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20-808 PS ★ 2005

THE ROLE OF NEPA IN THE

STATES OF WASHINGTON,

OREGON, IDAHO, MONTANA

AND ALASKA.

OVERSIGHT FIELD HEARING

BEFORE THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

Saturday, April 23, 2005, in Spokane, Washington

Serial No. 109-8

Printed for the use of the Committee on Resources

(

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

or

Committee address: http://resourcescommittee.house.gov

(II)

COMMITTEE ON RESOURCES

RICHARD W. POMBO, California, Chairman

NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Barbara Cubin, Wyoming

Vice Chair

George P. Radanovich, California

Walter B. Jones, Jr., North Carolina

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Jim Gibbons, Nevada

Greg Walden, Oregon

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

Jeff Flake, Arizona

Rick Renzi, Arizona

Stevan Pearce, New Mexico

Henry Brown, Jr., South Carolina

Thelma Drake, Virginia

Luis G. Fortun ̃ o, Puerto Rico

Cathy McMorris, Washington

Bobby Jindal, Louisiana

Louie Gohmert, Texas

Marilyn N. Musgrave, Colorado

Vacancy

Dale E. Kildee, Michigan

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Grace F. Napolitano, California

Tom Udall, New Mexico

Rau ́l M. Grijalva, Arizona

Madeleine Z. Bordallo, Guam

Jim Costa, California

Charlie Melancon, Louisiana

Dan Boren, Oklahoma

George Miller, California

Edward J. Markey, Massachusetts

Peter A. DeFazio, Oregon

Jay Inslee, Washington

Mark Udall, Colorado

Dennis Cardoza, California

Stephanie Herseth, South Dakota

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 P. Radanovich, California

Chris Cannon, Utah

Jim Gibbons, Nevada

Greg Walden, Oregon

Stevan Pearce, New Mexico

Henry Brown, Jr., South Carolina

Thelma Drake, Virginia

Louie Gohmert, Texas

Richard W. Pombo, California, ex officio

George Miller, California

Frank Pallone, Jr., New Jersey

Edward J. Markey, Massachusetts

Grace F. Napolitano, California

Jay Inslee, Washington

Mark Udall, Colorado

Rau ́l M. Grijalva, Arizona

Jim Costa, California

Nick J. Rahall II, West Virginia, ex officio

(III)

CONTENTS

Page

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

Statement of Members:

Inslee, Hon. Jay, a Representative in Congress from the State of

Washington .................................................................................................... 3

McMorris, Hon. Cathy, a Representative in Congress from the State

of Washington ............................................................................................... 2

Statement of Witnesses:

Blaeloch, Janine, Director, Western Land Exchange Project ....................... 80

Prepared statement of ............................................................................... 82

Fish, Paul, President, Mountain Gear Inc. .................................................... 83

Prepared statement of ............................................................................... 85

Geddes, Robert D., General Manager, Public Utility District No. 1,

Pend Oreille County, Washington .............................................................. 25

Prepared statement of ............................................................................... 27

Jensen, Thomas C., Esq., Attorney, Sonnenschein, Nath & Rosenthal

LLP, Chairman, National Environmental Conflict Resolution Advisory

Committee, U.S. Institute for Environmental Conflict Resolution ........... 6

Prepared statement of ............................................................................... 8

Kakuk, Michael S., Attorney, Kakuk Law Offices, P.C. ................................ 39

Prepared statement of ............................................................................... 41

Kennedy, William D., Chairman of the Board, Family Farm Alliance ........ 69

Prepared statement of ............................................................................... 71

Kimbell, Abigail, Regional Forester, U.S. Forest Service, Northern

Region, U.S. Department of Agriculture ..................................................... 33

Prepared statement of ............................................................................... 36

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

Transportation .............................................................................................. 21

Prepared statement of ............................................................................... 23

Roskelley, John, Board Member, Eastern Washington Growth

Management Hearings Board ...................................................................... 46

Prepared statement of ............................................................................... 47

Russell, Luke, Director, Environmental Affairs, Coeur d’Alene Mines

Corporation .................................................................................................... 63

Prepared statement of ............................................................................... 64

Urness, Craig, General Counsel, Pacific Seafood Group ............................... 77

Prepared statement of ............................................................................... 79

Vaagen, Duane, President, Vaagen Bros. Lumber Inc. ................................. 58

Prepared statement of ............................................................................... 60

Additional materials supplied:

Anderson, Michael, The Wilderness Society, Statement submitted for the

record ............................................................................................................. 101

Artley, Richard, Grangeville, Idaho, Letter submitted for the record .......... 103

Coyner, Barbara, Princeton, Idaho, Letter submitted for the record ........... 104

Heiken, Doug, Oregon Natural Resources Council, Portland, Oregon,

Statement submitted for the record ............................................................ 105

