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




 
              THE ROLE OF NEPA IN THE SOUTHWESTERN STATES

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

                        OVERSIGHT FIELD HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

             Saturday, June 18, 2005, in Lakeside, Arizona

                               __________

                           Serial No. 109-21

                               __________

           Printed for the use of the Committee on Resources



  Available via the World Wide Web: http://www.gpoaccess.gov/congress/
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                                 ______

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

                                 ------                                
                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Saturday, June 18, 2005..........................     1

Statement of Members:
    Drake, Hon. Thelma, a Representative in Congress from the 
      State of Virginia..........................................     5
    Pearce, Hon. Stevan, a Representative in Congress from the 
      State of New Mexico........................................     4
    Renzi, Hon. Rick, a Representative in Congress from the State 
      of Arizona.................................................     1

Statement of Witnesses:
    Beck, Edmond A., Superintendent, Planning and Contracts, 
      Tucson Electric Power Company, Tucson, Arizona.............    65
        Prepared statement of....................................    67
        Response to questions submitted for the record...........    74
    Craft, Kathleen, Executive Assistant, Frehner Construction 
      Company, Inc., Las Vegas, Nevada, on behalf of the American 
      Road & Transportation Builders Association.................    36
        Prepared statement of....................................    38
        Response to questions submitted for the record...........    44
    Hutchinson, Howard, Executive Director, Coalition of Arizona/
      New Mexico Counties for Stable Economic Growth, Glenwood, 
      New Mexico.................................................    24
        Prepared statement of....................................    25
        Response to questions submitted for the record...........    31
    Lynch, Robert S., Attorney at Law, Robert S. Lynch & 
      Associates, Phoenix, Arizona...............................     9
        Prepared statement of....................................    11
        Response to questions submitted for the record...........    15
    Mackey, Bill, Granite Construction, Inc., Tucson, Arizona....    75
    Matson, Jim, Four Corners Representative, American Forest 
      Resource Council, Kanab, Utah..............................    18
        Prepared statement of....................................    21
    Poppie, Marinel, D.V.M., on behalf of the New Mexico Cattle 
      Growers' Association, Glenwood, New Mexico.................    46
        Prepared statement of....................................    48
        Letter submitted for the record..........................    51
    Struhsacker, Debra W., Women's Mining Coalition, Reno, Nevada    52
        Prepared statement of....................................    54
        Response to questions submitted for the record...........    62

Additional materials supplied:
    Dugan, Robert, Legislative and Public Affairs Manager, 
      Granite Construction Incorporated, Letter submitted for the 
      record.....................................................   100
    Langton, Dr. Kenneth, Chair, Sierra Club--Grand Canyon 
      Chapter, Letter submitted for the record...................   102
    McCarthy, Jim, Chapter Director, Sierra Club, Grand Canyon 
      Chapter, Invitation letter submitted for the record by 
      Chairwoman McMorris........................................     7
    Nowicki, Brian, Conservation Biologist, Center for Biological 
      Diversity, Letter submitted for the record.................   103
    Suckling, Kieran, Policy Director, Center for Biological 
      Diversity, Invitation letter submitted for the record by 
      Chairwoman McMorris........................................     8
    Information submitted for the record which has been retained 
      in the Committee's official files..........................   103


 OVERSIGHT FIELD HEARING ON THE ROLE OF NEPA IN THE SOUTHWESTERN STATES

                              ----------                              


                        Saturday, June 18, 2005

                     U.S. House of Representatives

                            NEPA Task Force

                         Committee on Resources

                           Lakeside, Arizona

                              ----------                              

    The Task Force met, pursuant to call, at 10:00 a.m., at the 
Blue Ridge High School, 1200 W. White Mountain Boulevard, 
Lakeside, Arizona, Hon. Rick Renzi presiding.
    Present: Representatives Renzi, Pearce, and Drake.

STATEMENT OF THE HON. RICK RENZI, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF ARIZONA

    Mr. Renzi. Before we get started with the hearing, I want 
to make a couple comments. Is Police Chief Brant here?
    Is the Police Chief here? How are you doing, Chief? On 
behalf of the U.S. Congress, Congressman Pearce, Congresswoman 
Drake, this flag was flown over the United States Capitol in 
honor of the service of you and your men. Thank you so much.
    Is Commander Marty Jarvey here of the Squadron? Marty, on 
behalf of the U.S. Congress, Congressman Pearce, Congresswoman 
Drake, this flag was flown over the United States Capitol in 
honor of your service to your country and those of your men and 
women for the security you bring to our nation. God bless you 
for your work. Thank you very much.
    And last, but not least, would Superintendent Mike Aylstock 
with the school come up. I am looking forward to this hearing 
and am most grateful for your kindness and generosity, you all 
from Blue Ridge High School. This flag was flown in honor of 
Blue Ridge High School. Thank you for your participation and 
assistance to the Resources Committee for our field hearing 
held on June 18th. This flag was flown on February 12th, 2004, 
over the United States Capitol.
    I want to thank the community for coming out. I really do 
appreciate this. You all have suffered through some fires, and 
you've got issues with cattle, mining, the roads, and 
construction. We've got some great people here today. This is 
our country and those of you who participate in this great day, 
each and every one of you who are taking time from your 
families, away from your businesses today, are truly great 
patriots. We couldn't do this without you. It's your Government 
of the People, so I'm grateful for the number of you that 
turned out today.
    With that, let me say good morning, and I want to begin by 
welcoming the members of the Show Low Composite Squadron 210, 
U.S. Air Force Auxiliary, Civil Air Patrol, who will now 
Present the Colors. If everyone would please stand.
    [Colors presentation, Pledge of Allegiance, and prayer 
presented.]
    Mr. Renzi. Again, let me again thank the community for 
turning out, particularly those that have traveled so far to be 
with us today. I want to first thank my colleagues for giving 
up their weekend so we could be here together in the Arizona 
White Mountains to discuss this important issue. I believe the 
attendance today shows the importance of the National 
Environmental Policy Act. In the interest of the work that this 
Task Force is engaged in, I'm grateful that so many of our Task 
Force Members are here, that you will have the opportunity to 
learn our views and thoughts on NEPA.
    This is the second in a series of meetings of the Task 
Force on Improving the National Environmental Policy Act, NEPA 
Task Force. Thus far, the NEPA Task Force has heard from a 
large number of individuals on the ways that NEPA can be 
improved. These ideas range from encouraging the agencies to 
increase public participation, to enacting legislation that 
would cut the process time and ease the threat of litigation, 
and this hearing will expand on those ideas heard thus far, and 
explore the issues that arise from the activities important to 
this part of the country.
    This hearing is for the Southwestern States which include 
Arizona, Nevada and New Mexico. The invited witnesses are from 
and work with NEPA throughout this region, including mining, 
grazing, forestry, transportation, and electric utilities.
    Members of the environmental community were also invited to 
testify. The NEPA Task Force will hear from the witnesses about 
their specific interactions with the NEPA process and any 
solutions which would ease the amount of litigation and 
ineffectual paperwork.
    As one of our nation's first environmental laws, NEPA was 
visionary in its purpose to ensure the Federal decisionmakers 
were guided by a national environmental policy. Today, 80 
Federal agencies have their own different NEPA guidelines.
    The National Environmental Policy Act was intended to 
assure that Federal decisions are made in an environmentally 
sound manner, not to stifle communities' regional and economic 
development.
    But what started out as visionary to apply environmentally 
sound decisions to Federal policy, has turned into thousands of 
court cases and hundreds of pending lawsuits. The need to 
reform and streamline the NEPA process is not new. In fact, in 
1997, the White House Council on Environmental Quality reviewed 
NEPA and concluded that the process takes too long and is too 
technical for any reasonable use.
    By the year 2000, the average cost of an environmental 
impact statement was between a half a million and two million 
dollars, and took more than two years. Today, those figures are 
even higher. Now, while the process has yielded many positive 
effects and results, including the increase of environmental 
awareness and public participation, the process itself still 
needs to be improved.
    The goal of this Task Force and the hearing today is to 
review the policies that oversee the use of our precious 
national resources and find out how the NEPA process can be 
improved. The Task Force on Improving the National Environment 
Policy Act, NEPA Task Force, is a select and bipartisan group 
of Resources Committee members selected by Chairman Richard 
Pombo of California, and the Ranking Democrat, Nick Rahall, of 
West Virginia. The Task Force is charged with reviewing and 
making recommendations on improving the National Environmental 
Policy Act, NEPA. The goal is to ensure the original intent of 
NEPA, that Federal decisions are made in an appropriate 
environmentally sound manner, rather than being focused on 
litigation.
    We are hoping that this hearing today will go a long way to 
meeting that goal. NEPA has not been reviewed by the Resources 
Committee since 1995. A comprehensive examination of NEPA has 
never been conducted. On the 35th anniversary of NEPA, it is 
time to investigate whether the original intent of NEPA is 
being fulfilled. It is also vital that we gain a better 
understanding of the economic impacts that NEPA has imposed on 
communities like Show Low and throughout the Southwest.
    We have invited a number of experts from many different 
fields to testify on how the NEPA process affects their 
industry today. Our witnesses will share some of the decisions 
and actions that have severely limited our region's ability to 
grow, and those are the decisions that hinder our economic 
development in several of our vital industries.
    Arizona's timber industry gave life to many of the rural 
towns that I now represent. The families of loggers and mill 
workers built these countless communities, and yet NEPA 
regulations have become so cumbersome, that the Forest Service 
is no longer able to conduct the most necessary forest 
maintenance to protect our western communities from 
catastrophic wild fires.
    This morning on their flight from Phoenix, my colleagues 
passed over the Rodeo-Chediski burn zone. In the summer of 
2002, Arizona lost more than 460,000 acres to that fire, and 
the cost to suppress that fire has been estimated to be 
somewhere near $153 million.
    Years of drought and handcuffed forest managers who are 
unable to conduct necessary forest maintenance, has left our 
communities vulnerable. In 2002, that fire was halted within a 
few miles of where we sit today. I don't need to tell the 
residents of the White Mountain region how important it is that 
we make every effort to decrease the possibility of similar 
destruction. We must balance environmental protection and the 
implementation of NEPA with the Arizona growing economy, but at 
the same time we must be able to take back our forests and make 
them healthy and strong and protect ourselves.
    Mr. Renzi. With that, ladies and gentlemen, I'd like to 
introduce to you two of my colleagues. From the Second District 
of New Mexico, my neighbor, and seated on the Resources 
Committee of Washington, D.C., Congressman Steve Pearce. He is 
the Chairman on the Subcommittee on National Parks. He is a 
great friend of mine, a good colleague. We are working together 
on these important issues we face in regard to the National 
Environmental Policy Act.
    And, Steve, do you have any comments?

   STATEMENT OF THE HON. STEVAN PEARCE, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF NEW MEXICO

    Mr. Pearce. Well, I'm a politician, Rick. That goes without 
saying. I can talk until dark without taking a breath. Thank 
you for coming out. I appreciate coming into Mr. Renzi's 
District. I will tell you that you should be proud of the 
service that he does. The best compliment for Rick is that 
neither Democrats or Republicans can take him for granted. He 
is independent in his thinking and he stands up for his 
District no matter what, and I appreciate those principle 
stands that I've seen him make.
    I believe that we are one nation under God. I believe, 
though, that we're fighting three simultaneous battles right 
now. First of all, we're fighting the war on terror, and we're 
all familiar with the sacrifices that the young men and women 
are making right now, standing there so we can have the freedom 
to meet and carry out our democracy here.
    So, Rick, it's no challenge to me to give up a weekend. I 
think we're here doing the work of the people. I think it's 
important.
    The second large struggle that is going on right now is 
there is a cultural war going on. We're trying to decide who we 
are as Americans and what our values will be, and it's 
appropriate that we have discussion on that, and this 
discussion today begins to dove-tail into that broader 
discussion and into the final battle that I see us fighting 
right now, this economic war.
    Right now, China, India, the European Union, and many 
countries around the globe are trying to take our jobs. What I 
see with NEPA is it is a function and a goal that no one of us 
disagree with. No one wants to leave contaminated soil or water 
to our kids, but when it's used as a tool to slow down the 
ranching or to stop ranching altogether, or to drive the 
logging completely out to where we don't have an infrastructure 
now to process the timber and the lumber that comes out of our 
national forest, then we are working against our own jobs. 
We're helping to lower the job capability in this nation, 
helping other nations to take our jobs, and I will tell you 
that we will make a decision in the next 10 years what sort of 
a future we want for our children and grandchildren.
    For me, I've heard constant reports in Washington about the 
way the NEPA process is used, not only positively, but also 
negatively, and that's what these field hearings are for. We're 
taking the conversation out to six different regions of the 
country and listening to what people are saying about the NEPA 
process and the effects to their community, both on the 
environment and on jobs.
    So as I consider the things that I've heard in the past, 
that NEPA was used to take away grazing permits from ranchers, 
it is used as an excuse not to cut dead trees after a forest 
fire, it is used to obstruct progress on building new highways, 
safer highways, these are the things that we're here to listen 
to and we hear frequently in Washington. We're going around the 
Nation listening again to the people around the country, and 
that's the way it should be.
    Rick, thanks for having us in your District. This is a 
fascinating opportunity. I've read some of the discussions that 
the panel is going to give, and I would like to personally 
welcome Marinel Poppie from the Southern District of New 
Mexico, and also Howard Hutchinson, both good friends of mine, 
and both who are committed year after year after year to 
bringing common sense and balance into this whole discussion 
about do we want the economy, or do we want to protect the 
environment. I think we can do both. I think we have 
od people on both sides of the issue. I 
see constantly Government servants in Forest Service, Fish and 
Wildlife, the other agencies, who are willing to do the right 
thing. I think we as a nation are beginning to get engaged and 
involved in giving the support to the agencies that they need. 
Thank you two for coming over from New Mexico. I look forward 
to the testimony.
    And, Mr. Chairman, I hand it back to you.
    Mr. Renzi. Thank you, Congressman.
    Mr. Renzi. I also want to introduce you all to 
Congresswoman Thelma Drake from the Second District of 
Virginia. Her District includes the world's largest naval base 
in Southern Virginia. The Congresswoman serves some of our 
greatest patriots, the military servicemen and women who have 
been shipped overseas and deployed.
    She also has sensitive areas that include a tidal basin, 
tidal waterways, as well as ocean, and that is what we're going 
to talk about. There's going to be six of these hearings around 
the country, and they will focus on different parts or regions 
of America and, of course, the issues that affect her are so 
much different than what we're affected by out here in the 
Southwest, but she's traveled all that way to be with us here 
today.
    Congresswoman Drake.

  STATEMENT OF THE HON. THELMA D. DRAKE, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF VIRGINIA

    Mrs. Drake. Thank you, Congressman Renzi. Good morning, 
everyone. I am really honored to be invited to serve on the 
Task Force and be able to come out and be with all of you this 
morning. As you've been told, the District that I represent is 
completely different. It is completely surrounded by water, 
either the Atlantic Ocean or the Chesapeake Bay. So to come out 
and see just your vast expanse of land, to see--this morning we 
flew over the fire. That was just something that is hard for me 
to even comprehend, with coming from the Commonwealth of 
Virginia.
    One thing that I truly believe is that everyone in this 
room shares the same kind of goal, and that's that we truly 
protect our environment and that we leave our children and our 
grandchildren as good or better a world than we have had for 
ourselves, but where we all disagree is how we get to that end 
result, and this for me is an incredible learning experience to 
be able to see the different issues and the different 
perspectives.
    And the question in my mind after having read over NEPA, I 
think it truly is a very visionary law, but the question is, is 
it really being applied properly, or through some of the 
applications, is it actually doing more harm than good.
    So I applaud Chairman Pombo for putting this Task Force 
together and really being willing to take a hard look. This is 
my first year at Congress, and I think probably every freshman 
comes with the perspective that this is the most exciting time 
to serve in Congress. I think our class feels that even more 
importantly because the leadership is not willing to just say 
keep doing things as we've always done.
    Across the board, they are saying what are we doing, is 
this the best way to do it, and how do we make sure that we are 
creating a proper balance. We all know that the big reason for 
jobs not being in our country isn't labor like we might be 
told. It's the regulations that we put into place. There is not 
a meeting that I'm in that the issue of China doesn't come up. 
You've already heard Congressman Pearce referencing things 
going on in our world, and I think if we fail to do--to look at 
all of those issues, and make sure that we're making the right 
decisions, that we will deprive our children the greatest sense 
of wealth and actually our democracy. So thank you for being 
here on this Saturday morning.
    Mr. Renzi. Congresswoman Drake, thank you very much.
    Mr. Renzi. At this time I also would like to recognize the 
fact that we have with us today the Arizona Cattle Growers who 
are in attendance, the Arizona Farm Bureau, the New Mexico 
Cattle Growers, Mayor Larry Vicario from Pinetop-Lakeside, 
Ginny Mindorf from the Pinetop Council, Rick Fernau, Mayor of 
Show Low, Dave Tenney, County Supervisor, Ed Collins, local 
forest ranger--good to see you--Elaine Zieroth, our Forest 
Supervisor. Barbara Teague is with us on the Pinetop-Lakeside, 
and our Show Low Vice Mayor Gene Kelly is also here in 
attendance.
    I want to thank you, again--all of you who came out and 
participated in this. By allowing us to bring a full official 
Congressional hearing to your community, think of the young 
people in civic classes or high school community classes or 
government classes who are now able to observe a full-blown 
Congressional hearing for the first time. You young people are 
so key to the future of our country, and I ask for you to 
please become involved as a public servant.
    With that, I would like to call up our panel. To give us a 
bit of history and context would be Mr. Robert Lynch. He is an 
Attorney and has a long history with NEPA in both the public 
and private practice.
    Here to talk about NEPA and its impact on forest management 
is Jim Matson of the American Forest Resource Council. Jim 
joins us from Kanab, Utah.
    Next is Howard Hutchinson, who will discuss NEPA's impact 
on Arizona and New Mexico Counties. Howard comes to us from 
Glenwood, New Mexico.
    Also with us here is Kathy Craft from Frehner Construction. 
Kathy is here to talk about NEPA and transportation. Kathy 
comes all the way from Las Vegas, Nevada. Thank you for coming 
all the way up.
    Marinel Poppie is here representing the New Mexico Cattle 
Growers' Association. Ms. Poppie is a rancher in her own right, 
and is also from Glenwood, New Mexico.
    Here to talk about NEPA and its role in mining is Debra 
Struhsacker. She is a founding member of the Women's Mining 
Coalition. Debbie came all the way from Reno, Nevada. Thank you 
very much.
    Also with us is Ed Beck with the Tucson Electric Power 
Company. Ed will talk to us about NEPA's impact on a project to 
bring additional electricity transmission to Southern Arizona.
    Last but not least, is Bill Mackey of Granite Construction 
in Tucson. Bill is with us to talk about NEPA and its effects 
on construction.
    I want to thank you all for traveling as far as you did and 
taking the time, again, away from your own time and businesses 
to help your country.
    Before we hear from our witnesses today, you will also note 
there are two chairs that are empty. I want to state for the 
record that representatives from the environmental community--
Mr. Suckling of the Center for Biological Diversity and Mr. Jim 
McCarthy of the Sierra Club's Grand Canyon Chapter--were 
invited to testify, but chose not to attend. I ask for 
unanimous consent that the invitation letters for these two 
witnesses be entered into the record. Without objection.
    [The invitation letters follow:]

                             June 13, 2005

Mr. Jim McCarthy
Chapter Director
Sierra Club, Grand Canyon Chapter
202 E. McDowell Rd, Suite 277
Phoenix, AZ 85004

Dear Mr. McCarthy:

    The Task Force on Improving the National Environmental Policy Act 
will hold a field hearing on The Role of NEPA in the Southwestern 
States, on Saturday, June 18, 2005, at 10:00 am at the Blue Ridge High 
School at 1200 W White Mountain Boulevard, Lakeside, AZ 85929. I 
cordially invite you or your designee to testify at this hearing.
    Please read this letter carefully to ensure that you comply with 
all hearing requirements and that you understand your rights as a 
witness.
    Under Committee Rule 4(b), each witness who is to appear before a 
Task Force of the Committee on Resources must file with the clerk of 
the Task Force a written statement of proposed testimony. This must be 
filed at least two working days before your appearance. Failure to 
comply with this requirement may result in the exclusion of your 
written testimony from the hearing record and/or the barring of your 
oral presentation of the testimony. Your oral testimony should not 
exceed five minutes and should summarize your written remarks. You may 
introduce into the record any other supporting documentation you wish 
to present in accordance with the enclosed guidelines.
    Pursuant to Rule 4(b) of the Committee on Resources and clause g(4) 
of Rule XI of the House of Representatives, a witness appearing before 
the Task Force must to the greatest extent practicable include with his 
written testimony a current resume summarizing education, experience 
and affiliations pertinent to the subject matter of the hearing. In 
addition, to the extent practicable, each nongovernmental witness must 
disclose the amount and source of federal grants or contracts received 
within the current and prior two fiscal years. If a witness represents 
an organization, he must provide the same information with regard to 
the organization. The information disclosed must be relevant to the 
subject matter of the hearing and a witness' representational capacity 
at the hearing. Witnesses are not required to disclose federal 
entitlement payments such as Social Security, Medicare, or other income 
support payments (such as crop or commodity support payments). To 
assist you in complying with these rules, I have enclosed a form which 
you may complete and attach to your testimony. You can also fulfill the 
disclosure requirement by submitting the information in some other form 
or format.
    Under clause 2(k) of Rule XI, witnesses at hearings may be 
accompanied by their own counsel to advising them concerning their 
constitutional rights. I reserve the right to place any witness under 
oath. Finally, a witness may obtain a copy of his testimony once a 
hearing has been printed. (This process usually takes 8-10 weeks.)
    The Committee on Resources Rules are available on its website at 
http://resourcescommittee.house.gov/ and the Rules of the House of 
Representatives, including clause 2(k) of Rule XI, are available at the 
House of Representatives' website at http://www.house.gov/rules/
109rules.pdf Copies can also be sent to you on request.
    To fully prepare for this hearing, 40 copies of your testimony must 
be submitted to Joanna MacKay at the office of Congressman Rick Renzi, 
1151 East Deuce of Clubs, Suite A, Show Low, Arizona, 85901, no later 
than the close of business on Thursday, June 16. An electronic copy of 
all testimony and attachments must also be submitted no later than the 
close of business on Wednesday, June 15 to 
[email protected].
    Accommodations for individuals with disabilities, including 
assistive listening systems, interpreters and materials in alternate 
formats, may be arranged by contacting Joanna MacKay in advance of the 
hearing (four business days notice is recommended) at 1320 LHOB, 
Washington, DC 20515 or at (202) 225-7800.
    Should you have any questions or need additional information, 
please contact Joanna MacKay at 202-225-7800.

                             Best Regards,

                             CATHY MCMORRIS

                               Chairwoman

     Task Force on Improving the National Environmental Policy Act

                         Committee on Resources

Enclosures
                                 ______
                                 

                             June 13, 2005

Mr. Kieran Suckling
Policy Director
Center for Biological Diversity
P.O. Box 710
Tucson, AZ 85702

Dear Mr. Suckling:

    The Task Force on Improving the National Environmental Policy Act 
will hold a field hearing on The Role of NEPA in the Southwestern 
States, on Saturday, June 18, 2005, at 10:00 am at the Blue Ridge High 
School at 1200 W White Mountain Boulevard, Lakeside, AZ 85929. I 
cordially invite you or your designee to testify at this hearing.
    Please read this letter carefully to ensure that you comply with 
all hearing requirements and that you understand your rights as a 
witness.
    Under Committee Rule 4(b), each witness who is to appear before a 
Task Force of the Committee on Resources must file with the clerk of 
the Task Force a written statement of proposed testimony. This must be 
filed at least two working days before your appearance. Failure to 
comply with this requirement may result in the exclusion of your 
written testimony from the hearing record and/or the barring of your 
oral presentation of the testimony. Your oral testimony should not 
exceed five minutes and should summarize your written remarks. You may 
introduce into the record any other supporting documentation you wish 
to present in accordance with the enclosed guidelines.
    Pursuant to Rule 4(b) of the Committee on Resources and clause g(4) 
of Rule XI of the House of Representatives, a witness appearing before 
the Task Force must to the greatest extent practicable include with his 
written testimony a current resume summarizing education, experience 
and affiliations pertinent to the subject matter of the hearing. In 
addition, to the extent practicable, each nongovernmental witness must 
disclose the amount and source of federal grants or contracts received 
within the current and prior two fiscal years. If a witness represents 
an organization, he must provide the same information with regard to 
the organization. The information disclosed must be relevant to the 
subject matter of the hearing and a witness' representational capacity 
at the hearing. Witnesses are not required to disclose federal 
entitlement payments such as Social Security, Medicare, or other income 
support payments (such as crop or commodity support payments). To 
assist you in complying with these rules, I have enclosed a form which 
you may complete and attach to your testimony. You can also fulfill the 
disclosure requirement by submitting the information in some other form 
or format.
    Under clause 2(k) of Rule XI, witnesses at hearings may be 
accompanied by their own counsel to advising them concerning their 
constitutional rights. I reserve the right to place any witness under 
oath. Finally, a witness may obtain a copy of his testimony once a 
hearing has been printed. (This process usually takes 8-10 weeks.)
    The Committee on Resources Rules are available on its website at 
http://resourcescommittee.house.gov/ and the Rules of the House of 
Representatives, including clause 2(k) of Rule XI, are available at the 
House of Representatives' website at http://www.house.gov/rules/
109rules.pdf Copies can also be sent to you on request.
    To fully prepare for this hearing, 40 copies of your testimony must 
be submitted to Joanna MacKay at the office of Congressman Rick Renzi, 
1151 East Deuce of Clubs, Suite A, Show Low, Arizona, 85901, no later 
than the close of business on Thursday, June 16. An electronic copy of 
all testimony and attachments must also be submitted no later than the 
close of business on Wednesday, June 15 to 
[email protected].
    Accommodations for individuals with disabilities, including 
assistive listening systems, interpreters and materials in alternate 
formats, may be arranged by contacting Joanna MacKay in advance of the 
hearing (four business days notice is recommended) at 1320 LHOB, 
Washington, DC 20515 or at (202) 225-7800.
    Should you have any questions or need additional information, 
please contact Joanna MacKay at 202-225-7800.

                             Best Regards,

                             CATHY MCMORRIS

                               Chairwoman

     Task Force on Improving the National Environmental Policy Act

                         Committee on Resources

Enclosures
                                 ______
                                 
    Mr. Renzi. It is the policy of the Resources Committee to 
swear in our witnesses, so I ask that you please stand and 
raise your right hand. Do you solemnly swear or affirm under 
the penalty of perjury, that the responses given and the 
statements made will be the whole truth and nothing but the 
truth.
    [Witnesses sworn.]
    Mr. Renzi. Let the record reflect that the witnesses 
answered in the affirmative. Please be seated. Ladies and 
gentlemen, before we get started, I want to point out to you 
that there are lights here. Each witness has five minutes, and 
when the light turns yellow, that brings you down to a one-
minute warning. When the light turns red, I ask you to please 
wrap up so we can get through everybody's presentation and 
testimony, and then we will begin with a round--several rounds 
possibly of questions.
    And, again, Robert Lynch, thank you so much for coming up. 
You may begin.

            STATEMENT OF ROBERT S. LYNCH, ATTORNEY, 
                        PHOENIX, ARIZONA

    Mr. Lynch. Good morning, Mr. Renzi and Members of the Task 
Force. I am Bob Lynch. I'm an Attorney from Phoenix.
    It is a pleasure to testify before you on this important 
program, and I thank you for the opportunity. I would ask that 
my written testimony be submitted for the record. I will not 
attempt to read it. Instead, I would like to give you a short 
summary of my background with NEPA, outline some misconceptions 
or perhaps disturbing trends, and point out some examples in 
the Southwest that support the suggestions I have made in my 
written testimony.
    My involvement with NEPA started shortly after President 
Nixon signed the bill on January 1, 1970. I was at the Justice 
Department, and by February in the Ninth Circuit with the first 
case to reach the appellate level. It involved a Corps of 
Engineers flood control project in the Safford Valley in 
Arizona along the Gila River. Ultimately, the delay NEPA 
created in going forward with this project caused it not to be 
built. I also handled a number of other NEPA cases and wrote my 
L.L.M. Thesis on NEPA before returning to Arizona in 1972. I 
came back to Arizona to work on the EIS's for the Central 
Arizona Project.
    In many respects, not much has changed since 1972. Delay is 
still a major factor of NEPA implementation. Costs are still 
escalating. Cost accountability is still nonexistent. And 
projects and permit applications still get piecemealed by 
environmental laws just as I experienced with the Trans-Alaskan 
Pipeline in the early 1970s.
    Some of the changes that are occurring aren't very good. 
Various reports are suggesting that an EIS is a good decision 
document. It is not. NEPA is an advisory law, not a decision 
tree. An EIS is a study, not an agency program. Public 
involvement is good, but decisionmaking is not group therapy. 
For better or worse, we have a top-down, command and control 
executive branch.
    Adaptive Management may be a good way to deal with 
information gaps, but its explosive growth as a NEPA post-EIS 
management tool is scary. But I shouldn't be surprised. It's 
like throwing a lifeline to every biologist in the country.
    It can create a perpetual feeding trough for agency budgets 
Government-wide. All the more reason for Congress to get a 
handle on NEPA costs.
    And the Federal agencies need to play by the same rules we 
do. It is fine for the Bureau of Reclamation to do an EA for 
buying 700 acres on the Gila River for the Southwestern Willow 
Flycatcher, but the Fish and Wildlife Service wants to do the 
same, that is only an EA for its designation of 376,095 acres 
of Flycatcher critical habitat. That's almost 588 square miles. 
That's more than half the State of Rhode Island. The proposed 
designation include 1,556 miles of rivers and streams in six 
states. By contrast, the Colorado River is only around 1,120 
miles long.
    Congress also needs to take a hard look at the breadth of 
NEPA's application. For instance, just recently two 
environmental groups sued HUD, the VA and the SBA alleging that 
their mortgage insurance, loan guarantee and financial 
assistance programs applied around Fort Huachuca and Sierra 
Vista are causing impacts in violation of NEPA reporting 
requirements. Growth has impacts, everywhere, on everything. If 
the Plaintiffs' theory is correct, where will it end?
    Isn't it curious that someone with purely economic 
interests has no standing to sue under NEPA, like the 
recipients of the HUD, VA or SBA assistance, but these 
Plaintiffs do.
    Finally, NEPA needs to recognize when its necessary 
timeframes just don't fit. Biology won't wait for bureaucracy. 
If there is a disaster that qualifies for Stafford Act 
assistance, NEPA Shouldn't stand in the way. If a national 
disaster requires intervention, NEPA should cooperate. We lost 
nearly half a million acres of forest in Arizona in the Rodeo-
Chediski fire and over a million acres to the bark beetle. 
Nature's vegetation management program isn't scientific or 
managed. Our response needs to be both, and swift.
    The Healthy Forests Act attempts to respond to this 
particular problem, but the jury is still out on whether it 
will. NEPA needs to respond to true emergencies also and in 
ways that are far more effective than CEQ's terse regulation on 
the subject.
    Thank you for the opportunity to appear here and share my 
thoughts on NEPA. I would be happy to try to answer any 
questions you might have.
    Mr. Renzi. Thank you very much for your testifying.
    [The prepared statement of Mr. Lynch follows:]

            Statement of Robert S. Lynch, Attorney at Law, 
                      Robert S. Lynch & Associates

