the NEPA Task Force a poster of a woman standing by 
two stacks of NEPA documents developed over a period of 10 years for 
1.88 miles of road to access private lands, no one on the Task Force 
panel asked her about the nature of concerns that led to that lengthy 
process e.g., had the Forest Service tried to shortcut the NEPA 
process? What were the contested issues in relation to the road? Who 
raised them, and why?
    Two other presenters reported that it was the failure to implement 
NEPA and alternatives assessment, not NEPA, that has caused 
decisionmaking delays:
    1.  Bob Geddes (Pend Oreille PUD) explained that the 7-year, $10.5 
million Box Canyon NEPA process has been lengthened by lack of proper 
NEPA compliance by agencies. The U.S. Forest Service, he reports, isn't 
doing its own NEPA process but is not accepting conditions that FERC 
developed without NEPA.
    2.  William Kennedy (The Family Farm Alliance) testified that the 
Bureau of Reclamation has never conducted a NEPA review in relation to 
decisionmaking in the Klamath River, although the Family Farm Alliance 
had encouraged it to do so.
    Both of these presenters have been involved in decisionmaking that 
has been protracted because NEPA was not followed. Thus, when a 
presenter complains about the time and money spent on a given 
decisionmaking process that is subject to NEPA, it is important for the 
NEPA Task Force to research such questions as:
    1.  Had the agency initially failed to implement good NEPA process 
and was then legitimately challenged? For instance, did the agency fail 
to consider reasonable alternatives that had been submitted or 
requested during scoping process?
    2.  Had the agency failed to actively consider valid issues of key 
interested parties?
    3.  Did the agency try to avoid airing legitimate scientific 
controversy?
    4.  Did the agency present inaccurate ecological, economic, or 
social information that was then challenged?
    5.  If litigation was involved, what were the key issues raised, 
and how did the Courts rule?
    6.  Did the agency throw elements into the EIS or process that are 
not required by NEPA?
    7.  Did the agency fail to consult with Council of Environmental 
Quality when concerns were raised?
    When Craig Urness (Pacific Seafood Group) complained that the NEPA 
process prevents using real-time fish resource data, Jay Inslee wisely 
asked whether Programmatic EIS processes have been pursued. Mr. Urness 
answered no. Questions such as Rep. Inslee's get to the issue of 
whether a long decisionmaking process is due to NEPA or to lack of 
inter-agency coordination, sloppy implementation, avoidance of key 
issues or information, failure to use a variety of NEPA processes, lack 
of transparency, failure to seek Council of Environmental Quality 
advice, etc.
    It is inappropriate to assume that when a decisionmaking process 
takes a long time, this is due to NEPA law or regulations.
Local Decisionmaking for Non-Local Impacts?
    Nearly all presenters advocated for local input, which is extremely 
important. Environmental impacts, however, are rarely local. Rep. 
Inslee, for instance, noted that a hydropower siting decision can have 
widespread impacts. Likewise, impacts that are largely experienced 
locally can cumulatively have regional, national, or global impacts in 
light of similar localized impacts elsewhere.
    Further, NEPA decisions often affect national public lands and/or 
public trust resources (e.g., water), and/or global commons (e.g., 
air). Every member of the nation's public is a legitimate participant 
in NEPA processes.
    It is crucial that NEPA processes be open to both local and 
national (and often even global) information and experience; local and 
federal governance; and local, regional, and national citizen., 
scientist and other expert input.
    Thank you again for your participation in the NEPA Task Force. I 
sincerely urge the Task Force to leave NEPA regulations intact. NEPA 
regulations serve our nation well.

                               Sincerely,

      Mary O'Brien (Ph.D., Botany), PO Box 12056, Eugene, OR 97440

                        [email protected]

                                 ______
                                 

    [A letter submitted for the record by The Honorable Denny 
Rehberg, a Representative in Congress from the State of 
Montana, follows:]







    [A letter and Spokesman-Review article submitted for the 
record by Charles A. Thomas, Spokane, Washington, follow:]

                             April 26, 2005

Dear Congresswoman McMorris:

    Please keep this article in mind at your conference n Saturday. 
Think about who makes and pushes at these rules.