Kliegman, David, Okanogan Highlands Alliance, Tonasket, Washington,

Statement submitted for the record ............................................................ 109

Lind, Penny, Executive Director, Umpqua Watersheds, Letter submitted

for the record ................................................................................................. 110

O’Brien, Mary, Ph.D., Eugene, Oregon, Statement submitted for the

record ............................................................................................................. 110

Rehberg, Hon. Denny, a Representative in Congress from the State of

Montana, Letter submitted for the record .................................................. 114

Page

IV

Additional materials supplied—Continued

Simpson, Hon. Mike, and Hon. C.L. ‘‘Butch’’ Otter, Representatives in

Congress from the State of Idaho, Letter submitted for the record ......... 117

Thomas, Charles A., Spokane, Washington, Spokesman-Review article

‘‘Open space laws leave many out in cold’’ submitted for the record ........ 115

Young, Hon. Don, a Representative in Congress from the State of Alaska,

Letter submitted for the record ................................................................... 119

(1)

OVERSIGHT FIELD HEARING ON THE ROLE

OF NEPA IN THE STATES OF WASHINGTON,

OREGON, IDAHO, MONTANA AND ALASKA.

Saturday, April 23, 2005

U.S. House of Representatives

NEPA Task Force

Committee on Resources

Spokane, Washington

The Task Force met, pursuant to call, at 10:00 a.m., in the Phase

I Building Auditorium at the Washington State University,

Riverpoint Campus, 668 North Riverpoint Boulevard, Spokane,

Washington, Hon. Cathy McMorris presiding.

Present: Representatives McMorris, Cannon, Gohmert and

Inslee.

Miss MCMORRIS. Good morning, everyone. I’d like to begin this

hearing by introducing the members of the Boy Scout 171 Troop

from Woodbridge Elementary who will present the colors. So, if

everyone would please stand.

[Pledge of Allegiance recited.]

Miss MCMORRIS. Thank you very much. Well done.

[Applause.]

Miss MCMORRIS. Well, thank you, everyone, for coming—for

giving up your Saturday morning to be here and especially to the

other members of the Task Force who are here. I thought I would

just start by taking a moment to have—if you would please introduce yourself and share with the audience where you’re from. That

would be great.

If you would start us off, Mr. Inslee.

Mr. INSLEE. Thank you. Jay Inslee. I represent the First District

which is south of Everett. And I’m the number one fan—chairman

of the John Stockton fan club in western Washington.

[Applause.]

Mr. CANNON. Of course, I actually represent the John Stockton

fan club—in Utah for many years. I represent the central part of

Utah. Utah is the seventh most urban state in the union because

of the desert—people live in the desert area. So, I represent a quarter of the state—a little over a quarter of the state. Under the

county to the west, west desert.

And I want to thank all of you for coming out here and have the

green and black stickers on. This is an important process for us.

And I don’t think anybody here can exceed my—one of my views

2

as an environmentalist (unintelligible). But I want you to understand that there are better ways of doing things. And hopefully this

process will begin to—hello—hopefully this process will begin to

discover what those ways are so that we can add to the—a better

cost of society with much more efficiency (unintelligible) solving

problems. We can do something about it.

The fact is, our biggest problem together is not people building buildings on top of a habitat. It’s (unintelligible) species. That’s

where the bulk of the structure of species is coming from. So, we

have huge problems that we deal with and deal with effectively as

a society. Or we can ourselves and not progress that’s important.

Thank you for being here. We appreciate your participation.

Miss MCMORRIS. One of my fellow brethren who joins us for

Texas, Mr. Gohmert.

Mr. GOHMERT. I’m Louie Gohmert. I’m from east Texas. And we

do have a lot of trees and natural resources and (unintelligible)

Texas. And I’m delighted to be here in Spokane. It’s a beautiful

area around here. And I hope that what I’m seeing in Washington

doesn’t play out across the country too far. Some people are so (unintelligible) with such bureaucratic inefficiency that they don’t

want to see change. And I want to—there’s nothing I’ve ever done

in my life that I couldn’t review and find some way to do it a little

better next time, whether it was a competition I won or whatever.

And so I’m wanting to do things better and improve—now I

don’t—the empowerment, of course, and the ways of protecting the

environment. So, I’m looking forward to the testimony here. I appreciate the wonderful hospitality in this area. We thought we

were good about hospitality back home, but this has been great.

Thank you.

STATEMENT OF HON. CATHY MCMORRIS, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF WASHINGTON

Miss MCMORRIS. Well, thank you, everyone, for being here. And

I think your attendance, without a doubt, shows the importance of

NEPA, the National Environmental Policy Act, and the interest in

the work of the Task Force.

I want to thank the Members for their attendance as well as the

members of the panels. It is vital to the efforts of the Task Force

that the Members hear an array of views and thoughts on NEPA.