    Thank you for the opportunity to appear before the Task Force and 
share my thoughts on ways that the National Environmental Policy Act 
(NEPA) and its administration might be improved.
    You already have received a number of suggestions and I know you 
will receive more today and in later field hearings on changing various 
mechanisms and concepts that are part of compliance with the National 
Environmental Policy Act. I will attempt to address only a few of these 
here.
    This current inquiry into NEPA provisions and practices is not 
without precedent. Indeed, Congress has a long history of concerning 
itself with issues that have arisen because of NEPA. As early as 1972, 
Congress reacted to the impacts on the power industry by authorizing 
the issuance of temporary operating licenses to nuclear power 
electrical generating plants in certain power-short areas. 1 
A year later, Congress declared that the environmental impact statement 
for the Trans-Alaska Pipeline was sufficient not only for the Bureau of 
Land Management permit for which it had been written, but the fifteen 
or so other permits that were necessary in order that the project be 
constructed. In the same provision, Congress also severely limited the 
judicial review opportunities. 2
---------------------------------------------------------------------------
    \1\ Act of June 2, 1972, Pub.L. 92-307, 86 Stat. 191, 42 U.S.C. 
Sec. 2242.
    \2\ Trans-Alaska Pipeline Authorization Act, Sec. 202(D), Pub.L. 
93-153, 87 Stat. 576, 43 U.S.C. Sec. 1652(d).
---------------------------------------------------------------------------
    More recently, Congress has also shaped NEPA compliance with regard 
to specific programs. For instance, the Century of Aviation 
Reauthorization Act, Pub.L. 108-176, December 12, 2003, provided the 
Secretary of Transportation with the opportunity to specify the time 
period for completing environmental reviews. 3 The Federal 
Aviation Agency is designated lead agency for environmental review 
processes, given authority to designate scope and content of 
environmental impact statements, and these decisions are to be given 
substantial deference by other federal and state agencies. 4 
The Secretary of Transportation is also authorized to designate 
reasonable alternatives for airport capacity enhancement projects and 
other agencies are limited to those alternatives designated by the 
Secretary. 5 Clearly Congress was concerned that fights over 
the scope of a proposal and therefore its reasonable alternatives, the 
amount of time necessary to complete the process, and the possible 
fight among agencies over which one should be lead agency, depending on 
the nature of the project, were not in the best interests of moving 
this program forward.
---------------------------------------------------------------------------
    \3\ 49 U.S.C. Sec. 47171(a).
    \4\ 49 U.S.C. Sec. 47171(h).
    \5\ 49 U.S.C. Sec. 47171(k).
---------------------------------------------------------------------------
    Likewise, Congress has reacted to the emergency in our national 
forests caused by extensive wildfires and disease by passing the 
Healthy Forests Restoration Act of 2003. 6 In this act, 
Congress did a number of things to restrict the impact of NEPA on 
forest restoration activities. Federal agency involvement in developing 
community wildfire protection plans or recommendations about them are 
not federal agency action under NEPA. 7 In considering 
hazardous fuel reduction projects, the number of alternatives that have 
to be considered are limited. 8 Land treatment and research 
related to land treatment of less than one thousand acres is a 
categorical exclusion. 9 And there are a number of other 
restrictions as well. All of these restrictions react to what has been 
and continues to be a major feature of the National Environmental 
Policy Act--- delay. So it is perfectly appropriate to enlarge the 
focus to consider the Act itself and ways it can be modernized so it is 
seen as less an obstructive device and more a positive contribution to 
decision-making.
---------------------------------------------------------------------------
    \6\ Pub.L. 108-148, 16 U.S.C. Sec. 6501, et seq.
    \7\ 16 U.S.C. Sec. 6513.
    \8\ 16 U.S.C. Sec. 6514.
    \9\ 16 U.S.C. Sec. 6554.
---------------------------------------------------------------------------
CAN WE SPEED UP NEPA COMPLIANCE?
    Delay has been a major byproduct of NEPA since it was signed into 
law. 10 Initially, delays were attributed to agency 
recalcitrance in implementing NEPA for projects that have already been 
authorized. 11 As agencies shifted from denial or avoidance 
to compliance, delays were also encountered as agencies reacted to and 
worked with the Interim Guidelines for compliance with NEPA issued by 
the Council on Environmental Quality, which were followed by Final 
Guidelines and then in turn New Final Guidelines, all in the space of 
two and a half years. 12 Delay was such an overarching 
problem that when the CEQ Guidelines morphed into regulations in 1978, 
a specific regulation addressed ways agencies should reduce delays. 
13 That apparently didn't do the trick. By 1981, when CEQ 
came out with its memorandum ``40 Most Asked Questions Concerning CEQ's 
NEPA Regulations'', it inserted specific suggested timeframes. 
14 For an EIS, CEQ suggested the process should take no more 
than a year. For an Environmental Assessment leading to a Finding of No 
Significant Impact, no more than 3 months. Obviously, the suggestions 
didn't work. Congress has mandated timeframes for many environmental 
laws. Perhaps it is time to take the CEQ suggestion found in the 1981 
Federal Register notice and give it some teeth. There will obviously be 
situations where the timeframes suggested by CEQ cannot be met, but 
those should be the exception and not the rule and someone should be in 
charge of deciding whether the agency is dragging its feet, fumbling 
the ball, or actually needs more time.
---------------------------------------------------------------------------
    \10\ Robert S. Lynch, Complying With NEPA: The Tortuous Path to an 
Adequate Environmental Impact Statement, 14 Ariz. L. Rev. 717 (1972).
    \11\ Id., pp. 719-725.
    \12\ Robert S. Lynch, The 1973 CEQ Guidelines: Cautious Updating of 
the Environmental Impact Statement Process, 11 Cal. West. L.R. 297, et 
seq. (1975).
    \13\ 40 C.F.R. Sec. 1500.5 (1978).
    \14\ Response no. 35, 46 Fed.Reg. 18026, et seq. (1981).
---------------------------------------------------------------------------
WHO IS (SHOULD BE) IN CHARGE?
    Figuring out who would screen agency compliance for timeframes is 
an interesting subject. CEQ issued its Guidelines only after being 
spurred to do so by Executive Order. 15 A later Executive 
Order ``bootstrapped'' Presidential authority into granting CEQ 
``regulatory authority''. 16 Nevertheless, the Supreme Court 
was not convinced that CEQ was the final word on this subject. 
17 Some appellate courts have since established the concept 
that CEQ regulations are entitled to great deference but most writers 
acknowledge that CEQ has no authority over agency regulations. 
18 Indeed, a district court decision just last month 
confirmed that, effectively, no one is in charge. The court said that 
it didn't owe any deference to the Bureau of Land Management's 
interpretation of NEPA or the CEQ regulations ``because NEPA is 
addressed to all federal agencies and Congress did not entrust 
administration to the [BLM] alone.'' 19 Certainly Section 
309 of the Clean Air Act doesn't put the Environmental Protection 
Agency in charge, even though it gives that agency a commenting role on 
the environmental impact statements of others. 20 Since EPA 
still has NEPA responsibilities for some of its activities, in spite of 
exemptions granted in the Clean Air Act and the Clean Water Act, EPA is 
hardly the appropriate control mechanism for the environmental impact 
statement process. The original intent of Section 309 was to give other 
federal agencies access to EPA's environmental expertise. 21 
I doubt you would get general concurrence among federal agencies, let 
alone non-government applicants, that that is currently the way Section 
309 works. It may be that CEQ is the best ``keeper of the keys'' on 
this issue. If that is the judgment of Congress, it will have to give 
that role specifically to CEQ. CEQ certainly does not have anything 
approaching that authority now.
---------------------------------------------------------------------------
    \15\ Robert S. Lynch, Complying With NEPA: The Tortuous Path to an 
Adequate Environmental Impact Statement, supra.
    \16\ Executive Order No. 11,990, 42 Fed.Reg. 26967 (1977).
    \17\ Andrus v. Sierra Club, 422 U.S. 347, 358 (1979).
    \18\ Mandelker, NEPA Law and Litigation (2nd Edition 2004), pp. 2-
19 to 2-21.
    \19\ Hammond v. Norton, 2005 W.L. 1125775 (D.D.C., May 13, 2005), 
citing Grand Canyon Trust v. Federal Aviation Admin., 290 F.3d 339, 342 
(D.C. Cir. 2002).
    \20\ 42 U.S.C. Sec. 7609.
    \21\ S. Rep. No. 1196, 91st Cong., 2d Sess. 43 (1970).
---------------------------------------------------------------------------
HOW MUCH SHOULD AN EIS COST?
    In all of the reading I have done recently and over the years, I 
have never found anyone who thought to pose this question, let alone 
answer it. Indeed, there is almost nothing written about NEPA costs and 
that which is written is merely reported as if those costs were a fait 
accompli. I don't think anyone would argue that costs of complying with 
NEPA have escalated over the years. The reason for this lies in changes 
to the task. Originally, NEPA compliance involved getting science 
``off-the-shelf'' and compiling it. It was then used to analyze the 
proposed federal action and alternatives and the resulting report was 
given to the decision maker. However, that relatively simple exercise 
did not last. In 1978, the Court of Appeals for the District of 
Columbia suggested that there was a cost of uncertainty concerning 
scientific information and possible future outcomes that need to be 
weighed in an environmental impact statement. 22 Then in 
1986, citing that decision, CEQ revamped a regulation and established 
the concept that an agency must disclose that it doesn't have total 
information about the environmental impacts it is assessing and 
identify the area of incomplete information. Moreover, where such 
``incomplete or unavailable information'' is disclosed, and the cost of 
filling the information gap is ``not exorbitant'', the agencies were 
(are) directed to get the information. 23 So, since then, 
the agencies are faced not only with acquiring off-the-shelf science 
but going out and producing science in order to write an environmental 
impact statement. Naturally costs have escalated.
---------------------------------------------------------------------------
    \22\ Alaska v. Andrus, 580 F.2d 465, 473 (D.C. Cir. 1978).
    \23\ 40 C.F.R. Sec. 1502.22 (May 27, 1986).
---------------------------------------------------------------------------
    In the recently completed NEPA Task Force Report, the results of 
the Rocky Mountain West roundtable include a reference to a ``long-time 
agency employee'' extolling the virtues of a ten-year programmatic 
environmental impact statement that cost $20 million. More to the 
point, Chapter 6 of the report contains some interesting numbers. The 
report states that small environmental assessments typically cost 
between $5,000 and $20,000. Large environmental assessments, usually 
resulting in mitigated FONSI's, cost between $50,000 and $200,000. And 
environmental impact statements cost between $250,000 and $2 million. 
24 The report also notes that EIS's take between a year and 
six years to complete while large EA's take nine to eighteen months. 
The report does not explain the origin of these numbers, whether they 
are only direct costs incurred by the federal agencies, or include 
direct costs to others, indirect costs, etc.
---------------------------------------------------------------------------
    \24\ The NEPA Task Force Report to the Council on Environmental 
Quality, Modernizing NEPA Implementation (Sept. 2003).
---------------------------------------------------------------------------
    From my own experience, these numbers seem low. The Glen Canyon 
Environmental Studies, briefly mentioned in a 1997 CEQ report, 
demonstrate my point. 25 Since I have been personally 
involved in those studies since their inception, I can report to you 
that the Environmental Impact Statement for the Glen Canyon Dam 
Operating Criteria for daily power operations cost in excess of $100 
million. These are not my figures. These are the Bureau of 
Reclamation's figures reported in a Senate Energy Committee hearing 
record. 26 A byproduct of NEPA and other environmental laws 
is reflected in the General Account Office report on ``environmental 
indicators'' that came out last fall. 27 In that report, GAO 
included a table that shows that federal agencies spent over $4 billion 
collecting statistical information on major environmental energy and 
natural resource statistical programs in FY 2002 (GAO-05-52, p. 102). 
While this is down from almost $8 billion in 2000, it is still a 
staggering amount of money, even by Washington, D.C. terms.
---------------------------------------------------------------------------
    \25\ The National Environmental Policy Act, a Study on Its 
Effectiveness After Twenty-Five Years, Council on Environmental 
Quality, Executive Office of the President (Jan. 1997).
    \26\ Hearing before the Subcommittee on Investigations, Senate 
Committee on Energy and Natural Resources concerning Application of the 
National Environmental Policy Act, June 7, 1995 (S.Hrg. 104-81).
    \27\ Environmental Indicators, Better Coordination is Needed to 
Develop Environmental Indicator Sets That Inform Decisions, General 
Accounting Office, Report No. GAO-05-52 (Nov. 2004).
---------------------------------------------------------------------------
    What can we do to reduce these costs? One of the things Congress 
could do is remove the requirement to fill in the information gaps as 
currently stated in the CEQ regulations. That construct is no longer 
viable. We now have the new world of adaptive management. It is the 
mantra of all of these emerging programs, whether under NEPA or other 
environmental statutes. The entire concept of adaptive management is 
built around the premise that you don't have all the answers. If that 
is true, then off-the-shelf science should be good enough for an 
environmental impact statement if it's going to be followed by an 
adaptive management program. Moreover, NEPA recognizes that later 
information may require a supplemental environmental impact statement. 
In other words, the basic design of the program from the outset was 
that agencies would assess the information they had and, if necessary, 
supplement the process at a later time when more information became 
available. It is true that an agency doesn't have to supplement an EIS 
or an EA ``every time new information comes to light''. 28 
However, there is no reason why the combination of supplemental 
environmental impact statements and adaptive management aren't an 
adequate response to new information, allowing agencies to use what 
existing information they have at their disposal or can get from other 
sources, analyze that information and report.
---------------------------------------------------------------------------
    \28\ Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 373 
(1989), cited in Wyoming v. United States Department of the Interior, 
360 F.Supp. 2d 1214 (D. Wyo. March 18, 2005).
---------------------------------------------------------------------------
    Above all, someone should ask the question: How much should an EIS 
cost? And someone should be obligated to respond. Perhaps Congress 
should consider revamping and reenergizing Section 201 of NEPA and 
charging CEQ with the obligation of assessing NEPA costs and bringing 
recommendations to Congress for some cost ceiling policies. It wouldn't 
be the first time. Congress has previously set spending limits for data 
recovery under the National Historic Preservation Act 29 and 
specifically as to at least one project of which I am aware. 
30 If we have entered the brave new world of adaptive 
management and therefore conceded that environmental analyses are more 
or less automatically incomplete when made, then there doesn't seem to 
be any particular logical reason why agencies couldn't use information 
off the shelf for the environmental analysis and use the adaptive 
management process to fill in the gaps later. Maybe this would not only 
cut costs but time. In the meantime, the costs incurred under NEPA need 
some serious analysis, both as to the direct costs to the federal 
government and the costs incurred by the entities and consumers that 
are impacted by federal agency activity under NEPA.
---------------------------------------------------------------------------
    \29\ 16 U.S.C. Sec. 469c.
    \30\ Act of July 2, 1980, Pub.L. 96-301, 94 Stat. 832.
---------------------------------------------------------------------------
WHO GETS TO PLAY?
    NEPA provides a mechanism for involvement of federal agencies by 
having them designated as cooperating agencies. However, in many 
instances state and local public officials are left out of the process 
except during public comment sessions if an environmental impact 
statement is to be prepared. CEQ recognized this problem in 1999 and 
issued a memorandum ``urging'' agencies to more actively solicit the 
participation of state, tribal, and local agencies as ``cooperating 
agencies''. It must be the general political wisdom that the agencies 
hadn't been doing this and still aren't because Congress has seen the 
introduction of at least three bills in the Senate and two in the House 
of Representatives addressing this very problem. 31 One 
other problem is in the phraseology. ``Local agencies'' is a term of 
art that normally means cities, towns, and counties. Thus, it excludes 
a large number of political subdivisions that provide vital services to 
the public but are generally ignored in the planning for NEPA screening 
of a proposed federal action. Perhaps if the involvement included 
``political subdivisions'' as a broader category, problems with 
proposed actions might be identified earlier with less local impact. 
Certainly, the cooperating agencies issue will not go away and the 1999 
nudge from CEQ doesn't show any demonstrable results.
---------------------------------------------------------------------------
    \31\ S. 1176, 105th Cong. 1st Sess. (Senator Thomas); S. 352, 106th 
Cong. 1st Sess. (Senator Thomas); S. 301, 107th Cong. 1st Sess. 
(Senator Thomas); H.R. 2029, 106th Cong. 1st Sess. (Rep. Radanovich); 
H.R. 1014, 108th Cong. 2nd Sess.--concerning ``gateway communities'' 
(Rep. Pombo).
---------------------------------------------------------------------------
DEFENDING THE END PRODUCT
    Whether it's $20,000 to $200,000 or more for an environmental 
assessment or hundreds of thousands or millions for an environmental 
impact statement, often all you have purchased is a lawsuit. The 
attacks often zero in on the agency concept of the purpose and need for 
the project which, in turn, weighs heavily on the determination of 
``reasonable alternatives'' to be considered by the agency in its 
environmental analysis. But there ought to be limits. The Healthy 
Forests Restoration Act is a model for improvements that need to be 
made to NEPA as a whole. Reasonable alternatives ought to be those 
defined by the agency or brought, with information, to the public 
process through comments. A person or entity ought not to be able to 
sandbag the process and, once you have spent all the money, come in and 
collaterally attack you because of some additional alternative you 
didn't include. Moreover, I see no particular reason why the mechanism 
of a warning letter, like is required in the Endangered Species Act, 
shouldn't be employed as well. If something has been overlooked, the 
agency ought to be put on notice that that has happened and it ought to 
be put on that notice before it issues its record of decision. It is of 
course true that a draft environmental impact statement is not 
judicially reviewable. 32 But the process of developing a 
draft environmental impact statement and taking it to the public is 
supposed to inform the agency as well as the public. Interested parties 
ought to have an obligation to come forward and express their concerns 
during the public process in order to later complain that the process 
contained some fatal flaw. Here again, the Healthy Forests Restoration 
Act presents us a good model to follow. There is no question but that 
NEPA interpretation and NEPA administration have been driven largely by 
court decisions over the last 35 years. That is partly due to the fact 
that no one is in charge. In a government of top down command and 
control, this law and this program stand out because the Executive 
Branch has neither mechanism. Providing more certainty of 
administration and control and, perhaps, more definition of 
responsibilities, might not lessen the number of lawsuits filed but it 
certainly ought to change the dialogue. Otherwise, NEPA 
responsibilities will continue to evolve on a case by case basis, 
creating even more time problems and continuing to escalate costs.
---------------------------------------------------------------------------
    \32\ Friends of Potter Marsh v. Peters, 2005 W.L. 1283664 (D. AK, 
May 27, 2005).
---------------------------------------------------------------------------
    Thank you for the opportunity to present my thoughts on this 
important inquiry.Robert S. Lynch & Associates
                                 ______
                                 
    [The response to questions submitted for the record by Mr. 
Lynch follows:]

                      Robert S. Lynch & Associates

                            Attorneys at Law

                            340 E. Palm Lane

                               Suite 140

                      Phoenix, Arizona 85004-4603

                         Office: (602) 254-5908

                       Facsimile: (602) 257-9542

                             July 12, 2005

Hon. Cathy McMorris, Chairwoman
Task Force on Improving the National Environmental Policy Act
Committee on Resources
1320 Longworth House Office Building
Washington, D.C. 20515

Re:  Responses to further questions from the Task Force following my 
testimony on Saturday, June 18, 2005

Dear Chairwoman McMorris:

    It is a pleasure to respond to your request. With your letter of 
June 23, 2005, which I unfortunately did not receive until July 1, 
2005, you attached five questions. I will repeat the questions below 
and provide you my answers. Hopefully this will assist the Task Force 
in its important mission.

1.  In your remarks you state that the 1981 CEQ memo had specific 
        timelines for preparing NEPA documents. You know that the CEQ 
        regulations also contain page limits for NEPA documents. Why is 
        it that the agencies choose not to follow these guidelines?
    Answer: The question actually answers itself. Neither the 1981 CEQ 
memo nor the relevant provisions of the CEQ regulations are mandates 
for agency behavior. See: Response #35, 40 Most Asked Questions 
Concerning CEQ's NEPA Regulations, 42 Fed.Reg. 26967 (1977); 40 C.F.R. 
Sec. Sec. 1500.4(a), 1501.7(b)(1) and 1502.7.
    Unless and until specific timelines for the conduct of NEPA 
processes and specific page limits for the EIS itself are adopted by 
statute or regulation, the federal agencies will continue their current 
practices. The kinds of limitations that could be imposed are similar 
to those that lawyers like myself live with in appellate practice all 
the time. At the federal level, there are mandated time limits. Federal 
Rules of Appellate Procedure, Rule 27(c). That same concept is carried 
over in most state rules, including Arizona's. Arizona Rules of Civil 
Appellate Procedure, Rule 6(b). Likewise, appellate briefs have page 
limits. Federal Rules of Appellate Procedure, Rule 28(g); Arizona Rules 
of Civil Appellate Procedure, Rule 14(b). Typical of these limitations, 
an attorney can always ask the court to exceed them. Were they in place 
in similar fashion for NEPA, some entity, possibly CEQ, could have the 
same role in deciding on requests to exceed timeframes or page limits. 
Many other environmental laws, such as the Clean Water Act, the Clean 
Air Act and the Endangered Species Act, have finite time limits set by 
Congress. NEPA does not. There are certainly enough models in other 
laws and regulations to find one that would appropriately fit NEPA 
while ensuring that the public is properly informed of the proposal and 
the federal decision-maker is properly informed prior to the decision 
involved.

2.  You state that no one entity is clearly in charge of NEPA and 
        suggest that CEQ would be the ones that would have to be. How 
        would that solve some of the problems we have heard about 
        (delays and such)?
    Answer: While I said that in my testimony, that is, that no one is 
clearly in charge of NEPA, that is not just my conclusion but the 
conclusion of the courts and most of the scholars who write about NEPA. 
I merely voiced there what I and others actively involved with NEPA 
have concluded some time ago. Typically, the federal government is a 
top-down command and control structure. NEPA is unique in that it 
impacts all agencies but is not a program administered by any one of 
them.
    CEQ might play that role but I doubt it could do so effectively as 
it is currently constituted. CEQ is an office within the Executive 
Office of the President. It is not an agency. It has no management 
function. It does not act as a filter of adequacy for NEPA actions 
taken by action agencies. Indeed, that filtration process is left to 
the courts. Fashioning a program manager for NEPA might not only save 
time, trees and dollars, it might make NEPA more effective by providing 
a coordination point for the scientific analysis of multiple agencies 
that typically have no mechanism for interaction or interdepartmental 
study sharing. However, CEQ as currently constituted would have a tough 
time filling that role.

3.  With respect to costs, I agree that something needs to be done. How 
        would you respond to the argument that the costs to prepare the 
        NEPA are irrelevant if a project proponent stands to make 
        several times that cost in the sale of the commodity?
    Answer: The costs associated with preparation of NEPA documentation 
should be relevant to the information necessary to be gathered so that 
the decision-maker is properly informed before making the decision. It 
may very well be that the task at hand, regardless of how lucrative to 
an applicant for federal permission, can be analyzed based on existing 
documents prepared for similar decisions because of the repetitive 
nature of the process. The proper test is whether the costs are 
necessary to properly inform the federal decision-maker, not what the 
economic consequences of the decision may or may not be.
    Here again, there is an opportunity to adjust NEPA practice back to 
its original format, assessing science that exists at the time the 
decision must be made. Supplemental environmental analysis has always 
been available under NEPA and, now that Adaptive Management has become 
the darling of the process, there really is no excuse for having to 
burden either a federal project or a federal permit program with the 
requirement to create science. Since we have admitted that we don't 
know everything, and installed processes to consider later acquired 
information, a proper NEPA analysis should be doable based on ``off the 
shelf'' assets.
    Additionally, NEPA costs should be restricted by the functional 
equivalent of the rational basis test announced in the regulatory 
taking decision of the U.S. Supreme Court in Dolan v. City of Tigard, 
512 U.S. 374 (1994). The example that comes to mind is from the 
testimony of one of the witnesses at our hearing who retold a story 
about a proposed timber salvage contract in New Mexico for 
approximately $58,000 worth of timber and who was informed that the 
NEPA process would cost $13 million. Ludicrous results like that cause 
people to avoid, rather than embrace, environmental laws and run 
counter to the very purposes for which those laws were enacted.

4.  If ``political subdivisions'' were allowed to play, what is their 
        value to the NEPA process?
    Answer: The value of involving political subdivisions in any given 
NEPA process as cooperating agencies is directly related to their 
involvement in or impact incurred from proposed federal action 
affecting projects and programs under their management and supervision. 
For instance, the Fish and Wildlife Service proposed critical habitat 
for the cactus ferruginous pygmy owl in southern Arizona, which action, 
among other things, halted the construction of a school in the Tucson 
area. Surely the school district would have an interest in that process 
and the NEPA screening that accompanies a critical habitat designation. 
Additionally, many cities and towns, irrigation districts, electrical 
districts, public utility districts and the like provide utility 
services to consumers. Decisions with regard to the management, 
operation, control or even existence of hydropower facilities that 
supply power and/or water to these political subdivisions and their 
consumers clearly affect their interests and should qualify the 
affected political subdivision for cooperating agency status in the 
NEPA process. Moreover, the local political subdivisions most likely 
will have a better understanding of conditions ``on the ground'' than 
federal agency personnel who may be, at least in the West, operating at 
some distance from the location affected by the proposed federal 
action. The political subdivisions can provide invaluable insight and 
analysis that might otherwise go unconsidered.

5.  You suggest that there should be a notice of intent to sue like 
        there is in ESA. Often times, groups use the ESA's 60 notice as 
        a chance to do a press release. Would the NEPA notice you 
        recommend prevent lawsuits or just tell us all that more 
        lawsuits are coming?
    Answer: The notice of intent to sue is just one of several 
suggestions I made concerning ways to confine litigation to serious 
issues and not procedural objections that do nothing more than delay 
substantive considerations. The purpose of the ESA notice of intent is 
to allow the relevant federal official an opportunity to assess the 
complaint and decide whether to take action in response to that 
complaint. There are even occasions under the Endangered Species Act 
where that has headed off litigation.
    Under NEPA, which is totally a process program, the questions are 
more elemental and the opportunity to cure a defect is even more real. 
If the issue is whether or not to subject the proposed federal action 
to NEPA screening, or to do so at the ``intermediate level'' 
(environmental assessment and finding of no significant impact), then 
the decision-maker would clearly have an opportunity to judge whether a 
full environmental impact statement should be pursued if given this 
type of notice. If the issue is whether or not there is a defect in the 
document created for the decision-maker, the agency has an opportunity 
to decide whether it should supplement its information before the 
decision-maker uses it in the decision-making process. In other words, 
the opportunity to cure a defect, should the federal agency agree that 
one exists, is even more real under NEPA than it is under the ESA.
    But a notice of intent requirement, by itself, will not have enough 
of a streamlining effect. It must be accompanied by a requirement to 
participate in the process at some level and bring concerns and 
objections to the attention of the federal agency in that process. In 
other words, the development of documentation under NEPA should be 
considered the creation of an administrative record and review of the 
decision should be confined to it except under the most extraordinary 
circumstances. Those who choose to sue should have to prove to the 
court that they participated in the administrative process, brought 
their concerns to the agency in question and received a legally 
unsatisfactory response. This is what I call the ``anti-sandbagging'' 
rule. Too often now, people sit on their hands and watch the process go 
by and then attack. That is not good government, nor is it what was 
intended by the authors of NEPA.
    Thank you for the opportunity to respond to your additional 
questions. Should there be anything further about which I can be of 
some assistance, please do not hesitate to contact me.

                               Sincerely,

                            Robert S. Lynch

                                 ______
                                 
    Mr. Renzi. Mr. Matson.

  STATEMENT OF JIM MATSON, AMERICAN FOREST RESOURCE COUNCIL, 
                          KANAB, UTAH

    Mr. Matson. Thank you and good morning, Chairman Renzi and 
Members of the Task Force. My name is Jim Matson. I am the Four 
Corners Representative for the American Forest Resource Council 
located in Kanab, Utah. I appreciate the opportunity to testify 
before you today and provide my comments on the very important 
issue of streamlining and improving the National Environmental 
Policy Act, NEPA. Day after day as we debate, NEPA problems are 
compounding at a staggering pace. If you'll forgive the 
metaphor, NEPA has evolved into a logjam of overwhelming scale 
and proportions. Allow me to remind everyone here that we are 
just a mere ``crown fire'' away from the edge of the 467,000-
acre Rodeo-Chediski wildfire of 2002, which without the grace 
of God would have leveled Lakeside, Pinetop and Show Low. 
Incredibly, NEPA has become the tool of choice of those who 
claim they want to protect forests, critical wildlife habitats 
and key watersheds, but in fact NEPA is actually causing forest 
watershed and habitats to deteriorate as a result of 
litigation, appeals and gridlock. Another unintended 
consequence is that NEPA has become an immovable barrier to 
protecting people and property in our national forests and 
other public lands in the Four Corners region.
    We cannot lose sight of what NEPA was when it was passed 
and signed into law. NEPA was intended to be a procedural 
process that provided for public disclosure of Federal 
decisionmaking that results in environmental, social and 
economic consequences. NEPA was not intended to predispose a 
specific decision. The public involvement aspect of the Act's 
regulations was intended to make sure that the Federal 
decisionmaker is fully informed of all the issues and potential 
consequences of the proposed Federal action. It was not 
intended to be a straw poll where special interests can stuff 
the ballot box for a specific decision. Unfortunately, the 
common sense of the original and straightforward law has been 
driven off course by weak and misguided regulations and 
thousands of convoluted Federal Court decisions.
    Whenever I'm asked about my profession prior to joining 
AFRC, I usually respond by saying, ``I'm a refugee of the 
goshawk and Mexican spotted owl wars.'' It is becoming more 
obvious that my response should be, ``I'm a refugee from the 
NEPA wars.'' From 1965 through 1995, I worked at an employee-
owned forest products company--Kaibab Industries based in 
Phoenix, Arizona. From 1980 until 1995, I was responsible for 
all forestry and harvesting activities that supported three 
sawmilling operations and 800 rural families in Payson and 
Fredonia, Arizona, and in Panguitch, Utah. In a typical year, 
Kaibab would harvest one million logs. Eighty percent of these 
were 12 inches and smaller in diameter, harvested from trees 
cut and removed from the understory treatments.
    Kaibab's story, unfortunately, isn't an isolated case.
    This same fate of total closures befell Duke City Lumber 
Company in Winslow, Arizona, and Albuquerque and Espanola, New 
Mexico; Precision Pine and Timber Company in Heber/Overgaard 
and Eager, Arizona; Stone Forest Industries in Flagstaff and 
Eager, Arizona, and Reserve, New Mexico. Stone Container 
Corporation, a predecessor to the Abitibi Paper Corporation in 
Snowflake, Arizona, was forced to abandon round wood fiber 
harvested from small ponderosa pine pulpwood trees because it 
wasn't available from the surrounding national forests. 
Interestingly, this is the same material being harvested in the 
new White Mountain Stewardship contract at a cost to taxpayers 
of over $400.00 per acre to the Treasury with a projected 
annual price tag of about $6 million. In prior times, the 
Snowflake paper mill paid up-front cash for all of the 
associated harvesting of the small diameter trees, plus a 
payment to the Federal Treasury for harvesting rights. All the 
Forest Service had to do was prepare and offer for sale an 
adequate amount of pulpwood to keep Stone Container in this 
important market and supply segment, and they were paying for 
it. And I have to say, what a loss.
    The mill closures in the Southwest during the mid 1990s to 
the present, are now coming back to haunt us.
    Interestingly, the prime beneficiary at that time was the 
Forest Service as it carried out its management missions.
    Over time, several misguided entities utilizing process-
driven appeals and litigation have exploited weaknesses found 
in NEPA and CEQ directives. This reality played a major role in 
the wholesale dismantling of key forest products industry 
infrastructure and a highly skilled workforce. All of this 
capacity, which took years to accumulate, was cavalierly 
discarded for what is now recognized as a muddled mess, which 
is further compounded by the recent levels of eye-popping 
drought and resulting forest health crisis.
    Without critical tools and infrastructure, public and 
private land managers have few options to employ in 
maintaining, rehabilitating and protecting their forests. Our 
first line of defense in combating the ravages of forest 
insects and disease is to have available loggers and 
manufacturing facilities that can utilize the dead and dying 
material to minimize needed treatment costs. Today in the Four 
Corners region, we lack essential infrastructure due to the 
recent history of NEPA malaise and associated litigation 
created by the courts and self-defeating agency imposed 
constraints.
    For example, following the Rodeo-Chediski fire, the White 
Mountain Apache Tribe in cooperation with the BIA completely 
salvaged and harvested their fire-killed and damaged trees on 
Reservation lands by the summer of 2003. The Forest Service on 
the other hand, under CEQ and NEPA imposed programs, failed to 
implement salvage and restoration remedies on the Apache-
Sitgreaves National Forest portions of the fire. There was a 
time in the not too distant past when the Forest Service 
exhibited this same capacity and unwillingness to put out a 
maximum effort in not wasting valuable forest resources and 
salvaging marketable forest products and to minimize site-
specific post-fire hazards.
    One need only to examine the Forest Service's Environmental 
Policy And Procedures Handbook--1909.15--to see that NEPA 
compliance procedures have evolved into a quagmire that will 
never satisfy the original intent of Congress for public 
disclosure of environmental impacts of Federal decisionmaking. 
The excessive time and money spent to make sure that every T is 
crossed and I dotted to satisfy agency and CEQ regulations does 
not make for better decisions or necessarily a better 
environment. It just delays important project implementation 
and creates opportunities for obstructionist litigation. The 
will to implement critical forest-saving treatments is the 
apparent casualty of the NEPA wars.
    We understand that the National Forest system needs more 
funding and people to meet NEPA standards before we can begin 
to treat the forest. When the NEPA analysis ``Paradox'' became 
apparent, 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 
next told the ``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 in NEPA, including modernizing this common sense 
law and its regulation, I have little hope that our land 
managers will be able to get back to managing and protecting 
forests, key watersheds, critical wildlife habitats, rural 
communities and people.
    We need common sense environmental protection measures that 
contribute to the quality of American life, which includes 
people, communities and the vast landscapes that we are 
fortunate enough to live in, work in and recreate in. Nowhere 
in the NEPA debate is anyone asking what are the environmental 
consequences of not treating and restoring our national 
forests. Every summer during the dry season, it comes every 
year, we see only smoke-filled vistas and polluted air to 
breath, wasted natural resources, damaged watersheds, and 
ruined wildlife habitats. These are real losses, not perceived 
ones, and the situation has become a major, but hidden 
calamity.
    Today, it would be uniquely appropriate to require regional 
programmatic NEPA analysis, listing in detail the very things 
that have to be considered if we are to leave healthy and 
functioning forest ecosystems for future generations. 
Unfortunately, by default we have opted for a no action posture 
by virtue of current NEPA policy. It's hard to imagine but 
painfully clear to me that at this moment, NEPA is actually 
killing the very forest and community values that we seek to 
protect and conserve.
    It should be the job of all Americans to protect and 
restore our forests, watersheds and wildlife habitats, and to 
take responsibility for protecting nearby local communities.
    To this end, allow me to offer the following 
recommendations for this Task Force's search for solutions to 
the current NEPA dilemma:
    1) Modernize the Act and its regulations to refocus its 
common sense goal of public disclosure for Federal project 
decisionmaking in order to set aside the procedural morass of 
unending analysis that NEPA processes have become in the last 
three decades.
    2) Reform NEPA to expedite salvage and rehabilitation 
projects that will rapidly restore areas ravaged by 
catastrophic events, such as wildfires and destructive insect 
infestations.
    3) Require Federal agencies to consider the environmental 
impact of NOT taking an action on any proposed project.
    4) Improving the NEPA framework, starting with categorical 
exclusion, CEs, to environmental impact statements, EIS. 
Reemphasize the purpose and utility of CEs. Environmental 
assessments, EAs, are now little more than de facto 
environmental impact statements, EIs. There needs to be a clear 
differentiation between EAs and EISs.
    5) Establish a set of criteria to define when supplemental 
NEPA documentation is required. Agencies are constantly faced 
with new or changes in information due to the fact that the 
NEPA process takes so long. It's virtually guaranteed that 
something will change between the start and completion of 
analysis process.
    6) Something has to be done about the cumulative impact 
analysis. Current CEQ regulations are ambiguous and lack clear 
limits. The CEQ regulations for implementing NEPA say the 
agencies must consider the ``incremental impact of the action 
when added to other past, present, and reasonably foreseeable 
future actions.''
    7) You should also provide guidance on the extent of 
analysis required for irreversible and irretrievable commitment 
of resources. This requirement has caused confusion and 
interpretation by the Courts, and agencies do not address this 
analysis requirement consistently.
    8) Finally, please give very serious consideration to 
setting standards for judicial review, which was noticeably 
absent in the Act. It is for this reason that the Courts over 
time have had unbridled latitude to interpret the Act as they 
saw fit, resulting in gross inconsistencies across the country. 
In addition, the lack of such standards has allowed the Courts 
to basically direct the land management agencies how to manage 
the public lands instead of focusing on whether or not the 
agency met the letter and intent of NEPA of disclosing 
environmental consequences.
    In closing my comments, while the economic impact of NEPA 
and the resulting impact on rural communities is truly tragic, 
I'm afraid that the damage wrought on our environment is more 
serious. The gridlock created and fostered by NEPA, is having a 
disastrous effect on forests, wildlife, watersheds, and 
communities. Without some rational and common sense changes to 
the implementation of NEPA, I'm afraid that the Rodeo-Chediski 
fire of 2002 is only a sign of things to come in many parts of 
the West.
    I applaud your willingness to review how NEPA is being 
implemented across the country and explore possible 
opportunities to update and modernize this important law.
    Thank you for the opportunity to testify and I would be 
happy to attempt to answer any questions that you might have. 
Thank you.
    Mr. Renzi. Mr. Matson, thank you very much. Well done.
    [The prepared statement of Mr. Matson follows:]

         Statement of Jim Matson, Four Corners Representative, 
                    American Forest Resource Council

    Good morning Task Force Chairwoman McMorris, and other members of 
the Task Force, my name is Jim Matson, I am the Four Corners 
Representative for American Forest Resource Council, (AFRC) located in 
Kanab, Utah. I appreciate the opportunity to testify before you today 
and provide my comments on the very important issue of streamlining and 
improving the National Environmental Policy Act (NEPA). Day after day 
as we debate, NEPA problems are compounding at a staggering pace. If 
you'll forgive the metaphor, NEPA has evolved into a logjam of 
overwhelming scale and proportions. Allow me to remind everyone here 
that we are just a mere ``crown fire'' away from the edge of the 
467,000 acre, Rodeo-Chediski wildfire of 2002, which without the grace 
of God would have leveled Lakeside, Pinetop and Show Low. Incredibly 
NEPA has become the tool of choice of those who claim they want to 
protect forests, critical wildlife habitats and key watersheds, but in 
fact NEPA is actually causing forest watersheds and habitats to 
deteriorate as a result litigation, appeals, and gridlock. Another 
unintended consequence is that NEPA has become an immoveable barrier to 
protecting people and property in our national forests and other public 
lands in the four corners region.
    We cannot lose sight of what NEPA was when it was passed and signed 
into law--as I remember NEPA was intended to be a procedural process 
that provided for public disclosure of federal decision making that 
results in environmental, social and economic consequences. NEPA was 
not intended to predispose a specific decision. The public involvement 
aspect of the Act's regulations was intended to make sure that the 
federal decision maker is fully informed of all the issues and 
potential consequences of the proposed federal action. It was not 
intended to be a straw poll where special interests can stuff the 
ballot box for a specific decision. Unfortunately, the common sense of 
the original and straightforward law has been driven off course by weak 
and misguided regulations and thousands of convoluted federal court 
decisions.
    Whenever I'm asked about my profession prior to joining AFRC, I 
usually respond by saying ``I'm a refugee of the goshawk and Mexican 
spotted owl wars!'' It is becoming more obvious that my response should 
be, ``I'm a refugee from the NEPA wars!'' From 1965 through 1995 I 
worked at an employee owned forest products company--Kaibab Industries, 
based in Phoenix, Arizona. From 1980 until 1995, I was responsible for 
all forestry and harvesting activities that supported three sawmilling 
operations and 800 rural families in Payson and Fredonia, Arizona and 
in Panguitch, Utah. In a typical year Kaibab would harvest 1 million 
logs--80% of these were 12 inches and smaller in diameter, harvested 
from trees cut and removed from the understory treatments. Kaibab's 
story unfortunately isn't an isolated case; this same fate of total 
closures befell Duke City Lumber Company in Winslow, Arizona and 
Albuquerque and Espanola, New Mexico; Precision Pine and Timber Company 
in Heber/Overgaard and Eager, Arizona, Stone Forest Industries in 
Flagstaff and Eager, Arizona and Reserve, New Mexico. Stone Container 
Corporation, a predecessor to the Abitibi Paper Corporation in 
Snowflake, Arizona was forced to abandon round wood fiber harvested 
from small ponderosa pine pulpwood trees because it wasn't available 
from the surrounding national forests. Interestingly this is the same 
material being harvested in the new White Mountain Stewardship contract 
at a cost to tax payers of over $400.00 per acre to the treasury with a 
projected annual price tag of about $6 million. In prior times the Snow 
Flake paper mill paid up front cash for all of the associated 
harvesting of the small diameter trees plus a payment to the federal 
treasury for harvesting rights. All the Forest Service had to do was 
prepare and offer for sale an adequate amount of pulpwood to keep Stone 
Container in this important market and supply segment, and they were 
paying for it. What a loss!
    The mill closures in the southwest during the mid 1990's, to the 
present are now coming back to haunt us. Interestingly the prime 
beneficiary at that time was the Forest Service as it carried out its 
management missions. Over time, several misguided entities utilizing 
process driven appeals and litigation have exploited weaknesses found 
in NEPA and CEQ directives. This reality played a major role in the 
wholesale dismantling of key forest products industry infrastructure 
and a highly skilled workforce. All of this capacity, which took years 
to accumulate, was cavalierly discarded for what is now recognized as a 
muddled mess, which is further compounded by the recent levels of eye 
popping drought and resulting forest health crisis.
    Without critical tools and infrastructure, public and private land 
managers have few options to employ in maintaining, rehabilitating, and 
protecting their forests. Our first line of defense in combating the 
ravages of forest insects and disease is to have available loggers and 
manufacturing facilities that can utilize the dead and dying material 
to minimize needed treatment costs. Today in the Four Corners Region, 
we lack essential infrastructure due to the recent history of NEPA 
malaise and associated litigation created by the courts and self-
defeating agency imposed constraints.
    For example, following the Rodeo-Chediski Fire, the White Mountain 
Apache Tribe in cooperation with the BIA completely salvaged and 
harvested their fire killed and damaged trees on reservation lands by 
the summer of 2003. The Forest Service on the other hand, under CEQ and 
NEPA imposed programs, failed to implement salvage and restoration 
remedies on the Apache-Sitgreaves National Forest portions of the fire. 
There was a time in the not too distant past when the Forest Service 
exhibited this same capacity and willingness to put out a maximum 
effort in not wasting valuable forest resources and salvaging 
marketable forest products and to minimize site-specific post fire 
hazards.
    One need only to examine the Forest Service's Environmental Policy 
And Procedures Handbook - 1909.15 to see that NEPA compliance 
procedures have evolved into a quagmire that will never satisfy the 
original intent of Congress for public disclosure of environmental 
impacts of federal decision making. The excessive time and money spent 
to make sure that every T is crossed and I dotted to satisfy agency and 
CEQ regulations does not make for better decisions or necessarily a 
better environment. It just delays important project implementation and 
creates opportunities for obstructionist litigation. The will to 
implement critical forest saving treatments is the apparent causality 
of the NEPA wars.
    We understand that the national forest system needs more funding 
and people to meet NEPA standards before we can begin to treat the 
forest. When the NEPA analysis ``Paradox'' became apparent 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 next 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 in NEPA, 
including modernizing this common sense law and its regulations, I have 
little hope that our land managers will be able to get back to managing 
and protecting forests, key watersheds, critical wildlife habitats, 
rural communities and people.
    We need common sense environmental protection measures that 
contribute to the quality of American life, which includes people, 
communities and the vast landscapes that we are fortunate enough to 
live in, work in and recreate in. Nowhere in the NEPA debate is anyone 
asking what are the environmental consequences of not treating and 
restoring our national forests? Every summer during the dry season, it 
comes every year, we see only smoke-filled vistas and polluted air to 
breath, wasted natural resources, damaged watersheds, and ruined 
wildlife habitats. These are real losses, not perceived ones and the 
situation has become a major, but hidden calamity.
    Today, it would be uniquely appropriate to require regional 
programmatic NEPA analysis, listing in detail the very things that have 
to be considered if we are to leave healthy and functioning forests 
ecosystems for future generations. Unfortunately, by default we have 
opted for a no action posture by virtue of current NEPA policy. It's 
hard to imagine but painfully clear to me that at this moment, NEPA is 
actually killing the very forest and community values that we seek to 
protect and conserve.
    It should be the job of all Americans to protect and restore our 
forests, watersheds and wildlife habitats and to take responsibility 
for protecting nearby local communities. To this end allow me to offer 
the following recommendations for this task force's search for 
solutions to the current NEPA dilemma:
    1.  Modernize the Act and its regulations to refocus its common 
sense goal of public disclosure for federal project decision making in 
order to set-a-side the procedural morass of unending analysis that 
NEPA processes have become in the last three decades
    2.  Reform NEPA to expedite salvage and rehabilitation projects 
that will rapidly restore areas ravaged by catastrophic events, such as 
wildfires and destructive insect infestations.
    3.  Require federal agencies to consider the environmental impact 
of NOT taking an action on any proposed project.
    4.  Improving the NEPA framework, starting with categorical 
exclusions (CEs) to environmental impact statement (EIS). Reemphasize 
the purpose and utility of CEs. Environmental assessments (EAs) are now 
little more than defacto environmental impact statements (EISs). There 
needs to be a clear differentiation between EA's and EIS's.
    5.  Establish a set of criteria to define when supplemental NEPA 
documentation is required. Agencies are constantly faced with new or 
changes in information due to the fact that the NEPA process takes so 
long, it's virtually guaranteed that something will change between the 
start and completion of analysis process.
    6.  Something has to be done about the cumulative impact analysis. 
Current CEQ regulations are ambiguous and lack clear limits. The CEQ 
regulations for implementing NEPA say the agencies must consider the 
``incremental impact of the action when added to other past, present, 
and reasonably foreseeable future actions.''
    7.  You should also provide guidance on the extent of analysis 
required for irreversible and irretrievable commitment of resources. 
This requirement has caused confusion and interpretation by the Courts 
and agencies do not address this analysis requirement consistently.
    8.  Finally, please give very serious consideration to setting 
standards for judicial review, which was noticeably absent in the Act. 
It is for this reason that the courts, over time, have had unbridled 
latitude to interpret the Act as they saw fit resulting in gross 
inconsistencies across the country. In addition, the lack of such 
standards has allowed the courts to basically direct the land 
management agencies how to manage the public lands instead of focusing 
on whether or not the agency met the letter and intent of NEPA of 
disclosing environmental consequences.
    In closing my comments, while the economic impact of NEPA and the 
resulting impact on rural communities is truly tragic, I'm afraid that 
the damage wrought on our environment is more serious. The gridlock--
created and fostered by NEPA--is having a disastrous effect on forests, 
wildlife, watersheds, and communities. Without some rational and common 
sense changes to the implementation of NEPA, I'm afraid that the Rodeo-
Chediski fire of 2002 is only a sign of things to come in many parts of 
the West. I applaud your willingness to review how NEPA is being 
implemented across the country and explore possible opportunities to 
update and modernize this important law.
    Thank you for the opportunity to testify and I would be happy to 
attempt to answer any questions that you might have.
                                 ______
                                 
    Mr. Renzi. Mr. Hutchinson.