                               Sincerely,

        Charles A. Thomas, 1212 W. White Road, Spokane, WA 99224

Attachment
                                 ______
                                 
Bans on building send prices up, so average buyers looking elsewhere, 
Thomas Sowell says.

                 Open space laws leave many out in cold

Thomas Sowell, Creators Syndicate

April 20, 2005

    Where can you make $2,000 a day, with no real effort? In San Mateo 
County, California.
    Before you start packing your bags to head there, you should know 
that the average homeowner in San Mateo County saw the value of his 
property increase by $2,000 a day over the past month. The median price 
of a single-family home in the county reached $896,000. But, if you 
don't already own a home in San Mateo County, you don't get the two 
grand a day.
    Someone from outside California might think that people must be 
building a lot of new mansions in San Mateo County. But, in fact, there 
is very little building going on there because most of the county is 
off-limits to building. These bans on building are known by the more 
politically appealing name of ``open space'' laws.
    These housing bans are the reason for rising home prices.
    As for mansions, there are very few of those in San Mateo County. 
There are some nice homes there and many very modest homes. They just 
cost the kind of money that people pay for mansions elsewhere across 
the country.
    Who can afford to live in such a place? Fewer people apparently. 
The population of the county declined by about 9,000 people over the 
past four years.
    Who's leaving--and who is coming in? By and large, young adults who 
have not yet reached their peak earnings years are finding it harder to 
afford housing in San Mateo County and in other such counties up and 
down the peninsula from San Francisco to San Jose. So, they are 
leaving.
    Schools have had to be closed because there are not enough 
children. The number of children is declining because people young 
enough to have schoolchildren are increasingly unable to afford the 
sky-high housing prices in communities that ban the building of 
housing.
    People who are sufficiently affluent can afford to move into places 
with severe restrictions on building. Those who bought their homes 
years ago, before these housing restrictions were enacted, are able to 
stay while the value of their homes rise.
    Among other things, this means that many young adults cannot afford 
to live near their parents, unless they actually live in their parents' 
homes. This isolates the elderly from their children, which can be a 
growing problem as the infirmities of age set in and their contemporary 
friends die off.
    None of this just happened. Nor is it a result of market forces. 
What has happened essentially is that those already inside the castle 
have pulled up the drawbridge, so that outsiders can't get in. 
Politically, this selfishness poses as idealism.
    Much of this exclusionary agenda is pushed by people who inherited 
great wealth and are using it to buy a sense of importance as deep 
thinkers and moral leaders protecting the environment. The foundations 
and movements they spearhead are driving working people out of areas 
dominated by limousine liberals, who are constantly proclaiming their 
concern for the poor, the children and minorities.
    Meanwhile the poor, the children and minorities are being 
increasingly forced out of the vast area of the San Francisco peninsula 
by astronomical housing prices and are moving out into California's 
interior valleys. But they are not safe there either.
    The same wealthy busybodies who have made it an ordeal for less 
affluent people to try to live on the San Francisco peninsula are now 
pursuing them out into the interior valleys, where the environmentalist 
foundations and movements are trying to get the same housing 
restrictions imposed.
    This is not sadism--at least not in intent. These are green 
activists buying an artificial significance for themselves that they 
would never have had as mere inheritors of fortunes earned by others.
    This is ultimately not about the environment but about egos. As 
T.S. Eliot said more than 50 years ago: ``Half the harm that is done in 
this world is due to people who want to feel important. They don't mean 
to do harm--but the harm does not interest them. Or they do not see it, 
or they justify it because they are absorbed in the endless struggle to 
think well of themselves.''
                                 ______
                                 
    [A letter submitted for the record by Hon. Mike Simpson and Hon. 
C.L. ``Butch'' Otter, Representatives in Congress from the State of 
Idaho, follows:]





    [A letter submitted for the record by The Honorable Don 
Young, a Representative in Congress from the State of Alaska, 
follows:]



                                 
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