As one of the first environmental laws passed in this country,

NEPA was visionary for its time. It started with the goal of establishing a national environmental policy to guide the action of Federal decisionmakers. Today over 80 Federal agencies have developed their own NEPA guidance, and NEPA has been modeled in

over 20 states, including here in Washington.

What started as visionary but overly vague has now grown into

25 pages of regulations, over 1,500 court cases, and several hundred pending lawsuits. Too often instead of progress and results we

see delays and conflict. And while there’s been little change to

NEPA itself, it’s been amended only twice, there’s been no shortage

of activity surrounding the Act.

Litigation began within three years and there have been several

legislative streamlining proposals, not to mention the countless articles and discussions. NEPA has also changed. In 1997 under

3

President Bill Clinton, CEQ, which is the White House’s Counsel

on Environmental Quality, reviewed NEPA and concluded that

NEPA takes too long and costs too much and that documents are

too long and too technical for people to use. Indeed by 2000 the average length of an environmental impact statement had grown to

493 pages. Some estimates show that the average cost of an environmental impact statement is between 500,000 and 2 million. And

the average EIS takes over two years.

Undoubtedly the NEPA process has increased the Federal government’s awareness of environmental consequences. And there

have been cost savings, increased public participation and other

benefits. This awareness has not necessarily translated, though,

into a better NEPA process. It is against this backdrop that the

Task Force seeks input to what is working well, what is working

poorly, and what can be done to ensure that the original intent of

NEPA is fulfilled.

Our new vision for NEPA should be to reform the process in

ways that foster a spirit of dialog and collaboration so that stakeholders work together with a common purpose of making projects

the very best they can be for our communities and our environment.

Today we will hear from NEPA experts, Federal and state officials and groups that have participated in the NEPA process. The

goal is to create a complete and rich record that can guide us as

we formulate recommendations.

I do want to mention that one of the integral parts of NEPA is

that it calls for public participation and public comment. Even

though we only have 13 witnesses here today, we want to hear

from everyone. And I encourage you to submit your comments to

the Resources Committee so that we can take all comments and

recommendations into consideration.

At this time, I would like to acknowledge Mr. Inslee for any

opening remarks he might have.

STATEMENT OF HON. JAY INSLEE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF WASHINGTON

Mr. INSLEE. Thank you. And I want to thank the Chair (unintelligible) in Congress for the willingness to take on this responsibility. And so thank you very much for your (unintelligible) having

you on the Committee already.

I do have some comments I’d like to make. I want to say that,

first, I approached this responsibility with a fair amount of humility, which might be (unintelligible) politics I suppose. But I do so

because I really feel—for a variety of reasons.

Number one, I really feel that we are walking in the footsteps

of giants here. This is something that Henry Jackson created. This

is one of his absolute marked achievements in his illustrious career

in the State of Washington. And any time you talk about sort of

redrafting, rewriting something of—something that has had such a

success by such a great (unintelligible) in Washington. You have to

approach it with some humility.

Second, flying over this morning, I just got kind of an eyeful of

what this is about, which is, you know, the place as you know it

the Creator worked on everywhere else. And when he got done

4

practicing, he made Washington. When you fly from Seattle to Spokane you really get a flavor of that.

Look down (unintelligible) at lake where my dad first took me

hiking when I was ten years old. Grand Coulee and Dry Falls

and—you know, it’s just—it really is an incredible spot we live.

And NEPA is important to the preservation of that.

But there’s a third issue that I sort of—I think you should have

some humility about which isn’t the land which is obvious on

NEPA. But NEPA is really the—perhaps as or more important it’s

about people. It’s about people’s access to the democratic process.

And it’s the ability of individuals and communities to make sure

that their voices are heard when their Federal government is

charged with responsibility to protect their land and their water

and their air.

And this issue of NEPA is really in my book a perfecting process

of our democratic institutions to make sure that agencies listen to

people that they’re intended to protect. That people do consider alternatives. That people do consider it as any business would to look

at alternatives and make investments early so you don’t make mistakes late.

These are real fundamental concepts of democracy. And it’s just

not environmental issues that we are concerned with. It is a democratic principle that agencies work for the people rather than people working for the agencies. And NEPA probably is one of the single most effective tools to date of making sure that people remain

ascended in these decisions.

And I want to say a couple things. NEPA has processes that

cause great angst, anxiety and concern. It is an issue that involves

people who want to move quicker than the NEPA process allows

in time. It creates a lot of frustration.

But I think it’s important just to know some of the successes.

You look at Hanford where because of the NEPA process, we

avoided about a $500 million bad decision that the Department of

Energy wanted to make. And when citizens finally had their input,

it saved the Federal government $500 million.