         STATEMENT OF HOWARD HUTCHINSON, COALITION OF 
       ARIZONA/NEW MEXICO COUNTIES, GLENWOOD, NEW MEXICO

    Mr. Hutchinson. Mr. Chairman and Members of the NEPA Task 
Force, on behalf of the member counties of the Coalition of 
Arizona/New Mexico Counties, which I'll refer to as the 
Coalition, I wish to thank you for the opportunity to present 
testimony on the role of NEPA in the Southwestern States.
    The Coalition has focused on the inclusion of local 
government in impact analysis. In 1985, it became apparent that 
Federal Government decisions were having a profound effect on 
our environments, economies and social structures. Research 
into the Federal environmental laws found that many 
requirements existed requiring consultation, coordination and 
cooperation with local governments in Federal decisionmaking.
    Up until that point, Federal land and wildlife management 
agencies' decisions had minimal impacts on local affairs.
    This changed significantly with the listing in 1985, and 
designation of critical habitat in 1994, for the Spikedace and 
Loach minnows. No NEPA analysis was conducted on the proposed 
action and resulted in a legal challenge that was not concluded 
until February 1998.
    In 1990, a decision by the regional forester to issue 
interim guidelines for protection of the Mexican spotted owl 
sent the region's timber industry into a downward spiral to 
total collapse. A mere signature with no NEPA analysis ravaged 
the region's economy, slashed school and county revenues, and 
had devastating social consequences.
    Repeated attempts to have local government participation 
and meaningful input into the NEPA process have been met with 
extreme resistance by Federal agencies. This prompted the 
formation of the Coalition for the purposes of familiarizing 
Arizona Supervisors and New Mexico Commissioners in the Federal 
planning laws, put together the necessary resources to 
effectively participate, and litigate to obtain our rightful 
seat at the table.
    My written testimony only covers a few examples of the NEPA 
process that over the last two decades have produced decisions 
that are destroying the social structures and economies of 
rural Arizona and New Mexico with dubious benefits to the 
physical and biological environment.
    The NEPA process has only produced the appearance of 
participation of State, Tribal and Local Government in Federal 
agency decisionmaking. It is our experience that a decision to 
act is made, and a NEPA document is produced to justify the 
proposed action.
    This method is completely contrary to the concept of 
political accountability guaranteed by our Constitution. 
Nowhere in the process are elected representatives of the 
people given the ability to carry out their legal 
responsibilities. We are left with cumbersome, costly and time-
consuming administrative remedies that do little more than send 
a flawed analysis and decision right back to the very 
individuals that erred in the first place.
    Contemplating what might be suggested to fix the NEPA for 
this hearing was not easy. The NEPA is a simple law and 
laudable in its intentions. The law lays out an excellent 
process that allows a user to examine the potential impacts a 
decision may produce. The flaw comes in implementation and 
accountability.
    I have always been cautioned when dealing with Government 
to be careful what you ask for since you are likely to get it. 
What the Coalition has suggested on numerous occasions is to 
separate the parties doing the analysis from the parties making 
the decision. This does not solve the fatal flaw of political 
accountability in the decisionmaking, but that is not the 
subject of this hearing.
    Mr. Chairman, I again thank you on behalf of the Coalition 
for this opportunity to present testimony and am prepared to 
answer any questions you may have. Thank you.
    Mr. Renzi. Mr. Hutchinson, thank you, sir, very much. I 
look forward to some questions.
    [The prepared statement of Mr. Hutchinson follows:]

          Statement of Howard Hutchinson, Executive Director, 
  Coalition of Arizona/New Mexico Counties for Stable Economic Growth

Introduction
    On behalf of the member counties of the Coalition of Arizona/New 
Mexico Counties (Coalition), I wish to thank the Chair and members of 
the Task Force for the opportunity to present testimony on the role of 
NEPA in the Southwestern States.
    The Coalition is comprised of the Arizona Counties: Apache, 
Cochise, Gila, Graham, Greenlee and Navajo, and the New Mexico 
Counties: Catron, Chaves, Eddy, Harding, Hidalgo, Lincoln, Otero, Rio 
Arriba, Sierra, and Socorro, along with representation from the timber, 
farming, livestock, mining, small business, sportsman and outfitter 
industries. Our representation currently exceeds 592,923 in combined 
county populations.
    I have fifteen years' experience with the NEPA process. This 
includes attending and conducting training on the NEPA, preparation of 
comments on proposed federal actions, appeal of agency decisions and 
assisting in NEPA related litigation on behalf of the Coalition and its 
member counties.
    The Coalition has focused on the inclusion of local government in 
impact analysis. In 1985, it became apparent that federal government 
decisions were having a profound effect on our environments, economies 
and social structures. Research into the federal environmental laws 
found that many requirements existed requiring consultation, 
coordination and cooperation with local governments in federal decision 
making.
    Up until that point, federal land and wildlife management agencies' 
decisions had minimal impacts on local affairs. This changed 
significantly with the listing (1985) and designation of critical 
habitat (1994) for the Spikedace and Loach minnows. No NEPA analysis 
was conducted on the proposed action and resulted in a legal challenge 
that was not concluded until February, 1998.
    In 1990, a decision by the Regional Forester to issue interim 
guidelines for protection of the Mexican spotted owl sent the region's 
timber industry into a downward spiral to total collapse. A mere 
signature with no NEPA analysis ravaged the region's economy, slashed 
school and county revenues, and had devastating social consequences.
    Repeated attempts to have local government participation and 
meaningful input into the NEPA process have been met with extreme 
resistance by federal agencies. This prompted the formation of the 
Coalition for the purposes of familiarizing Arizona Supervisors and New 
Mexico Commissioners in the federal planning laws, put together the 
necessary resources to effectively participate, and litigate to obtain 
our rightful seat at the table.
    As this testimony will reveal, we have made significant strides in 
improving participation in the NEPA process, but are still encountering 
a federal agency culture of resistance to meaningful participation.

A Tale of Two Minnows
    The Spikedace and loach minnow were listed in 1985. Designation of 
critical habitat was initiated in 1986. Throughout the process, Catron 
County petitioned the U.S. Fish and Wildlife Service (Service) for 
participation. The County was repeatedly rebuffed in its attempt to 
participate under the Endangered Species Act provisions and requests 
for completion of NEPA analysis of potential impacts.
    The Service had adopted a nationwide policy, based on a 9th Circuit 
decision, that NEPA compliance was not required for designation of 
critical habitat. The Service concluded litigation with the Center for 
Biological Diversity with a settlement agreeing to designate critical 
habitat. Years of unsuccessful negotiations with the County culminated 
in a designation in 1994.
    Coalition member county, Catron County, sued the U.S. Fish and 
Wildlife Service for failure to properly notify the County and solicit 
input and failure to take a hard look through NEPA at the impacts of 
critical habitat designation. In a unanimous decision, the Tenth 
Circuit Court stated, in regards to whether or not there were 
significant impacts, that:
        ``First, given the focus of the ESA together with the rather 
        cursory directive that the Secretary is to take into account 
        ``economic and other relevant impacts,'' we do not believe that 
        the ESA procedures have displaced NEPA requirements. Secondly, 
        we likewise disagree with the panel that no actual impact flows 
        from the critical habitat designation. Merely because the 
        Secretary says it, does not make it so. The record in this case 
        suggests that the impact will be immediate and the consequences 
        could be disastrous. The preparation of an EA will enable all 
        involved to determine what the effect will be. Finally, we 
        believe that compliance with NEPA will further the goals of the 
        ESA, and not vice versa as suggested by the Ninth Circuit 
        panel. For these reasons and in view of our own circuit 
        precedent, we conclude that the Secretary must comply with NEPA 
        when designating critical habitat under ESA.''
    One would think that a Circuit Court decision would put the issue 
to rest. However, instead of revising regulations and policy, the 
Service, other federal agencies and environmental organizations 
embarked on a campaign to portray the county as ignorant industry 
agents bent on destruction of the environment and frustrating federal 
authority. This went so far as the Justice Department making threats of 
arrest to the County Commissioners.
    This sordid tale concluded just recently with the settlement of 
another suit that the Coalition was party to. This suit removed the 
designation of critical habitat for the second time for failure to 
properly conduct the economic impact analysis.
    The Service has reinitiated the designation process again. They 
have again failed to properly engage the local governments in the NEPA 
process or the economic impact analysis. We will no doubt end up before 
a federal judge again.
    Hundreds of thousands of dollars have been expended by the counties 
and industry to attempt to get federal agencies to comply with the law. 
Millions have been wasted by the Service erroneously and unlawfully 
listing species and designating critical habitat.
    The cumulative impacts to the Southwest in dollars alone is 
staggering. These cumulative impacts have, as yet, not been displayed 
in any federal agencies' EA or EIS. The Coalition's and member 
counties' comments pointing out these cumulative impacts have been 
dismissed by claims that they are outside the scope of the impact 
statement or lack significance.

The Mexican Spotted Owl
    In 1990, the Region III Forester signed interim guidelines for the 
purpose of protecting Mexican spotted owls. These were incorporated 
into the forest plans of the region without any NEPA consideration. 
Interim guidelines are categorically excluded from NEPA analysis.
    This began the destruction of the Southwest timber industry. The 
reason given for crafting the guidelines was to preclude the listing of 
the owl. However, almost concurrent with the guidelines, the newly 
formed Greater Gila Center for Biodiversity (Center) petitioned the 
Service to list the owl. Needless to say, the owl was listed.
    A recovery plan for the owl was prepared and critical habitat was 
designated. Region III embarked upon a region wide forest plan 
amendment (Amendment) for protection of the owl. A lawsuit by the 
Center brought an injunction against all tree harvesting, including 
fuel wood.
    A Draft EIS for region wide forest plan amendments to protect the 
owl was prepared. The Coalition funded the preparation of a county 
alternative. When the Final EIS and Record of Decision was issued, the 
county alternative was recognized as the environmentally preferable 
alternative. But, the Regional Forester selected another alternative 
that not only finished off the timber industry but increased pressures 
on the federal lands livestock operators.
    Why would the environmentally preferable alternative not be 
selected? The reason stated was that it was not in compliance with the 
owl's recovery plan. Recovery plans are not subject to NEPA review. Why 
did the Coalition have to spend thousands of dollars to prepare the 
best alternative when the decision was already predetermined by the 
recovery plan? Why did the Forest Service have to spend hundreds of 
thousands of dollars and two years in NEPA documentation for a 
predetermined outcome?

NEPA Training and MOUs
    Not all the blame for failure to include county government in the 
NEPA process falls on the federal agencies. For two decades, most rural 
local governments in Arizona and New Mexico were uninformed about the 
NEPA and other federal land management and wildlife laws. They were 
focused on taking care of the roads and the day-to-day affairs of the 
counties.
    The awareness set in, that decisions made by federal agencies were 
having a severe impact on their revenues and the people they represent. 
A steep learning curve was presented to them. A reading of the laws and 
regulations on land and wildlife management and the NEPA revealed that 
the counties simply were not taking advantage of their reserved seats 
at the table.
    There had been a long absence of county governments from the 
federal decision-making table. So long, in fact, that there were no 
chairs at the table for the new participants. The new faces were not 
welcomed as long lost family members. There was visible hostility 
against participation that is still prevalent after years of 
negotiations, agreements and litigation.
    In 1991, negotiations were initiated between counties and 
individual forests and districts to define the roles and 
responsibilities of county governments in the NEPA process. After two 
unsuccessful years, the Regional Forester stepped in and facilitated 
the first ever joint NEPA training exercise with county government 
officials and Forest Service personnel.
    The training was conducted by Shipley Associates, a nationally 
recognized company dedicated to training in the NEPA and other federal 
procedural laws. In three days, the issues were resolved and an MOU was 
executed between the Coalition and the Regional Forester. A model MOU 
was also created for agreements between individual counties and 
District Rangers. The Chief of the Forest Service issued a memo to all 
regional foresters and supervisors suggesting they use this model to 
establish formal working agreements with county governments throughout 
the agency.
    Shortly after reaching the decision on the owl protection and 
facilitating the execution of the MOUs, the Regional Forester retired. 
Within a couple of years, most of the District Rangers who had 
formalized MOUs with individual counties retired, transferred or were 
promoted to different positions. The MOUs were either ignored or were 
unknown to the successors. The counties were left with the job of 
reeducating new Regional Foresters, Supervisors and District Rangers in 
cooperating with local governments.

The Wildlands Project
    The Wildlands Project (Project) was the brainchild of Dr. Reed Noss 
and Dave Forman (founder of Earth First!). It calls for the rewilding 
of over fifty percent of the North American Continent. America has been 
divided up into ecoregions. Within each ecoregion, proponent groups 
litigate, agitate and promote for the purpose of removal of human 
activity from the core areas and linking corridors, and limiting 
activity in buffer zones surrounding the cores and corridors.
    The Project received its primary funding from the Nature 
Conservancy and the Audubon Society. The Project is mentioned in the 
Global Biological Assessment as a model for implementing Agenda 21. 
Agenda 21 was packaged into the Biodiversity Treaty that, while signed 
by President Clinton, was not ratified by the Senate.
    In the early 1990s, the Coalition became aware of the Project. As 
the years have passed, it became apparent that federal agency actions 
were running parallel to Non-Governmental Organizations' (NGO) agendas 
to implement the Project. We ascribed much of this parallel to 
settlement of appeals and litigation. We suspected that personnel 
within the agencies were at least sympathetic, if not supportive of the 
agenda.
    It wasn't until a Southeast Arizona rancher sued the Center for 
Biological Diversity (Center) for libel, that our suspicions of 
collusion between federal agencies and the NGOs was revealed in 
discovery and testimony in the trial. The jury in that trial awarded 
the rancher $100,000.00 in damages and a $500,000.00 punitive award.
    A Forest Service employee was writing biological assessments and 
NEPA analysis while his wife, an employee of the Fish and Wildlife 
Service was responsible for crafting the biological opinions on the 
information supplied by her husband. Records indicate that the Forest 
Service employee is a regular financial contributor to the Center. 
Testimony at the trial by reputable scientists showed that the data and 
conclusions of the husband and wife were at best erroneous.
    The reason for raising this issue in testimony on the NEPA is that 
federal agency personnel are either knowingly or unknowingly advancing 
the agenda. The Coalition has, on several occasions, raised the 
question in NEPA document comments that the Project implementation 
needs to be addressed since it appears to be a logical outgrowth of 
proposed actions. We are answered that the issue would be beyond the 
scope of the analysis.
    On several occasions, federal agencies have contracted all, or a 
portion of, NEPA analysis to private companies or NGOs that have been 
decidedly biased against rural natural resource communities. Our 
independent analyses have revealed these discrepancies. Our data, 
analyses and comments are routinely rejected.
    One of the most recent examples has been the sole sourcing of a 
contract by Region III to have the Nature Conservancy do the baseline 
ecosystem analysis for the upcoming Forest Plan amendments. These will 
not be subject to NEPA review pursuant to the just released National 
Forest Management Act implementing regulations.
    Our question now becomes: How many more ``willing sellers'' are 
going to be generated for the Nature Conservancy to purchase land from, 
when the results of their analysis concludes that natural resource use 
in our forests is not ``sustainable.''
    The NEPA analysis is supposed to utilize sound science to produce 
an objective disclosure to the public and the decision-maker, the 
environmental consequences of a proposed action. This cannot be 
accomplished with biased federal agency personnel and NGOs performing 
the analysis, without some kind of check and accountability.

Peloncillo Fire Management Plan
    In 1997, the Coronado National Forest initiated the Peloncillo Fire 
Management Plan (PFMP) process that proposed to allow for the use of 
wildland fire in the Peloncillo Ecosystem Management Area to achieve 
resource benefits.
    In January of 1990, the Nature Conservancy bought the Grey Ranch in 
southern Hidalgo County. After it was revealed that the Nature 
Conservancy had engaged in some questionable appraisals in its attempt 
to sell the land to the federal government, they sold to a private 
owner retaining management and conservation easement agreements.
    While the ranch was under the management of the Nature Conservancy, 
the suggestion was made to use fire for resource management. The 
problem was that there were other ranches in the area that also held 
Forest Service and BLM grazing allotments. This checkerboard ownership 
would not allow for the grand management scheme the Conservancy had in 
mind.
    Some local ranchers, lured by quick cash and guarantees of grass 
banking privileges, signed off on conservation easements that 
transferred their development rights. Thus was formed the Malpais 
Borderlands Group.
    One of the problems associated with using fire as a management tool 
was, what do you do with your cattle when they have to be removed from 
pastures for up to two years to grow the fine fuels to carry the fire, 
and two years after before the livestock would be allowed back on?
    Some ranchers were leery of the Conservancy and opted to not 
participate. However, with the advent of the PFMP they were drawn into 
the plan. The Coalition assisted Hidalgo County in preparing a county 
alternative. We were assured that we could develop a county alternative 
and it would be included in the EA. Although the County Alternative was 
discussed in the draft EA, it was obvious to those involved in writing 
the alternative that there were major differences between the Forest 
Service's preferred alternative and the County's. For example:
    The County's plan for Desired Potential Future Conditions included 
an incentive for the ranchers to participate by including wording that 
allowed an increase in stocking capacities when the future conditions 
were met. This statement alone would have encouraged economic 
opportunities for the permittees, enhanced their quality of life and 
increased their standard of living.
    In several paragraphs, where appropriate, wording was included that 
encouraged the Forest Service to work in close cooperation with the 
landowners/permittees on site-specific planning. We added this so the 
permittees would be included in the planning efforts and it would not 
be just another programmatic plan. We allow that the intent of the 
Service was honorable, but this is often corrupted by employees who do 
not agree that permittees have a right to be involved in the agency's 
planning efforts and are sometimes openly hostile to the ranching 
community.
    We also added a paragraph that required the Service to monitor the 
effects of the fires to ensure the land was moving towards the desired 
vegetative conditions. Again, we are all aware the Forest Service 
intent is honorable, but it does not have a good track record in 
monitoring the effects their decisions have on the land, or the people.
    In addition, we added language that required the Service to discuss 
with the permittees how the agency's actions would be mitigated before 
a fire was initiated. This would have included the costs of repairing 
fencing, buildings and corrals. As it now stands, the Forest Service 
has no liability if a prescribed fire escapes or if they decide to 
allow a naturally occurring fire to burn out of control, as we have 
witnessed over the last few years in so many of the fires in Arizona 
and New Mexico.
    While these issues are in the administrative record, they were not 
given proper consideration. Nor was the county given a seat on the ID 
team and cooperating agency status.
    There was a 30-day public review of the EA issued in March, 2001. 
The issue was shelved, pending an experimental burn and examination of 
effects on the ESA listed ridge-nosed rattlesnake. The Fish and 
Wildlife Service issued a ``not likely to jeopardize'' Biological 
Opinion on March 18, 2005. The Supervisor issued a Decision Notice with 
a Finding of No Significant Impact (FONSI) on April 29, 2005.

The Mount Graham Telescope
    After millions of dollars in planning, years of appeals and 
litigation, it took an Act of Congress exempting the action from NEPA 
review, to clear the way for a new telescope complex on Mount Graham 
near Safford, Arizona.

The Catwalk
    The Catwalk is located in Glenwood, New Mexico, and is a major 
tourist destination. The District Ranger determined that the trail 
system needed to be improved for handicapped access. After making a 
finding of no significant impact and using a categorical exclusion, a 
contract was issued for the work.
    Local business owners were assured that the Catwalk would not be 
closed to visitors during the peak tourist season. However, the 
contract that was issued allowed the contractor to close the area at 
any time. The contractor exercised this option, closing the area not 
only on weekends in the off season, but for extended periods during the 
peak season.
    This resulted in hundreds of thousands of dollars in impact to the 
local economy. The contract called for extensive blasting and trail 
reconstruction. The Fish and Wildlife Service issued a ``not likely to 
jeopardize'' opinion for the listed Spikedace and Loach minnow, even 
though extensive riparian area management actions were to take place.
    At the same time, this action was taking place, grazing allotments 
were going through their permit renewal NEPA processes. These were 
considered significant actions and livestock grazing was identified as 
a major threat to the listed minnows and the Southwestern Willow 
flycatcher. Appeals and litigation by environmental groups are ongoing 
over this issue.
    This calls into question the methods for determining 
``significance.'' On the one hand, blasting, heavy equipment operation 
and channelization are classified not significant, and livestock 
grazing which has coexisted with these species for a hundred years is 
considered significant.

Conclusion
    There has been a failure of federal agencies for meaningful 
inclusion of local governments in the NEPA process. There is a lack of 
clear direction in the law for inclusion of State, Tribal and local 
governments. Our system of government does not function well without 
checks and balances. The active participation of local representatives 
of the citizens affected by the decisions can insure that the NEPA is 
implemented in a transparent manner.
    Our experience is that local government and public participation is 
only for the purpose of creating the appearance of participation. A 
look at the federal agency budgeting process reveals that the agencies 
are preparing for actions through budget requests some two years or 
more in advance. This process predisposes the agency personnel to a 
preferred alternative before analysis even begins. It should be made 
clear in the law that you go though the NEPA process first, then make 
application for funding.
    Agency personnel are not immune to personal bias or prejudice. It 
has been shown in many instances that personnel are members and 
contributors to NGOs whose agenda is to thwart or discontinue resource 
access and use by humans. This is another reason to elevate the status 
of State, Tribal and local government participation.
    There is a lack of uniform application of the NEPA procedure for 
ESA issues. There are conflicting Circuit Court decisions all over the 
nation. The Fish and Wildlife Service has been very selective in 
applying these decisions to nationwide regulations and policies. The 
NEPA should create clear guidance on when or when not to prepare an 
impact statement. Recovery plans and designations of critical habitat 
should be required to comply with NEPA.
    There is no accountability for federal agencies' obligation under 
the NEPA. Injured parties are required to file suit under the 
Administrative Procedures Act and prove an arbitrary and capricious 
decision by the federal agency. This occurs when the agency leaves 
important information out of a NEPA document, when an agency fails to 
do a complete EIS, or uses FONSI after an EA that lacks sufficient 
information to disclose significant impacts to the public and the 
decision maker. This has resulted in the Court's deference to federal 
agency expertise, even when obvious impacts are occurring or will 
occur.
    The lack of definition of ``culture'' in the law leaves the 
assumption that this only means bones, tools and artifacts from past 
human habitation and ignores the current cultures occupying the land. 
The law should make clear that existing cultures should be considered 
when conducting impact analysis. The NEPA should be amended to 
specifically require that social, cultural and economic impact analyses 
are required for all NEPA documents.
    No party with conflicts of interest should be allowed to prepare 
NEPA documents in place of the federal agency or elected State, Tribal 
and local government representatives. Federal agencies should be 
prepared to fiscally assist State, Tribal and local governments in 
carrying out their responsibilities as Joint Lead and Cooperating 
Agencies. Congress should appropriate funds specifically earmarked for 
State, Tribal and local governments to carry out these functions.
    The NEPA should have a clear definition of significance. The term 
is hardly recognizable from its application and use by federal 
agencies. Significance should not be determined by analyzing impacts 
beyond the scope of impact the decision will have. For example: A 
grazing allotment permit renewal in Navajo County, Arizona should not 
have its economic impact analysis compared to the National Gross 
Domestic Product. Doing so, renders the action unimportant compared to 
the national economy, but fails to disclose the importance to the local 
governments and economy.
    Lastly, the NEPA should define ``cumulative impact'' in the law and 
require that federal agencies examine how the proposed action, in 
concert with other federal, State, Tribal and local government actions, 
have an impact. This should include a requirement to examine litigation 
settlement agreements to insure that they do not conflict with the 
federal agencies' adopted plans and Congressional policy.
                                 ______
                                 
    [The response to questions submitted for the record by Mr. 
Hutchinson follows:]

                             July 12, 2005

The Honorable Cathy McMorris
U.S. House of Representatives
Committee on Resources
Task Force on Improving the
National Environmental Policy Act
Washington, DC 20515

RE: Additional Questions on Testimony Presented in Lakeside, Arizona.

Dear Chairwoman McMorris,

    On behalf of the member Counties of the Coalition of Arizona/New 
Mexico Counties, thank you for the opportunity to provide testimony for 
the purpose of improving the National Environmental Policy Act.
    I am pleased to provide the following responses to the additional 
questions submitted. I hope you are able to consider any additional 
suggestions for remedy, along with what were contained in testimony.

1.  Your ``tale of two minnows'' is alarming. It seems to show what 
        happens when the government abuses or ignores NEPA to make sure 
        its own environmental goals are met no matter the cost. Is that 
        right? What can be done so this doesn't happen?
Comment on Your Statement:
    As to the question, ``Is that right?'' your statement would be more 
accurate if instead of ``environmental goals,'' it stated 
``environmental agenda.'' The problem described stems from the makeup 
of the agency personnel, their mandate under the Endangered Species Act 
(ESA) and selective adherence to conflicting Circuit Court Decisions.
    Agency personnel makeup is dominated by biologists. Over the last 
fifteen years, ``biological biodiversity'' and the so-called science of 
``conservation biology'' has crept into, and now dominates, the 
curriculum in the colleges and universities. Most employees enter the 
agency workforce immediately out of college with Bachelor of Science 
degrees in biology and, increasingly, conservation biology.
    For example, this is a statement from the Web site of Prescott 
College in Arizona:
        ``Conservation Biology Emphasis
          Conservation Biology is an interdisciplinary field that has 
        developed rapidly to respond to a global crisis confronting 
        biological diversity. Practitioners of Conservation Biology 
        attempt to guide society toward the preservation of organisms, 
        landscapes, ecological processes, and natural systems, and 
        toward sustainable management of environmental and evolutionary 
        resources. Firmly grounded in the natural sciences, this 
        emphasis area also draws upon ethics, history, economics, 
        political science, and other human studies. Students in this 
        field will become competent to conduct relevant research, make 
        balanced value judgments, and take effective action on behalf 
        of the environment.''
    Some graduates of these programs enter the federal agency and some 
take employment with environmental organizations. Normally, both are 
also members of conservation biologist associations, and other 
professional associations. Some agency personnel also hold membership 
in the environmental organizations.
    These arrangements lend themselves to establishment of a common 
agenda accompanied by collusion for implementing the agenda. There is 
also created a perverse incentive to list species and a disincentive to 
actually recover them.
    Many agency personnel specialize in a particular species. They 
obtain their advanced degrees by studying them. This increases their 
pay scale. If one can get a specie listed and become involved in their 
protection, one has a guaranteed job until retirement. Once retired, 
there are a host of opportunities awaiting for employment with 
environmental organizations. This specie specialization often blinds 
the employee to unintended consequences of their management actions to 
protect that single specie.
    The mandate under the ESA as interpreted by the courts is to save 
listed species no matter what the cost. This has created a mindset in 
federal agency personnel to ignore adverse impacts to the economy and 
social well being. This, coupled with the conservation biology 
philosophy, establishes the foundation for implementation of the 
Wildlands Project and Agenda 21.
    The mandate is also contained in the report from the President's 
Council on Sustainable Development, established during the Clinton 
Administration. The report was acted upon through the Environmental 
Protection Agency and the Council on Environmental Quality (CEQ).
    The product of this effort was an interagency MOU to establish 
ecosystem management under the concept of the precautionary principle. 
This management philosophy is well entrenched in the agencies and NGOs 
committed to its implementation. The lead NGO for this effort is the 
Nature Conservancy. Hundreds of millions of federal dollars are being 
given to the Nature Conservancy and many other NGOs through a host of 
federal programs to carry out the agenda.
    The Justice Department and agency legal council very selectively 
appeal decisions to the U.S. Supreme Court. In the vast majority of 
cases, only environmental, industry and individual citizen plaintiffs 
appeal to the High Court.
    Many of the attorneys in the Justice Department, agency legal 
council and those employed by the environmental groups have revolving 
doors between them and/or share the same environmental philosophies. 
Therefore, defense of the federal agencies are usually weak and bear 
closer resemblance to friendly suits.
    Most suits are dealt with through settlements, which leaves 
impacted industries and affected citizens with only the very expensive 
option of intervention. This is true because, as an intervener, legal 
costs are not recoverable under the ESA or the Equal Access to Justice 
Act.
    The agency referred to in the ``tale'' is the U.S. Fish and 
Wildlife Service. Their actions are driven by mandates under the ESA. 
Currently, they are only under Court direction to comply with the NEPA 
in a couple of U.S. Circuits.
    Nationally, the agency has chosen to abide by the 9th Circuit's 
decision, holding that the NEPA is not required for the listing of 
species or designation of critical habitat. The 10th Circuit has ruled 
contrary, as stated in the testimony.

Answer to Your Question:
    Some of what I suggest that can be done is addressed in the 
responses to your Items 2 and 4 below. One thing missing in the NEPA is 
accountability enforcement. CEQ is charged under the NEPA with giving 
advice to the Executive Branch. CEQ has issued implementing regulations 
and each agency is required to establish their internal guidelines for 
implementation.
    However, CEQ has no enforcement authority over the implementing 
agencies. There is also lacking an ability of an injured party to seek 
redress through administrative remedy or the courts.
    The only access an injured party has to due process and remedy is 
through the Administrative Procedures Act in court. This is only 
available after a record of decision has been handed down. So the 
injured party has to, not only proceed on the merits, but also seek 
injunctive relief to halt implementation of the action. This process is 
time consuming and costly, not only for the injured party, but the 
federal agencies and the courts.
    The solution may lie in establishing enforcement oversight in the 
CEQ. An injured party could seek administrative remedy through this 
process before having to sue in federal court. This would also allow 
for States, Tribes and Local Governments to have issues of joint lead 
and cooperating agency status addressed before a decision is made.

2.  It seems as though we really have to get NEPA involved with ESA 
        decisions--if we don't, groups and government officials that 
        have it out for industries will have a powerful weapon at their 
        disposal. Would you comment?

Comment on Your Statement:
    ``Groups and government officials that have it out for industries'' 
already have a powerful weapon in the ESA. The ESA, as noted in the 
10th Circuit decisions I cited in testimony, has NEPA-like requirements 
for designation of critical habitat and other regulatory actions. 
Without NEPA, no analysis of the impacts from the use of that weapon is 
disclosed to the public, decision makers, the President and Congress.
    Intended or unintended negative impacts to economies and 
communities results in less will and ability of local inhabitants to 
take care of their environments. In many cases, species protection that 
harms local people creates a hostile attitude against even beneficial 
conservation.
    I have often wondered why the original drafters of the ESA didn't 
incorporate NEPA into the act. I have attached a flow chart and 
narrative on how NEPA could be easily incorporated into the ESA 
critical habitat process. This would result in significant cost savings 
for the U.S. Fish and Wildlife Service and foster a better decision 
making process.
    There is a more significant problem with leaving the ESA free of 
NEPA compliance. That stems from the apparent assumption that 
protecting species is automatically beneficial to the environment. This 
may be true in a very generalized sense but not at the specie and 
habitat-specific level.
    Analysis needs to be performed on ESA actions (especially recovery 
plans) that takes into account the potential of impacts on the 
physical, biological, economic and social environment. Without such 
analysis we are exposed to situations, described in my testimony, where 
protection of a single specie places an entire ecosystem at risk, 
including the economic and social structure of a region. Another risk 
associated with not doing the NEPA analysis when dealing with single 
species is that recovery strategies and regulations for one specie may 
be harmful to another listed specie in the same habitat. This is the 
case with the Southwestern willow flycatcher and several listed fish 
species.
    When a number of species are listed in a given region, there is 
also a cumulative impact that we have, as yet, to get the U.S. Fish and 
Wildlife to acknowledge.

3.  What was the effect of the counties having to ``retrain'' Forest 
        Service staff about the MOUs? It seems like having to do that 
        really diminishes the value of doing them in the first place.

Answer to Your Question:
    In virtually all of the cases, the new Forest Service personnel 
balked at recognizing the MOUs. None have been renewed at the local 
level.
    The Coalition of Counties agreed at the end of 2004 that we would 
wait until the new Forest Planning Regulations were released to re-
negotiate the MOU with Region 3. In March of this year, we agreed to 
wait until staff at the Region was off vacation and training to enter 
into negotiations. We are still waiting.
    If there is a genuine desire on the part of Federal agencies and 
local governments to insure that the NEPA is carried out in an 
efficient manner, then there needs to be an understanding of each 
party's roles and responsibilities.
    I agree that the example provided seems to diminish the value. The 
procedure needs to be institutionalized within each agency so that the 
frequent changes in personnel at the field and regional levels doesn't 
result in a constant revisiting and revising these working agreements.

4.  I agree that the NGO-agency personnel link needs to be broken. What 
        can we do to build in some checks and accountabilities? Follow 
        up: Did the Center for Biological Diversity ever make the 
        payment to the rancher?

Answer to Your Question:
    Agency personnel get around the Hatch Act provisions that forbid 
them to lobby Congress. They also share the extreme biocentrist 
philosophy described above.
    All agency personnel have to do is join an environmental group and 
they have free rein to lobby for funds for their agencies and agendas. 
They often have discretion to disperse federal funds to their 
environmental allies and withhold it from others.
    It may be possible to amend the Hatch Act to cover these unholy 
alliances and conflicts of interest. Doing so would allow for better 
oversight by Congress. This, however, has some political land mines. 
When this issue was raised several years ago by the late Representative 
Joe Skeen, federal employees and the media accused the Congressman of 
going on a witch hunt and interfering with the employees' freedom to 
associate on their free time.
    It may also be possible to require federal employees to disclose 
possible conflicts of interest. I know that in my capacity as an 
elected official, I am required to recuse myself on votes on issues 
that may pose conflicts of interest. Federal employees dealing with 
federal funds and decisions should have no less a requirement.
Answer to follow-up:
    The Center has not paid anything at this time. Last month, the 
Judge in the case refused the Center's petition for a review and let 
stand the jury award. The Center has not indicated if they will make an 
appellate court appeal. I believe the deadline for that decision is 
imminent.
    I hope that you will be able to use this information in your quest 
to make improvements to the NEPA. If you have any need for additional 
information please let me know and I will be happy to assist.

                               Sincerely,

                           Howard Hutchinson

                           Executive Director

Att achments: Flow Chart for use of NEPA in Designation of Critical 
Habitat and Accompanying Narrative
[GRAPHIC] [TIFF OMITTED] T1884.008

                                 ______
                                 

    NARRATION FOR FLOW CHART PROPOSAL FOR STREAMLINING AND PROPERLY 
              DECLARING CRITICAL HABITAT UNDER CURRENT LAW

Notice of Intent to Declare Critical Habitat and Prepare a NEPA 
        Document to Affected Other Federal Agencies, State, Tribal and 
        Local Governments with Invitation to Serve as Cooperating or 
        Joint Lead Agencies
    A notice of intent to declare critical habitat and prepare a NEPA 
document letter would be sent to affected federal agencies, state, 
tribal and local governments (participating entities) at the time of 
proposed listing of the species or within the statutory time limit 
extensions. The letter would also serve to invite participation, as 
appropriate, as cooperating or joint lead agencies.
Selection of Interdisciplinary Team Members ( (ID Team)
    Following the transmittal of the notice letter and receipt of 
expressions of interest, the Fish and Wildlife Service lead agency 
(lead agency) will cooperate with the participating entities in 
selecting ID Team Members (ID Team).
Agreements for Responsibilities for Cooperating or Joint Lead Agencies
    A MOU or other appropriate document would be executed between the 
lead agency and participating entities describing the roles and 
responsibilities of the cooperating and/or joint lead agencies and 
their representatives on the ID Team
Preparation of Scoping Letter and Federal Register Notice of Intent to 
        Declare Critical Habitat and Prepare a NEPA Document
    The ID team would prepare a scoping letter and the lead agency 
would transmit the scoping letter to appropriate parties and publish a 
federal register notice of intent to declare critical habitat and 
prepare a NEPA Document. This could be in conjunction with the listing 
notice for a particular species unless postponed pursuant to statutory 
allowance for additional time to declare critical habitat.

Review of Scoping Comments and Preparation of Draft Environmental 
        Document (DED)
    The ID Team would receive and review scoping comments, identify the 
significant issues for analysis, and prepare the DED. A range of 
alternative designations of critical habitat would be prepared by the 
ID Team. The no action alternative would be the no designation of 
habitat as the base line for analysis.

Special Note:
    The cumulative impact analyses in the DED shall include but not be 
limited to analysis of impacts:
      Of restrictions on management of private, federal, state, 
Tribal and local government lands to take into account short term 
adverse impacts on the listed species or their critical habitat vs. the 
long term befits from specific management activities or lack thereof;
      Of Section 9 enforcement impacts for listing and critical 
habitat protections;
      On increased fiscal and personnel commitments for other 
federal agencies; states, Tribes and local governments created by 
listing and declaration of critical habitat;
      On state, Tribal and local government infrastructure 
development and maintenance, tax base, tax revenues and economic 
activities affected by Section 9 protections for listed species and 
declared critical habitat;
      On the social and cultural environments affected by 
Section 9 protections for listed species and declared critical habitat.
    The DED shall also include monitoring provisions capable of 
determining the efficacy of the decision and mitigation provisions for 
any adverse impacts to the physical, biological, cultural, social and 
economic environments.

Federal Register Notice of Availability of the Draft Environmental 
        Document and Requests for Comments
    The lead agency publishes the notice the availability of the DEDand 
requests for comments in the federal register, on its web site and 
complies with any other notice requirements.

Review of Draft Environmental Document Comments
    The ID Team reviews the DED comments and prepares the Final 
Environmental Document (FED) with responses to comments and 
incorporation of comment suggestions as appropriate.

Federal Register Notice of Availability of the Final Environmental 
        Document and Requests for Comments
    The lead agency publishes the FED in the federal register, 
publishes it on its web site and sends copies to those who commented 
and requested the final document.

Review of Final Environmental Document Comments and Federal Register 
        Notice for Decision Document
    The ID team reviews comments on the FED, makes appropriate changes 
and submits the final document or recommendation to do a supplemental 
ED to the responsible official at the lead agency. The responsible 
official at the lead agency then publishes their decision document in 
the federal register and notifies those who commented on the proposed 
action or requested notification of the decision.
    In the event that a joint lead agency is involved, the responsible 
joint lead agency responsible official also signs the decision document 
and publishes it in accordance with their requirements.
                                 ______
                                 
    Mr. Renzi. Ms. Craft, thank you so very much for coming. 
Your testimony, please.

  STATEMENT OF KATHLEEN CRAFT, FREHNER CONSTRUCTION COMPANY, 
                    INC., LAS VEGAS, NEVADA

    Ms. Craft. Good morning, Members of the Task Force. I am 
Kathleen Craft, Executive Secretary of Frehner Construction, 
and I am here on behalf of the President of Frehner 
Construction to represent the American Road & Transportation 
Builders Association, ARTBA. I would like to begin my testimony 
by thanking the House Committee on Resources and the Members 
present today for initiating a review of the National 
Environmental Policy Act known as NEPA. As my testimony will 
demonstrate, ARTBA thinks NEPA is due for a much needed update.
    Frehner Construction Company is an ARTBA Member located in 
Las Vegas, Nevada, with satellite offices in several western 
states. Frehner Construction provides both public and private 
engineering and construction services and employs between 700 
to 1300 employees during our peak construction season. Much of 
Frehner Construction's work involves large civil governmental 
projects. Currently Frehner Construction does more work for the 
Nevada Department of Transportation than any other contractor.
    This work includes construction associated with the 
widening of U.S. Highway 95 from six to ten lanes outside of 
Las Vegas. This project is currently halted due to a NEPA 
lawsuit that was filed four years after the completion of all 
the environmental requirements, and that will be the focus of 
my testimony today.
    Let me stress at the outset that ARTBA shares this Task 
Force's goal of protecting the environment and minimizing 
impacts of development. This was the original intent of NEPA. 
However, in its current state, NEPA generates far more 
documents than decisions.
    At Frehner Construction, we do not participate in the 
actual NEPA review process, nor do I claim to be an authority 
on the statutes and regulations involved in its decisionmaking. 
Frehner's role in the NEPA process is that we rely on it to 
provide a final determination as to what work we can and cannot 
begin. It is upon this reliance that Frehner determines 
business plans and work schedules that affect the livelihood of 
hundreds of Nevadans that comprise our work force.
    The halting of the U.S. 95 widening project, demonstrates 
that we can no longer rely upon NEPA to give us this kind of 
reliability. The final environmental impact statement for this 
project was issued in 1999. At that point Frehner and other 
Nevada-based firms began participating in the project. However, 
four years later in August of 2004, the project was abruptly 
stopped because of a NEPA lawsuit. This halting took place 
despite the fact that construction had already begun, and in 
some cases had even been completed on many different segments 
of the U.S. 95 improvement project.
    This type of disruption has a bigger effect than simply 
putting the construction project on hold while litigation takes 
place. It affects business plans, work schedules, and the local 
economy, and in the case of the U.S. 95, there is roughly 85 
million dollars in construction that is on hold.
    The longer this construction remains on hold, the more 
expensive materials necessary to complete the project become. 
In the time that the U.S. 95 project has been delayed, the cost 
of the materials has already risen by more than three million 
dollars, and these prices continue to rise the longer the 
project is delayed. These increased costs are not born solely 
by Frehner, but the taxpayers nationwide, as well.
    Also while this project is delayed, Frehner is prevented 
from developing a reliable business plan and work schedule. 
Employees cannot be scheduled, and we have no idea if and when 
a project stopped by NEPA litigation will be allowed to 
continue.
    In addition, to the economic hardship caused to Frehner, 
the halting of the U.S. 95 project has also disrupted the lives 
of myself and other Nevadans who realize just how much this 
project is needed. The fact that a nationwide organization was 
able to use NEPA to bring this lawsuit, after local Nevada 
residents had already participated in and completed the 
environmental review process, demonstrates a flaw in NEPA that 
needs to be remedied.
    Also, no consideration has been given to the increased 
congestion directly caused by this lawsuit or to prevent us 
both from the environmental and public health standpoint that 
will result when and if this project is completed.
    It is with this in mind, that I offer the Task Force the 
following recommendations for implementing NEPA. Number one, 
set a time limit on project-related NEPA lawsuits. Allowing a 
project to be stopped four years after filing an environmental 
impact statement, is not acceptable.
    Number two, NEPA litigation should be limited to only those 
issues that have been fully raised and discussed during the 
public comment period of the project. This will help ensure 
that litigation over projects is a last resource, rather than a 
first stop for the opponent of the project.
    Number three, consideration of the environmental benefits 
of the proposed projects, as opposed to just their impacts. 
Also, the environmental consequences of not undertaking a 
project should also be considered.
    I would respectfully direct that members of the Task Force 
to my written statement for other recommendations to improving 
the NEPA process. In summary, NEPA should be reformed in a 
manner that will allow its regulations to be crafted by the 
policymakers in the Legislature and the Administration, rather 
than be defined on a case-by-case basis throughout the NEPA 
litigation initiated by a national environmental organization 
and codified by activist judicial decisionmaking.
    Members of the Task Force, ARTBA deeply appreciates this 
opportunity to present testimony to you, and I look forward to 
answering any questions you have.
    Mr. Renzi. Ms. Craft, thank you.
    [The prepared statement of Ms. Craft follows:]

Statement of Kathleen Craft, Executive Assistant, Frehner Construction 
   Company, on behalf of the American Road & Transportation Builders 
                              Association

    Good morning, Chairwoman McMorris. Thank you very much for 
providing the American Road and Transportation Builders Association 
(``ARTBA'') the chance to present its views before this task force on 
the effects of the National Environmental Policy Act (NEPA) on 
transportation construction projects.
    I am Kathy Craft, Executive Assistant, with Frehner Construction 
Company, located in Las Vegas, Nevada, with satellite offices in 
several western states. Frehner Construction is an ARTBA member that 
provides both public and private engineering and construction services 
and employs between 700 to 1,300 employees during their peak 
construction season. Much of Frehner Construction's work involves large 
civil government projects. Currently, Frehner Construction does more 
work for the Nevada Department of Transportation than any other 
contractor. This work includes construction associated with the 
widening of highway U.S. 95 from six to ten lanes outside of Las Vegas. 
This project is currently halted due to a NEPA lawsuit filed four years 
after the completion of all environmental requirements and will be the 
focus of later parts of my testimony linking NEPA reform to problems 
faced by the transportation construction industry.
    I am here today representing ARTBA, whose eight membership 
divisions and more than 5,000 members nationwide, represent all 
sectors--public and private--of the U.S. transportation design and 
construction industry. ARTBA, which is based in Washington, D.C., has 
provided the industry's consensus policy views before Congress, the 
Executive Branch, federal judiciary and the federal agencies for 103 
years. ARTBA submitted a ``friend of the court'' brief to the United 
States Court of Appeals for the Ninth Circuit supporting the 
continuation of the U.S. 95 widening project in Las Vegas.
    The transportation design and construction industry ARTBA 
represents generates $200 billion annually to the nation's Gross 
Domestic Product and sustains the employment of more than 2.5 million 
Americans.
    Let me stress at the outset that ARTBA shares the task force's goal 
of protecting the environment and minimizing the impacts of 
development. In fact, this is a sentiment that ARTBA stresses every 
year when we hand out our Globe Awards to those transportation 
construction professionals, firms and public agencies that do an 
outstanding job in protecting and/or enhancing the natural environment 
in the planning, design and construction of U.S. transportation 
infrastructure projects.

NEPA Background
    Madame Chairwoman, transportation infrastructure projects must 
navigate through an often time-consuming and complex planning process. 
In 1969, Congress passed the National Environmental Policy Act 
(``NEPA''), which is a process-guiding act of general applicability 
designed to ensure compliance with the many specific federal 
environmental laws, permitting and consultation activities that involve 
a number of federal agencies. NEPA establishes general policy, sets 
goals and provides a means for carrying out these policies.
    NEPA is triggered any time an action by the federal government will 
result in an ``environmental impact.'' The White House Council on 
Environmental Quality defines ``environmental impacts'' as any impact 
on the environment or historic and cultural resources. Agencies such as 
the U.S. Army Corps of Engineers (``Corps'') (for wetland and water 
permits), the U.S. Fish and Wildlife Service (``FWS'') (for Endangered 
Species Act compliance), the Advisory Council on Historic Preservation 
(``ACHP'') (for historic preservation laws), the U.S. Environmental 
Protection Agency (``EPA''), and many other agencies are commonly 
involved in this process. NEPA does not mandate specific outcomes. It 
simply governs how the process must take place. NEPA is triggered in 
the transportation construction planning process when federal funds are 
being used to finance the project.
    NEPA establishes three classes of environmental reviews that must 
take place, based on the magnitude of the anticipated impact of the 
proposed transportation project:
    1)  Environmental Impact Statement (``EIS''). Projects where a 
significant environmental impact is anticipated must complete a full 
EIS. Many federal agencies, such as the Federal Highway Administration 
(``FHWA''), have developed their own policies to implement NEPA and to 
address the necessity of an EIS. For example, FHWA regulations mandate 
that an EIS be prepared where a new controlled access highway or road 
project with four or more lanes is going to be constructed on a new 
location.
    2)  Environmental Assessment (``EA''). In instances where neither 
NEPA nor FHWA's own regulations dictate that an EIS must be completed, 
a less strenuous EA must be completed. An EA will result in one of two 
results: there will be a ``finding of no significant impact'' (FONSI) 
to the environment; or the agencies will determine that there will be a 
significant impact, thereby prompting them to conduct a full EIS. 
Widening or expanding the capacity of an existing highway is a typical 
highway project that would require an EA.
    3)  Categorical Exclusion (``CE''). Projects that neither 
individually nor cumulatively have a significant environmental impact 
can be treated as a CE. State agencies must provide FHWA with 
sufficient information on a case-by-case basis to demonstrate that 
environmental impacts associated with a project will not rise above the 
CE threshold. Road rehabilitation or bridge replacement projects are 
typical highway projects that would only require a CE.
    An EIS is the most intensive and time-consuming of the processes 
described above. If an EIS is performed, the agency performing the 
review, i.e., the state department of transportation (``DOT''), must 
prepare a document that identifies each environmental impact of a 
proposed project, as well as alternatives that may have different 
impacts and the pros and cons of each. This document must be released 
in draft form to allow the public and other government agencies to 
submit comments. These comments must then be addressed when the EIS is 
published in its final form. In rejecting different alternatives, NEPA 
requires the agency to carefully document why other alternatives were 
not selected.

Delays in the Process
    Madame Chairwoman, you don't have to be an expert to know that our 
transportation planning process has reached a state of gridlock. Today, 
it is almost as if one needs a global positioning system to keep track 
of where a transportation improvement project is in the review process. 
According to a recent report by the U.S. Government Accountability 
Office (``GAO''), as many as 200 major steps are involved in developing 
a transportation project from the identification of the project need to 
the start of construction. According to the same report, it typically 
takes between nine and 19 years to plan, gain approval of, and 
construct a new major federally funded highway project. This process 
involves dozens of overlapping state and federal laws, including NEPA, 
state NEPA equivalents, wetland permits, endangered species 
implementation, clean air conformity, etc. Often times these procedures 
mask disparate agendas or, at a minimum, demonstrate an institutional 
lack of interagency coordination that results in a seemingly endless 
string of delays.
    It is true--according to FHWA--that only about three percent of 
federally funded highway projects require the completion of an in-depth 
EIS. Since1990, Interstate lane miles have only increased by about six 
percent. The truth is there are very few projects in terms of numbers 
that involve new construction, thereby requiring an EIS. However, most 
of these projects are very large in scope and account for a large 
portion of each state's construction budget in any given year. Many of 
these projects, while small in number, are very large in terms of cost, 
often in the range of tens of millions of dollars and even in excess of 
a billion dollars each. These projects also have a very large potential 
benefits for public safety and mobility for the traveling public and 
are, therefore, the highest priority projects for most states.
    A recent study by FHWA found the time required to process 
environmental documents for large projects has doubled over the past 
two decades. In the 1970s, the average time for completion of an EIS 
was 2.2 years. Former U.S. DOT Assistant Secretary for Policy Emil 
Frankel recently reported that from 1999-2001 the median time for 
completing an EIS was 4.4 years. If federal Clean Water Act section 404 
wetland permit issues or section 4(f) of the Department of 
Transportation Act of 1966 (``Section 4(f)'') historic preservation or 
parkland avoidance issues come into play, the average time period grows 
by an additional two years, on average.
    However, delays in the transportation project environmental review 
and approval process are not only limited to large projects. While 
according to FHWA three percent of federally funded transportation 
improvement projects require an EIS, the remaining 97 percent require 
an EA, (6.5 percent) or CE (90.6 percent). A recent report conducted by 
the National Cooperative Highway Research Program (``NCHRP'') stated:
        ``[D]elays in completing [EA and CE] reviews are encountered 
        frequently despite the minimal environmental impacts associated 
        with such projects. Even if such project-level delays are 
        individually small, their cumulative impact may be significant 
        because most transportation projects are processed as CEs or 
        EAs.''
    According to the report, 63 percent of all state DOTs responding to 
the survey reported environmental process delays with preparation of 
CEs and 81 percent reported similar delays involving EAs. These delays 
triple average environmental review times for CEs--from about eight 
months to just under two years--and have more than doubled review times 
for EAs, from under 1.5 years to about 3.5 years. The most common 
reason for these delays: section 4(f) requirements (66 percent); 
section 106 of the National Historic Preservation Act (NHPA) (61 
percent); and section 404 of the Clean Water Act (53 percent). These 
numbers are consistent with a survey ARTBA conducted in 2001 of 49 
state DOTs on delays in the environmental review process.
    Because of these lengthy delays, many state DOTs have simply 
assumed extended time periods in their planning schedules, giving the 
misimpression that the environmental review process is not taking an 
inordinately lengthy period of time. While many environmental groups 
state that delays are primarily due to funding issues, the complexity 
of the project or low priority of the project, just the opposite is 
true. State DOTs often withhold funding on projects until the 
environmental review process is complete, making it appear that funding 
is the reason for the delay.
    The basic problem is that the development of a transportation 
project involves multiple agencies evaluating the impacts of the 
project as required by NEPA. While it would seem that the NEPA process 
would establish a uniform set of regulations and submittal documents 
nationwide, this has not been the case. For example, the EPA, Corps, 
FWS and their companion state agencies each require a separate review 
and approval process, forcing separate reviews of separate regulations, 
and separate determinations of key benchmark issues, such as the 
purpose and needs of a project, and requiring planners to answer 
separate requests for additional information. Also, each of these 
agencies issues approvals according to independent schedules.
    The original intent of NEPA was to coordinate the federal decision-
making process, rather than splintering it. However, in its current 
state, NEPA generates far more documents than it does actual decisions. 
Instead of spreading out the environmental review process among various 
agencies, NEPA should consolidate that process among the agency with 
oversight of that particular project. In the case of a highway project, 
the U.S. DOT should be the ``lead agency'' in the environmental review 
process. Also, NEPA should coordinate the different aspects of the 
environmental review process so that they can be done concurrently, and 
data generated can be used for multiple aspects of the environmental 
review process. ARTBA is pleased that reforms of this nature are 
currently being considered by the House and the Senate legislation to 
reauthorize the federal highway and transit programs, H.R. 3, the 
``Transportation Equity Act--A Legacy for Users.''
    Even some environmentalists have admitted there are many needless 
delays in the environmental review process for transportation projects. 
In April 29, 1999, testimony before the U.S. Senate Environment and 
Public Works Committee, Roy Kienitz, then executive director of the 
Surface Transportation Policy Project said:
        ``There is no good reason for federal approval to take years if 
        there are no major disagreements over the project being 
        proposed. These delays are the most needless of all and are the 
        easiest ones to attack.''

Delay Kills
    Sadly though, delays in the environmental review and approval 
process for transportation improvement projects can have tragic 
consequences. According to the U.S. DOT, almost 42,000 people are 
killed each year on the nation's highways. One person in the U.S. dies 
from a traffic crash every 13 minutes and there is one crash-related 
injury every 10 seconds. Traffic crashes are the leading cause of death 
in the U.S. for people ages 6 to 33, and their economic cost is 
estimated to be $230.6 billion each year in added medical, insurance, 
and other expenses. That's about 2.3 percent of the U.S. gross domestic 
product. To put this figure in perspective, the total annual public and 
private health care expenditures caused by tobacco use have been 
estimated at $93 billion annually.
    Roadway safety is a huge public health crisis! The sad part is 
that, according to the U.S. DOT, approximately 15,000 of these deaths 
annually--are in crashes in which substandard roadway conditions, 
obsolete designs or roadside hazards are a factor. These are accidents 
that we can prevent through improved transportation infrastructure. 
According to FHWA, for every $100 million we spend on highway safety 
improvements, we can save over 145 lives over a 10-year period.

Las Vegas, Nevada: The U.S. 95 Case
    Nevada has experienced the greatest population growth of any state 
in the United States since 2000. Specifically, the Las Vegas 
metropolitan area in Clark County, Nevada has experiences substantial 
population growth since 1970, with over a 300 percent increase in 
population between 1970 and 1996. This growth, and the economic 
activity that accompanies it, has led to greater use and resulting 
traffic congestion on the highways of Nevada, particularly those around 
Las Vegas. According to the Texas Transportation Institute's 2005 Urban 
Mobility Report, in the year 2002 alone, traffic congestion cost Las 
Vegas area residents and businesses $380 million and resulted in the 
additional consumption of 14 million gallons of motor fuel.
    U.S. 95 is the primary north-south travel corridor in the northwest 
region of Las Vegas. By 1995, the corridor was operating at near 
capacity during peak periods and experiencing heavy congestion during 
certain times of the day due to the aforementioned population growth 
and the resulting demand for highway travel. According the FHWA travel 
demand modeling and anticipated continuation of past growth trends, 
these conditions are projected to worsen, with U.S. 95 operating at 50 
to 75 percent above capacity by 2020.
    FHWA data shows that the segment of U.S. 95 at issue in this case 
services and accesses some of the fastest growing neighborhoods in Las 
Vegas. An estimated 190,000 vehicles travel through the portion of U.S. 
95 to be widened each day, with peak hour traffic reaching as high as 
11,900 vehicles. Currently, traffic congestion slows commuters to one-
half of the 55 mile per hour speed limit on the corridor. Also, between 
2000 and 2002 there were 3,535 motor vehicle crashes on one section of 
U.S. 95.
    As a result of these factors, a Major Investment Study (``MIS'') 
was begun in 1995 to provide a detailed evaluation of alternative 
strategies to address the deteriorating conditions of the area served 
by U.S. 95. One of the key improvements recommended by the MIS was to 
widen key portions of U.S. 95 from six to ten lanes. The NEPA process 
began shortly after the MIS was completed in 1997. A final 
Environmental Impact Statement (``FEIS'') was issued in 1999 with a 
Record of Decision (``ROD'') issued in 2000. Two years later, the 
Sierra Club filed suit in federal district court under NEPA claiming 
that an epidemiologic study not conducted in the Las Vegas area 
(rather, it was conducted in Las Angeles) was enough to re-open the 
NEPA process and warrant a supplemental Environmental Impact Statement. 
At this point construction had already started on significant portions 
of the U.S. 95 improvement project. Though the Sierra Club's complaint 
was dismissed at the district level, the United States Court of Appeals 
for the Ninth Circuit accepted the Sierra Club's appeal of the decision 
and issued an injunction halting construction while litigation 
continued. That was in August of 2004, and construction on the project 
is still halted today.
    This delay has had a direct effect on Frehner Construction. Frehner 
is involved in many aspects of the U.S. 95 improvement project. The 
delays caused by the Sierra Club have disrupted Frehner's workforce and 
business plan. By holding up one aspect of the U.S. 95 improvement 
process, the Sierra Club litigation is delaying many other aspects of 
U.S. 95 construction. This delay hurts Frehner's ability to keep its 
workforce steadily busy and as a result, workers are forced to look 
elsewhere for employment while the U.S. 95 widening is on hold.
    The improvements that make up the U.S. 95 widening project are 
needed in order to keep pace with the rapid population growth currently 
being experienced in the Las Vegas area and prevent the effects of 
traffic congestion from worsening. The widening of U.S. 95, once 
completed, will lead to enormous environmental, public health and 
safety benefits. Once finished, improvement of U.S. 95 will result in a 
significant reduction in so-called ``greenhouse gasses.''
    Specifically, according to a study by Cambridge Systematics, Inc., 
there will be a 58.8 ton reduction in carbon monoxide emissions, a 54.3 
ton reduction in volatile organic compounds (VOCs) and an 87.8 ton 
reduction in carbon dioxide emissions between now and the year 2025. 
Further, it is estimated that within that time span there will also be 
an 87.8 percent reduction in motor fuel usage by U.S. 95 commuters, 
which translates to 231,654,731 gallons of motor fuel saved (or 68.9 
gallons per commuter over the life of the project). Also, the time Las 
Vegas commuters spend stuck in traffic will decrease by an average of 
86.5 percent, which for commuters who use U.S. 95 twice per day, would 
mean 30 minutes of time saved per day while going through the area to 
be improved. Finally, the U.S. 95 improvements are projected to result 
in 3,524 fewer total motor vehicle crashes, 14 fewer fatalities, and 
1,730 fewer injuries to commuters through 2025. This will undoubtedly 
lead to reductions in both health care costs and insurance rates for 
Las Vegas area residents (in addition to the emotional benefits of not 
having to deal with a friend or relative that has been in an automobile 
accident).
    The EPA reported in September 2004 ``between 1970 and 2003, that 
gross domestic product increased 176 percent, vehicle miles traveled 
increased 155 percent, energy consumption increased 45 percent, and 
U.S. population grew by 39 percent. During the same time period, total 
emissions of the six principal air pollutants (nitrogen dioxide, ozone, 
sulfur dioxide, particulate matter, carbon monoxide and lead)dropped by 
51 percent.'' The finding by the EPA that these pollutant levels have 
decreased despite increased travel and an increased population 
demonstrates that there is no connection between any increased travel 
which would occur on U.S. 95 as a result of the widening project and a 
subsequent increase in pollutant levels, despite Sierra Club arguments 
to the contrary.
    There are two primary reasons for these decreased pollutant levels. 
First, motor vehicle emission levels change with vehicle speed. Once 
vehicles reach a speed greater than 15 miles per hour, DOT data shows 
that both volatile organic compound (``VOC'') and carbon monoxide 
emissions decline dramatically. The congestion currently experienced on 
U.S. 95 causes vehicles to either remain at lower speeds or have to 
stop and start repeatedly during a commute. The United States 
Department of Transportation has acknowledged this, stating 
``[e]mission rates are higher during stop-and-go, congested traffic 
conditions than free flow conditions operating at the same speed.'' By 
widening U.S. 95, commuters will be able to travel at a level where 
emissions of key pollutants will be greatly reduced. Second, pollutant 
levels continue to decline as cleaner and more fuel efficient vehicles 
make up a greater percent of the nation's motor vehicle fleet. 
According to the U.S. DOT, today's average motor vehicle produces 80 to 
90 percent less pollution than it did in 1967. As technology develops 
even further, vehicle emissions will continue to go down as automobile 
usage increases.
    A recent study by the Texas Transportation Institute at Texas A&M 
University concluded ``congestion has grown everywhere in areas of all 
sizes. Congestion occurs during longer portions of the day and delays 
more travelers and goods than ever before.'' Recent estimates show that 
congestion on the nation's highways causes 3.5 billion hours of delay, 
5.7 billion gallons of wasted fuel, and results in an overall cost to 
the U.S. economy of $63.2 billion. Since 1982 the amount of free 
flowing traffic within the United States has decreased by over 50 
percent. These delays caused by traffic congestion affect not only 
commuters, but also first responders such as police, firefighters, 
ambulances, and other services vital to Las Vegas and all communities 
in the United States. Further, with the increased potential for 
terrorism directed at the populations of large cities throughout the 
United States, including Las Vegas, it is more important than ever 
before to mitigate traffic congestion and keep traffic flowing in case 
there is a need for an evacuation or emergency response. Taking this 
level of congestion and gridlock into account, it is important that new 
highway projects and capacity improvements are allowed to proceed 
without unnecessary delay.
    It should also be noted that the costs of delay associated with 
this and other NEPA related litigation are borne primarily by United 
States taxpayers. In the U.S. 95 case, the projects being delayed by 
the Sierra Club's lawsuit comprise roughly $85 million worth of work at 
the time the injunction to halt construction was granted (in August of 
2004). The longer these projects are delayed, the more expensive the 
materials needed to complete those projects become. According to the 
FHWA, construction materials represented approximately 45 percent of 
total costs for federal-aid highway construction contracts over $1 
million on the national highway system in 2003. In the case of the U.S. 
95 project, this means an estimated $38.25 million worth of 
construction materials were involved when construction was halted. 
Since then, the Producer Price Index (published by the Bureau of Labor 
Statistics) for highway and street construction has risen 8 percent. 
Thus, equipment costs associated with the U.S. 95 project have risen 
approximately $3,060,000 during the time of the injunction. That means 
taxpayers must pay more than $3 million additional dollars as a result 
of the delays caused by this NEPA related litigation.

What does the U.S. 95 Case Illustrate about the NEPA Process?
    The U.S. 95 situation, unfortunately, is only one of the latest 
examples in what has become a myriad of NEPA related litigation. There 
are currently in excess of 1,500 cases which ``define'' NEPA. The 
statute has been transformed from a vehicle which once helped to 
mitigate the environmental impacts of development to a tool which 
enables special interest anti-growth groups to delay needed and 
environmentally beneficial transportation infrastructure through the 
use of unending litigation.
    In the U.S. 95 situation, the project in question had already gone 
through extensive environmental review and complied with NEPA's 
requirements. However, a single epidemiologic study discovered by U.S. 
95 project opponents nearly two years after the fact was enough to 
completely halt construction while litigation was underway. This is 
unacceptable for a number of reasons. First and foremost, the 
government had, as part of the NEPA process, reviewed thousands of 
studies and other voluminous evidence of the environmental effects of 
the U.S. 95 project. Second, the NEPA process has to have an end point. 
Transportation planners, project officials, and state and local 
government need some point of finality in the NEPA process in order to 
provide enough certainty to allow the project to be planned 
effectively. The NEPA process, as illustrated in the U.S. 95 case, is 
far too easy to ``re-open'' and cause unnecessary delay to 
transportation projects. After a project has completed its NEPA 
requirements, the process should not be re-opened except in extreme 
circumstances which truly warrant such action.
    This brings me to another flaw in the NEPA process. It does not 
consider the environmental benefits of fully completed projects. NEPA 
should not only be limited to the consideration of environmental 
impacts, but expanded to include environmental benefits. As I 
previously mentioned, the U.S. 95 project, once completed will yield 
significant reductions in mobile source emissions as well as reductions 
in traffic congestion and fuel use. This needs to be given proper 
weight and consideration by the NEPA process.
    Also, the NEPA process needs to consider the environmental impact 
of not undertaking federal highway transportation projects. In the U.S. 
95 case, part of the NEPA consideration should be the environmental 
consequences of continued congestion along the U.S. 95 Las Vegas 
corridor. As previously stated, vehicles stuck in congestion yield 
significantly greater emissions than vehicles in free-flowing traffic.
    The litigation of the U.S. 95 project demonstrates that when court 
battles do arise over NEPA, many important issues often go unaddressed. 
When the federal government responds to NEPA claims, it is constrained 
to only addressing the statutory legal points raised by whichever group 
is challenging a projects. Greater issues such as the project's 
environmental benefits or the potential effects of project delay on 
other highway projects and the nation's infrastructure as a whole are 
not considered, and they need to be. Had ARTBA not submitted a ``friend 
of the court'' brief in the U.S. 95 case, the projects environmental 
and public health benefits would have gone completely unaddressed in 
appellate litigation. Also, ARTBA was the only party to raise the 
question of what effect delaying the U.S. 95 project would have on the 
nation's highway system as a whole. Both of these issues can and should 
have been considered by the main parties in the U.S. 95 litigation, 
rather than having ARTBA raise them as a non-party.
    NEPA should not operate in a vacuum in this way. When the 
environmental impacts of a project are considered, its benefits must be 
considered as well. Also, the term ``environment'' cannot be narrowly 
defined as the impact on the air quality of a region without also 
considering appropriate public health concerns. These concerns, which 
all factor into the state of an area's environment must include factors 
such as traffic congestion. Also, related public heath issues such as 
the stress caused by lengthy commutes and traffic impact on first-
responders should be considered in any analysis.
ARTBA's Recommendations for Changing the NEPA Process
    As you can see, Madame Chairwoman, the NEPA process is in need of 
fine-tuning. For nearly a decade, reform to the environmental review 
process has been a top ARTBA priority. Indeed, ARTBA is extremely 
appreciative of the formation of this task force and its goal of taking 
a hard look at NEPA and its effects on local environments and 
economies.
    The goal of these efforts is not--as some have suggested--to 
undermine the environmental review process. Rather, it is to coordinate 
the process in order to more effectively deal with the transportation 
needs and congestion issues facing the nation. If handled 
appropriately, improving the delivery of transportation projects would 
increase the efficiency of the transportation network, and ensure the 
traveling public receives the full benefit of the user fee-financed 
transportation system. We are not seeking changes that are outcome 
determinative; we are seeking process improvements that would generate 
the same answer in a more timely manner.
    Particular changes to the NEPA process ARTBA recommends are:
      A set time limit on project related NEPA lawsuits. The 
House version of the highway and transportation systems reauthorization 
bill, H.R. 3, includes a provision that would set a ninety day limit 
for NEPA lawsuits concerning transportation projects.
      NEPA litigation should be limited to only those issues 
that have been fully raised and discussed during the public comment 
period for a project. This will help insure that litigation over 
projects is a last resort, rather than a first stop for opponents of a 
project.
      Consideration of the environmental benefits of proposed 
projects as opposed to just their impacts. Also, the environmental 
consequences of not undertaking a project should also be considered.
      Provision of a degree of proportionality and common sense 
to Section 4(f) historical preservation decisions by establishment of a 
proportionality test for evaluating the prudence of following avoidance 
or minimization alternatives. Under this proportionality test, the 
threshold for rejecting an alternative as imprudent would depend on 
three factors: (1) the true relative historic and/or cultural value of 
the resource being avoided; (2) the nature and extent of the impact on 
that resource; and (3) the likelihood that the resource itself will 
remain intact over the long term.
      In compliance with President Bush's Executive order on 
Environmental Streamlining, the NEPA review process must be shortened 
and coordinated among the various federal agencies that take part in 
it. With regard to federal transportation construction projects, the 
Department of Transportation should be given lead agency status in 
order to facilitate this process.
      Where possible, duplicative review and analysis should be 
eliminated. Studies done as part of the transportation planning process 
should be acceptable in the NEPA review process and vice-versa.
    Many of these proposals are represented to some degree in the 
Administration's ``Safe, Accountable, Flexible and Efficient 
Transportation Equity Act'' (SAFE-TEA) reauthorization bill and in the 
House and Senate versions of H.R. 3. It is important that these ideas 
are talked about not only in this conversation regarding NEPA, but also 
throughout the transportation reauthorization process and are part of 
any final reauthorization bill.
    Once again, Madame Chairwoman, ARTBA thanks you not only for the 
opportunity to participate in this hearing, but also for the 
establishment of this task force. I would be happy to answer any 
questions you or the other members may have.
                                 ______
                                 

 Response to questions submitted for the record by A. Kathleen Craft, 
        Executive Assistant, Frehner Construction Company, Inc.

1.  One of the goals of this Task Force is to examine the effect of the 
        National Environmental Policy Act (NEPA) on communities and 
        local businesses such as yours. We do this so that we can know 
        what improvements can be made to the law in order to minimize 
        NEPA's effects on local economies. In your testimony you 
        mentioned that your business (Frehner) has been affected by a 
        NEPA lawsuit regarding U.S. 95 in Las Vegas. Can you please 
        provide the Task Force with more details about what specific 
        effects this NEPA litigation had on your business.
    In the case of the U.S. 95 project, the NEPA litigation halted 
construction four years after the issuance of the Final Environmental 
Impact Statement. This sudden disruption affected Frehner's ability to 
develop a feasible work plan for construction on the project and also 
prevented Frehner from providing its employees with a reliable 
prediction about future employment. Without the certainty that a 
project will proceed after the NEPA process is concluded, Frehner 
cannot know what amount of resources will be necessary for project 
construction. Also, the value of the construction that was delayed by 
litigation was $85 million. During the time of the delay, the cost of 
materials associated with the construction rose, and as a result, the 
overall cost of the project increased by at least $3 million.
    It should be noted that a settlement has been reached in the U.S. 
95 litigation and, pending approval by the court, construction on the 
U.S. 95 project should resume by November of this year. This does not, 
however, mitigate the effects of the delay caused by this litigation, 
nor does it ease the concerns of Frehner and the American Road and 
Transportation Builders Association (ARTBA) regarding the NEPA process.

2.  The Task Force is also interested in NEPA's effect on the community 
        and transportation planning. As a member of the Las Vegas 
        community, can you give the Task Force an idea of how ling 
        discussions on improving U.S. 95 have been ongoing and what the 
        sentiment of the community is regarding the need for the 
        widening of U.S. 95 from six to ten lanes. Also, please 
        describe what effect the litigation and the halting of 
        construction on the U.S. 95 project had on Las Vegas residents. 
        Can you give some examples of ``extreme circumstances'' that 
        might necessitate reopening an EIS? What shouldn't qualify as 
        something that should reopen an EIS?
    Residents of Las Vegas are struggling to keep up with a city that 
has experienced some of the fastest recent population growth anywhere 
in the United States. Between 1970 and 1996, the Las Vegas population 
has grown by over 300 percent. Discussions concerning improving U.S. 95 
began in 1995 with a two-year ``Major Investment Study'' (MIS). The 
NEPA process began after the completion of the MIS, and throughout the 
process there was significant public support for widening U.S. 95.
    The section of U.S. 95 to be widened is in one of the most 
congested areas of Las Vegas, if not the entire country. If nothing is 
done, U.S. 95 will be operating at 50 to 75 percent above capacity by 
2020. An estimated 190,000 vehicles travel through the portion of U.S. 
95 to be widened each day, with peak hour traffic reaching as high as 
11,900 vehicles. Currently, traffic congestion slows commuters to one-
half of the 55 mile per hour speed limit on the corridor. Also, between 
2000 and 2002 there were 3,535 motor vehicle crashes on one section of 
U.S. 95. As mentioned in my written testimony, according to the Texas 
Transportation Institute's 2005 Urban Mobility Report, in the year 2002 
alone, traffic congestion cost Las Vegas area residents and businesses 
$380 million and resulted in the additional consumption of 14 million 
gallons of motor fuel. The U.S. 95 litigation only served to prolong 
these problems for Las Vegas residents.
    An Environmental Impact Statement (EIS) is the most intensive and 
time consuming part of the NEPA process. Currently, the EIS portion of 
the NEPA process can take anywhere from four to six years to complete. 
During this time, voluminous amounts of environmental information are 
considered. Indeed, as the Department of Justice attorney representing 
the FHWA noted in her oral argument, thousands of studies on all sides 
of the air quality issue were considered during the EIS for the U.S. 95 
project. With this in mind, once a final EIS is issued, the process 
should not be reopened lightly. While it is impossible to predict a 
specific instance where this would be warranted, any request to reopen 
an EIS should be viewed with the strictest scrutiny.
    The air quality study used by the Sierra Club to obtain the 
injunction which halted construction on U.S. 95 represents exactly they 
type of document which should not be used as a reason for re-opening an 
EIS. It was an air quality modeling study which was performed in Los 
Angeles, California as opposed to Las Vegas. On it's face, it is not 
directly relevant to the project in question. Also, many similar 
studies were considered during the EIS. An EIS cannot be reopened every 
time a new study comes out. If the issue has already been thoroughly 
analyzed as part of the EIS process, the process should not be reopened 
unless the information is directly relevant and ignoring it would pose 
dire, immediate consequences for the area surrounding the project. 
Again, this would be only in the most serious, extreme circumstances.

3.  I agree that it seems like much of the NEPA analysis focuses on the 
        negative. What do you mean by ``proper'' weight for the 
        environmental benefits?
    The NEPA process only considers environmental impacts. It does not 
consider the environmental benefits of a project. In the case of the 
U.S. 95 project, as documented in my written testimony, the following 
benefits will be realized upon the project's completion through the 
year 2025:
      a 58.8 ton reduction in carbon monoxide emission;
      a 54.3 ton reduction in volatile organic compounds 
(VOCs);
      an 87.8 ton reduction in carbon dioxide emissions;
      an 87.8 percent reduction in motor fuel usage by U.S. 95 
commuters, which translates to 231,654,731 gallons of motor fuel saved 
(or 68.9 gallons per commuter over the life of the project);
      the time Las Vegas commuters spend stuck in traffic will 
decrease by an average of 86.5 percent, which for commuters who use 
U.S. 95 twice per day, would mean 30 minutes of time saved per day 
while going through the area to be improved;
      3,524 fewer total motor vehicle crashes;
      1,730 fewer injuries to commuters; and most importantly;
      14 fewer fatalities.
    These benefits should be given equal consideration when the 
environmental impacts of the project are discussed during the EIS 
process. Also, the environmental impact of not going forward with the 
project should be weighed as part of the process. With U.S. 95, this 
would mean continuing the present state of congestion, and the 
environmental harms, discussed in response to question two, that result 
from it.

4.  In your recommendation about limiting the issues that can be raised 
        in litigation, it seems as though if it were limited to only 
        those issues that were fully raised and discussed, there might 
        not be much to fight over. Is that true?
    Yes, ideally, upon the completion of an EIS there should be nothing 
to fight over. The NEPA process should be undertaken in a manner which 
minimizes the possibility for litigation. If an issue is serious enough 
to warrant litigation, it deserves to be discussed in the public 
participation portion of an EIS first. The goal of NEPA is to address 
legitimate environmental concerns within the federal decision making 
process. The problem that has arisen with the NEPA process is that it 
has been too often manipulated by project opponents to become a tool of 
obstruction, rather than the intended coordinating structure for 
necessary environmental reviews. By requiring issues to be raised 
during the public participation part of the NEPA process, the chance 
for them to be resolved within the process increases greatly.
                                 ______
                                 
    Mr. Renzi. Ms. Poppie.