You look at the North-South highway where we had some

improvements made. There were communities locally concerned

was—were taken into consideration. And look at the Hauser situation, when we’re told there was no NEPA compliance when we had

this fueling station went in. Now we have a potential contamination of the Spokane aquifer. This is a local issue in Spokane

County. And that’s why I’m very appreciative (unintelligible).

There are people concerned about this. I see about, oh, 120 people

wearing stickers saying ‘‘I support NEPA.’’ And I think that reflects a broad concern.

Two other points I want to make. When we consider NEPA, I

think it’s important in our discussions that we consider it in coordination with the other parts of our environmental protection scaffolding that protects our clean air and clean water. And I don’t

think we can consider it alone. And I have to say that I approach

this with some caution. Because right now the Federal government

has had significant rollbacks in a whole host of environmental protections for its citizens.

5

We’ve seen rollbacks in protection against arsenic in our water.

We’ve seen rollbacks in protection of mercury in our air. We’ve seen

a failure to fund Superfund site activity. We’ve seen rollbacks on

a whole host of issues. We’ve seen a failure to deal with global

warming issues.

And I think that when we have that sort of host of reductions

of environmental protection going on in our Federal government,

NEPA is more important than ever. And I think NEPA is—probably is more important now than perhaps it has ever been.

One other point I’d like to make is I hope that in our discussions

we look for ways and I think we’ll find principle ways to improve

and help agencies in their executive performances of statutes. Statute is one thing; agency performance is another. And I’m going to

be very interested in what our witnesses talk about how to help the

agencies perform their duties better to give them the resources.

And I have tell you I’m very concerned about the budget cuts in

the forest service and the national parks right now making it more

difficult for them to comply with their environmental responsibilities.

But I think we also need to look at ways to strengthen NEPA

to fulfill its obligation of citizen input environmental protection.

For instance, I think we need to look at can we make NEPA better,

look at the cumulative impacts of individual decisions.

We passed an energy bill in the House the other day that has

some cumulative impacts, for instance, on global warming. Does

NEPA do a good enough job to consider those cumulative impacts?

I think there’s that kind of issue.

Are we doing a good enough job helping agencies become educated about NEPA compliance? You know, a lot of these lawsuits

when the courts decide there was lack of NEPA compliance, it’s not

the statute’s fault. It’s the agency’s fault for not complying. People

get mad at NEPA. Perhaps there should be some angst at agencies

on occasion. Can we help them more.

And third the budgetary issue.

So, those are kind of the things I’m interested in. I want to thank

my friends from other states and look forward to working with you.

Thank you.

[Applause.]

Miss MCMORRIS. Thank you. At this time, we’re going to hear

from our first panel. And I will ask that all of the Task Force members’ statements be included for the record.

On the first panel, we have six people.

To give us a bit of history and context is Thomas Jensen. He is

an attorney with Sonnenschein, Nath & Rosenthal, LLP, and

Chairman of the National Environmental Conflict Resolution Advisory Committee.

Second to talk about NEPA and its impact on infrastructure is

Doug MacDonald. He’s the Secretary of Washington State’s Department of Transportation.

To give the panel light on NEPA’s role in hydroelectric project relicensing is Bob Geddes. He’s the General Manager of Pend Oreille

Public Utility District.

6

To provide the perspective of a Federal agency line manager is

Abigail Kimbell. She’s a Regional Forester, Region 1, of the U.S.

Forest Service who joins us from Montana.

To give us some insight into the state mini NEPA is Michael

Kakuk, an attorney from Helena, Montana. And he worked on

MEPA, which was the Montana Environmental Policy Act.

And then finally is John Roskelley, who is former Spokane

County Commissioner and member of the Eastern Washington

Growth Management Hearings Board, who will share with us the

importance of public participation.

Miss MCMORRIS. So, I thank you all for joining us today. And I

might just mention that this is a regional hearing. This is—we’ve

asked for a broad base of folks from around this region being

Washington, Oregon, Idaho, Montana and Alaska.

It’s the policy of the Resources Committee to swear in witnesses.

So, for those of you who are going to participate right now in the

panel, I will ask you to stand and raise your right hand.

[Witnesses sworn.]

Miss MCMORRIS. Let the record reflect that the witnesses answered in affirmative.

Before we get started, I wanted to point out that there are lights

at the front of the table to control the time here. Each witness has

five minutes. When the light turns yellow, you will have one

minute. And when it turns red, please wrap up. Your full testimony

will appear in the record. Keeping the statements to five minutes

will allow more time for questions.

So, with no further ado, Mr. Jensen, would you please begin.