    STATEMENT OF MARINEL POPPIE, NEW MEXICO CATTLE GROWERS' 
               ASSOCIATION, GLENWOOD, NEW MEXICO

    Ms. Poppie. Members of the Task Force, on behalf of the New 
Mexico Cattle Growers and everyone affected by NEPA, thank you 
for holding this meeting in the Southwest, and I thank you for 
the opportunity to testify before you.
    My name is Marinel Poppie. I am a third generation rancher 
and I have practiced large animal veterinary medicine for 36 
years.
    I have ranched in Montana and in Southern Arizona for 10 
years. I currently live near Glenwood, New Mexico, a cattle 
ranch I purchased in 2001. I have been told by NEPA that my 
allotment has no endangered species. I was largely unfamiliar 
with NEPA, as our Montana ranches were deeded ranches, and it 
was our family's policy to never post a ``no trespassing'' 
sign, as we felt blessed to live on a ranch and to share 
nature's gifts with the public. I am an environmentalist, as 
are all ranchers. The environment is our survival.
    I have learned many costly and painful lessons about NEPA 
which I present to you. Number one, in September 2001, I left 
my veterinary practice, and with all available resources to me, 
I purchased Roberts Park Allotment in Catron County, New 
Mexico.
    Number two, I purchased this allotment in good faith that 
it would run a number of cattle on the face of the permit, 396 
cows and 8 horses, which I will call a 400-animal unit permit. 
This permit was issued to me and signed by the Glenwood 
District Ranger. The permit was to be effective for ten years.
    Due to the 2002 drought, I took a temporary and voluntary 
reduction in my allotted number of cattle to allow recovery of 
the range. I would like to bring to your attention that during 
this drought, my ranch had adequate water in the high country, 
but a shortage of feed. The United States Forest Service would 
not allow me to take feed or even protein blocks to these 
starving animals and, thus, many of them died.
    The range made a great recovery on my ranch in 2003.
    Both the annual and perennial grasses recovered. The Forest 
Service stated that my ranch was 100-percent watered and that 
this is the key to prevent over-grazing. On June 5th, 2003, the 
Forest Service stated that I was their best permittee due to 
the improvements that I had made to the range and for my 
cooperating and working with them. They stated that if more 
permittees were like me, they would have many, many less 
lawsuits, and then they handed me a proposed action to cut my 
permitted number of cattle in half from 400 to 200. They gave 
me no reason for this cut, and when asked--when I asked them to 
supply me data to back the cut to my permit, they had none.
    Their action cut my financial status in half. I asked them 
how they would react if I tore their paychecks in half. This 
action has caused a severe economic loss for me, as the value 
of an allotment is based on a number of permitted cattle. I 
feel that I was blind-sided and stabbed in the back by my 
Federal Government. I was not and I should have been involved 
in the development of this proposed action. When issuing a 
proposed action, it is to be put in writing with concrete facts 
to back the action.
    They sent me a summary in August of 2004, which invites a 
lawsuit. It is incorrect and biased. I was not invited to 
participate in the executive summary. Alternatives one and two, 
which basically say no cattle, had no data to back them. 
Alternative three permits me 217 animals versus the 400. 
Alternative four maintained my permitted number and has good 
data to back it. This data was not available to the public. The 
public has been misinformed.
    I hired Southwest Resource Consultants to conduct forage 
production studies in 2003 and 2004. The 2003 study concluded 
that my allotment had adequate forage to support more than 450 
head of cattle. This data was substantiated by the Forest 
Service.
    The 2004 production said I had a 24-percent increase in 
forage production from 2003. This 24-percent increase, as 
applied to the number of cattle, could support as high has 558 
animal units. This data was collected with the aid of the 
Glenwood Forest Service.
    In 2003, I invested $25,000 of my money toward improvement 
of my allotment. Sound data collected by professional resource 
consultants indicated that my allotment could easily support 
the number of cattle originally permitted and more.
    I am fully aware that the range is constantly changing and 
its condition depends on good management and rainfall. I, 
therefore, feel that any increase or decrease in cattle numbers 
be determined by careful monitoring, by cooperative effort 
between the Forest Service and the permittee. Changes should 
then be made by the annual operating plan.
    In conclusion, numerous areas of NEPA need to be changed. 
As a livestock producer, I would request that, one, involvement 
of the allotment owners in the beginning of the process. Two, 
using the NEPA process as Congress intended, not as a vehicle 
to justify decisions that have already been made.
    As each day is unique in its environmental properties, I 
would like to see the State monitor and regulate the management 
of our allotments in a joint effort with the permittee. Our 
State land grantologists and highly trained graze specialists 
have a knowledge of range management and a knowledge of the 
special needs of the Southwest area. If NEPA is to improve, 
they should do so by making their decisions on sound 
professional advice.
    However, I believe grazing should be--fall under a 
categorical exclusion from NEPA. The Glenwood Ranger District 
is now staffed by personnel that are more knowledgeable and 
honest than the previous District personnel. This has made for 
better data and better cooperation. This improvement, however, 
could change at any time, as a District Ranger has too much 
power. This reinforces my feeling that the U.S. Government has 
too much power in the important decisions involving the State.
    Thank you again for your time. I hope that together we can 
create a law that achieves the goal of environmental stability 
without harming people like me and my family. Thank you.
    Mr. Renzi. Thank you for your testimony. I appreciate it.
    [The prepared statement of Ms. Poppie follows:]

       Statement of Marinel Poppie, D.V.M., Glenwood, New Mexico

    Madam Chairwoman and members of the Task Force and Committee, on 
behalf of the New Mexico Cattle Growers' Association (NMCGA) and 
everyone affected by the National Environmental Policy Act (NEPA), 
thank you for holding a field hearing in the Southwest on this issue so 
vital to our livelihoods and futures, and for the opportunity to 
testify before you.
    My name is Marinel Poppie. I am a third generation rancher and a 
single grandmother. I bought a New Mexico ranch containing a U.S. 
Forest Service (USFS) allotment in late 2001, investing everything my 
family and I ever had to make the purchase. Prior to that I ranched in 
southern Arizona for 10 years and practiced as a large animal 
veterinarian for 36 years. During that time I was also an associate 
researcher with Washington State University on genetic diseases. I 
wrote and spoke extensively in the United States and Canada as part of 
that work.
    I was largely unfamiliar with NEPA until I came to New Mexico 
nearly four (4) years ago and created my Rocking Arrow Cattle Company 
that includes the Roberts Park Allotment within the Glenwood Ranger 
District of the Gila National Forest. Over the past four years I have 
learned many costly and painful lessons. I want to point out at the 
onset that there are many wonderful and dedicated people who work for 
the USFS and the federal government. However, they are hamstrung by 
processes such as NEPA, dictated by federal law, and made worse by 
individual agency regulations.
    As I understand it, as a federal law NEPA was intended to provide a 
forum for public participation in federal decisions affecting the 
natural environment, taking into account impacts on the HUMAN 
environment. Section 1508.14 of the Council on Environmental Quality 
(CEQ) Regulations states, ``Human environment shall be interpreted 
comprehensively to include the natural and physical environment and the 
relationship of people with that environment.''
    It is also my understanding of NEPA that the process is to be used 
to involve the public and gather the data to reach a sound decision for 
sustainable resource management. That has not necessarily been my 
experience. Instead, we find that agencies are reaching a decision and 
then using the NEPA process to justify it.
    I am confused by the application of some of the definitions. NEPA 
is required on ``major federal actions.'' Although the CEQ regs apply 
and Congress or the courts have apparently mandated it, I fail to see 
how the renewal of a livestock grazing permit where grazing has taken 
place for literally hundreds of years, predating federal land 
management agencies, is a ``major federal action.'' We are simply doing 
business as usual out here on the ground. The abundance of wildlife 
should be able to tell us and the government that we are doing 
something right.
    Both the USFS and the Bureau of Land Management (BLM) have huge 
backlogs of NEPA compliance on grazing allotments, only to be faced 
with doing it all over again for the next 10-year cycle before they 
have finished with the last. It has taken several acts of Congress to 
keep thousands of livestock producers working on ranches that have been 
family operations for generations. I hope that one of the things your 
Task Force can do is determine how much NEPA is costing federal 
agencies, not just in terms of the actual cost of each project, but 
what other work is being left undone while this paper is being shuffled 
around.
    Among the other issues that have negatively impacted me personally 
is the use of the ``no action alternative'' in NEPA on grazing 
allotments. It only takes common sense to understand that ``no action'' 
means nothing changes, right? Although the BLM has figured this out, 
that's not the view of the USFS. As applied to my allotment and all 
others in the USFS system, ``no action'' means that grazing will be 
removed. By characterizing the alternative in that manner, the agency 
is just providing a forum for those who would drive livestock producers 
from the land.
    Unfortunately, I don't think my NEPA horror story is that different 
from most of my neighbors or other allotment owners throughout Region 
3. On October 27, 2001, I was issued a term grazing permit for 396 cows 
and eight horses. The permit was to be effective until February 28, 
2011 per the terms and conditions of the permit. Little did I know at 
the time the region was entering into a severe drought. In 2002, due to 
that drought, I took a temporary and voluntary reduction in my number 
to approximately 300 cows and eight horses. I have obtained the bills 
for the actual number of cattle run on the Roberts Park Allotment for 
the 16 years previous to my purchase. That averaged 379 head per year. 
(See attachment A)
    One of the statements made by the range staff officer over my 
allotment was that adequate livestock water is the key to prevention of 
overgrazing. He further stated my allotment was 100 percent watered.
    In June of 2003, I learned that the USFS had begun NEPA analysis on 
my allotment and had provided scoping documentation to the public 
without ever involving me in any of the process. The USFS was proposing 
to cut my allotment by 50 percent. Can you imagine what cutting your 
pay check by 50 percent would do to you and your family?
    When I was informed of the proposed action, I received no 
justification for such drastic action. When I requested that 
justification, all I was provided was a few old data sheets with no 
dates or signatures. There was no recent monitoring data or even 
historic trend data available on which to base a decision.
    For the past two years, I have hired my own range management 
consultant to provide scientific data on the condition of my allotment. 
His data indicates that there is ample forage not only for my permitted 
numbers, but additional livestock (attachment B).
    My allotment has 43 stock tanks that were not disclosed to the 
public, as well as three drinkers and two water storage tanks. I have 
been diligent in continuing to improve watering facilities on the 
allotment. I have repaired two major watering systems that have opened 
vast areas of rangeland that had not been grazed for years. I have and 
will continue to improve the allotment and have worked toward a good 
working relationship with the USFS. In 2003 I was asked to list 
improvements I planned for the future. It was a three-page typed list, 
yet even after I completed some of the projects on the list, I was told 
that no matter how much I improved the rangeland, my allotment would be 
cut by 50 percent or more. It certainly appeared to be a predetermined 
decision and not something that could or would change through any 
public process.
    Equally as egregious is the fact the USFS planted the seed with the 
public that my allotment should be cut and provided them incorrect 
information about the allotment, so that there would be public support 
for their proposed cut.
    During the balance of 2003 and into 2004, there were some staff 
changes at the ground level in my district. The working relationship 
with the USFS improved and there was support to provide some management 
flexibility for my operation based on actual range condition.
    Then the next bomb hit. On August 19, 2004, the USFS issued an 
``executive summary'' of the NEPA required environmental assessment 
(EA) of my Roberts Park Allotment. Generally, EAs are 10 to 15 page 
documents, while environmental impact statements (EISs) are more full 
blown in-depth analysis that can run in the hundreds of pages.
    Imagine my surprise when I received a 35-page document (attachment 
C) with the USFS's ``proposed'' alternative to cut my permit to 240 
head of livestock, with 40 head of those suspended for five (5) years. 
Although I had worked to craft an alternative of my own that would 
allow me to stay in business, it was completely ignored at the 
supervisor's office level. Additionally, the document was biased to the 
``preferred alternative'' and grazing is maligned throughout.
    Adding insult to injury is the fact that the document did not even 
provide a firm comment deadline. Many of these documents now days only 
tell those who wish to participate in the process that they have 30 
days from the date the notice of the document appears in the local 
paper closest to the allotment or forest supervisor's office. And, when 
you call the office, they won't tell when it appeared in the paper. 
This makes participation by groups like the New Mexico Cattle Growers' 
Association and others difficult because they don't get the local paper 
for every forest allotment in the state.
    Another weakness in my NEPA document is the economic and social 
analysis. About three pages of the ``executive summary'' are devoted to 
those subjects, yet there is not one dollar amount included. How can 
you discuss economic impact without talking about numbers of dollars? 
The document admits that my income would be reduced, but points out 
that the USFS would not be asking me to spend any money.
    Additionally, the USFS totally ignored the cumulative impacts of 
the cuts they are planning for me along with the cuts of other 
allotments within Catron County.
    Fortunately, there is research available to demonstrate the impacts 
of the arbitrary and capricious decisions of the USFS. According to the 
Range Improvement Task Force at New Mexico State University (attachment 
E) well over 200,000 animal unit months (AUMs) have been lost in Catron 
County alone. That amounts to millions of dollars of lost revenue to 
the county.
    Since that document came out in August 2004, I have participated in 
numerous meetings and various groups, economists and scientists have 
weighed into the issue on my behalf. There has been no formal decision 
made by the USFS. My allotment is still listed on the schedule of 
proposed actions that appears on the Gila National Forest web page with 
a decision expected this month and implementation expected in September 
2005.
    I could go on for hours about similar experiences of my friends and 
neighbors, many of whom are in the audience today. The one issue that I 
would like to briefly address is the U.S. Fish and Wildlife Services' 
(FWS) use of NEPA in the Mexican Wolf reintroduction program that is 
destroying ranchers just north of me as we speak. In 2000 when the FWS 
wanted to release wolves into New Mexico they engaged in the NEPA 
process on the action. The comment period closed one afternoon and the 
wolves were released literally the next day.
    Our county governments and trade organizations have attempted to 
work with the federal agencies on NEPA. USFS Region 3 issued new policy 
direction in February 2004. My ``executive summary'' may be a good 
indication of how well that worked.
    In conclusion, I think there are numerous areas of NEPA that need 
work, but from a livestock producers perspective I would like to see:
      Involvement of the allotment owners or people on the 
ground at the beginning of the process. These are the people that are 
on the ground every day. They know what is going on and are the most 
likely to have pertinent data.
      Using the NEPA process as Congress intended, not as a 
vehicle to justify decisions that have already been made
      Ongoing activities, like livestock grazing, that have 
been going on for hundreds of years should fall under a categorical 
exclusion. If uses, such as grazing, are to be analyzed that should be 
on the overarching use of the land, not micro managing items like 
seasons of use, grazing methods, and animal numbers. There is extensive 
NEPA analysis at the forest management level, which includes grazing. 
Why is there additional NEPA necessary?
    Thank you once again for your time and interest. I hope that 
together we can create a law that achieves the noble goal of 
environmental sustainability without harming people like me and my 
family.

Attachments:
A.  History of Roberts Park Allotment Grazing Billings
B.  2003/2004 Roberts Park Allotment Monitoring Data Comparison
C.  August 2004 Roberts Park Allotment Executive Summary
D.  2003 Roberts Park Allotment Improvements
E.  Catron County Economic Data

NOTE: Attachments to Dr. Poppie's statement have been retained in the 
Committee's official files.
                                 ______
                                 
    [A letter submitted for the record by Mr. Poppie follows:]

    [GRAPHIC] [TIFF OMITTED] T1884.006
    
    [GRAPHIC] [TIFF OMITTED] T1884.007
    

    Mr. Renzi. I move to Ms. Struhsacker with the Women's 
Mining Coalition.

                STATEMENT OF DEBRA STRUHSACKER, 
             WOMEN'S MINING COALITION, RENO, NEVADA

    Ms. Struhsacker. Congressman Renzi and other Members of the 
Task Force, I am Debra Struhsacker and I am here testifying 
today on behalf of the Women's Mining Coalition. We are a 
grass-roots Coalition supporting environmentally responsible 
mining. I, along with two other female geologists, started this 
Coalition in 1993 for the purpose of giving Members of Congress 
information about the industry that we work in.
    Today our members live coast to coast in numerous mining 
states. We represent all sectors of the mining industry; hard-
rock mining, coal, uranium, industrial minerals, and stone and 
gravel. We are thrilled to have this opportunity and want to 
express our appreciation to Chairman Pombo for developing this 
Task Force to look at NEPA. We think it is a good time to take 
a look at this law that was passed in 1969, because a lot has 
happened since enactment of NEPA, and I have put together a 
chart that I would like to draw your attention to. There is a 
copy of it in my testimony, as well, and I apologize to members 
of the audience. I know you can't see this, so I'm going to 
describe it a little bit.
    This chart describes a chronology of enactment of laws in 
this country, and you will see that the National Environmental 
Policy Act, which was enacted in 1969, was one of the first 
environmental laws to be passed by the Congress. Congressman 
Renzi, you said the law was visionary. Indeed, it was. It was 
landmark legislation, but I think it is important to realize it 
was enacted in a vacuum because there were hardly any other 
laws in this country at that time to protect the environment.
    As this chart illustrates, many laws to protect our 
environment have been passed subsequent to NEPA in 1969.
    Just a couple examples, in 1970, the Clean Water Act, and 
in 1978, The Resource Conservation and Recovery Act. The list 
goes on. 1980, Superfund law.
    The point here is that a lot has changed with our laws to 
protect the environment in this country since NEPA was enacted 
in 1969, and that in and of itself is a very appropriate reason 
for this Task Force to take a look at NEPA and how it relates 
to this other body of law that was passed subsequent to NEPA.
    Now, as you examine that question, we would like to 
emphasize that in order to have a dialog about NEPA, everybody 
has to understand what the difference between NEPA and all the 
rest of these environmental laws is, because there is a real 
difference. NEPA stands for the National Environmental Policy 
Act, not the Environmental Protection Act. It creates a 
procedure. It requires Federal agencies to look at the 
environmental impacts of their decisions, to take public 
comments, and to disclose what those impacts are.
    There are no environmental protection standards per se in 
NEPA. All of those standards to protect our environment come 
from the rest of the laws that were passed since NEPA. The 
Women's Mining Coalition is convinced if we could all take a 
good look at how NEPA interacts with those laws that have very 
substantive, on-the-ground environmental protection mandates 
and standards and permitting processes, we could find a way to 
make NEPA work better, to make the process work more smoothly, 
and to integrate it into this overall environmental permitting 
process that we now have in this country and which is doing an 
excellent job of protecting the environment. So that's one of 
our first recommendations.
    Our second observation is that we are concerned, like 
others in the panel, that the NEPA process has been hijacked. 
Instead of the meaningful opportunity for collaboration and 
communication that Congress envisioned in 1969 when it passed 
NEPA, today the NEPA process is one of conflict and 
confrontation, and the reason for that, we believe, rests with 
the appeal process that is built into the NEPA process. 
Virtually anyone for the price of a 37-cent stamp can appeal a 
NEPA decision.
    I think we heard a real horror story from Ms. Craft about 
just how that can work. We would like the Task Force to examine 
ways to give local stakeholders a stronger voice and more 
importance in the NEPA scoping and comment process. The reason 
for that is that we think local people know best what is good 
for their community, what is good for their environment, and 
that outside interests should have less of a say to what 
happens, and with that, we feel that those who seek to overturn 
a NEPA decision, should be required to post a bond, that in the 
event their appeal fails, they are held responsible for the 
costs that is due, not only to the private sector, but to the 
public sector, as well, because Federal agencies spend an 
enormous amount of time and energy defending their NEPA 
decisions.
    I see that my time is running out, and my testimony has a 
number of suggestions. I would like to make a couple very quick 
additional remarks. I think that one of the reasons that NEPA 
has become so controversial, is that people misuse it, or 
perhaps misunderstand it. They try to use it as a surrogate 
land management law. It is not. I think it is very important, 
as we have this dialog about NEPA, to understand who had what 
role, and the Constitution gives the Congress the role to say 
what happens on Federal land. In 1976, Congress enacted the 
Federal Land Policy and Management Act that gave Federal land 
managers a lot of the authority to say how enactments are to be 
done in order to protect the environment.
    In the case of mining, FLPMA says that mining on Federal 
land must prevent unnecessary or undue degradation, and the 
Federal land agencies have regulations to implement that 
unnecessary or undue degradation standard.
    Now, people who seek to stop mining projects through the 
NEPA process, often are seeking a decision from land managers 
the land managers don't have the authority to do, because it's 
your job to say where mining can occur. It is the Federal land 
managers' job to say how that mining must be done in order to 
protect the environment.
    So we suggest that this Task Force examine ways to give 
Federal land managers more authority to discount comments in 
the NEPA process that seek an outcome that is really infringing 
upon your authority to say where these activities can occur. 
And in conclusion, again, I want to thank the Task Force for 
this opportunity to testify on behalf of the Women's Mining 
Coalition and ask us all maybe to step out of the box for a 
minute and to think about what could have happened if the 
millions and millions of dollars that have been spent in the 
NEPA process since 1969, if just a fraction of those resources 
could have been actually redirected to on-the-ground 
environmental benefits, and we would like to ask the Task Force 
to think about how NEPA might be changed so that more of this 
country's resources can be diverted from this paper exercise, 
and put to meaningful, tangible environmental projects on the 
ground. Thank you very much.
    Mr. Renzi. Thank you very much for your substantive 
analysis.
    [The prepared statement of Ms. Struhsacker follows:]

            Statement of Debra W. Struhsacker, Co-Founder, 
                        Women's Mining Coalition

                              INTRODUCTION

    My name is Debra Struhsacker. I very much appreciate the 
opportunity to present written and oral testimony to the House 
Resources Committee, NEPA Task Force today on behalf of the Women's 
Mining Coalition (WMC), a grassroots group supporting environmentally 
responsible mining. I, along with two other Reno-based female 
geologists, founded WMC in 1993 to provide factual information about 
the mining industry to Members of Congress. I currently serve on WMC's 
Board of Directors. WMC is comprised of women working in many facets of 
mining including geology and exploration, engineering, management, 
government affairs, environmental permitting, mining and heavy 
equipment operation, equipment manufacturing, and sales of goods and 
services to the mining industry. We have members located from coast to 
coast in many different states. I, along with many WMC members, have 
extensive working experience with NEPA.
    My testimony describes some of the problems the NEPA process 
creates for the mining industry and presents some suggestions for 
improving NEPA to solve these problems. WMC is convinced that the NEPA 
process can be modified and streamlined in ways that will improve the 
timeliness, quality, and relevance of NEPA decisions for mining 
projects. These improvements will benefit all stakeholders and result 
in mineral projects that are the best they can be for the environment 
and local communities.

                           EXECUTIVE SUMMARY

1.  As one of the first environmental laws in this country, NEPA was 
landmark legislation, signaling the dawning of environmental awareness 
and the first step down the path of enacting what has become a 
comprehensive and effective statutory framework to protect the 
environment. NEPA is a procedural law that creates a process to seek 
public comments, consider alternatives, and disclose impacts. It does 
not include any substantive, on-the-ground environmental protection 
requirements or standards. These environmental protection authorities 
are derived from the many other environmental laws passed since the 
enactment of NEPA.
    Recommendation: The Task Force should evaluate NEPA in the context 
of the many substantive environmental laws enacted since 1969 to:
      Evaluate whether NEPA and this body of environmental laws 
work well together;
      Determine if there is duplication and overlap in the 
environmental evaluation process, and if so, how to eliminate or 
minimize this duplication; and
      Develop ways to integrate and optimize the NEPA analysis 
and impact disclosure process with the environmental permitting 
processes established in other laws.

2.  Anti-development groups have hijacked NEPA by turning it into a 
process of conflict and confrontation rather than an opportunity for 
communication and collaboration, as Congress originally intended. These 
groups use NEPA as their 37-cent ticket to delay, oppose, and litigate 
natural resource development projects on public lands. As such, NEPA 
has become the anti-development groups' dream and the natural resource 
developers' nightmare.
    Recommendation: The Task Force should recommend changes in the NEPA 
public scoping and appeal processes. Issues and concerns raised by 
local interests should be accorded more importance than comments from 
outside groups and individuals who are not directly affected by a 
proposed project or land use decision because local people know what is 
best for their environment and their community. Additionally, NEPA 
appellants should be required to post bonds to cover the government's 
and the private-sector's costs due to delays and legal fees if the 
agency's NEPA decision is sustained.

3.  Project opponents are misusing the NEPA process as a surrogate land 
use management law to stop mining on public lands on a project-by-
project. These anti-development activists seek an outcome that is 
inconsistent with current land-use plans that authorize multiple use, 
including mineral development, and that exceeds the agencies' authority 
to reject Plans of Operation. Congress has constitutional authority to 
determine where mining can occur on public lands. Federal land managers 
do not have authority under NEPA to prohibit mining or to withdraw 
specific project areas from operation of the U.S. Mining Law.
    Recommendation: The Task Force should recommend that NEPA public 
comment scoping notices specify the range of decision options 
authorized by statute and land use plans, and establish that project-
specific NEPA documents cannot be used to change existing law or to 
challenge previously authorized land use plans. Interest groups seeking 
to oppose natural resource development on public lands already have an 
opportunity to express their viewpoint in NEPA documents that agencies 
prepare for their land use plans. Agencies should thus be granted the 
authority to dismiss public comments that attempt to change land 
management status in project-specific NEPA documents.

4.  The NEPA alternatives analysis requirement creates specific 
problems for mineral exploration and development projects which must 
occur at specific locations based on geologic factors. Because mineral 
deposits cannot be moved, exploration must be performed in areas of 
favorable geology, and deposits can only be mined where mineral 
deposits are discovered. Unfortunately, the requirement to analyze 
alternatives to the Proposed Action adds considerable complexity to 
many NEPA documents for mineral projects with little or no commensurate 
environmental benefit.
    Recommendation: The Task Force should recommend modifications to 
the NEPA alternatives analysis requirement that recognize the fixed 
location of mineral deposits and other natural resources due to 
geologic constraints.

5.  Greater use of programmatic NEPA documents, categorical exclusions, 
and NEPA checklists to evaluate mineral exploration projects would save 
agency and private-sector time and resources. The types of 
environmental impacts associated with short-duration exploration 
drilling projects are predictable, well understood, and readily 
reclaimed. A programmatic approach for reviewing exploration proposals 
would save significant agency and private-sector resources.
    Recommendation: The Task Force should recommend greater use of 
programmatic documents to evaluate mineral and energy exploration 
projects that propose using a pre-determined set of Best Management 
Practices. Following preparation of a statewide or agency-wide 
programmatic NEPA document, exploration projects should be approved 
using categorical exclusions or NEPA checklists rather than individual 
NEPA documents.

6.  The uncertainties, delays, and costs associated with the NEPA 
process are compromising this Nation's ability to develop domestic 
mineral and energy resources. Proposed projects are held hostage 
because agencies are reluctant to make NEPA decisions, fearing their 
decisions will be challenged in court, thus jeopardizing responsible 
development of this Country's natural resources.
    Recommendation: The Task Force should recommend that all NEPA 
decisions analyze impacts to domestic mineral and energy resource 
development and require that NEPA decisions evaluate compliance with 
the following:
          The Mining and Mineral Policy Act of 1970, 30 U.S.C. 
        Sec. 21(a), that states the federal government must encourage 
        the development of an economically sound and stable domestic 
        mining industry and the development of domestic mineral 
        resources to satisfy industrial, security and environmental 
        needs;
          The Federal Land Policy and Management Act of 1976 at 
        43 U.S.C. Sec. 1701(a)(12) which requires managing the public 
        lands in ways that recognize the Nation's need for domestic 
        sources of minerals, food, timber, and fiber from the public 
        lands; and
          The Presidential Executive Order 13211 to consider 
        domestic energy supply, distribution, or use.

7.  The NEPA process consumes agency resources and private-sector 
capital that would be better spent on projects with tangible 
environmental benefits.
    Recommendation: The NEPA Task Force should evaluate ways to re-
direct the public- and private- sector resources that are currently 
being spent on the NEPA process to on-the-ground environmental 
improvement projects. Instead of having to prepare lengthy and complex 
NEPA documents, there should be provisions added to NEPA that encourage 
direct investment in projects to enhance and improve our environment.

 NEPA SHOULD BE REVIEWED IN THE CONTEXT OF THE MANY ENVIRONMENTAL LAWS 
                          THAT POST-DATE NEPA

    As one of the country's first environmental laws, the National 
Environmental Policy Act of 1969 (NEPA), Pub. L. 91-190, 42 U.S.C. 
Sec. Sec. 4321-4347, January 1, 1970, as amended, was visionary for its 
day. Passage of NEPA in 1969 laid the foundation for what has become a 
comprehensive framework of federal environmental protection statutes. 
As shown in Table 1, in the 35 years since NEPA was enacted, Congress 
has developed many other federal laws designed to protect all aspects 
of the Nation's environment.
    In evaluating NEPA and its interaction with other federal 
environmental statutes, it is important to recognize the substantially 
different purposes between NEPA and other environmental laws. The 
acronym NEPA stands for ``National Environmental Policy Act''--not the 
``National Environmental Protection Act.'' As such, NEPA is a process, 
a procedural law that requires federal decision makers to seek public 
comment, to consider alternatives, and to evaluate and disclose 
impacts.
    In contrast, the environmental laws that post-date NEPA, like the 
Clean Air Act of 1970 and the Clean Water Act of 1972, protect specific 
environmental resources. Other post-NEPA environmental statutes deal 
with other aspects of environmental protection. For example, the 
Resource Conservation and Recovery Act of 1976 governs the management 
and disposal of solid and hazardous wastes. The Toxic Substances 
Control Act of 1976 deals with the manufacture, distribution, use, and 
disposal of toxic substances. The Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980 pertains to the cleanup of the 
Nation's most polluted sites. These and the other laws shown in Table 1 
provide substantive on-the-ground environmental protection mandates and 
compliance requirements.

[GRAPHIC] [TIFF OMITTED] T1884.001


    The environmental statutory and regulatory framework of this 
country is thus significantly different than it was in 1969 when 
Congress developed NEPA in response to a growing awareness and concern 
about the importance of environmental protection. Now, 35 years later, 
it is appropriate to examine NEPA in the context of this environmental 
statutory and regulatory framework to determine if there are areas of 
duplication and overlap, ways to strengthen and improve NEPA, or 
opportunities to achieve better coordination of NEPA with the body of 
other environmental laws.
    Understanding the difference between NEPA and other environmental 
laws is critical to engaging in a constructive and meaningful dialogue 
about NEPA. Broader public awareness of this difference would greatly 
enhance the tenor of this discourse because NEPA must be evaluated in 
the context of the entire body of law to protect the environment. Since 
their enactment, the environmental laws that post-date NEPA have been 
enormously effective in improving the quality of our environment and 
will continue to provide comprehensive environmental protection for the 
future. Modifying the NEPA process will not change or compromise these 
substantive environmental laws. To the contrary, changing NEPA in ways 
that would allow federal decision-makers to get to a decision point 
sooner could actually improve environmental protection by expediting 
the approval process for proposed reclamation, cleanup, and other 
environmentally beneficial projects.
        Recommendation No. 1: The NEPA Task Force should evaluate NEPA 
        in the context of the many substantive environmental statutes 
        that post-date NEPA. This evaluation should:
    1.  Examine whether NEPA and this body of environmental law are 
working well together;
    2.  Determine if there is unnecessary duplication and overlap, and 
if so, how to eliminate or minimize this duplication; and
        3.  Develop ways to make the NEPA analysis and impact 
        disclosure process work more efficiently with the process for 
        obtaining permits under the CWA, CAA, etc.

 TIGHTER STANDING REQUIREMENTS AND APPEAL PROCEDURES WOULD IMPROVE THE 
                              NEPA PROCESS

    As enacted, NEPA was designed to be a process of communication and 
collaboration. Unfortunately, anti-development interests have hijacked 
the NEPA process and turned it into a process of conflict and 
confrontation with the goal of stopping natural resource development on 
public lands. These interest groups misuse NEPA as a tool with which to 
categorically oppose mining and other natural resource development on 
public lands. This is in marked contrast to Congress' intent for NEPA, 
which was to create a constructive process to identify and evaluate the 
environmental impacts of activities and agency decisions affecting 
public land.
    The misuse of NEPA stems largely from the NEPA appeal provisions, 
which anti-development groups use as their 37-cent ticket to delay and 
stop projects. The NEPA process has consequently become a far too 
fertile field for litigation, giving interest groups nearly endless 
opportunities to challenge NEPA decisions.
    This litigious atmosphere severely clouds NEPA's strengths and 
purpose. Congress passed NEPA with the laudable intent to balance the 
need for an adequate supply of natural resources, while at the same 
time, protecting the environment. Unfortunately, the NEPA process does 
not achieve the balance of interests as originally intended. Instead, 
NEPA has become the anti-development groups' dream and the resource 
developers' nightmare. NEPA also creates nightmares for federal 
agencies charged with conducting NEPA analyses and preparing NEPA 
documents. These officials are often reluctant to make NEPA decisions 
for fear of having their decisions appealed and ending up in time-
consuming and expensive legal battles.
    This fear of litigation contributes significantly to the costs and 
delays associated with the NEPA process. In an attempt to minimize the 
potential for their NEPA decisions to be appealed, federal agencies 
frequently require additional studies and engage in ``analysis by 
paralysis,'' with the hope that these extra measures will make their 
NEPA documents less vulnerable to appeal. Unfortunately, these 
additional steps rarely provide protection from an appeal because the 
process itself--not the technical findings of the NEPA document, are 
typically the subject of the appeal.
        Recommendation No. 2: The Task Force should recommend changes 
        in the NEPA public scoping and appeal processes. Issues and 
        concerns raised by local interests should be accorded more 
        importance than comments from outside groups and individuals 
        who are not directly affected by a proposed project or land use 
        decision because local people know what is best for their 
        environment and their community. Giving local viewpoints more 
        consideration in the NEPA process would ensure that the real 
        economic and social impacts associated with a proposed action 
        are properly evaluated, and that local and state concerns are 
        adequately considered. Additionally, appellants should be 
        required to post bonds to cover the government's and private-
        sector's costs due to delays and legal fees if the agency's 
        NEPA decision is sustained.

   THE FEDERAL LAND POLICY AND MANAGEMENT ACT--NOT NEPA GOVERNS USE, 
              DEVELOPMENT, AND WITHDRAWAL OF PUBLIC LANDS

    NEPA does not govern land use and does not authorize federal land 
managers to make decisions that functionally withdraw public lands from 
responsible development that complies with land use plans and 
environmental statutory requirements. The Federal Land Policy and 
Management Act (FLPMA), 43 U.S.C. 1701 et seq., governs the management 
of the public lands. Congress passed this landmark legislation in 1976, 
seven years after NEPA was enacted. FLPMA establishes guidelines for 
administering the public lands consistent with the constitutional 
authority that grants Congress the ``power to dispose of and make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States.'' (United States Constitution, 
at Article IV, Sec. 3, cl. 2.)
    FLPMA clearly establishes that Congress, not the Executive Branch, 
has the principal authority to withdraw public lands:
          ``The Congress declares that it is the policy of the United 
        States that--...the Congress exercise its constitutional 
        authority to withdraw or otherwise designate or dedicate 
        Federal lands for specified purposes and that Congress 
        delineate the extent to which the Executive may withdraw lands 
        without legislative action.'' 43 U.S.C. Sec. 1701(a)(4).
    FLPMA at 43 U.S.C. Sec. 1701(a)(2) establishes a land use planning 
and inventory requirement that directs federal land managers to conduct 
a periodic and systematic land use planning process to inventory 
present and future use. Federal land managers prepare NEPA documents, 
typically an Environmental Impact Statement (EIS), in conjunction with 
this land use inventory and planning process. The resulting NEPA 
documents consider public comments and land use alternatives and 
disclose the environmental impacts associated with agency land use 
decisions. Thus, as required by FLPMA, there is considerable public 
involvement in agencies' land use management decisions. Sometimes these 
decisions are the subject of considerable public debate and 
controversy.
    In the case of mining, FLPMA at 43 U.S.C. Sec. 1732(b) directs the 
Secretary of the Interior to manage the public lands ``by regulation or 
otherwise take any action necessary to prevent unnecessary or undue 
degradation of the lands.'' In response to this directive, BLM 
developed surface management regulations at 43 C.F.R. Subpart 3809 that 
define compliance with the mandate ``to prevent unnecessary or undue 
degradation.'' In this manner, Congress has given BLM the authority to 
say how mining is done in order to prevent unnecessary or undue 
degradation while retaining for itself the authority to say where 
mining can occur on public lands.
    There is no provision in NEPA that confers any authority upon the 
Executive Branch to make land use decisions that trump Congress' 
plenary authority over public lands. Unfortunately, anti-development 
groups frequently attempt to use NEPA as if it were a land management 
law that gives federal land managers authority to withdraw public lands 
from mining and other natural resource development. In doing so, these 
activists create a very awkward situation for federal land managers 
because they are essentially asking them to go beyond their authority 
to designate where natural resource development on public lands can 
occur with the hope of restricting or precluding development. This 
tactic, which is used during both the land use planning and project 
permitting processes, causes agencies to expend significant time and 
effort during the NEPA process to respond to comments seeking an 
outcome that exceeds the regulators' authority. This is a tremendous 
waste of both public- and private-sector resources.
        Recommendation No. 3: The NEPA Task Force should evaluate ways 
        to discourage the misuse of the NEPA process as a surrogate 
        land management law. The Task Force should recommend that NEPA 
        public comment scoping notices specify the range of decision 
        options authorized by statute and land use plans, and establish 
        that project-specific NEPA documents cannot be used to change 
        existing law or to challenge previously authorized land use 
        management decisions. Interest groups seeking to oppose mining 
        and other natural resource development on public lands already 
        have an opportunity to express their viewpoint in NEPA 
        documents that agencies prepare for land use plans. Agencies 
        should be granted the authority to dismiss public comments that 
        attempt to change land use status in project-specific NEPA 
        documents

    IMPROVING THE NEPA PROCESS FOR MINERAL PROJECTS ON PUBLIC LANDS

    The Council on Environmental Quality (CEQ) regulations that 
implement NEPA (40 C.F.R. Parts 1500--1518) create specific problems 
for proposed mineral projects. The requirement at 40 CFR Part 1502 
Sec. 14 to analyze alternatives to the Proposed Action is not well 
suited for many mineral projects because geologic factors must dictate 
where mineral exploration and development occurs. Unlike some 
commercial development projects where it makes sense to perform a site 
selection study to identify the optimal location for a proposed 
project, miners do not have the ability to choose where they mine. They 
have to explore and mine at the exact locations where mineral resources 
are found. Unfortunately, satisfying the alternatives analysis 
requirement is often a time-consuming paper exercise that adds 
unnecessary length and complexity to NEPA documents without adding much 
value to the environmental analysis.
    Once a mineral deposit is discovered, there may be some flexibility 
in locating the mineral processing and ancillary facilities at some 
projects depending upon site-specific factors such as topography and 
land ownership patterns. In these situations, analyzing alternative 
locations for discrete project components may be a meaningful exercise. 
However, for many mineral projects, the range of alternatives that is 
practical, technically and economically feasible, and environmentally 
beneficial is extremely limited.
    It should be noted that the FLPMA mandate to prevent unnecessary or 
undue degradation from mineral activities functions as a requirement to 
analyze and select alternatives that would reduce environmental 
impacts. In order to satisfy this mandate, mineral project proponents 
must prove that the proposed project facilities and mining and 
reclamation techniques will not create unnecessary or undue 
environmental impacts. This burden of proof necessarily considers 
different project layouts and other mining methods to determine whether 
there are technically achievable and economically feasible alternatives 
that would reduce impacts. The FLPMA unnecessary or undue degradation 
mandate requires that exploration and mining projects use feasible 
alternatives that minimize environmental impacts.
    The requirement at 40 CFR Part 1502 Sec. 14(d) to analyze the No 
Action Alternative creates a unique problem for mineral projects 
because federal land managers usually cannot select this alternative 
due to mandates in the U.S. Mining Law (30 U.S.C. Sec. 21(a) et seq.) 
and FLPMA that authorize mining on public lands.
    Specifically, the Mining Law at 30 U.S.C. Sec. 22 states:
          ``Except as otherwise provided, all valuable mineral deposits 
        in lands belonging to the United States, both surveyed and 
        unsurveyed, shall be free and open to exploration and purchase, 
        and the lands in which they are found to occupation and 
        purchase, by citizens of the United States.''
    The following sections of FLPMA specifically authorize mining on 
public lands:
          ``the public lands be managed in a manner which recognizes 
        the Nation's need for domestic sources of minerals, food, 
        timber and fiber from the public lands''.'' (43 U.S.C. 
        Sec. 1701(a)(12)); and
          ``no provision of this section or any other section of this 
        Act shall in any way amend the Mining Law of 1872 or impair the 
        rights of any locators or claims under that Act, including, but 
        not limited to, rights of ingress and egress.'' (43 
        U.S.C.Sec. 1732(b)).
    So long as a proposed mineral project complies with the FLPMA 
mandate to prevent unnecessary or undue degradation, an agency cannot 
wholesale reject a Plan of Operations. Rather, the agency's authority 
rests with regulating how the proposed activity must be conducted to 
comply with the unnecessary or undue degradation requirement.
    Although agencies cannot typically select the No Action 
Alternative, the requirement to consider the No Action Alternative adds 
considerable length and complexity to some NEPA documents with no 
meaningful environmental or land management benefits.
    For these reasons, aspects of CEQ's current NEPA rules are not 
ideal for evaluating impacts associated with proposed mineral 
activities. Agencies charged with preparing NEPA documents for mineral 
projects have to force-fit the project into the NEPA document template 
that revolves around considering alternatives including the No Action 
Alternative.
        Recommendation No. 4: The NEPA Task Force should recommend 
        modifications to the NEPA alternatives analysis requirement for 
        mineral and other natural resource development projects in ways 
        that recognize the fixed location of mineral deposits and other 
        natural resources due to geologic constraints. The Task Force 
        should also eliminate the requirement to consider the No Action 
        Alternative for mineral projects that comply with the FLPMA 
        mandate to prevent unnecessary or undue degradation.

AGENCY RESOURCES WOULD BE BETTER SPENT BY DEVELOPING PROGRAMMATIC NEPA 
                   DOCUMENTS FOR EXPLORATION PROJECTS

    BLM and USFS currently devote enormous time and energy preparing 
individual NEPA documents, typically Environmental Assessments (EAs), 
for exploration drilling projects. A more efficient and cost-effective 
approach would be to prepare a programmatic document that analyses the 
environmental impacts and appropriate mitigation measures for a typical 
exploration drilling project that employs a pre-determined set of Best 
Management Practices. This document could then be used as the basis for 
evaluating individual exploration drilling project proposals. Projects 
that fit within the parameters of the programmatic document and that 
adopt the recommended Best Management Practices and mitigation measures 
recommended in the programmatic document could then be approved with 
either a Categorical Exclusion or a Determination of NEPA Adequacy 
(DNA) checklist.
    A typical exploration drilling program involves a limited range of 
activities that result in easily predictable and well understood 
environmental impacts. Constructing temporary access roads and drill 
pads disturbs soils and vegetation on a temporary basis. The mining 
industry has a demonstrated track record of successfully reclaiming 
this disturbance. Moreover, the outcome of the NEPA analysis for a 
typical proposed exploration project is predictable. Assuming the 
project is located on lands open to operation of the Mining Law, and 
the project complies with the FLPMA mandate to prevent unnecessary or 
undue degradation, the agencies approve the project. Their approval may 
include special stipulations or required mitigation measures as 
necessary to address site-specific conditions and to avoid any 
environmentally sensitive areas with cultural resources or sensitive 
habitat. However, as discussed above, the agencies do not have the 
authority to categorically reject a Plan of Operations.
    Using a programmatic approach to approve routine, short-duration 
projects would not modify in any way the level of environmental 
protection or reclamation applied to these projects. Operators would 
still have to collect site-specific baseline data to determine whether 
cultural resources or sensitive species or habitats exist in the 
project area, and if so, how to apply the Best Management Practices to 
mitigate impacts to these resources. It would, however, get to a 
decision point much sooner, with obvious benefits to the private sector 
and the Nation's supply of energy and mineral resources. It would also 
substantially benefit the quality of BLM's and USFS' land management 
activities because it would allow the agencies to spend more of their 
time on more complex and important decisions and less time preparing 
pro forma NEPA documents on routine matters. Moreover, a programmatic 
approach is consistent with 40 C.F.R. Part 1500 Sec. 4(i) that directs 
agencies to use ``program, policy, or plan environmental impact 
statements and tiering from statements of broad scope to those of 
narrower scope, to eliminate repetitive discussions of the same issues 
(Sec. Sec. 1502.4 and 1502.20).''
        Recommendation No. 5: The Task Force should recommend greater 
        use of programmatic documents to evaluate mineral and energy 
        exploration projects that propose using a pre-determined set of 
        Best Management Practices. Following preparation of a statewide 
        or agency-wide programmatic NEPA document, these types of 
        projects should be approved using categorical exclusions and 
        NEPA checklists rather than individual NEPA documents.

NEPA IS ADVERSELY AFFECTING THE NATION'S SUPPLY OF DOMESTIC ENERGY AND 
                           MINERAL RESOURCES

    Reducing our reliance on foreign sources of mineral and energy 
resources is critical to this country's economic health and national 
defense. Unfortunately, the delays, costs, and uncertainties associated 
with the NEPA process create a significant and sometimes insurmountable 
barrier to responsible natural resource development.
    This barrier is inconsistent the original intent of NEPA to achieve 
a balance of interests. NEPA at U.S.C. 42 Sec. 4331(b)(5) describes the 
balance of interests Congress intended for NEPA, speaking specifically 
to the objective of balancing the need for natural resource development 
and environmental protection:
          ``In order to carry out the policy set forth in this chapter, 
        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''.achieve a balance between population and 
        resource use which will permit high standards of living and a 
        wide sharing of life's amenities.
        Recommendation No. 6: The Task Force should recommend that all 
        NEPA decisions analyze impacts to domestic mineral and energy 
        resource development and require that NEPA decisions evaluate 
        compliance with the following:
        1.  The Mining and Mineral Policy Act of 1970, 30 U.S.C. 
        Sec. 21(a), which mandates ``that it is the continuing policy 
        of the Federal Government in the national interest to foster 
        and encourage private enterprise in the development of 
        economically sound and stable domestic mining, minerals, metal 
        and mineral reclamation industries, and the orderly and 
        economic development of domestic mineral resources, reserves, 
        and reclamation of metals and minerals to help assure 
        satisfaction of industrial, security and environmental needs;''
        2.  The Federal Land Policy and Management Act of 1976 at 43 
        U.S.C. Sec. 1701(a)(12) which mandates that ``the public lands 
        be managed in a manner which recognizes the Nation's need for 
        domestic sources of minerals, food, timber, and fiber from the 
        public lands including implementation of the Mining and 
        Minerals Policy Act of 1970;'' and
        3.  Presidential Executive Order 13211 to consider domestic 
        energy supply, distribution, or use.

                               CONCLUSION

    WMC is confident that the NEPA process can be improved for mineral 
projects on public lands. Instead of the confrontation and conflict 
that all too often cloud the NEPA process for many mineral projects, a 
far better use of public and private sector resources would result if 
the NEPA process were managed in a different way. WMC's vision for an 
improved and updated NEPA process would be one of collaboration and 
communication in which stakeholders participate in the process with the 
mutual goal of making proposed mineral projects the best they can be 
for both the environment and local communities.
    WMC can only speculate upon what could have been accomplished over 
the past 35 years since enactment of NEPA if even just a fraction of 
the public- and private-sector resources devoted to the NEPA process 
could have been spent instead on tangible environmental improvements. 
WMC contends that the Nation's resources could be better spent if the 
NEPA process were changed in ways that would allow federal agencies to 
make decisions faster in order to facilitate projects that include 
water quality improvements, wildlife habitat enhancement, abandoned 
mine reclamation, cultural resource preservation, etc. This change 
would be a far better way to comply with the NEPA mandate at 42 U.S.C. 
Sec. 4331(b)(1) to ``fulfill the responsibilities of each generation as 
trustee of the environment for succeeding generations'' than the 
current NEPA paper exercise.
        Recommendation No. 7: The NEPA Task Force should evaluate ways 
        to re-direct the public- and private- sector resources that are 
        currently being spent on the NEPA process to on-the-ground 
        environmental improvement projects. Instead of having to 
        prepare lengthy and complex NEPA documents, there should be 
        provisions added to NEPA that encourage direct investment in 
        projects to enhance and improve our environment.
                                 ______
                                 
    [The response to questions submitted for the record by Ms. 
Struhsacker follows:]

                          Debra W. Struhsacker

                           3610 Big Bend Lane

                             Reno, NV 89509

The Honorable Cathy McMorris
Chairwoman
Task Force on Improving the National Environmental Policy Act
Committee on Resources

RE:  Response to Additional Questions from the Task Force On Improving 
the National Environmental Policy Act

Dear Congresswoman McMorris:

    Thank you once again for the opportunity to appear on behalf of the 
Women's Mining Coalition before the Task Force on Improving the 
National Environmental Policy Act (NEPA) at the June 18th hearing in 
Show Low, AZ. This letter is in response to the questions you asked in 
your June 23rd letter.

Question No. 1: Please Provide Some Suggestions for ways to Re-direct 
        Some of the Resources Currently Spent on the NEPA Process to 
        Projects with Tangible On-the-Ground Benefits.
    Time is money for the private sector, which spends a tremendous 
amount of time and money on project permitting as a result of the NEPA 
process. A protracted NEPA review increases project development costs, 
which is an obvious concern for the private sector. Additionally, the 
inability to forecast how long the NEPA process will take creates 
another concern for project proponents because this uncertainty makes 
planning for the future very difficult.
    With these factors in mind, the Women's Mining Coalition would like 
to suggest that the NEPA Task Force consider modifications to NEPA that 
would create an incentive for the private sector to undertake 
environmental enhancement projects in exchange for a streamlined and 
predictable NEPA schedule. An expedited NEPA process could be 
guaranteed for projects that include a voluntary, on-the-ground 
environmental improvement component. This would stimulate private-
sector investments in the environment and would also create incentives 
for the federal agencies responsible for NEPA to complete the NEPA 
process in a timely manner in order to benefit from the proposed 
environmental enhancement project. If an agency were unable to meet the 
expedited NEPA schedule commitment, then the project proponent would no 
longer be obligated to construct the enhancement project.
    I would like to offer the following case history to illustrate the 
point that the private sector is willing to make voluntary investments 
in environmental enhancement projects when the uncertainties 
surrounding the NEPA process are eliminated.

Facilitating Corporate Environmental Investments--The Ken Snyder Mine 
        Case History.
    In the 1996-1998 timeframe, I was a consultant to Franco-Nevada 
Mining Corporation, Inc. and helped them secure the necessary permits 
for a small, underground gold mine in Elko County, Nevada called the 
Ken Snyder Mine. Unlike most Nevada mining operations, which are 
located wholly or partially on public land, the proposed Ken Snyder 
Mine was solely on private land. Therefore, the project was regulated 
entirely by the State of Nevada and the county; federal land managers 
had no regulatory role in evaluating the proposed project. 
Consequently, there was no requirement to conduct a NEPA analysis to 
approve the project.
    Because there was no NEPA jurisdiction over the proposed mine, the 
company had no concerns about the permitting process, and viewed the 
state permitting process as having a predictable outcome and schedule. 
This straightforward and timely permitting process facilitated Franco-
Nevada's discretionary corporate environmental investment at the Ken 
Snyder Mine and at the nearby town of Midas, Nevada. The certainty of 
the substance of Nevada's regulatory requirements and the timeliness of 
their implementation allowed the company to plan with some level of 
confidence on the length of time required to secure permits for the 
mine. Moreover, as a result of the predictable nature of Nevada's 
permitting process, Franco-Nevada was able to devote more of its 
resources to working closely with the community and State regulators to 
identify measures to fine tune and enhance the project in ways to 
benefit the environment and the town of Midas. Examples of these 
discretionary environmental investments included the following:
      Good Samaritan reclamation of land disturbed by previous 
mining activities;
      Installing an INCO cyanide detoxification circuit, which, 
although not required for operations, guaranteed protection of the 
environment;
      Relocating the mill to avoid impacting a Native American 
site on Franco-Nevada private land (at a cost in excess of $1 million); 
and
      Rehabilitating the historic Midas Schoolhouse to be used 
as a museum and a community center.
    None of these activities were the subject of regulatory 
requirements, but they enhanced the environment and community in which 
the mine and the company operated. At the same time, the mine was built 
with the same environmental protection measures that would have been 
required had the mine been located on public land and subject to the 
NEPA process. Thus, the absence of NEPA jurisdiction in this case 
resulted in an environmentally responsible project that met all federal 
environmental standards plus the enhancements that were possible thanks 
to the State's predictable permitting process.

Question No. 2: Does NEPA Create Any Unique Problems for Mining 
        Projects
    The answer to this question is quite simply, ``yes.'' These special 
problems stem from two factors: 1) the way in which NEPA is misused as 
a land management statute; and 2) the NEPA requirement to evaluate 
alternatives to the proposed project. These factors are discussed 
below.

NEPA is Not a Land Management Statute--But it is Often Misused for this 
        Purpose
    NEPA does not govern land use and does not authorize federal land 
managers to make decisions that functionally withdraw public lands from 
responsible development that complies with land use plans and 
environmental statutory requirements. The Federal Land Policy and 
Management Act (FLPMA), 43 U.S.C. 1701 et seq., governs the management 
of the public lands. Congress passed this landmark legislation in 1976, 
seven years after NEPA was enacted. FLPMA establishes guidelines for 
administering the public lands consistent with the constitutional 
authority that grants Congress the ``power to dispose of and make all 
needful rules and regulations respecting the territory or other 
property belonging to the United States.'' (United States Constitution, 
at Article IV, Sec. 3, cl. 2.)
    FLPMA clearly establishes that Congress, not the Executive Branch, 
has the principal authority to withdraw public lands:
          ``The Congress declares that it is the policy of the United 
        States that--...the Congress exercise its constitutional 
        authority to withdraw or otherwise designate or dedicate 
        Federal lands for specified purposes and that Congress 
        delineate the extent to which the Executive may withdraw lands 
        without legislative action.'' 43 U.S.C. Sec. 1701(a)(4).
    FLPMA at 43 U.S.C. Sec. 1701(a)(2) establishes a land use planning 
and inventory requirement that directs federal land managers to conduct 
a periodic and systematic land use planning process to inventory 
present and future use. Federal land managers prepare NEPA documents, 
typically an Environmental Impact Statement (EIS), in conjunction with 
this land use inventory and planning process. The resulting NEPA 
documents consider public comments and land use alternatives and 
disclose the environmental impacts associated with agency land use 
decisions. Thus, as required by FLPMA, there is considerable public 
involvement in agencies' land use management decisions. Sometimes these 
decisions are the subject of considerable public debate and 
controversy.
    In the case of mining, FLPMA at 43 U.S.C. Sec. 1732(b) directs the 
Secretary of the Interior to manage the public lands ``by regulation or 
otherwise take any action necessary to prevent unnecessary or undue 
degradation of the lands.'' In response to this directive, BLM 
developed surface management regulations at 43 C.F.R. Subpart 3809 that 
define compliance with the mandate ``to prevent unnecessary or undue 
degradation.'' In this manner, Congress has given BLM the authority to 
say how mining is done in order to prevent unnecessary or undue 
degradation while retaining for itself the authority to say where 
mining can occur on public lands.
    There is no provision in NEPA that confers any authority upon the 
Executive Branch to make land use decisions that trump Congress' 
plenary authority over public lands. Unfortunately, anti-development 
groups frequently attempt to use NEPA as if it were a land management 
law that gives federal land managers authority to withdraw public lands 
from mining and other natural resource development. In doing so, these 
activists create a very awkward situation for federal land managers 
because they are essentially asking them to go beyond their authority 
to designate where natural resource development on public lands can 
occur with the hope of restricting or precluding development. This 
tactic, which is used during both the land use planning and project 
permitting processes, causes agencies to expend significant time and 
effort during the NEPA process to respond to comments seeking an 
outcome that exceeds the regulators' authority. This is a tremendous 
waste of both public- and private-sector resources.
    The Women's Mining Coalition would like to suggest that the NEPA 
Task Force evaluate ways to discourage the misuse of the NEPA process 
as a surrogate land management law. The Task Force should recommend 
that NEPA public comment scoping notices specify the range of decision 
options authorized by statute and land use plans, and establish that 
project-specific NEPA documents cannot be used to change existing law 
or to challenge previously authorized land use management decisions. 
Interest groups seeking to oppose mining and other natural resource 
development on public lands already have an opportunity to express 
their viewpoint in NEPA documents that agencies prepare for land use 
plans. Agencies should be granted the authority to dismiss public 
comments that attempt to change land use status in project-specific 
NEPA documents

The NEPA Alternatives Analysis Requirement Creates Special Problems for 
        Mining
    The Council on Environmental Quality (CEQ) regulations that 
implement NEPA (40 C.F.R. Parts 1500--1518) create specific problems 
for proposed mineral projects. The requirement at 40 CFR Part 1502 
Sec. 14 to analyze alternatives to the Proposed Action is not well 
suited for many mineral projects because geologic factors must dictate 
where mineral exploration and development occurs. Unlike some 
commercial development projects where it makes sense to perform a site 
selection study to identify the optimal location for a proposed 
project, miners do not have the ability to choose where they mine. They 
have to explore and mine at the exact locations where mineral resources 
are found. Unfortunately, satisfying the alternatives analysis 
requirement is often a time-consuming paper exercise that adds 
unnecessary length and complexity to NEPA documents without adding much 
value to the environmental analysis.
    Once a mineral deposit is discovered, there may be some flexibility 
in locating the mineral processing and ancillary facilities at some 
projects depending upon site-specific factors such as topography and 
land ownership patterns. In these situations, analyzing alternative 
locations for discrete project components may be a meaningful exercise. 
However, for many mineral projects, the range of alternatives that is 
practical, technically and economically feasible, and environmentally 
beneficial is extremely limited.
    It should be noted that the FLPMA mandate to prevent unnecessary or 
undue degradation from mineral activities functions as a requirement to 
analyze and select alternatives that would reduce environmental 
impacts. In order to satisfy this mandate, mineral project proponents 
must prove that the proposed project facilities and mining and 
reclamation techniques will not create unnecessary or undue 
environmental impacts. This burden of proof necessarily considers 
different project layouts and other mining methods to determine whether 
there are technically achievable and economically feasible alternatives 
that would reduce impacts. The FLPMA unnecessary or undue degradation 
mandate requires that exploration and mining projects use feasible 
alternatives that minimize environmental impacts.
    The requirement at 40 CFR Part 1502 Sec. 14(d) to analyze the No 
Action Alternative creates a unique problem for mineral projects 
because federal land managers usually cannot select this alternative 
due to mandates in the U.S. Mining Law (30 U.S.C. Sec. 21(a) et seq.) 
and FLPMA that authorize mining on public lands.
    Specifically, the Mining Law at 30 U.S.C. Sec. 22 states:
          ``Except as otherwise provided, all valuable mineral deposits 
        in lands belonging to the United States, both surveyed and 
        unsurveyed, shall be free and open to exploration and purchase, 
        and the lands in which they are found to occupation and 
        purchase, by citizens of the United States.''
    The following sections of FLPMA specifically authorize mining on 
public lands:
          ``the public lands be managed in a manner which recognizes 
        the Nation's need for domestic sources of minerals, food, 
        timber and fiber from the public lands''.'' (43 U.S.C. 
        Sec. 1701(a)(12)); and
          ``no provision of this section or any other section of this 
        Act shall in any way amend the Mining Law of 1872 or impair the 
        rights of any locators or claims under that Act, including, but 
        not limited to, rights of ingress and egress.'' (43 
        U.S.C.Sec. 1732(b)).
    So long as a proposed mineral project complies with the FLPMA 
mandate to prevent unnecessary or undue degradation, an agency cannot 
wholesale reject a Plan of Operations. Rather, the agency's authority 
rests with regulating how the proposed activity must be conducted to 
comply with the unnecessary or undue degradation requirement.
    Although agencies cannot typically select the No Action 
Alternative, the requirement to consider the No Action Alternative adds 
considerable length and complexity to some NEPA documents with no 
meaningful environmental or land management benefits.
    For these reasons, aspects of CEQ's current NEPA rules are not 
ideal for evaluating impacts associated with proposed mineral 
activities. Agencies charged with preparing NEPA documents for mineral 
projects have to force-fit the project into the NEPA document template 
that revolves around considering alternatives including the No Action 
Alternative.
    The Women's Mining Coalition would like to recommend that the NEPA 
Task Force suggest modifications to the NEPA alternatives analysis 
requirement for mineral and other natural resource development projects 
in ways that recognize the fixed location of mineral deposits and other 
natural resources due to geologic constraints. The Task Force should 
also eliminate the requirement to consider the No Action Alternative 
for mineral projects that comply with the FLPMA mandate to prevent 
unnecessary or undue degradation.
    Once again, on behalf of the Women's Mining Coalition, I would like 
to thank you, Chairman Pombo, and the Task Force on Improving NEPA for 
the opportunity to provide comments at the June 18th hearing. We 
applaud Chairman Pombo for his vision in creating the NEPA Task Force 
and would like to express our willingness to work closely with the Task 
Force as it completes its evaluation of how to update and modernize 
NEPA.

                            Sincerely yours,

                          Debra W. Struhsacker

                        Co-founder and Director

                        Women's Mining Coalition

                                 ______
                                 
    Mr. Renzi. Mr. Beck.

 STATEMENT OF ED BECK, TUCSON ELECTRIC POWER COMPANY, TUCSON, 
                            ARIZONA

    Mr. Beck. Congressman Renzi and Members of the NEPA Task 
Force, I also would like to thank you for the opportunity to 
participate today and provide some input as far as the project 
that Tucson Electric Power has been involved in for over five 
years now. My name is Ed Beck. I am the Superintendent of 
Transmission Planning for Tucson Electric Power, and I've been 
involved in transmission design and construction for over 26 
years.
    First of all, TEP supports the vision and the goals of 
NEPA. We are not suggesting that NEPA itself needs to be 
removed, but it is the process we have a problem with. TEP has 
been a very environmentally friendly organization over the 
years, and actually built one of the first transmission lines 
after the enactment of NEPA, which was unusual in the fact that 
we did a feathering of trees through the forest. Rather than 
clear cutting, we left the trees in place and trimmed them to 
allow clearance for the lines. That was part of the Forest 
Service recommendations.
    The Forest Service was so impressed with the project, that 
they created a video and used it in the region for training and 
education for many years, and TEP personnel and directors 
supported that. Interestingly enough, the issue of feathering 
has changed in the last year. As a result of the 2004 black-out 
in the east, the Forest Service is now promoting clear-cutting 
on in particular the Tucson Electric right-of-way, both from I 
think a liability perspective to them if a forest fire were to 
take the electric system out of service, and also for the 
potential to use the clearing as a fire break.
    We've had a very cooperative experience with at least the 
Apache Forest over the years, and when we started the project 
that we're proposing in Southern Arizona on the Coronado 
National Forest, we were rather disturbed to find there was 
absolutely no cooperation with the Forest Service personnel 
involved.
    Very briefly, the project that we are looking at, goes from 
Tucson to Nogales, Arizona, and goes down right on the Mexico 
border. There was a proposal for a 115 kV transmission line by 
another utility, and Tucson Electric had an interest in 
building a larger line that would ultimately connect with 
Mexico. So we felt this would be one opportunity for Southern 
Arizona to build the project, and we felt that there would only 
be one project that would get permitted.
    So we jointly worked with the other utility and came up 
with an application to the State, because the State has 
jurisdiction over siting location for transmission lines, and 
in parallel we made application to the Department of Energy and 
the Forest Service.
    The Forest Service did not act on our application for over 
a year. They really didn't want to deal with it at all. The 
Department of Energy, because of the Presidential permit 
requirement for crossing an international border, took on the 
lead agency role for the EIS that we were preparing.
    The Forest Service was funded by TEP directly to work on 
the EIS process. We funded the project manager. That project 
manager sat through the ACC, which is our Arizona Corporation 
Commission hearings for siting for eight months, provided 
basically no input to the State as to what the Forest Service 
might do relative to right-of-way grants, and listened as the 
ACC heard the regional public, locals input, that directed--or, 
resulted in the Corporation Commission identifying with recall 
that the western route was the right job for the project.
    In fact, the Commission actually gave Tucson Electric Power 
the right to build on the westerly route only, and the other 
two alternatives were specifically denied.
    The Forest Service then wrote a letter two months after the 
fact to the Chairman of the Commission saying you have no 
business granting a right-of-way--a permit for this project 
over, quote, ``my land,'' close quotes, and that was the Forest 
Supervisor's statement.
    Throughout the process there has been no communication or 
cooperation amongst the agencies. We actually had five Federal 
agencies involved with the EIS. It seemed to be a never-ending 
process. We continue to have new requirements to the analysis 
as we move along. Even in the draft EIS that was prepared for 
the project, the Forest Service did not indicate any preference 
for a route, while we said any route basically was acceptable, 
but chose western as their preferred because the State had 
identified that.
    Another problem we ran into is the Fish and Wildlife 
Service has to be consulted on any proposed route that would be 
a preferred route. When the DLE did that, the Fish and Wildlife 
Service said we could only consult on one route. So even 
knowing there was a potential that the Forest Service won't 
accept the route, the Fish and Wildlife said, ``We won't do a 
consultation on that simultaneously.'' That resulted in 
delaying the process.
    Today, the TEP has spent three million dollars directly on 
the actual consultant work for the EIS, but probably five 
million dollars in total for the EIS process, as well as the 
environmental work that went into that.
    In conclusion, we've got some recommendations we would like 
to make, and that is there is a need for consistent process or 
procedure amongst Federal agencies to process an EIS, and there 
needs to be close coordination between the State and Federal, 
and in fact for siting the issuance of the utility line, 
because the State has jurisdiction over that, there is a State 
and Federal rights issue that needs to be addressed.
    We feel that there should be deadlines for EIS processing 
and they should be held to. The Fish and Wildlife Service 
should be allowed to consult on more than one project at a 
time. There is a real need to develop a cooperative process 
that would involve all parties up front, and the one last item 
I throw in is that early on in the Forest Service process, we 
were doing a roads analysis for the Forest Service, and we 
started to work with one of the environmental groups. The 
environmental group dropped out of that process along the way 
because of future litigation. So again I would like to thank 
you for this opportunity, and I'd be glad to answer any 
questions.
    Mr. Renzi. Sir, thank you much.
    [The prepared statement of Mr. Beck follows:]

  Statement of Edmond A. Beck, Superintendent, Planning & Contracts, 
                       Tucson Electric Power Co.

    Madame Chairwoman and Members of the Task Force, thank you for the 
opportunity to participate in today's field hearing. I appreciate 
having a chance to discuss specific issues that Tucson Electric Power 
Co. (``TEP'') has experienced in trying to obtain approval for a 
project that involves NEPA.
    The purpose of my testimony is to discuss a project that I would 
consider to be a ``Poster Child'' for the complications involved in 
obtaining federal approvals of an electric transmission line project 
involving NEPA. The project I will be speaking about, generally known 
as the ``Sahuarita--Nogales Transmission Line'' or the ``Gateway 
Transmission Project'' has been under development by TEP for the last 
five years. I have been directly involved in the project from its 
inception. I will briefly touch upon the various processes that TEP has 
undertaken in an attempt to obtain the necessary permits for 
construction of this 60 mile long, 345kV transmission line in Southern 
Arizona and the various impediments along the way.
    The transmission line is planned to extend southward from 
Sahuarita, Arizona, near Tucson, to the City of Nogales, Arizona, on 
the U.S.-Mexico border, and cross the border to interconnect with the 
Mexican electric grid just south of Nogales, Sonora.
    TEP is pursuing the project in connection with an order from the 
ACC, which has determined that the transmission grid serving the 
Nogales area is inadequate to provide reliable electric service. The 
area is currently served by a single 115 kV transmission line and has 
experienced frequent outages and voltage problems that are not only 
inconvenient and disruptive to normal business and household uses, but 
represent potential threats to public health and safety in the fast-
growing border area. A recent example of such a disruption occurred on 
May 27 of this year when a storm damaged the single transmission line 
serving the Nogales region. As a result of the storm most customers in 
Santa Cruz County were out of power for five hours. The new 
transmission line will, if built, provide the reliability the ACC 
requires for southern Arizona power users. The new line will also allow 
power exchanges between U.S. and Mexican energy markets, a step that 
will improve the reliability and efficiency of the regional grid and 
support economic growth on both sides of the border.
    The project requires approval by state and federal regulatory 
agencies. The state has two regulatory responsibilities, vested 
exclusively in the ACC, one is to decide whether the transmission line 
is necessary to provide adequate electrical service; assuming such a 
decision is reached the second responsibility is to balance 
environmental impacts of proposed routes against the public interest. 
The ACC has made a determination regarding need: the new line is needed 
and in the public interest. Based on public hearings and extensive 
analysis and testimony, the ACC identified the route that will best 
meet the public interest while balancing environmental impacts to the 
state. The state's intensive review process took 10 months to complete 
and has been complete for nearly four years.
    The federal review process has been underway since 2000 and a final 
EIS 1 was released this past February. Five federal agencies 
(US Department of Energy, U.S. Forest Service, U.S. Fish and Wildlife 
Service, Bureau of Land Management, and the U.S. Section of the 
International Boundary Waters Commission) are involved in the project's 
review. Each agency has a distinct but fragmentary institutional 
interest in the potential transmission line, but none of the individual 
federal agencies has overall responsibility or authority. None of the 
federal agencies reviewing the project describes its mission (or 
reasons for participating in the review) to include helping ensure 
reliability of present or future electric service in Arizona (although 
the Department of Energy will consider the impact of the proposed 
international interconnection on the reliability of the U.S. grid and 
domestic energy supplies). Four of the federal agencies are 
collaborating in preparation of an environmental review of the project.
---------------------------------------------------------------------------
    \1\ A copy of the final EIS can be found at: http://
www.ttclients.com/tep/.
---------------------------------------------------------------------------
    The new line is exactly the type of investment in America's future 
that the Bush Administration has supported and urged the private sector 
to undertake. TEP and the State of Arizona are ready to proceed, but 
the federal review process became bogged down in process. As a result 
of the apparent inability of the federal agencies to make progress on 
the process and in an attempt to prevent the process from degenerating 
into overt conflict among the agencies or with the state of Arizona, 
TEP brought the issue to the attention of the White House Task Force on 
Energy Project Streamlining in late 2003 2. TEP recognized 
that an exceptional level of interagency coordination and cooperation 
would be needed to allow the agencies to reconcile their different 
roles and perspectives with those of each other and with the State of 
Arizona. The Task Force was established to provide that type of 
leadership and appeared to be uniquely equipped to do so. TEP hoped 
that the Task Force could provide the leadership and direction 
necessary for the agency's to complete their processes by mid 2004. The 
Task Force provided little improvement in the process. It quickly 
became evident that the agencies involved were beyond the reach of even 
this White House level Task Force.
---------------------------------------------------------------------------
    \2\ A copy of the filing letter is attached as Attachment A
---------------------------------------------------------------------------
State of Arizona Administrative Proceedings
    The impetus to construct a transmission line linking Tucson to 
Nogales and the Mexican grid arises from two primary sources. First, 
the transmission infrastructure serving southern Arizona is inadequate 
for current and future needs. Second, energy analysts representing 
government and industry on both sides of the border have long seen 
compelling operational and economic advantages in joining the two 
countries' power systems in the Arizona-Sonora region. This was clearly 
identified in joint studies conducted by the U.S. DOE and Mexico's 
equivalent CFE conducted in the early 1990s. The results of those 
studies clearly indicated the value of international interconnections 
between the electric grids of the U.S. and Mexico but left it to the 
industry to pursue the connections.
    The Arizona Corporation Commission is the state agency charged with 
regulation of Arizona's electric utilities and responsible for assuring 
Arizona citizens a safe, reliable power system. State law also charges 
the ACC with safeguarding the public interest by balancing the need for 
an adequate, economical and reliable supply of electric power with the 
desire to minimize the effect thereof on the environment and ecology of 
Arizona. 3
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    \3\ Arizona Rev. Stat. 40-360-07(b).
---------------------------------------------------------------------------
    Early in 2000, TEP and Citizens utilities jointly applied to the 
ACC for a Certificate of Environmental Compatibility 4 for a 
345kV transmission line that would, first, supply the Nogales-Santa 
Cruz County area and, second, interconnect with the Mexican power grid. 
5
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    \4\ Transmission line siting decisions by the ACC are based upon 
deliberations by and recommendations of the ACC-appointed ``Power Plant 
and Transmission Line Siting Committee.'' The Committee has eleven 
members, five ex officio members representing various state agencies, 
and six appointed members of the public. The Committee is chaired by 
the ex officio member representing the state attorney general's office. 
The Siting Committee is responsible for issuance of a Certificate of 
Environmental Compatibility (CEC) for proposed transmission projects, 
with such certificates subject to final review and approval by the ACC 
itself.
    \5\ The proposed 345kV line would run approximately 60 miles from 
Tucson to Nogales where a new substation would be sited. The 345kV line 
would be interconnected to the Nogales-area grid through a new 115kV 
power line. The 345kV line would interconnect with the Mexican grid at 
a substation approximately 5 miles south of the border.
---------------------------------------------------------------------------
    The ACC, acting through its Siting Committee, held eight public 
hearings between May and October 2001 on the TEP-Citizens proposal. The 
ACC itself held two public hearings in December 2001.
    The hearings considered three potential alignments or corridors for 
the new 345kV transmission line. The options considered by the ACC's 
Siting Committee and by the Commission itself included an ``eastern'' 
``central'' and ``western'' corridor. Each route ran essentially on a 
north-south axis, with the eastern corridor located to the east of 
Interstate 19 (I-19), the central corridor located west and relatively 
close to I-19, and the western corridor running well to the west of the 
other two routes on the opposite side of a mountain range. Each 
proposed route involved some use of federal public lands under the 
jurisdiction of the Bureau of Land Management or the U.S. Forest 
Service. TEP and Citizens requested the western corridor as the 
preferred route, and the central corridor as the preferred alternative 
should federal approvals prove difficult to obtain for the western 
corridor.
    Federal agencies were invited to participate in the Siting 
Committee and ACC hearings and attended the majority of them. The 
Siting Committee was aware that the proposed transmission line would 
need federal approvals to cross federal lands and the international 
border, and Siting Committee members went to considerable lengths to 
question federal agency officials on the federal approvals process and 
to understand the relationship between the state and federal reviews. 
6
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    \6\ For example, representatives from both the Department of Energy 
and U.S. Forest Service participated in and testified during the May 
17, 2001 public meeting of the ACC's Siting Committee. The Forest 
Service's representative responded to committee members' questions 
about the relationship between the ACC proceedings and the Forest 
Service's own permitting processes and role in the federal EIS review 
of the project, though the record of the May 17th hearing, as well as 
the various other public hearings, does not reveal that, at any point, 
the Forest Service voiced specific concerns or opinions related to any 
of the routes. The following exchange on May 17, 2002, between a member 
of the Line Siting Committee and the Forest Service representative is 
typical:
       MEMBER WAYNE SMITH: Would our decision have much bearing on 
yours, or would you study it totally independently of ours?
       MR. CONNER: The analysis in the [NEPA] document would drive us 
in our decision.
       MEMBER WAYNE SMITH: Are you aware of, say, the preferred route?
       MR. CONNER: Yes.
       MEMBER WAYNE SMITH: Are there any glitches that you might be 
aware of?
       MR. CONNER: Until the analysis is complete, I don't know.
       MEMBER WAYNE SMITH: I was just wondering if our decision had any 
bearing on yours.
       MR. CONNER: The analysis itself would have, would be the driving 
force for our decision.
       At another point in the same hearing, the Department of Energy's 
representative was questioned by the Siting Committee's chairman on the 
comprehensiveness of the federal environmental review. The record 
indicates that the Chairman was trying to discern whether the federal 
environmental review would be as comprehensive as the ACC's own:
       CHMN. WOODALL: What is going to be the focus of this 
environmental impact statement? And I ask because the Committee has 
some statutory criteria that they have to use to look at environmental 
matters, and I'm trying to determine the extent to which there's going 
to be an overlap in the subject areas that the Committee is supposed to 
look at, and those that you will be looking at as a part of your 
environmental impact statement''.I'd like to ask you some questions 
about--basically I'm going to be reading to you from our Arizona 
statute that sets forth the factors that we have to consider in issuing 
that Certificate of Environmental Compatibility, and it's A.R.S. 40-
360.06. And we are supposed to consider fish, wildlife and plant life 
and associated forms of life upon which they are dependent. Is that 
something that's going to be covered in the EIS?
       MS. RUSSELL: Yes.
       CHMN. WOODALL: We're supposed to examine noise, emissions 
levels, and interference with communications signals. Will that be 
encompassed in the EIS? Noise, emissions levels, and communications 
signals.
       MS. RUSSELL: Yes, definitely.
       CHMN. WOODALL: The next factor, the proposed availability of the 
site to the public for recreational purposes consistent with safety 
considerations and regulations.
       MS. RUSSELL: Yes.
       CHMN. WOODALL: The fifth criteria is existing scenic areas, 
historic sites, and structures or archeological sites at or in the 
vicinity of the proposed site.
       MS. RUSSELL: Yes.
       CHMN. WOODALL: The total environment of the area.
       MS. RUSSELL: Yes.
       CHMN. WOODALL: All of these are going to be studied as a part of 
the EIS process?
       MS. RUSSELL: That is correct.
       CHMN. WOODALL: Those are all the questions that I have.
       ACC Power Plant and Transmission Line Siting Committee, 
Transcript of Proceedings, In the Matter of the Joint Application of 
Tucson Electric Power Company and Citizens Communications Company for a 
Certificate of Environmental Compatibility, May 17, 2001, at pages 649-
50 (Testimony of Mr. Jerry Conner, U.S. Forest Service), and pages 637-
639 (Testimony of Ms. Ellen Russell, U.S. Department of Energy).
---------------------------------------------------------------------------
    The three alternative routes were studied extensively for their 
environmental impacts and the public interest in each. Each route 
received positive and negative testimony in the hearings, although the 
great majority of public testimony opposed the central route because of 
its proximity to and visibility from developed and growing residential 
areas along I-19, particularly the communities of Green Valley and 
Tubac.
    Based on the testimony provided at the hearings, the ACC's Siting 
Committee formally issued a Certificate of Environmental Compatibility 
(CEC) for only the western route on October 29, 2001. The ACC itself 
voted unanimously on January 3, 2002 to approve the CEC for the western 
route and expressly denied permission to use the central or eastern 
corridors. 7
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    \7\ As noted above, TEP's parent company, UniSource Energy, 
acquired all of Citizens' electric operations in Arizona. UniSource is 
thus responsible for fulfilling Citizen's obligation to construct a 
second transmission line to Nogales by the ACC-specified deadline. That 
deadline, originally December 31, 2003, has been extended by the ACC 
until June 1, 2004. UniSource faces significant financial penalties 
from the ACC if it fails to meet the deadline.
---------------------------------------------------------------------------
    The ACC imposed significant environmental mitigation on the 
project. Among other things, the ACC ordered TEP to construct the 
transmission line in compliance with ``all existing applicable laws, 
environmental control standards and regulations, ordinances, master 
plans and regulations of the United States'' and the ``recommendations, 
mitigation measures, and actions to reduce or prevent environmental 
impacts'' included in the federal environmental impact statement and 
record of decision covering the project. The ACC, while moving forward 
to expedite siting of the new line, showed clear and appropriate 
recognition of the role of the federal agencies and the importance of 
completing the NEPA-based environmental review.
Federal Agency Proceedings and Involvement
    TEP has been diligent in seeking to engage the relevant federal 
agencies in the planning process for the new transmission line. TEP 
provided the several agencies with notice, and in some cases filed 
applications for federal approvals related to the project prior to 
completion of the ACC's site selection process, asking the agencies to 
consider and express their views on each of the three alternative 
routes. Input, particularly by the Forest Service, in the siting 
process could have been very informative to the ACC as well as 
streamlining the process. As a practical matter, the federal agencies 
have been informed of and involved with the new transmission line 
project since the year 2000.

1. U.S. Department of Energy Involvement
    Federal law requires a Presidential Permit issued by the U.S. 
Department of Energy (DOE) to allow construction of an electric 
transmission line crossing the U.S. border. TEP filed for a DOE 
Presidential Permit for this project in August 2000.
    DOE considers the proposed permit in this case to be a ``major 
federal action'' under the National Environmental Policy Act (NEPA) 
and, since mid-2001, the agency has been preparing an Environmental 
Impact Statement on the project. In issuing a Presidential Permit, DOE 
is required to determine, among other things, whether doing so is in 
the public interest. DOE has no transmission line siting authority, per 
se, but because of the centrality of the Presidential Permit to the 
entire project, DOE is serving as lead agency in preparing the NEPA 
analysis.
    DOE's scoping hearings in 2001 drew many witnesses. As was the case 
with the ACC hearings, each proposed route received support and 
opposition, but the large majority of public comments at the scoping 
hearings opposed use of the central route.
    The draft EIS was released in August 2003 and opened for public 
comment through mid-October 2003. Four public hearings in Arizona were 
conducted on the draft during September 2003. DOE and the contractor 
considered the comments received from the public and agencies. 
8
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    \8\ The Staff of the Arizona Corporation Commission submitted 
comments on the draft EIS which emphasized many of the key findings of 
the ACC in approving the project. [Attachment D]. The Staff wrote:
       ``[C]ontinuity of service could not be assured for the residents 
of Santa Cruz County as long as the [current] transmission line is the 
sole means of connecting--to the state grid''. A second transmission 
line to Citizens' electric service area is required to resolve this 
service reliability problem.
       [A]dditional benefits are derived from the project as currently 
defined in the DEIS. Service reliability to Citizens' customers via the 
proposed project will be better than what could have been achieved 
solely with a new 115kV line from [Tucson] to Nogales. The proposed 
transmission interconnection--to Mexico offers two other new benefits. 
It offers the opportunity for bilateral international power 
transactions between parties on either side of the U.S.-Mexico border. 
The international interconnection also affords TEP the opportunity to 
import power to the Tucson service area from the south thereby helping 
to mitigate its local transmission import constraint.
       [More importantly, it] is expected that the Santa Cruz County 
load will consistently exceed the 60MW rating for the existing 115kV 
line in the summer of 2004 and beyond.''
---------------------------------------------------------------------------
    The draft EIS evaluated three routing alternatives, including two 
that match the western and central corridors that were also studied by 
the ACC, and a third route, called the crossover corridor, which 
follows the western route for much of its initial length, but returns 
eastward to the I-19 corridor farther north than does the western 
corridor. The crossover corridor was added to consideration at the same 
time that DOE determined to drop the eastern corridor from further 
consideration.
    DOE, noting that the ACC had ordered use of the western route, and 
that TEP had expressed favor for that route, selected the western 
corridor as the ``preferred alternative'' for study under the EIS.
    The Department of Energy initially projected that the EIS would 
take 12 months and three days to complete and agreed to a contract cost 
of $555,000. Actual time expended so far is 48 months and, due to 
change orders from DOE, the contract price for the environmental review 
has exceeded $2.4 million. All these costs are being borne by TEP.