STATEMENT OF THOMAS JENSEN, ESQ., ATTORNEY,

SONNENSCHEIN, NATH & ROSENTHAL LLP, CHAIRMAN,

NATIONAL ENVIRONMENTAL CONFLICT RESOLUTION

ADVISORY COMMITTEE, U.S. INSTITUTE FOR ENVIRONMENTAL CONFLICT RESOLUTION

Mr. JENSEN. Madam Chairman and members of the Task Force,

thank you for allowing me to appear today. As the first speaker,

I think it would be helpful if I provide some context for the rest

of the hearing and the rest of your work.

I’ll offer context in three different perspectives. The first is Spokane itself. As Congressman Inslee pointed out, we’re in the home

state of NEPA’s father, Henry Jackson. I think equally important,

though, Spokane is a growing town with a changing economy, surrounded by public lands that are used and valued by all sorts of

different interests in different ways.

We are downstream from the nation’s largest Superfund site.

We’re next to two states with very different environmental rules

and cultures and competing economies. We’re downwind from Hanford. We’re connected to a federally managed, federally owned high

power system that other states would love to get hands on. And

we’re on a river with more demand than supply. It’s a good place

to think about NEPA.

The second context I would offer is this. There’s lots of discussion

about NEPA’s purpose. And I think it’s easy to get lost in the

weeds. The place to start is to remember Winston Churchill’s quip

7

about democracy which is that it’s the worst form of government

except for all the others we’ve tried.

The problem that NEPA set out to solve—I’ll put it in very colloquial terms—myopic, dishonest, dumb government. It’s NEPA was

about government. People link NEPA because of the chronology to

other environmental laws like the Clean Air Act, the Clean Water

Act, and the Endangered Species Act.

But I think it is probably more useful to think of NEPA as being

akin to the Freedom of Information Act, the Government Performance Results Act, the Information Quality Act, even the Debt Collection Payment Act that requires government to pay interest on

its debts when it’s late paying them.

If you trust government to always do the right thing for you, for

your community, for your business, your family or the environment, you probably don’t care about NEPA or any of those other

laws. If you don’t trust government, utterly, on those grounds, then

NEPA is pretty relevant to think about.

I think the last piece of context here is that as you look at—as

you hear other witnesses, as you look at the law and look at the

history, maintain a distinction in your mind between symptoms

and causes. You’ll hear a lot about the symptoms, and they’re very

real: Delay, litigation, uncertainty, dumb paperwork. I assume

those boxes behind you are evidence. Interagency confusion. NonFederal employees being frozen out of the process. The selective

nonuse of NEPA by green agencies when they’re doing something

good for the environment. Those are important symptoms. We live

and breathe them. They’re out there. But the causes are different,

and they’re more important in the long-run. What I’ll—and I’ll talk

mostly about them. And my comments come from spending the last

two-and-a-half years chairing a Federal Advisory Committee, very

verse, bipartisan, Federal advisory committee to the U.S. Institute

for Environmental Conflict Resolution looking at NEPA, looking at

environmental conflicts. How to resolve them. How to turn down

the heat nationwide.

NEPA’s problem is in its implementation and not the law itself.

NEPA implementation should rely on three components, three

factors.

The first is National Environmental Policy. It’s Section 101 of the

statute. It’s the policy. The second leg is environmental analysis,

which is in Section 102. And the third leg is public engagement.

NEPA usually stands on just one of those legs, the second one,

analysis. EIS’s and EA’s of paper. An analysis is often too kind a

word for what really is just compiling information.

The National Environmental Policy, Section 101, is a remarkable

text. It expressly integrates environmental quality with the quality

of our country’s economy and culture. It comes as close to anything

I know of to framing a set of environmental, economic and social

goals that most Americans could agree on. It’s common language

which is the thing that we most need if we’re going to understand

each other and get along.

NEPA is about improving governments. The management of decisions affecting the human environment. And the term human environment is key. It’s in the statute. It doesn’t just mean what’s out

there. It means natural places and built places. It means cities and

8

salmon. It means wilderness and neighborhoods, families and frogs,

health and wealth, clean air and safe streets. America as a whole.

I think the meaning has been lost over time, but it’s there. It’s in

the law.

The courts decided that Section 101, the purpose, was not enforceable. It was too broad. It was too aspirational. And as soon as

the agency saw that the courts wouldn’t enforce it, they abandoned

it or they paid lip service to it at best. The fact that the courts have

declined to enforce the laws policy does not mean that the Federal

government should not attempt to achieve it.

The first recommendation of the Task Force is that we need to

bring Section 101 back into the central place that NEPA’s framers

intended. And we need that common language.

The second missing piece is public engagement.

Engagement is something entirely different and a lot more meaningful and productive than just giving people a chance to comment

on a draft EIS. The advisory committee members believe very

strongly that there are well-developed, disciplined practices and

principles for engaging effective interest in agency decisionmaking

that will reduce the number of conflicts, resolve conflicts and, as

I said earlier, turn the heat down. Solve problems.