2. U.S. Forest Service Involvement
    The proposed new transmission line would, under any of the proposed 
alignments, cross some amount of U.S. Forest Service land in the 
Coronado National Forest. Any such use of Forest land is evaluated 
under the Federal Land Policy and Management Act (FLPMA), which 
requires the agency to consider the public interest in the proposed use 
and its consistency with applicable forest plans. For the purposes 
relevant here, the Forest Service relies on NEPA-based analysis to 
develop the information needed to determine whether to approve a 
special use permit under FLPMA.
    Citizens Utilities had originally applied to the Forest Service in 
March 2000 for a special use permit for a 115kV transmission line on 
Coronado National Forest lands. In June 2000, following the decision by 
Citizens and TEP to pursue a joint project, Citizens submitted an 
amended application to the Forest Service for a special use permit to 
build and operate a new 345kV transmission line. In March 2001, after 
meeting with Coronado Forest personnel and filing its application for a 
CEC with the ACC, and at the direction of Forest Personnel, TEP filed a 
new special use permit application for the 345kV project. TEP's permit 
application requested that the Forest Service evaluate each of the 
three routes then under consideration by the ACC.
    At the same time that TEP applied for a special use permit, TEP and 
the Coronado National Forest executed a Memorandum of Understanding 
(MOU) for the ``processing of the right-of-way application.'' The MOU 
notes that TEP ``desires to expedite the [Forest Service] decision 
process and is willing to make funding available on an annual basis to 
help finance salary and support costs for case processing and 
analysis.'' The agreement committed TEP to pay the Forest Service 
$473,850 to cover ``development and preparation of the [DOE-led] 
National Environmental Policy Act (NEPA) process'' related to the new 
transmission line. Among other specifications, the agreement committed 
TEP to fund the cost of a Project Coordinator
    The Forest Service is participating as a cooperating agency with 
the Department of Energy in preparation of the transmission line 
environmental impact statement and has been involved in determining the 
scope and substance of the environmental analyses that underpin both 
the EIS and the Service's own decision regarding issuance of a special 
use permit. The Service has determined that any of the three 
alternative routes would, if approved, require amendment of the current 
Coronado National Forest Land and Resource Management Plan. 
9
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    \9\ TEP notes that the Service's conclusion regarding a requirement 
to amend the current Forest Plan as to the central corridor alternative 
seems inconsistent with the fact that the proposed corridor would be 
adjacent to an existing utility corridor identified in the current Land 
and Resource Management Plan, a routing also identified in the 1992 
Western Regional Corridor Study that was endorsed by the Chief of the 
Forest Service in July 1993. The Coronado National Forest Supervisor's 
February 19, 2002 letter cited below also notes: ``For your 
information, the Coronado Forest Plan identifies a corridor in the 
vicinity of the desired routes within the two proposals. The Forest 
Plan (page 41) states: `existing utility and transportation corridors 
will continue to be used for those types of uses'.''
---------------------------------------------------------------------------
    As described above, TEP has been working with the Forest Service 
since 2000 to engage and support in every possible way the agency's 
evaluation of the proposed line's effects on Coronado National Forest 
lands. TEP fully acknowledges the Forest Service's land and resource 
management responsibilities. But in the final EIS there is no 
resolution of the underlying challenge of siting the transmission line 
under conditions considered appropriate by all responsible regulatory 
authorities. As an example of the animosity between state and federal 
agencies on February 19, 2002, the then-supervisor of the Coronado 
National Forest wrote the Chairman of the ACC regarding the 
Commission's decision to authorize and direct TEP to pursue only the 
western corridor (subject to TEP's obligation to comply with applicable 
federal laws and the outcome of the federal EIS on the project). The 
Forest Supervisor's letter stated, in relevant part:
        As Forest Supervisor of the Coronado National Forest, it is my 
        responsibility to make decisions on use of these NFS lands....I 
        will use [the DOE-led EIS analysis] to decide if transmission 
        line development is appropriate, and if so, through which 
        portion of the Coronado National Forest...It appears to me that 
        the Commission's January 3, 2002, action is either premature 
        and/or circumvents federal jurisdiction and my authority. 
        10
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    \10\ The ACC Chairman responded in a March 8, 2002 letter that 
states, in relevant part: ``I am bewildered at the timing of your 
letter, considering one month has passed since the Commission decided 
the matter at a Special Open Meeting on January 15, 2002. The obvious 
question comes to mind: Why did you wait so long to raise your concerns 
regarding the placement of a part of TEP's transmission line running 
through the Coronado National Forest? [As] you know, the granting of 
the CEC is contingent upon [TEP] complying with all existing applicable 
laws, environmental control standards, ordinances, master plans and 
regulations of the United States....Since May 2001, you have had ample 
opportunity to voice your concerns about the transmission line....It 
was incumbent upon you to make your concerns part of the record before 
the Commission acted on the Line Siting Committee recommendation to 
grant the CEC.'' Letter from William A. Mundell to John M. McGee (March 
8, 2002).
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3. U.S. Bureau of Land Management Involvement
    A very small segment (1.25 mi) of each of the three alternatives 
under study in the DOE-led EIS would cross land administered by the 
U.S. Bureau of Land Management (BLM). TEP applied to BLM for a special 
use permit in March 2001, and like the Forest Service, BLM must 
evaluate the application under FLPMA. BLM is serving as a cooperating 
agency with DOE in preparation of the overall transmission line 
environmental analysis under NEPA and is relying on that analysis to 
develop the information needed to make the FLPMA-mandated determination 
of whether granting the special use permit is in the public interest.
    The BLM has stated that the agency may not be in a position to 
allow construction over its lands for more than three years, assuming 
challenges are filed to its determination.

4. U.S. Section of the International Boundary and Water Commission 
        Involvement
    The U.S. Section of the International Boundary Water Commission 
(USIBWC) is a cooperating agency with DOE in the NEPA review of the 
proposed transmission line. The USIBWC is charged with determining 
whether the proposed project will affect the international boundary 
and, in particular, transboundary water flows. The agency has indicated 
that, so long as the project's transmission towers are sited at least 
60 feet from the international border, and do not cause changes in 
water flow, the agency will not object to the project.

5. U.S. Fish and Wildlife Service Involvement
    There are ten plant and animal species listed under the federal 
Endangered Species Act (ESA) in the areas of the three potential 
transmission corridors. Critical habitat for one ESA-listed fish specie 
overlaps with one of the proposed alignments. In response to a recent 
federal court order, it is likely that some Coronado National Forest 
lands that would be used by any of the alternative alignments may be 
designated in coming months as critical habitat for the Mexican spotted 
owl.
    As required by the ESA, the Department of Energy has provided the 
U.S. Fish and Wildlife Service (FWS) with Biological Assessments (BAs) 
for each of the three alternative corridors. DOE initiated formal 
section 7 consultation with the FWS on November 18, 2003 and requested 
consultation on the proposed western corridor. During the process an 
issue arose in that when the Forest Service indicated they might not 
identify the Western Corridor as their preference the FWS could not 
consider the BA for the Central route because they could only do one 
section 7 consultation. This extended the timeline for the EIS.

III. Summary and Conclusion
    The residents and businesses of southern Arizona have been waiting 
since 1999 for key improvements in the transmission system that serves 
them. The State of Arizona has carefully considered and approved 
measures to remedy these very real problems--and has ordered TEP to 
implement them. The ACC held extensive hearings and heard extensive 
testimony regarding the environmental aspects of this project before 
making its decision. With the release of the final EIS in February the 
Forest Service has identified the Central route as its preferred 
corridor. This is in direct conflict with the direction of the ACC to 
allow construction on the Western route only. As a result after years 
of work, federal agencies have yet to grant any of the major approvals 
or permits that would allow TEP to move forward and in-fact have 
created a road block to further progress by selection of a route in 
opposition to that selected by the ACC which is the agency with sole 
authority in the state to determine line siting. The ACC as a result of 
the position stated by the Forest is in the process of holding new 
public hearings to try and reconcile the differences between the state 
mandate and the decision of the Forest Service. Siting Committee 
reconsideration of their recommendation has not yet begun and it 
remains to be seen whether the Forest Service will participate in the 
process to help inform the state.
    The cost of the project to date of TEP is over $10.6 million and 
TEP has no indication that the project will be able to move forward. In 
the meantime the residents of Santa Cruz County are subject to 
diminished reliability due to the lack of a second transmission line. 
Specifically TEP has expended over $1 million in its ACC processes, 
including environmental work required for that process. In its EIS 
process TEP has spent close to $3 million strictly for consulting work 
for the EIS not including underlying costs to TEP in support of the EIS 
process (such as mapping, preliminary design efforts, etc.). In 
addition another $500, 000 has been paid to federal agencies for their 
review processes. The cost of attempting to permit the project has 
continued to escalate during the process.
    As a result of the process that TEP has been through the following 
conclusions can be drawn regarding federal NEPA processes:
      cooperation among the various federal agencies involved 
in evaluating the Sahuarita-Nogales Transmission Line project was very 
poor throughout the process;
      federal agencies were not equipped to resolve questions 
or differences of perspective with the Arizona Corporation Commission;
      Participation by the Agencies in the ACC processes was 
very limited. Even though TEP was paying the Forest Service for the 
project manager to attend agency meetings such as the ACC hearings, 
which the project manager did attend. There was no informative dialog 
from the Forest relative to potential outcomes of their analysis. They 
did not provide any indication of a preferred route until the final 
EIS. The draft EIS did not even indicate any potential position of the 
Forest.
      deadlines for the EIS process, and subsequent issuance of 
RODs related to applications for special use permits do not exist but 
are needed;
      If multiple routes are being evaluated by agencies then 
the FWS should have the ability to consult on multiple routes at the 
request of the lead agency.
    Tucson Electric Power Company greatly appreciates the opportunity 
to share its experience with the NEPA process.
    Attachments
    A--Filing letter to the White House Energy Task Force
    NOTE: The attachment to Mr. Beck's statement has been retained in 
the Committee's official files.
                                 ______
                                 
    [The response to questions submitted for the record by Mr. 
Beck follows:]

      Response to questions submitted for the record by Ed Beck, 
                 Superintendent, Planning and Contracts

1.  Is it safe to say that there was adequate public participation in 
        the Tucson to Nogales transmission line project? What are the 
        effects of this line not being constructed?
    I feel there was more than enough public participation in the 
process. The State Siting Committee and the Arizona Corporation 
Commission (``ACC'') held public hearings over a period of ten months. 
The first two days of the hearings were held in Nogales to encourage 
local public input, and. each hearing began with an opportunity for 
public comment. Also, several members of the public were intervenors in 
the case and participated directly in all of the hearings, with an 
opportunity for both cross examination as well as for providing 
testimony. The strong message that the Siting Committee and Commission 
heard resulted in the selection of the Western route.
    The Federal EIS process received 7298 1 comments from 
the public. Seventy-seven percent of these comments came in the form of 
common bulk e-mail comments attributable to special interest groups, 
but the overall number represented comments from all over the country.
---------------------------------------------------------------------------
    \1\ See table 1-2 on page 1-3 of the Comment Response Document, 
DOE/EIS--0336 dated January 2005.
---------------------------------------------------------------------------
    Because TEP was not able to construct this line in accordance with 
the original order from the ACC mandating a second line to Nogales, 
Santa Cruz County is facing reliability issues due to the fact that 
they are served by a single existing 115kV radial transmission line 
from the Tucson vicinity. With only that single radial line, continuity 
of service to customers cannot be assured. When there is an outage of 
the 115kV line, then the lights in Santa Cruz County will go out until 
backup generators can be started and the system restored to service.

2.  You state that TEP has spent almost $11 million on this project. Is 
        there any work being done on the project now? Can you give us a 
        sense of the economic loss to Santa Cruz county? Can you give 
        us a sense of the economic impacts to other companies that 
        would have worked on this project?
    TEP continues to work with the ACC on the issue of reliability to 
Santa Cruz County, and is continuing to pursue the permitting of the 
project through the ACC. The Commission is currently reviewing the 
issue of reliability and is expected to re-engage the siting process 
toward the end of this year. The siting process will likely be a 
collaborative effort between the State Siting Committee and the various 
Federal Agencies to try and come up with a route that will satisfy all 
of the agencies.
    The economic loss to Santa Cruz County is difficult to quantify 
because part of the loss would be business activity that did not locate 
in Santa Cruz County because of concerns with electricity supply. The 
one direct impact that can be quantified is an additional 
infrastructure improvement that is planned to be placed in-service due 
to the inability to construct the 345kV line. The improvement that is 
planned in 2006 is the installation of a combustion turbine in Nogales 
to meet peak load and improve the ability to restore power during an 
outage of the existing line. This turbine is estimated to cost in the 
range of $13 million and would not be needed if the line were in-place. 
Another cost that results from the delay in the project is the 
escalation in materials costs. The costs of steel structures and 
conductor for the project have increased $7.6 million in the last two 
years. Additional carrying charges for the project will also be 
incurred.
    The impacts to other companies include the construction entities 
that would have built the line as well as the suppliers of design 
services, materials, and environmental services. The project is 
estimated to cost $70 million, so approximately $60 million of 
additional activity has been foregone.

3.  Its critical that federal agencies work well state agencies because 
        the state agencies are better equipped to evaluate the impact 
        to the region How would NEPA be fixed to better equip federal 
        agencies to work with state entities such as the Arizona 
        Corporation Commission?
    While the state process was underway the agencies all had 
representatives who attended the public meetings. The ACC process could 
have been leveraged as a strong public input to the EIS process, but it 
seems that the EIS process, for the most part, ignored what occurred in 
the ten months of state-sponsored public hearings. The few NEPA public 
scoping meetings fell far short of the specific input to the project 
that was received in the ACC process.

4.  If there is a process like you described with the ACC and a federal 
        agency doesn't participate, what should be the penalty? Follow 
        up: were you able to recoup the costs you paid for the project 
        manger to attend?
    Ideally, if a federal agency chooses not to participate in the 
local process, then the agency should not be able to dictate 
substantive changes after-the-fact to what the local process came up 
with.
    TEP did not recoup any of the costs of the project manager.

5. Will this project ever come to fruition?
    In order for Santa Cruz County to be provided with fully reliable 
electric service, a second transmission line into Nogales is required. 
Unless the ACC and the residents of Santa Cruz County agree to 
something less than continuous electric service, then a project such as 
TEP has been pursuing must be built. The project could be of a lesser 
voltage, but with the great difficulty TEP has been incurring on the 
proposed project, anything of a lesser capacity will be only short-term 
in nature and would be sacrificing the long-term growth potential for 
the region.
                                 ______
                                 
    Mr. Renzi. Mr. Mackey, you may present your testimony.