Not every issue is resolvable. And some things will have to get

resolved in the courts or in the political process. But we can do a

lot better than we are doing now. That’s the problem with NEPA.

We need to fix those parts.

Without Section 101, without robust principle public engagement, NEPA is employed as a compliance exercise rather than a

thoughtful, strategic, conclusive planning opportunity. It’s a missed

opportunity for agencies, project proponents and the affected public. It doesn’t solve the myopic, dishonest, dumb government problem which NEPA was aimed at.

We have to stop confusing process with the purpose of a law. We

have to put more emphasis on people, our people, than on paper.

We need to link the policy of the law to reliable, useful, honest

analysis and the respectful engagement of all affected parties.

That’s the way we get decisions in a timely way that earn support,

face fewer challenges and survive the challenges that do arise.

I think NEPA done right is capable of working effectively and efficiently with the cities and the families and the species who are

downwind, downstream or just outside the attention span of comprehension or understanding of Federal agencies.

Thank you very much.

[The prepared statement of Mr. Jensen follows:]

Statement of Thomas C. Jensen, Esq., Sonnenschein, Nath & Rosenthal

LLP, and Chairman, National Environmental Conflict Resolution

Advisory Committee, U.S. Institute for Environmental Conflict Resolution

Madame Chairwoman and Members of the Task Force, thank you for inviting me

to participate in today’s field hearing. It is an honor to be present and to have an

opportunity to discuss ways to improve the National Environmental Policy Act.

The Task Force asked that my testimony focus on differences between the intent

of the framers of NEPA and the manner in which the law is implemented today.

The perspective I bring to this task is shaped by three major influences.

First, I have worked as an attorney on NEPA-related matters for 22 years, and

am familiar with the way the law has been applied in numerous and diverse contexts, including, among other things, cross-border electric power lines, federal water

9

1 Hearing before the Committee on Interior and Insular Affairs, April 16, 1969, Introduction of S. 1075, S. 237 and S. 1752 91st Cong. first session.

contracts, federal dam operations, pipelines, hydropower licensing, military base realignment, fish and wildlife restoration, and radioactive waste. Second, I have served for most of the last decade as a trustee of the University of Wyoming’s Institute for Environment and Natural Resources, along with each sitting and several former Wyoming governors, Senator Craig Thomas, and former

Senator Al Simpson, leadership of the state legislature, and representatives of virtually every agricultural, energy, and environmental constituency in the state. The

University’s Institute sponsored an extended analysis of ways to improve NEPA implementation, involving, among others, former Resources Committee staff counsel. Third, over the past two-and-a-half years I have had the privilege of serving as chair of a very diverse, bipartisan federal advisory committee, formally known as

the National Environmental Conflict Resolution Advisory Committee or NECRAC,

focused on ways to prevent and resolve environmental conflicts and measures to improve implementation of NEPA so as to fulfill its policy goals. The Advisory Committee’s work offers ideas that respond directly to this Task Force’s mandate and

I will describe the Advisory Committee’s work and findings later in my testimony.

My testimony today is given on behalf of the Advisory Committee, though at certain

points, I will offer my individual opinion. To begin, let me note how fitting it is to hold this first NEPA Task Force hearing here in Spokane. In many respects, the State of Washington, not the District of Columbia, is NEPA’s home. Henry M. Jackson, who first served six terms in the House

of Representatives, then Chaired the Senate Committee on Energy and Natural Resources from 1963 to 1980, is widely recognized as the central figure in NEPA’s creation. Many other people were involved, including his senior committee staff, Bill

Van Ness and Dan Dreyfus, and his advisor, Dr. Lynton Caldwell, but Senator Jackson shepherded NEPA from introduction to enactment.

Washington’s former senator, who played a leading role promoting development of western natural resources through support for multiple use of public lands, reclamation farming, and hydropower development, is the father of America’s environmental policy. He knew what he, his constituents, and the country were dealing

with. Here, from a statement he made in 1969, is how Senator Jackson explained

to his colleagues in Congress the problem he was trying to solve: Over the years, in small but steady and growing increments, we in Amer- ica have been making very important decisions concerning the management

of our environment. Unfortunately, these haven’t always been very wise decisions. Throughout much of our history, the goal of managing the environment for the benefit of all citizens has often been overshadowed and obscured by the pursuit of narrower and more immediate economic goals. It is only in the past few years that the dangers of this form of muddling through events and establishing policy by inaction and default have been

very widely perceived. Today, with the benefit of hindsight, it is easy to see

that in America we have too often reacted only to crisis situations. We always seem to be calculating the short-term consequences of environmental

mismanagement, but seldom the long-term consequences or the alternatives

open to future action.