 STATEMENT OF BILL MACKEY, GRANITE CONSTRUCTION INCORPORATED, 
                        TUCSON, ARIZONA

    Mr. Mackey. Congressman Renzi and Members of the House Task 
Force, my name is Bill Mackey. I'm a Plant Manager at the 
Arizona Branch for Granite Constitution Company. I'm not a 
professional advocate or association representative.
    Rather, I am a practitioner, a constituent, a Native 
Arizonan. I am an employee at my company with responsibilities 
that include managing through the NEPA process and insuring 
compliance here in Arizona. I would like to start by thanking 
you for your leadership and commitment to improving the NEPA 
process, and am pleased to be here to share my views on where 
the process could be improved.
    The purpose of people is important, and there are many 
valuable and capable employees administering NEPA. It is my 
understanding that the intent of this hearing is to discuss 
improving this process. Based on Granite Construction's 
experience with the entitlement of both hard rock and sand and 
gravel operations throughout the western United States, there 
are five primary concerns with the NEPA review process that I 
would like to see addressed by this Task Force.
    The first is endless data requirements. Often we are asked 
to provide what seems to be a never-ending amount of data, even 
after the review of existing data has been deemed complete by 
the involved agencies. There appears to be little adherence to 
the timeframes for data submission, little coordination and 
understanding of policy from office to office and employee to 
employee which results in needless additional studies, wasteful 
litigation, and devouring enormous amounts of money. To address 
this concern, we recommend that the NEPA process have a clear 
end point to the level of data review and the studies 
undertaken.
    Second, focus on the purpose of the review. Often there 
appears to be alternative agendas based on a personal bias of a 
regulator relative to specific industries, rather than to a 
proposed project and the purpose and/or intent of the act. We 
would recommend that the NEPA review remain focused on project 
purpose, rather than unreasonable alternative analysis. Only 
those alternatives that are truly practical, feasible and 
consistent with the project's underlying purpose, should be 
analyzed.
    Third, staff experience. There is just no substitute for 
experience. Staff understanding of a project site and the 
environment is crucial to determining what is appropriate and 
what is not. A lack of understanding and/or continuity on the 
part of the agency staff leads to a considerable amount of time 
and energy spent educating the staff onsite-specific issues, in 
addition to the activities being proposed. We suggest that 
improving staff retention and expertise would result in less 
time being spent on education and a more rational analysis of 
impacts to be implemented.
    Fourth, deferral to appropriate state agencies. When a 
Federal non-lead agency defers the mitigation requirements to a 
State or local agency, this is concurrent and should be 
considered adequate for the Federal review. State and local 
agencies often have the personnel, expertise and experience to 
address local concerns. Duplicative reviews are unnecessary and 
reap no benefit to the environment or the process of the 
review. Unfortunately, the process allows opponents of the 
process to force these duplicative reviews even after a project 
has been approved. We suggest that the project opponents not be 
allowed to derail the process and force concurring non-lead 
agencies to conduct separate duplicative reviews after a 
project has been approved.
    And, finally, lawsuit participation and settlement 
agreements. Any settlement discussions and agreements need to 
include the State and local project owners, as well as the 
contractors and businesses involved. We propose that the lead 
Federal agency not be allowed to enter into lawsuit settlements 
that forbid or severely limit NEPA permitting for businesses 
that were not part of the initial lawsuit.
    In conclusion, the intent of NEPA is to ensure protection 
of the environment and its resources. Granite Construction 
Company fully supports this intent. Unfortunately, due the 
factors I've highlighted today, the process is not working. 
There will be individuals and organizations that wish to 
disrupt and cease any activity anywhere, and will use any means 
necessary to achieve their goal including derailing the NEPA 
process.
    It is my opinion that with focused efforts, the intent of 
NEPA can be reestablished and industry can proceed forward in a 
more positive and productive manner, and I thank you for your 
leadership and commitment to make that happen.
    Mr. Renzi. Mr. Mackey, thank you so very much.
    I want to thank all of you for taking the time for the 
substance of your participation and your discussion and your 
testimony today. A lot of it very, very compelling. We're going 
to go to a round--a first round here where each of my 
colleagues and I will have five minutes to ask questions. We 
will probably go through a number of rounds to flush some of 
this out. I hope you will endure with us, and we'll begin with 
Congressman Pearce.
    Mr. Pearce. Thank you, Mr. Chairman, and thank you all for 
your testimony. I see the testimony is quite broad and five 
minutes of time is allowed, and all of that goes into the 
record and is then presented to the Committee back in 
Washington. The testimony is to me just indicates the--how we 
have apply the mantra of the Federal Government in Washington, 
and the mantra is if it ain't broke, fix it till it is, and it 
don't get much funnier than that. So we've done that. We've 
fixed it so it is broke good.
    Mr. Chairman, I would like to submit a chart. For the 
record, that indicates the number of appeals and how they are 
increasing progressively from the years 1995 to 2001, and how 
the associated board feet in timber that is cut out of our 
national forest has decreased and the same chart.
    I'm going to just show that larger chart on the board.
    Let me explain a little bit about how serious the problem 
is. We were engaged in a discussion of trying to capture the 
timber harvest from a fire-burned area in New Mexico, and we 
had the Forest Service there visiting with us, and these were 
regional foresters. The two regional foresters were there, and 
we asked them if we they could cut the timber, and they said, 
well, they could, and we asked them the value of the timber 
that was going to be cut, and they him-hawed around and 
actually said that they did not know the value of that timber.
    I got out my calculator and asked them about the cost of a 
board foot and I asked them about the amount of timber board 
feet in there, and so I worked my calculator and I said, ``It 
looks to me about 57,000-dollars worth of timber would be 
cut,'' and they said, ``Well, that is approximately correct,'' 
and I said, ``What would it take to get that done,'' meaning 
what do you need in the way of regulations, and the answer was 
it will take 13 million dollars. I said, ``It will take 13 
million dollars in appropriation to cut 57,000-dollars worth of 
timber,'' and he verified that was exactly right, and that is 
where we have gone so wrong in our agencies, and it's not 
people in the field. These are the mid-level to upper-level 
supervisors that are driving these kind of processes.
    Mr. Lynch, I have noticed that you talked a lot about the 
delay, and it's a recurring theme through the presentation 
today. Is there any cost to the litigants who caused the delay 
if they file an action, or is there any cost to them at all, or 
is all the cost born by the Federal Government, and that is 
these people sitting in the audience, our taxes, and the people 
at the table.
    Mr. Lynch. Generally speaking, Plaintiffs in NEPA actions 
are not subject to claims for attorneys fees and costs, if 
that's what you're talking about. There have been some attempts 
in the past to address that subject, but they have been 
unsuccessful.
    Mr. Pearce. Maybe you mentioned the cost of the EIS running 
20 million and the Government agency you quoted in your paper 
was something to the effect, first, that the Federal Government 
thought that was good, that it cost 20 million dollars to get 
this done, and the other side really doesn't have a cost 
associated with it, so we can use the law in any way that you 
would without having risk, without any accountability. Am I 
perceiving that correctly?
    Mr. Lynch. On Federal projects, the costs are largely born 
by the taxpayers, or if there is an applicant, because there is 
permission involved and often a guarantee. Mr. Beck can tell 
you about or already told you about the costs of the Tucson 
Nogales line being built, but those costs are generally born by 
the permittee, and they are substantial.
    I'll give you an example in my testimony. I was personally 
involved and still personally involved in the studies that are 
ongoing, studies ongoing on the Glen Canyon Dam criteria for 
the power operations. That environmental impact statement cost 
over 100 million dollars. Not my figures. Figures in the 
community record. They were from the Bureau of Reclamation.
    There is no cost accountability in this program. It was 
never designed that way, and these costs are either born by the 
applicants because they need permission from the Government to 
do something, or they are born by the taxpayer.
    Mr. Pearce. Mr. Chairman, I see my light is red. I do the 
same thing with these lights that I do downtown. When I see a 
green light, I drive, and when I see a yellow light, I speed 
up. When I see--the chart there, before you go back to my time 
as Chairman, shows an increasing level on the top half of the 
chart the number of appeals that are filed, and then decreasing 
revenue from production or timber production, and you keep in 
mind that's not just a decrease of timber production. It is a 
decrease in jobs, a decrease in tax revenues. It's a decrease 
all the way around. So many times people complain about the 
deficits and problems we're having paying bills from the 
National Government, but if you went from one agency to the 
next, you will see how those revenues have decreased almost 
exactly in that same way.
    Thank you, Mr. Chairman, and I look forward to the second 
round of questions, if we get there.
    Mr. Renzi. Congresswoman Drake.
    Mrs. Drake. Thank you. I thank you all for your testimony. 
You certainly have raised many, many questions in all of our 
minds, and you probably saw us taking notes. I want you to know 
that Congressman Pearce's pencil is a nub. He has no lead left. 
I was going to loan him mine, but I want to keep it.
    If we could go back to the other chart, and I would like to 
thank you, Ms. Struhsacker, for bringing that first chart, and 
Joanna, if you could, take it down, because I think what that 
really shows us is what was the original intent of NEPA, and my 
understand from what I've read and what I've heard is the 
intent was to make sure that all of the agencies got to look at 
what was being proposed, make sure there wasn't a better way to 
do it, look at alternate ways to do something, and now as soon 
as that comes down, you see all of the new laws that are 
replaced, and I'm wondering why with NEPA--and I still think 
there is a need for NEPA to make sure we have that interaction 
of all of the agencies, but I would agree with something that 
several of you have said, which is that there should be State 
and local involvement, not just a Federal agency input into 
that decision. But with all of these other laws over that 20-
year period that are now in place, why would you be able to sue 
under NEPA instead of being able to sue under violating the 
requirements of one those other laws?
    Ms. Struhsacker. Well, that's a very good question, because 
often the projects that are appealed under NEPA can 
demonstrably comply with all of the very substantial 
requirements to protect the environment that all of the rest of 
these laws require. So often when a project is appealed under 
NEPA, it's not because it can't meet the requirements of the 
Clean Water Act or the Clean Air Act or the law to protect 
wildlife and Endangered Species Act. It is because there are 
opportunities within the NEPA process itself, because keep in 
mind that's a procedure that allows people to kind of go, ``Got 
you,'' and take advantage of those procedural issues to try to 
stop the project.
    Mrs. Drake. When they failed everywhere else, this is the 
catch all.
    Ms. Struhsacker. They don't have to fail everywhere else 
because this is such a powerful tool for them.
    Mrs. Drake. They just have the ability under one of the 
other laws.
    Ms. Struhsacker. Well, all of those other laws have appeal 
procedures, as well, but those procedures are very much focused 
on whether or not an activity complies with the environmental 
protection mandate, and the project does, so there's no low-
hanging fruit for somebody who wants to stop a project, to try 
to go after it under the Clean Water Act, when they can 
demonstrate that the project will meet the requirements of that 
Act. But under NEPA, there is a lot of opportunity to try to 
obstruct the projects and appeal projects.
    One of the reasons that Federal land managers are often put 
in a position of asking for more and more data, we heard of 
that from a couple of panelists, is, I believe, in an attempt 
to try to make their documents more bulletproof against appeal, 
and I think we have to put ourselves in the shoes of some of 
our Federal land managers and regulators who are charged with 
doing the NEPA process. I mean, this NEPA process--this 
porcupine has been dropped in their lap and it's a difficult 
thing for them to get their arms around, and many of them do 
the best they can in some really difficult circumstances, and 
they have to try to accommodate voices from many sectors, and 
some of those voices are awfully shrill, and they don't like to 
have their decisions challenged. So it's kind of a defense 
mechanism from them in trying to gird up the documents, and 
there's this concept that maybe more is better, and typically 
that is not the case, because it's the process itself that 
engenders the appeal and not the substance of the document or 
the science.
    Mrs. Drake. Well, another thing, too. In any reform, it 
should also include something that all of you said, which is we 
should look at types of impact if we don't do this project, 
such as with Ms. Craft and the cars sitting there and idling 
and the air quality, and we should really be looking at the 
local and State impact.
    Because, Ms. Craft, with your situation, weren't the 
citizens of Las Vegas in support of doing that road 
construction.
    Ms. Craft. It is my understanding, yes, that they were.
    I believe so, because if you talk to anyone out there, they 
will tell you, ``We need some changes in the lanes that are 
going on this U.S. 95.'' It becomes a parking lot, literally,.
    Mrs. Drake. One of the things I've asked the Committee in 
other hearings is, I don't think if we were building our 
interstate highway system today instead of the 1950s, we would 
never be able to build that road under these rules, and thank 
God President Eisenhower was visionary and we built it then.
    But the same thing with you, Mr. Beck, the citizens there 
wanted this power line in place.
    Mr. Beck. Yes.
    Mrs. Drake. Do you think you will ever get it.
    Mr. Beck. Well, what's very interesting is that when we 
started our State process in siting, there was direct public 
involvement in the hearings, and the public recognized a need 
for the project, and they also recognized their interests in 
pushing the project to the western corridor, and that was in 
their real interest. So they strongly supported the western 
corridor to the State Siting Committee.
    When we got into the EIS public hearings, the same public 
that pushed for the western route appears now to have been 
convinced that, through the EIS process and NEPA, they can 
prevent that project from being built, period, and because for 
reliability reasons, their lights have been relatively stable 
recently, they don't see a big need for it. They don't realize 
we're on the edge of a cliff in that area.
    Mrs. Drake. And then it's too late.
    Mr. Beck. Yes.
    Mrs. Drake. Thank you, Mr. Chairman. That's all I've got 
for this round.
    Mr. Renzi. Thank you, Congresswoman. I want to pose my 
question to Mr. Matson and Mr. Lynch. You remember the time 
that we voted in compliance with the Forest Health Initiation. 
We voted and this Committee passed language which says if a 
judge issues a court injunction which stops a thinning project 
in the forest, that that judge must hear and review his own 
injunction within 45 days.
    We went to the Senate side and the Senate wanted 90 days, 
and we compromised on the Forest Health Initiative and we're at 
60 days now on the compromise. We talk about the judicial 
review process. Where within the NEPA process would you like to 
see a timeframe, or what type of a review process would you 
suggest so that if there is an injunction put in place, or an 
extension put in place, that judge himself must review his own 
holding within a certain amount of time.
    Mr. Matson. I think initially the first place to start is 
prior to the judicial reviews with regard to the agency review 
of regulations, and it passes that point in time so it could 
move far enough along in the lawsuit so the parties that have a 
stake in the investment process have to pony up, and I would 
like to see that occurring as rapidly as possible.
    Mr. Renzi. When you say pony up, what does that mean.
    Mr. Matson. That means get prepared and get in front of the 
judge and prove your case.
    Mr. Renzi. OK. So the environmental group that is 
involved--first of all, a lot of you feel that the group has to 
be involved with the process to be able to litigate, is that 
correct, so if they're not involved in the meeting and are just 
sitting on the sidelines waiting for the process to complete 
itself and throw a bomb in there, a lawsuit, they would be 
excluded and they wouldn't have jurisdiction in the Court and, 
second, if they do participate in the NEPA analysis, then go 
ahead, you're saying.
    Mr. Matson. Then I think timing becomes really quite 
important, but I think just a step above that, we would be just 
exactly sideways and backwards, and ultimately we get to the 
question of how many angels can dance on the head of a pin, and 
you can never answer that question.
    Mr. Renzi. So if they are not willing participate in the 
process from the beginning where the rancher has been involved, 
and now they drop the lawsuit, and you're saying we should give 
a certain amount of time to file that litigation.
    Mr. Matson. To get it filed, and at the same time narrow 
the field with which the time to which questions and issues can 
be raised about it.
    Mr. Renzi. If it hasn't been brought in review and analysis 
and in the process, it's moot in Court.
    Mr. Matson. And the analysis is really about disclosure, 
not about habitat and impact.
    Mr. Renzi. Mr. Lynch, any follow-up.
    Mr. Lynch. Yes. Mr. Renzi, I would think that it would be 
helpful to review some of the laws for this, in addition to the 
restrictions in the Healthy Forests Act in 2003, the Airport 
Act, also, and put in place a number of mechanisms that. For 
instance, to name a Secretary of Transportation to cite what 
the alternatives were, and to have that be binding and not 
judicially reviewed, because, frankly, the airports weren't 
getting built, it was just that simple. This goes back to 1973. 
I commend the Trans-Alaskan pipeline legislation, which 
addressed restrictions on judicial review, proved the 
environmental impact statement that was written for the Trans-
Alaskan pipeline which was five volumes--seven volume opinions, 
and a room full of documents in the Department of Interior. I 
know it was litigated.
    There are mechanisms for doing this, and there are pieces 
of these mechanisms in the 1973 Act and pieces of them in two 
Acts that were passed in 2003, but the key elements to cutting 
down timeframe are putting sideboards on alternatives. One of 
the greatest facts in all of this is, well, what's the purpose 
and need for the project. Well, that determines what are, 
quote, reasonable alternatives, close quote. But you can get 
sand-bagged by this law, as apparently some of us have, because 
there is nothing in it that says that you can't bring 
alternatives up, and everything is done, so there are a number 
of mechanisms that can work on this, and I commend it, and 
Congress dealt with this specifically in a few of these 
instances, and we need to pull it off again.
    Mr. Renzi. I appreciate it.
    Ms. Struhsacker, I ran for Congress a couple years ago, and 
I ran with a background in insurance and I used to be bonded, 
and I know what a financial guarantee bond is, and we went to 
the Committee, Steve and I, and Jeff Flake up in the Snowflake 
area. I introduced an amendment to the Forest Health Initiative 
that said that an environmental group would have to participate 
in the process, and that if they brought the lawsuit, they 
would have to post a bond. Our group--our bond group came back 
to me and said, ``Look we've done an analysis on the bond cost 
in the insurance marketplace and it's very hard to buy a 
financial guarantee bond. You have to go to Lloyds of London to 
get them. They cost millions of dollars, which I thought was a 
good thing, and, second, the idea would be if they couldn't get 
one, it seemed to me that it is unconstitutional to their right 
to due process, and I would just like to hear your comments on 
that push-back I got from the environmental community.
    Ms. Struhsacker. Well, I suspect you would get a push-back 
if the Task Force were to try to do something similar, but we 
offer that suggestion as a way to try to underscore the 
importance of changing this appeal process to a stakeholder 
process, because we don't think it makes sense for somebody 
who, you know, for the cost of a stamp, who perhaps has never 
been to Arizona, to be able to obstruct a project that a local 
Arizona community needs and wants, and maybe the bond isn't the 
best way, but right now it is a zero-sum game for anybody who 
wants to try to use the NEPA process to obstruct or stop and 
delay projects on Federal land.
    Mr. Renzi. Thank you.
    Congressman Pearce.
    Mr. Pearce. Thank you, Mr. Chairman. We'll just work our 
way down the panel again, and these questions would be for Mr. 
Hutchinson and Mr. Matson, and I'll start with Mr. Matson. I 
was in Ruidoso last week talking to rural ranch co-ops, and I 
had a gentleman from the Rio Arriba area come up and say, ``You 
know, my family used to haul pulp wood out of the forest, and 
we made a living. For 40 years, we've done that, and our 
culture in the Northern part of the State is just being wiped 
out because the Forest Service won't let us go in and cut pulp 
wood,'' and I didn't know if I believed him.
    I see on page 2 of your testimony that we had 800 families 
basically put out of business, and they were taking the small 
diameter trees, and that's the one causing problems today and 
the ones that burn and providing the mechanism for the fires to 
get up to the caps and cause the crown fires that kill our big 
trees, and your testimony is that people are being told that 
there was no pulp wood left or no pulp wood available.
    Why is the Forest Service not allowing people to come in 
and pay for that? Instead, they're paying 400 to $1200.00 an 
acre for people to cut it, when we used to get paid--the 
Federal Government was paid for this pulp wood. Have you ever 
made any sense of why we're doing this.
    Mr. Matson. I think parts of this go right back to what 
we're required to do under the NEPA policy, and let me give you 
an example just on fuel wood. On personal use, there's no 
requirement for NEPA analysis. If it comes to a commercial 
outfit, which most of this pulp wood was for commercial 
operators, it has to go through NEPA. And in NEPA, you get 
caught up in an endless battle addressing NEPA priorities, so, 
in essence, we have created this ourselves.
    Mr. Pearce. We've created it ourselves and are doing it to 
ourselves, and I think that's the reason we're having these 
hearings. When we can get paid for it, and instead are paying 
400 to $1200.00 an acre, I think most Americans would say that 
is B.S. There's nothing wrong with B.S., don't get me wrong.
    Mr. Matson. I'll tell you, I have to point out we've thrown 
away an industry that had the capability and capacity to pay 
its way, and now have to subsidize it with Treasury dollars.
    Mr. Pearce. Thank you. Back to the B.S. of the day, if it 
hadn't been for Dan Rather, none of us would have ever known 
what B.S. and CBS had in common.
    Mr. Hutchinson, it has been mentioned that local 
governments would be excluded out of the process, and anyone 
wanting to talk about the flaws in the process, both in 
implementation and accountability. Can you discuss how you 
would approach solving those problems of accountability? How 
can we get accountability and implementation in the process.
    Mr. Hutchinson. The Counties have sought out assistance 
from the State Universities and private consulting firms,.
    Mr. Chairman, and it becomes interesting to see the 
contrast between the quality of the analysis that is conducted 
by Ph.D.s at the University level, versus people with maybe 
Bachelor's degrees at the Federal agency levels. I think that 
that analysis is higher quality, the data is more readily 
available to those individuals, and another thing is the time 
factor. They are able to complete those analyses in much more 
compressed timeframes, so when I talk about, you know, having 
some other entity do the analysis, you take that reverse 
incentive for the agency to decide on an action, and then craft 
a NEPA document to conform with their bias or preconceived of 
an idea.
    Mr. Pearce. I see my time is about to expire, Mr. Chairman. 
I would note that our office last year was the prime sponsor on 
a Bill that would have done exactly that, and the New Mexico 
State University left the State in charge of these studies, and 
with those highly qualified people, we've got a backlog, and 
many times delays and backlogs.
    I would not mind it if you all--if you get a chance to e-
mail us a response or your opinions about that, and I'll re-
introduce that piece of legislation, and we'll ask for your--if 
you would e-mail me to the Committee or to my office, and we'll 
consider that again.
    Thank you, Mr. Chairman, and I have no more questions.
    Mr. Renzi. Congressman Pearce, thank you.
    Congresswoman Drake.
    Mrs. Drake. Thank you, Congressman Renzi. Ms. Poppie, as 
someone who has experienced in a different way what you did 
with the Federal Government and you expressed how you felt you 
had been stabbed in the back, I certainly have been a victim of 
some imminent domain, and I know that feeling of fighting your 
own Government is one the most lonely, disheartening places to 
be, and I want you to know we heard that very loud and clear 
how you felt, and I understand how you felt.
    But it sounded to me from your testimony that the Forest 
Service completely discounted the alternative and things that 
you had done to show that there was an alternative, and I'm 
wondering from your perspective what you think that type of 
agency action would have on public participation in the future.
    Ms. Poppie. There were four alternatives, and like the 
first two would be there would be no cattle on the ranch. The 
third was sort of a compromise between the permitted number 
that I paid for, and the fourth was that I would be afforded 
the permit number. So I'm sorry. So----
    Mrs. Drake. No, but I thought from what you said, they 
really didn't listen to all of the things that you had done and 
your efforts in making their decisions, and it was completely 
discounted. Maybe I misunderstood. The question deals with why 
would the public want to go through that in the future, you 
know, if they feel they are not going to be listened to.
    Ms. Poppie. And that's a good question. Since I purchased 
the ranch, I am kind of under a microscope there and have been 
for two years. There are some people in the Forest Service that 
are listening and are trying to help, but they have to answer 
to the Fish and Wildlife, that has to answer to NEPA. They have 
to answer to a lot of other entities, and so at this point we 
have I think very honest people in our district and in the 
Forest Service, and I think they are listening and they are 
trying, but they are spread thin. They're having to go in a lot 
of different directions. So it's hard for them to go with their 
feeling about what they think is best.
    Mrs. Drake. Thank you.
    Mr. Lynch, one of the things I had noticed from reading 
what we had, there really wasn't a clear direction of who was 
in charge, and maybe out here it may be forestry, and maybe in 
our area it may be CEQ, and that was one of your statements, 
that no one was directly in charge and you suggested that CEQ 
might be the ones that have to be, but part of my question is 
do you think that would solve some of the problems and lessen 
some of the delays, and do you think there should be a process 
in place to make sure that all the proper agencies are notified 
in the beginning? I can tell you, on the way here in the 
airport when someone realized where I was going, they told me 
about an instance in Louisiana where the whole process was 
done, the project was started, and then the Army Corps of 
Engineers came in and stopped the project, saying it was 
navigable waters, where it's nowhere near navigable waters, but 
I just wondered from your perspective if you think that would 
help stop delays, and it would also act as a collector for 
agencies involved so you don't have an agency coming in later 
and saying, ``We have a stake in this,'' if they truly don't 
have a stake in the inception.
    Mr. Lynch. Well, Mrs. Drake, two questions, two answers.
    Mrs. Drake. Please do.
    Ms. Lynch. First of all, there isn't anybody in charge. 
NEPA is a command to all agencies, and that's why all the 
agencies have their separate regulations, and when the CEQ came 
out with their guidelines in 1971, they made orders to do that, 
they got bootstrapped with the executive order, but there was 
enough confusion to go around to fill this room. People just 
didn't know how to react to this law, and nothing has changed. 
The CEQ regulations, if you really believe they are, they've 
never been given that authority by the Supreme Court of the 
United States and they can say whatever they want.
    The lack of local government, Mr. Hutchinson brought up, 
local government not being consulted in 1999, CEQ got involved 
with you guys--I don't know if it was you. It hadn't happened 
because they're not in charge. They are advisory, even though 
they have regulations, you know, in the Code of Federal 
Regulations.
    The other question relates to who is the lead agency, who 
is in charge, and who is making decisions, and can it stick. 
The Aviation Act I referred to has done the best job I think so 
far of delegating two officers in the executive branch to 
making the decisions about alternatives to a proposal and 
telling the rest of the agencies to get in line.
    And if Congress doesn't do that, it won't happen, and you 
did it just with the Aviation Act, it is an element that is 
there. I wish it was in the Forest Act, but it isn't. Those are 
the kinds of constructs you need to look at, and you need to 
get to a certain entity in the initial decisionmaking.
    Mrs. Drake. And, Mr. Chairman, just one last question. I 
know my time is up. But you mention the Supreme Court with 
regard to CEQ. Don't you think it would be better for Congress 
to give CEQ--not wait for the Supreme Court. I think we should 
make the rules.
    Mr. Lynch. Well, somebody needs to be in charge. The way 
CEQ is currently constructed, I'm not sure how happy I would be 
about that. I think we have to look at how it functioned as 
possibly an agency, which it is not. But that is a whole 
another hearing.
    Mrs. Drake. Who is in charge is something we need to 
answer.
    Thank you, Mr. Chairman.
    Mr. Renzi. Mr. Hutchinson, I want to thank you for your 
written testimony, and I read it, and I want to also thank you 
for making reference to Mt. Graham, the scopes up there and 
your knowledge of what they went through. Millions and millions 
of dollars and years of years of NEPA to the point where we 
were so bogged down, that Congress and forest managers and 
everyone involved, didn't even know where we were in the 
process, and we essentially had to exempt and make a law to set 
NEPA aside and allow the scopes to be built, which the end 
result, some of the studies of the light and laser technology 
have gone to introduce medical breakthroughs in cancer, so I 
want to thank you for putting that in.
    And, also, I also notice you wrote a piece in your written 
testimony about a rancher down in Southern Arizona who was 
subject, I think, with litigation between the Center for 
Biological Diversity, who decided not to come today. Can you 
tell me about that? Did the Center ever pay up?
    Mr. Hutchinson. You're referring to Mr. Jim Chilton who 
filed a suit against the Center for libel and slander.
    Mr. Renzi. Correct.
    Mr. Hutchinson. But they did appeal the decision back to 
the Judge for the Judge to give oversight to the jury's 
decision, and the Judge just came back here in the last couple 
of weeks with his decision, that he was not going to overturn 
the 100,000-dollar judgment and the 500,000-dollar punitive 
judgment, as well.
    Mr. Renzi. And you've used that story to make a point in 
your testimony, which you also--I picked up in your public 
comments, which is you feel there is a real link between the 
Federal agency personnel and the defendants.
    Mr. Hutchinson. The testimony at that trial and in the 
disclosure showed that there were people who were making 
financial contributions to the Center for Biological Diversity 
and who were listed in their membership who were also Federal 
agency personnel doing the environmental review on Mr. 
Chilton's allotment, so those same individuals had spouses 
working in a separate Federal agency that would then take the 
analysis done by the other spouse and write concurrence 
documents.
    Mr. Renzi. What happened to the Federal agency--to those 
persons.
    Mr. Hutchinson. Nothing.
    Mr. Renzi. Do you think there should have been a penalty 
where an agency personnel failed to act just like a Congressman 
or Congresswoman with a conflict.
    Mr. Hutchinson. Mr. Chairman, the last time I brought this 
up in testimony before Congress, there was an attempt by a 
former Representative to have that information disclosed from 
Federal agencies in the Southwest and was met by severe 
repercussions out of the press demanding----
    Mr. Renzi. We've been able to pass a law that if an IRS 
agent misuses his power or misuses his authority, that he can 
now be held personally responsible, given how many Americans in 
the past were borated, mistreated, and how that power 
ultimately corrupted the Federal agency personnel, including 
the IRS.
    One of the things we're interested in doing is taking that 
statute and bringing it over as it relates to some of our 
agency personnel who maybe have an agenda or misuse their 
authority in mistreatment of cattle people or timber people, 
and I believe that we need to look into incorporating that kind 
of language into NEPA.
    Mr. Hutchinson. It would be nice to see that.
    Mr. Renzi. Congressman Pearce.
    Mr. Pearce. Mr. Chairman, I want to--and I don't know if 
you're aware, but the last two years, a Federal Judge enacted 
for the first time a lawsuit to move forward using the RICO 
Statutes and claims of racketeering between Federal employees 
and those who were almost exploiting settlements.
    One example of that sort of exploitation was here in 
Arizona.
    I was flying a helicopter across the Central Arizona 
Project a couple years ago, and they showed me one of the areas 
they wanted to repair the dam, so they let the water down to 
the next system, and while the lake bed was dry, some bird put 
a nest out in the middle, and so a lawsuit was filed, and in 
order to get the lawsuit dropped by one of the extreme groups, 
the Central Arizona Project, I think, made a contribution in 
the amount of 25 million into some project, or something, and 
that is not an unusual thing to hear in testimony, that, ``Yes, 
we know it's not your problem, but if you contribute to this 
environmental project over here, it would go a lot easier on 
you in the regulatory phase over there.''
    So in Wyoming, a Federal Judge for the first time ever is 
allowing those processes to move forward as racketeering, so 
there should be judicial relief. I will come back to you, Ms. 
Poppie, hopefully. I really appreciate your testimony as I 
listen to the fact that you got a well done good job as a 
permittee, and by the way, that your cows had this happen, it 
just tears at my heart, because Catron County has especially 
been affected.
    The AUMs in Catron County have declined something like say 
200,000 units. These are one of the sources of taxation that 
that County had, so what we're doing is putting tremendous 
pressures on our Counties, as well as the individual ranchers, 
so that two years ago, we as an office took a lead role in the 
case with Kit Laney and the fact that the Forest Service wanted 
to put him in jail for 68 years for grazing violations, and we 
were addressing that and went into one staff meeting, and one 
of our staff who was dealing with it just got emotional, and 
the rest of the staff said, ``What--why are you being 
emotional,'' and he said, ``We're the last--we're the last 
protection in this family losing everything that they have had 
for generations, it just--they are losing it and the guy's 
going to go to jail for 68 years over grazing.''
    And to see that you bought in good faith a ranch that had 
approximately 400 units, and then how out of the blue with no 
science or no nothing, they tell you they're going to change it 
to 200, what have--what is the status of that today.
    What is--and what did they say? What did they say when you 
told them that, ``I might lose my ranch over this''.
    Ms. Poppie. The status, Congressman, is at this point I'm 
still under the microscope and I have no idea. I've heard 
there's been a change in the District level, and I just put in 
six months hospital time, so it was my only vacation from this, 
and so when I come back to the ranch and I'm working it again, 
and I do not know at this point. I'm sorry about that.
    Mr. Pearce. Have you gotten any rain in the last year?
    Ms. Poppie. Pardon?
    Mr. Pearce. Have you had any rain over the last year?
    Ms. Poppie. I had a lot of rain. The grass is wonderful. I 
have 43 stock tanks. They are all full, and the ranch is 
beautiful. It's incredible.
    Mr. Pearce. What's the elk herd doing this season?
    Ms. Poppie. It's--when I first purchased the ranch, I saw 
like 20 or 30 head of elk, and this year I've seen 100, and the 
deer increased a lot. During the drought, everything dies. The 
birds and everything dies, and now everything is coming back 
stronger than when I purchased the ranch.
    Mr. Pearce. The Forest Service is willing to limit the 
economic activity that would support the County Government, but 
they're not willing to limit the wildlife.
    Ms. Poppie. I have no opposition to the wildlife myself. 
They're not knocking down my fences, and, you know, that's the 
main thing. I feel like I have plenty of feed to feed the 
wildlife plus my cattle.
    Mr. Pearce. And you were prohibited from putting out feed 
sources.
    Ms. Poppie. That was during the drought. They said--I 
believe their reason for not allowing me to take feed up is you 
might introduce some seed out of some hay or pellets, or 
something, that would be foreign to the environment. Protein 
blocks, there was absolutely no reason for them not allowing 
that. Finally, they said, ``OK, if you hide them behind pushes 
and they're not in any containers,'' and by that time it was 
too late and the cattle were too weak to drive down to the 
deeded land where I could feed them.
    Mr. Pearce. I think that's going to be the story of our 
national economy. We're going to keep fiddling around with 
things like this, and the communicative effect is going to put 
us in a position where we're too weak to make a difference.
    Our office will continue to work with you.
    This is distressing when we see individuals who have to 
take a vacation from fighting with their own Governments. Thank 
you for your testimony.
    Mr. Renzi. Thank you, Congressman Pearce.
    Congresswoman Drake.
    Mrs. Drake. Thank you. Mr. Mackey, in your experience, have 
you seen any construction projects that have been delayed by 
NEPA, and if so, what was that specific delay and what was the 
impact of that delay.
    Mr. Mackey. We've seen delays. Like Ms. Craft, we base our 
business plan on State and local agencies and transportation 
budgets. Specifically, the city of Tucson had a pavement 
preservation project that was delayed over a year and a half, 
and it's just an overlay of a road within a metropolitan area, 
because they couldn't get the EA approved. And so what that 
translates to, we've got poor condition roads. For a material 
supplier like ourselves, a loss of jobs. It affects our 
business plan, creates economic hardship, but there's also 
increases to the costs of materials, and by the time the 
project finally comes around, the costs have increased, and if 
it's over the engineer's estimate, it still may not get filled.
    Mrs. Drake. So do you have specific figures of how many 
people you haven't been employing that you could be employing 
on some of these projects.
    Mr. Mackey. I don't have those specific numbers, but I 
would be happy to follow-up with you on that.
    Mrs. Drake. Because one of the goals of this Task Force is 
to see how NEPA is impacting our business community, and so the 
same question, of course, would go to Ms. Craft, what those 
specific impacts have been on their business, that here you 
thought you were building a road, and then four years down the 
road, there's a lawsuit and you've already started, and you 
must have paid for materials. Were you compensated for what 
you've done so far, or has that just been a big loss to your 
company, as well as a loss to your community because of the 
loss of jobs.
    Mrs. Craft. I would not be able to answer that at this 
point, but I could get back to you on that because I do not 
have specifics as to what was lost. I do know the materials 
were being on hold. I do know that. And the costs of just 
maintaining that, you know, so having to lay off people for--
who were already hired for positions, and that has an impact on 
us.
    Mrs. Drake. The same thing with you, Mr. Beck. First of 
all, is there any work being done on this project now, even 
though your company has spent 11 million dollars on this 
particular project.
    Mr. Beck. We're in the process of doing some more work with 
the State Commission. The State Commission would be reopening 
their siting hearing process, probably around the first of the 
year, and the hope is that the Forest Service will actually 
show up and participate and give their input, but I know the 
staff of the commission at this point feels that they did the 
local public input process, and in the best interest of the 
State of Arizona, the project was put in the right place, and 
the State's Siting Committee is vested with the obligation 
weighing public need versus environmental impact.
    Mrs. Drake. And, sir, is there any evidence or any figures 
as to what the loss is to the County by not having this project 
moving forward? Have they stopped economic development on the 
project because they can't provide utilities, or are there 
other impacts to other companies that would have been working 
on this project, as well, not just you.
    Mr. Beck. Again, we can follow-up with some figures, but as 
far as the local area, recently we did have extended outages 
for five hours to some customers that occurred over the recent 
holiday. The Border Patrol has a jail facility right at the 
border, and they were without power for an hour, and we were 
very concerned about that issue. Communications within the city 
of Nogales were out for about an hour.
    Mrs. Drake. And those outages aren't storm-related; they 
are simply you can't provide the power.
    Mr. Beck. No. This specific outage was storm-related 
because there was one line serving them.
    Mrs. Drake. Thank you.
    Thank you, Mr. Chairman.
    Mr. Renzi. Mr. Matson, if you don't mind, you were kind 
enough to give testimony when you talk about the Rodeo-
Chediski, and you also mention how the White River Apaches were 
able to get in there and salvage a lot of their wood, 
particularly before the core of the tree was rotted out and it 
was a blue dye effect. We were worried about the timing issue. 
We were worried about burnt trees and bark beetle at the time.
    I was with President Bush when we flew over the Tucson fire 
and we were talking about this, and I said, ``Look, you just 
got to go in and do a categorical exclusion on this Rodeo-
Chediski and let us get in there and do the salvage 
operation.'' We were getting categorical exclusions along the 
roadways, the campgrounds, and I think along some of the 
corridors, the utility corridors, where we got categoric 
exclusions, and here we are years afterwards, and it rotted and 
it went to waste.
    There is a doctor down in Payson who thinks there's a 
possibility that we need to be careful with the airborne 
particles of these rotting trees, that mass of the rotting 
trees, what kind of respiratory effects it may have, which is 
down-wind to my neighbors in New Mexico.
    All that said, what specifically could be done to NEPA, 
looking at the lessons learned from Rodeo-Chediski? What should 
we change specifically in NEPA to say if we have catastrophic 
landscape-size fire, which obviously is what is going to occur, 
to get in there and salvage.
    Mr. Matson. Well, we don't have within the Federal 
Government an extensive type of process for restoration, 
particularly from an erosion standpoint. The thing that is 
missing is the point you just mentioned; what to do about the 
treatable values within a timeframe and take advantage of that 
and also get some of this work done.
    The industry must provide restoration back on the ground, 
but I think it really gets down to dealing with the 
environmental perception that people seem to have, that if it 
is burned, why go ahead and damage it further by logging it, 
which is completely absurd. As far as being able to utilize the 
materials, I think if we get into a fire or insect-killed area 
within a year of the event, it has enough commercial value to 
bear its own cost to take care the restoration part of it.
    Mr. Renzi. A post Rodeo-Chediski, what is the mechanism? 
You say you have to do an EA? Can you go full-blown CE? How do 
you get the guys in the woods.
    Mr. Matson. I think full-blown CE is probably the more 
appropriate thing to do. What is more devastating than a damn 
fire.
    Mr. Matson. I couldn't have said it better.
    Mr. Hutchinson. Mr. Chairman, may I address that issue.
    Mr. Renzi. You may.
    Mr. Hutchinson. When a local government or a State makes a 
declaration of emergency, there should be serious consideration 
for suspension of NEPA requirements, and that would be a 
situation that you're talking about. Under a declaration of 
emergency, the Counties and the State Government should be able 
to go in there and take care of it.
    Mr. Renzi. This country--there has been so many NEPA 
studies that are already done, we already know where some of 
the real sensitive prehistoric sites are, some of the 
archeological sites are. In those areas, I understand you--
maybe you don't automatically go in there, and when you take a 
tree, you don't take it all out. You cut it so it can help with 
erosion, and leave some in the canyon walls so it can hold it 
together and put nutrients back in the soil. All of that could 
be done with a comprehensive, stable, holistic approach to the 
environment, but not allowing us in there, as you said, Mr. 
Matson, within a year, it turned out to be sad. It really is.
    Mr. Lynch, you had a follow-up?
    Mr. Lynch. If I might just briefly. I would take this in a 
different direction. Categorical exclusions are there to say 
this action is not going to have a level of environmental 
impact that requires scrutiny through the NEPA process. What 
you're talking about here are emergencies, and the only place 
where that subject is addressed at all is in this little tiny 
section CEQ has, CFR Section 1506.11, and it doesn't say much. 
It hasn't been litigated much, and the real problem is that it 
doesn't say much.
    Now, if the President declares an emergency, the Stafford 
Act is kicked in for relief or other similar things are 
allowed. Those are thought to be handled under a provision in 
NEPA for emergencies, not categorical exclusions, because they 
are going to have environmental impacts.
    There needs to be a policy cut, in my view, that you have 
to make, that when there is a true emergency, we will get 
things done, and if you want to involve NEPA, you can do it as 
a programmatic environmental impact statement before the 
emergency that says----
    Mr. Renzi. Does that entity already exist?
    Mr. Lynch. No. You have to do it. This is something you 
have to do.
    Mr. Renzi. Thank you.
    Congressman Pearce.
    Mr. Pearce. Thank you.
    Ms. Craft, you had mentioned that in 2002--in your 
testimony, that the Sierra Club filed a lawsuit to stop the 
Highway 95, and that was dismissed, and then was it dismissed 
because you all complied with certain actions that were 
required, or tell me a little bit about the dismissal.
    Ms. Craft. Mr. Pearce, I would not be able to answer that 
question at this point because I don't have enough information, 
but I can get that for you.
    Mr. Pearce. OK. Any time we ask questions, you could always 
submit a written answer, and that would be useful information.
    Ms. Struhsacker, first of all, I appreciate you being one 
of our women miners. You describe the NEPA process as one of 
conflict and confrontation. Have you thought about how we can 
achieve those objectives that the process was intended to 
achieve without this conflict of confrontation.
    Ms. Struhsacker. Well, we would offer a couple of 
suggestions, and one goes back to who are the participants in 
this dialog and who should have most say in what happens, and 
we feel that people who are directly affected stake-holders, 
people who live in and near the community or area where a 
proposed action is going to take place, their voices should 
carry more weight in the process, because these people know 
best what is good for their environment and what is good for 
their community, and if the NEPA process could have more of a 
spirit--which I believe Congress very much intended in 1969, 
but things have gone awry since then, but if there was this 
concept of what is the greater good here, I do believe we would 
have a much more civil and constructive dialog in the NEPA 
process.
    Unfortunately, there are those who use the NEPA process 
just as a tool, a categorical tool to say, ``We don't like 
logging, we don't like ranching, we don't like mining, we don't 
like transmission lines, we don't like roads,'' and the list is 
nearly endless, and their ability, which is almost unfettered 
at this point in time, to have equal standing in the process as 
local affected communities, is, we think, the crux of the 
problem.
    There are really no standing criteria in NEPA. Anybody, 
again for the price of a 37-cent stamp, has NEPA standing. We 
think if there were a mechanism to place more emphasis on local 
issues, then the real social and economic impact and benefits 
of the project could be more properly weighed.
    Mr. Pearce. I believe in your discussion you were 
describing people who don't want power lines and don't want 
highways and don't want logging. Can you get a sense for why 
they would be anti-government, anti-job? I mean, I think it's 
important for us to understand, and I really don't have a clear 
idea myself.
    Ms. Struhsacker. You know, it's probably not appropriate 
for me to put words in anybody's mouth. I think sometimes 
people who participate in this process, the postcard type 
comments that the agencies are sometimes inundated with. Now 
that there's internet communication capabilities, people almost 
look at NEPA like a vote, and so you get interest groups that 
have a campaign out there, and they're trying to get their 
membership to send online comments to an agency opposing a 
project, and sometimes a lot of people--maybe it is what we 
need. They don't understand that these projects can be done in 
environmentally responsible ways and there are benefits and 
real needs that these projects address, and some have an 
ideological predisposition and think that public land should be 
used for nothing but looking at.
    Mr. Pearce. And I think your comments, along together with 
Ms. Poppies's comments, that we have really good public 
servants in the agencies, that they are out trying to do the 
best thing, but sometimes they run out of time and sometimes 
they are covered up with comments only from one perspective 
that makes them think that the whole world is lined up, and so 
sometimes we are responsible for some of our own problems, that 
we don't defend our own turf quite as strongly as the other 
side that would take our turf away from us.
    Mr. Chairman, I will yield back and continue working my way 
down the line.
    Mr. Renzi. OK. Thank you, Congressman.
    Congresswoman Drake.
    Mrs. Drake. Thank you, Mr. Chairman.
    Ms. Struhsacker, when we were talking about that before, 
and certainly we know that NEPA is evaluating a lot of 
different things, what would happen if their decision--NEPA's 
decision was not in compliance with any of those other laws? 
Does that ever happen?
    Ms. Struhsacker. It can't happen. No. In order for any 
project to go forward, you have to run the gauntlet of the 
process that NEPA creates, and you also have to meet all of the 
environmental protection mandates that apply to your project 
that are the result of all of these other laws.
    Mrs. Drake. So who does what first.
    Ms. Struhsacker. Well, that is sometimes a big problem--a 
big part of the problem, because there are a number of 
agencies--let me just speak to what I am most knowledgeable 
about which is mining projects. If you are trying to develop a 
mining project on Federal land, you're either dealing with the 
Bureau of Land Management or the U.S. Forest Service.
    They have the principal--typically most mining projects 
would have principal jurisdiction for doing the NEPA document 
for the project, but you might also need a permit from the U.S. 
Army Corps of Engineers under the Clean Water Act. You might 
also need a permit under the Clean Air Act, or even the EPA, or 
if you were in a State that has primacy for the Clean Air Act, 
you would need a permit from the State. You would need to go 
through--the Federal land managers would need to do 
consultation with other Federal agencies like U.S. Fish and 
Wildlife Service to determine compliance with the Endangered 
Species Act.
    They would have to do consultation with the law that 
require protection of archeological resources. So they're 
looking at the Advisory Council on Historic Preservation. So 
there are a myriad of agencies involved, many of them Federal, 
and sometimes there are State agencies that have primacy for 
Federal environmental protection regulations, and then 
typically the States also have their own mining regulations. 
They may not participate directly in the NEPA process, but they 
are around peripherally. So it's a very complex process.
    Mrs. Drake. But when you're doing a mine, does everything 
kind of happen overlapping, or do you have to meet all the 
requirements of each of the other laws before you get that 
final analysis by NEPA.
    Ms. Struhsacker. Typically you try to make it dove-tail. 
You have to be able--again, in the case of a mining project, 
because we have to meet that litmus standard of we want to 
prevent unnecessary or undue degradation, our demonstrating 
that compliance with that standard, is we must demonstrate that 
we meet the substantive on-the-ground protection standard of 
the Clean Water Act, the Clean Air Act, Endangered Species Act, 
and the list goes on, and you try to make it dove-tail, but 
it's never that simple.
    Mrs. Drake. I guess I ask if anyone has had an experience 
where one of these other laws didn't conflict with NEPA, 
because we had some other testimony in our committees that the 
Magnuson-Stevens Act about fish. I know you wouldn't know about 
fish because you do mines, but there seems to be some things 
that conflict between the two. So has anyone else seen or 
encountered that.
    Mr. Hutchinson.
    Mr. Hutchinson. Yes. Mr. Chairman, Mrs. Drake, the--in my 
written testimony I pointed out a situation where a NEPA 
document actually identified a County-produced alternative as 
the environmentally preferable alternative and, yet, the 
Endangered Species Act recovery plan for the Mexican spotted 
owl trumped that environmentally preferable alternative, so we 
got through all of the process, the expense of crafting an 
alternative, having it selected as being the environmentally 
preferable alternative, and the Endangered Species Act through 
the recovery plan trumps it.
    Mrs. Drake. Is there any timeframe that all of these--I'm 
just wondering, like you just said, you get all the way through 
and something else trumps it. How far down the road would you 
be before someone else shows you that after you spent all this 
money, it is not going to work?
    Mr. Hutchinson. That particular example was two years down 
the road.
    Mrs. Drake. Thank you.
    Thank you, Mr. Chairman.
    Mr. Renzi. Thank you, Congresswoman.
    Ms. Poppie, I was going to ask you about the experience you 
had with NEPA and the Mexican wolf. If you could briefly 
describe that in your testimony. I think you referred to it in 
your written testimony.
    Ms. Poppie. I've had no direct involvement with the Mexican 
wolf, except that I've looked out my bedroom window and seen 
three of them looking at me twice.
    Mr. Renzi. Do the cattle growers in New Mexico have a 
position on NEPA and the Mexican wolf that you would like to 
present?
    Ms. Poppie. I don't know how much connection there is 
between NEPA and the cattle growers. I'm sure it's quite vast, 
but just north of me 30 miles, there have been several cattle 
killed recently by Mexican wolves. To my knowledge, I have not 
lost cattle, but when you ranch a big ranch like that, a lot of 
times you don't know.
    Mr. Renzi. Thank you.
    Mr. Lynch, I want to go back to the discussion we had 
earlier about the reforms that I think we should be looking at 
as far as the initial review process goes. I think you were 
kind enough to mention in your testimony that NEPA possibly 
could benefit from a 60-day notice of a lawsuit.
    Mr. Lynch. Yes. That mechanism occurs in the Endangered 
Species Act. If someone wants to sue the Federal Government, 
the idea is that the Government is given a warning, if you 
will, and told what is wrong, and the 60-day letter is not only 
a warning, but a box, and the lawsuit that follows, if it does 
follow, can only have things in it that were in the box. So 
it's a show and tell program, if you will, and you can't sand-
bag and come back in with other things.
    The idea is to warn the Government at an appropriate time 
that you believe that they are not complying with this law. I 
haven't seen a reason why that mechanism wouldn't work with 
NEPA, and it should come in my view before the record of 
decision if there's an environmental impact statement that is 
followed by that decision, before the finding of no significant 
impact, and just like the people who sue, ought to have been 
part of the process. We don't very vigorously apply the 
Administrative Procedure Act, and we should. We should build a 
record and we should live with it, and so should the people who 
aren't happy.
    I think the mechanism that the Endangered Species Act has 
for warning people that there are people who are unhappy, and 
specifically what they're unhappy about, would be a useful tool 
in this context.
    Mr. Renzi. Mr. Matson, do you want to follow-up on the 
timing of when the trigger of the 60 days would be or any kind 
of reforms in the process for allowing this.
    Mr. Matson. The timing of that should start early on so the 
decisionmaker has an idea of what it is that is at issue. I 
think what was set out to try to accomplish in the first place 
was identification of public issues, and that's a good place to 
start.
    Mr. Renzi. Almost like a mediation. If you were given 
enough notice up front, this issue would be litigated, then you 
take it into mediation.
    Mr. Matson. Not only in relation to that plaintiff, but in 
relation to other affected parties, as well. If the typical 
decision has a dispute associated with it, there are other 
entities that would have a stake in it, and they need to know 
without waiting for these lawsuits to blow it up.
    Mr. Renzi. I get you. They need to be involved in the 
process early on. I'm going to go to the last round. I 
appreciate you hanging in here, and we'll let Congressman 
Pearce go as long as he wants.
    Mr. Pearce. Thank you, Congressman.
    One of my staffers came up and mentioned that the Clean 
Water Act--and in follow-up to Howard's comments, the Clean 
Water Act, actually in a flood, the requirements of the Clean 
Water Act go away, and that's similar to what we were talking 
about, and it also explains, I guess, why there's no regulation 
or no upset about rebuilding or repopulating the earth, and is 
kind of where I got started, and then it goes through the NEPA 
process.
    Mr. Beck, on this one project, who ultimately pays the cost 
for this delay? Is that something that you can take out of your 
taxes and get reimbursed by Federal Government?
    Mr. Beck. No. It was eventually the customers of the 
company, it is the company's hope would pay for those costs. 
There's no guarantee of that. We have to go through a State 
rate-setting process to determine just and reasonable costs, 
and so there's the potential that the State could say it wasn't 
justifiable that you spent 10 million dollars on an EIS 
process.
    Mr. Pearce. You mention the trimming of trees along the 
lines and the fact that you were kind of complimented and held 
up as an example, and all of a sudden, the policy changed. Is 
this a Federal policy to clear-cut or----
    Mr. Beck. As far as utility is concerned, yes. You have to 
clear-cut underneath your line to eliminate the potential for 
trees to grow up in the line, causing outages or fires, and it 
reduces the ability of a fire, if it does come through the 
area, to damage the lines. That line happens to be about 75 
miles east of here.
    Mr. Pearce. We had a similar circumstance. We had a 
circumstance like that in New Mexico. A tree had fallen over 
against a line, and the co-op wanted to take it down, and they 
were not given permission by the Forest Service to take it 
down. They were not given permission by the Forest Service to 
take it down, and it sat there and sat there and eventually 
caused a spark, and it burned almost into Cloudcroft. But, 
again, it--just sometimes things don't exactly make sense, and 
I think it goes back to what we were saying, that no one is 
really in charge.
    Anyone at any level can cause anything to occur. That is 
there's no priorities. There's no system of presenting these 
suggested actions. It is just that anybody can obstruct or 
stop, whether they are on the inside, even if they don't have 
standing, or they do have standing, whether they are at the 
very bottom of the organizational structure and can't be 
overruled by anyone in the system, no matter how well thought 
out the suggestions are, and it has left us in quite a mess.
    Mr. Mackey, you brought up a fascinating point, and I had 
not thought of it as one of the costs of doing business, but 
the education time for staff is extremely important. How often 
do we get turnover in the agency where you would be dealing 
with the--what sort of turnover--do people have three-year 
careers at a spot, or ten, or two, or what.
    Mr. Mackey. We've had a number of experiences where in 
going through a permitting process, that we will see more than 
one, sometimes more than two regulators that we're dealing with 
in regard to air quality environmental studies. I couldn't tell 
you--it would be pretty much speculation of what the turnover 
rate is, but it's pretty high.
    Mr. Pearce. So it would be like Mr. Beck where we invest 
10.6 million dollars in getting to a certain point, and they 
change out the person and you could go all the way back to 
square one. Is that a fair statement of the process?
    Mr. Mackey. There's a lack of continuity, and the person 
that comes on board isn't up to speed with where you're at, and 
so you do go back to square one to educate them, and maybe 
you've already gotten over some of the hurdles and now you need 
to cross them again.
    Mr. Pearce. Mr. Chairman, I note that my five minutes is 
already long since gone. I would like to just wrap up by 
saying, you've seen us referring to people sitting behind us 
and on the side. These are staff members who generally have 
questions, but also present some out of the District offices, 
and they are helping us do our job, and I will tell you that 
the staff members are the most under-recognized and under-
appreciated--they're not underpaid, but--so if I said that, 
they would be gone and would go work for the co-ops, but I 
think that I would like to say this about the staff and give 
them a round of applause because they do a great job.
    Mr. Renzi. How much time did you consume?
    Mr. Pearce. OK. I'm getting started. I would like to say 
thanks to Chairman Renzi. There is going to be six of these 
hearing nationwide, and I'm appreciative. No one ever comes to 
New Mexico to listen to anything except for me. So Chairman 
Renzi had this hearing brought here, and there are five other 
like it in the nation, and I will guarantee we need to give 
Chairman Renzi a hand of applause.
    The written documentation by our panel is absolutely 
stunning, every single one of them. This testimony I think will 
be posted on the Resources Committee, going to the U.S. House. 
It'll be on the Resources Committee, or if you don't find it 
there, I think I can get our staff to post it on our website, 
also, ushouse.gov, and it will appear under New Mexico. I think 
you will be really, really surprised with the high quality of 
presentation that we received here, and that's what I tell 
people, that we are sufficient.
    We are sufficient in our own local area to solve our 
problems. We don't need people from Europe telling us what to 
do. We don't need the Supreme Court telling us what to do. 
There are good honest, decent, common sense people out here 
that will not spoil the environment. They will make suggestions 
that will help us protect our environment, help us create jobs, 
and help us protect the property rights and the values we all 
have built up. I think we ought to give the panel a round of 
applause, too.
    Mr. Chairman, one last comment for the day. My last 
comment, we sat in a hearing about the NEPA and its process. 
Toward the end of last year, very long hearing, about a six or 
eight-hour hearing, I sat there until the last presenter, and 
she was a woman from California. She had been very patient, and 
she said, ``I want you to know I'm the greenest of the green.'' 
She said, ``I'm a council member from''--I think it was Santa 
Barbara, California. ``California is the greenest state. Santa 
Barbara is the greenest city in the greenest state, and for me 
to get elected as commissioner, I would say that I am the 
greenest of the green,'' and she said, ``We cannot build 
bedrooms on our houses, we cannot pave our streets, we can't 
dig lines to put water mains down through the town, we can't 
get new sewer lines, all because of NEPA.'' She said, ``The 
NEPA process is broken and needs to be fixed,'' and she said, 
``That's from the greenest of the green.''
    Mr. Chairman, I think that that is a compelling statement 
for me to end my comments on. Thank you again for having this 
great hearing, and thanks to this great crew.
    Mr. Renzi. Thank you, Congressman Pearce. I don't know that 
this hearing would have been as electric without you today. You 
are our neighbor, and we thank you for your friendship.
    Congresswoman Drake, as much time as you need.
    Mrs. Drake. Thank you, Mr. Chairman.
    I think this will be for Mrs. Poppie and Mr. Hutchinson, 
but it just seems to me, one of our goals also is to look at 
duplication, and when you talk about forest management level 
and NEPA being done at the forest management level, and then 
NEPA also being done for you to have a grazing permit, don't 
you think that should just be done one time and not duplicate 
that it's OK to graze on this land, it's OK to graze and you 
personally shouldn't have to go back in?
    Ms. Poppie. I personally think that--I asked them before 
when I purchased the ranch that the permit for the 400 animal 
units was to be good for 10 years, and now having the NEPA 
process going on. I think they picked on me because I was a 
woman and a new kid on the block. I was--there are a lot of old 
family ranchers in Catron County, and they've been there for 
ever, and I think they just thought I was going to be a soft 
spot and they wanted to get NEPA out of the way, but it has 
hurt our community to the degree that it is my understanding 
they're probably going to have to close a school.
    Mr. Drake. That is tragedy.
    Mr. Hutchinson. Mr. Chairman, Mrs. Drake, our perspective 
in this has been to look at the science, and science tells us 
that we should be looking at these things in a system-wide 
approach, looking at multiple, large-scale watershed levels, 
rather than trying to nitpick every single particular action 
that we're going through.
    I've got mixed feelings about the new forest planning 
regulations. However, they're looking like we're heading in a 
direction where we're going to be looking at whole systems, and 
hopefully with that type of a look, we're going to be able to 
say, like Aldo Leopold said about natural resource management, 
when you have all of the parts there, and you have all of those 
parts functioning, you don't have to worry about the individual 
species. Everything will take care of itself. And so we--you 
know, we've got all of these laws, and Northern Arizona 
University did a study on this, looking at the individual 
regulations, and found that individually they were really 
weren't that onerous, but when you put them together in this 
spider web and this layering effect, they pretty much have 
brought the management process to halt.
    And so, yes, if we could get to a point where we could be 
taking a programmatic look across large landscapes and have 
that suffice as the environmental analysis under the NEPA, then 
we should be able to proceed forward with common sense 
approaches that allows us to take an active management or true 
active management type position.
    Ms. Struhsacker. May I make a suggestion as it relates to 
mining, and I think perhaps as it relates to ranching, as well. 
I very much support the concept of a programmatic approach to 
looking at these types of broad and rather routine activities, 
especially in the case where there is a land-use management 
plan or there's been extensive NEPA analysis of that plan, that 
has designated certain areas to hold the mining and grazing, 
then much more streamline permitting such as a categorical 
exclusion is appropriate, especially if the mining--let's take 
an example I have in my testimony of building exploration 
roads.
    These are temporary roads that are reclaimed at the end of 
the exploration project. The impacts associated with them are 
well understood. There are very temporary impacts. It's 
appropriate to develop a set of best management practices for 
those types of activities. I would think you had a number of 
best management practices that you used on your ranch. It 
sounds like it's in wonderful condition. And if we can agree 
that the land use management plan is it's OK for grazers, it's 
OK to mine here, then projects that comply with those sets of 
best management practices, should receive a very streamline 
approval such as the categorical exclusion.
    Mrs. Drake. Thank you. I also wanted to ask Mr. Lynch or 
Mr. Matson, or for that fact, any of you, that we certainly 
understand NEPA is for analysis, but what it seems like it's 
doing is just creating paperwork. Do you think it's possible 
for anybody to read hundreds or thousands of pages of 
information and to really grasp it? Do you think that's 
practical.
    Mr. Lynch. Well, since it's something I do for a living, 
I'm not going to tell you.
    Mrs. Drake. Wrong person.
    Mr. Lynch. Well, some people live in real life, and some 
people read environmental impact statements. As a practical 
matter, very long things are by definition boring, and I don't 
care how informative people think they are, you seldom get 
through them unless you're paid to, and I think--I think the 
growth in size of environmental impact statements is parallel 
to the growth in costs and growth in time, and all of those 
have ended up making these documents things that people like me 
play with and the general public doesn't have a clue.
    Mrs. Drake. Thank you.
    Mr. Matson. I agree with Mr. Lynch, and if you can also 
take a look at the final results after you've weighed the 44 
pounds of that stuff, I doubt if it makes much difference.
    Mrs. Drake. Thank you, and last we go to Ms. Struhsacker. I 
was so intrigued by your comment on how much are we paying to 
fight these cases where other people just have a 37-cent stamp 
involved in it, and also the extra work that is put on an 
agency so it bulletproofs itself much like a medical profession 
where they have to order all of the tests to make sure they're 
not in some sort of a liability case, and we know what that's 
done to the cost of medicine. So as far as what we could do 
with that, we'll get that information as much we can. But what 
are we paying for all of that, and what could we do with that. 
I thought that was very intriguing.
    Ms. Struhsacker. I appreciate that. We've come a long way 
since NEPA was enacted. In 1969, it was enacted in almost a 
vacuum when there were no other environment laws to protect the 
environment. We're not there now. We have a comprehensive and 
sometimes very complex set of regulations to protect the 
environment, so we need to take the next step. NEPA needs to 
mature so that we can unshackle ourselves from this drag of a 
process and take the resources and put them on the ground.
    We have the best environment here in the world, and it is a 
result of these regulations, but just think what more we could 
do if we could all free ourselves of this paper chase and 
really put our efforts on the ground.
    Mrs. Drake. Thank you very much. I also would like to thank 
all of you for being here, and our staff, and for the town for 
hosting us. Thank you, Congressman Renzi.
    Mr. Renzi. Thank you very much. That will wrap us up.
    I want to take the time also to thank the panel, and 
especially for the time that you each put into the context of 
your testimony and your participation, and many of you traveled 
a long ways to be here, and I feel like the contributions that 
each of you have made today are contributions to the evolution 
of America's laws, and the modernization and reform, and it 
takes Americans to reform American law, and each of you are 
true Americans, and I'm grateful.
    This hearing is a continuation of a process. It will now 
take the form of four more hearings around the country. We have 
learned today from these witnesses and they've shared a host of 
perspectives, and we've also received several e-mails and faxes 
that have laid a real foundation for us. Members of the Full 
Committee, as well as Members of the Task Force, may have 
written questions they may submit to you, and the record will 
remain open for some time, and we'd ask please if you do 
receive any written questions, that you respond to them in 
writing, and that would post them on the site, and I also want 
to thank the people of the White Mountains and the people of 
Show Low, the whole region, for the hospitality, for the 
participation in helping to turn out on a Saturday afternoon to 
begin the process of reforming NEPA. I certainly know that you 
all have seen your burden and how it's affected your lives 
here, and I want to thank you all for taking the time to 
participate and being true patriots and being part of the 
American Government. Be safe in your travels. Thank you for 
your patriotism. God bless you all. The hearing is concluded.
    [Whereupon, the Task Force was adjourned.]

    [Additional information submitted for the record follows:]
    [A letter submitted for the record by Robert Dugan, 
Legislative and Public Affairs Manager, Granite Construction 
Incorporated, follows:]

[GRAPHIC] [TIFF OMITTED] T1884.002

[GRAPHIC] [TIFF OMITTED] T1884.003

    [A letter submitted for the record by Dr. Kenneth Langton, 
Chair, Sierra Club--Grand Canyon Chapter, follows:]

[GRAPHIC] [TIFF OMITTED] T1884.004

    [A letter submitted for the record by Brian Nowicki, 
Conservation Biologist, Center for Biological Diversity, 
follows:]

[GRAPHIC] [TIFF OMITTED] T1884.005


    The following information submitted for the record has been 
retained in the Committee's official files:
  Bennett, Jean M., Ridgecrest, CA, Written Comments dated June 
        18, 2005
  Benson, Cameron, Environmental Defense Center, Written 
        Comments dated June 23, 2005
  Block, Stephan, Cottonwood, AZ, Written Comments dated June 
        16, 2005
  Flynn, Roger and Smith, Patrick L., Western Mining Action 
        Project and Smith, Doherty & Belcourt, Written Comments dated 
        June 28, 2005
  Gaffin, John M., Myers Flat, CA, Written Comments dated May 
        11, 2005
  Greacen, Scott, Environmental Protection Information Center, 
        Written Comments dated June 23, 2005
  Hollis, John, Topanga, CA, Written Comments dated June 22, 
        2005
  Jeckell, Robert, Sunnyvale, CA, Written Comments dated June 
        16, 2005
  Jordan, Laura L., Belmont, CA, Written Comments dated June 
        22, 2005
  Lane, C.B. ``Doc'', Cave Creek, AZ, Written Comments dated 
        June 18, 2005
  Langton, Dr. Kenneth, Sierra Club, Letter dated June 22, 2005
  Lien, David A., Colorado Springs, CO, Written Comments dated 
        June 18, 2005
  Mackey, Megan, Pacific Marine Conservation Council, Written 
        Comments dated June 22, 2005
  Magruder, Marshall, Tubac, AZ, Written Comments dated June 
        16, 2005
  Marderosian, Ara, Sequoia ForestKeeper, Written Comments 
        dated June 21, 2005
  Marlette, Jackie, Pacific Rivers Council, Written Comments 
        dated June 22, 2005
  Matthews, Thomas, Soquel, CA, Written Comments dated June 22, 
        2005
  Miller, Jessica R., Camino, CA, Written Comments dated June 
        15, 2005
  Myers, Tom, Hydrologic Consultant, Written Comments dated 
        June 20, 2005
  Notthoff, Ann, Orinda, CA, Written Comments dated June 28, 
        2005
  Oaklander, Martha, Los Angeles, CA, Written Comments dated 
        June 16, 2005
  Paley, Jan, Los Angeles, CA, Written Comments dated June 15, 
        2005
  Rose, David S., South Fork Trinity River Land Conservancy, 
        Written Comments dated June 16, 2005
  Ryberg, Erik, Center for Biological Diversity, Written 
        Comments dated June 18, 2005
  Silver, Dan, Endangered Habitats League, Written Comments 
        dated June 19, 2005
  Smith, Steve, The Wilderness Society, Written Comments dated 
        June 24, 2005
  Torrence, Paul F., Flagstaff, AZ, Written Comments dated June 
        15, 2005
  Weisz, Russell, Santa Cruz, CA, Written Comments dated June 
        18, 2005
  Wheeler, Terence, Gila County Cattle Growers Association, 
        Letter dated June 18, 2005
  White, Al, Flagstaff, AZ, Written Comments dated June 18, 
        2005
  Worthy, Crista, Pacific Palisades, CA, Written Comments dated 
        June 15, 2005

                                 
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