[T]he present problem is not simply the lack of a policy. It also involves the need to rationalize and coordinate existing policies and to provide a

means by which they may be continuously reviewed to determine whether

they meet the national goal of a quality life in a quality environment for

all Americans. Declaration of a national environmental policy could, however, provide a new organizing concept by which governmental functions

could be weighed and evaluated in the light of better perceived and better

understood national needs and goals. The introduction of these bills is a manifestation of public and Congres- sional concern which is widely felt and widely expressed. The concern is

that we may be giving insufficient public attention to one of the most serious threats to the future well-being of our Nation and our civilization-the

mismanagement and degradation of our physical environment. 1

The public perception of impending environmental crisis was probably more acute and widespread in 1969 than it is today, when many environmental problems tend

to be harder to see. A declining species or gradual change in ocean or atmospheric

chemistry is not as apparent to the average person as a belching smokestack or

burning river. I have heard NEPA criticized as being out of date. Written for a different, simpler era. It may be fair to say that the law was written in a simpler era,

at least to the extent that the polarities of good and bad, dirty and clean, were in

10

2 Hearing before the Committee on Interior and Insular Affairs, April 16, 1969, Introduction

of S. 1075, S. 237 and S. 1752 91st Cong. first session., Appendix 2.

sharper contrast. But it badly shortchanges Senator Jackson and NEPA itself to say

that the law was written for a simpler era and, as such, is not a good fit for today.

I ask you to listen to what Senator Jackson said in 1969, explaining why his

proposed legislation included an overarching statement of national environmental

policy: As a nation, we have failed to design and implement a national environ- mental policy which would enable us to weigh alternatives, and to anticipate the undesirable side effects which often result from our ongoing policies, programs and actions.

* * * *

A statement of environmental policy is more than a statement of what we believe as a people and as a nation. It establishes priorities and gives

expression to our national goals and aspirations. It serves a constitutional

function in that people may refer to it for guidance in making decisions

where environmental values are found to be in conflict with other values. 2

An expression of national goals and aspirations. Guidance in making decisions where values may be in conflict. A constitutional function. These attributes of the

law do not go stale with time. The National Environmental Policy Act combines philosophy, policy and process. NEPA is best known for its process: it is the law that requires federal agencies to

conduct environmental reviews and prepare environmental impact statements, a

procedure that has been copied by many states and by nations around the world. NEPA is less well recognized for the truly remarkable and far-sighted philosophy at its core, which is stated in NEPA Section 101. The statute defines a National

Environmental Policy for the United States. How many Americans know that our

country has a national environmental policy and that it has been the law of the land

for three decades? Even NEPA practitioners who know that the policy exists often

have trouble recalling its terms. [The text of Section 101 is reproduced in Appendix

1].

NEPA Section 101 declares that it is and shall be the continuing policy of the fed- eral government to create and to maintain conditions under which man and nature

can exist in productive harmony. The federal government is to use all practical

means to improve and coordinate federal plans, functions, programs and resources

to achieve a wide range of social, cultural, economic, and environmental values. And

NEPA is clear in stating that each American has a responsibility to contribute to

the preservation and enhancement of the environment. The nation’s environmental

policy is written in expansive, hopeful terms that virtually all American would accept.

NEPA’s purpose usually has been characterized as ‘‘better incorporation of environmental values in federal agency decision-making.’’ This is true, but it is only

partly descriptive of NEPA and it does not do justice to the vision of the drafters

of the law. They had something more encompassing in mind. Agency decision-making was to change to incorporate environmental values not for their own sake, but

because doing so would improve our nation’s governance. And improved governance

would (to paraphrase the law) function in a manner calculated to foster and promote

the general welfare, create and maintain conditions under which man and nature

can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

In other words, people—families, businesses and communities—have been part of

NEPA from the very beginning, and not as subordinates to environmental values,

but as the beneficiaries of them and participants in their realization. The drafters

of NEPA set a policy for the United States that expressly integrates environmental

quality with the quality of our country’s economy and culture. Section 101 articulates a national policy for the environment that is an elegant and compelling philosophy of balance, innovation, and personal responsibility. It comes as close as anything I know of to framing a set of environmental, economic, and social goals that

most Americans could agree upon. It holds the potential to bring common purpose

to our fellow citizens’ dealings with each other and their government over natural

resource and environmental issues.

My advice to the Task Force can be summarized this way: NEPA was written to

deal with the problem of uninformed, indifferent, or careless government action

harming the human environment. It is an excellent statute. NEPA is inspired, forward looking, valuable, and entirely suitable as written to our country’s contemVerDate 11-MAY-2000 14:00 Aug 04, 2005 Jkt 000000 PO 00000 Frm 00014 Fmt 6633 Sfmt 6621 J:\DOCS\20808.TXT HRESOUR1 PsN: HRESOUR1
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3The judicial treatment of NEPA has been explored by numerous legal scholars. The articles in Appendix 2 are particularly useful.

porary needs. The risk of poorly informed government action is a non-partisan, 50-

state, enduring problem, and NEPA is a vital tool in limiting that risk. I am well aware that not everyone sees the statute in a favorable light. We need to acknowledge that some of the criticism of NEPA is motivated by dissatisfaction

with the degree to which environmental concerns limit economic development

choices. Some interests simply believe that the law is too protective of environmental values, while others believe that it does too little.

We must understand and respect those perspectives; people have different values

and different interests. Yet when I hear NEPA criticized that way, three things

come to mind.

I remember the two most heated, personal denunciations of the law I have ever

heard, both of which happened to come from Wyoming ranchers. Real ranchers.

Hard core private property advocates. The first rancher attacked NEPA because the federal government was not doing enough to prevent recreational ORV users from tearing through his grazing allotment. They should be doing an EIS on those people and stopping them from destroying my pastures and ripping up the creeks! The second rancher was outraged and

nearly desperate because saline groundwater pumped from a federally permitted

coalbed methane well was flowing across his land, eroding pastures, and killing off

the only trees for miles around. How can the feds let them do that to us? They

should have done an EIS and stopped it! Third, without naming names, I will say

that anyone who practices in the NEPA area knows of many, many instances where

NEPA has been successfully invoked, in litigation or otherwise, by economic development interests against their private sector competitors. The real problem with NEPA is not that it is too green or not green enough. Most of the criticism of NEPA, whether the critic recognizes it or not, is rooted in the

way the law is implemented, not in the fact that the law seeks protect the quality

of the human environment. The problem is that parties with different values compete for primacy in agency decision-making and agencies sometimes do not administer or manage the competition effectively. Let me describe how NEPA is often experienced by regulated parties, interested citizens, and even other government agencies. At the risk of unfairly generalizing,

the stereotypical federal government agency has limited financial and personnel resources, resents criticism, resists sharing authority, and rewards conformity and

predictability. For these and other reasons—increasingly because of budgetary constraints—many agencies are reluctant to give the public a meaningful voice in agency decisions. When that happens, people feel left out and angry. Agency decisions made under NEPA are often challenged by parties who perceive their interests to have been ignored or handled without appropriate respect. Challenges come from all directions:

ranchers downstream of federally permitted mining operations; communities facing

loss of tax base due to land trades or closure of federal facilities; cities or states competing for water supplies; homeowners facing loss of property value or family safety

due to new roads; environmentalists opposed to loss of natural places; developers

denied economic opportunities.

There is also another common experience of NEPA implementation. Let me again invoke the stereotypical government agency. Especially in those cases where the

agency has responsibilities that implicate both economic and environmental values,

the agency often does not know what to do when those values appear to be in conflict. Though equipped with professional expertise—scientists, engineers, planners,

economists, lawyers—and a genuine commitment to public service, agencies often

face competing legislative mandates, conflicting political influences, and varied understandings of the public interest. Inaction or indecision often seems the safest

choice. In my practice, which largely consists of representing business and other private sector development interests on environmental matters, I regularly experience

the intense frustration of businesspeople over the apparent inability or unwillingness of agencies to simply make a decision, any decision, even a ‘‘no,’’ in a reasonable time frame. Usually we can overcome the delay, but not always. These sorts of experiences with NEPA reveal two major problems in NEPA imple- mentation. These problems lie at the heart of much of the criticism directed at the

statute and explain why NEPA has yet to fulfill the vision of its drafters. The first problem is that the courts and federal agencies have mostly dismissed or ignored the law’s statement of policy. 3 The U.S. Supreme Court has declined to

enforce NEPA’s statement of purpose, though the courts have generally been willing

to enforce the law’s procedural requirements. Agencies have taken the cue from the

12

Court and rarely paid more than lip service to achievement of NEPA’s purposes,

while pouring significant effort into NEPA’s procedures. Yet NEPA is the National

Environmental Policy Act, after all; and the policy is expressed clearly and forcefully

in Section 101. It is there to be used, but it rarely plays a central role in decisionmaking. As a consequence, NEPA’s procedures are often mistaken for its policy. Process (i.e., the environmental review mandated by Section 102 of the law) was intended

by the drafters of the statute to serve to fulfill the law’s policy, not to substitute

for it. Sections 101 and 102 are complementary, not interchangeable. The strength

of NEPA’s policy statement has been under-used and under-recognized. The fact

that the federal courts have declined to enforce the law’s policy does not mean that

the federal government should not attempt to achieve it. The thing we need the

most to resolve problems and understand each other is a common language. NEPA

has it, it is in Section 101, and we need to use it.

The second major problem with NEPA is that federal agencies have not been ade- quately creative or strategic in deciding how to work with NEPA’s provisions for

public involvement. NEPA pushes agencies to be better informed and more thoughtful about their plans, and to involve the public, but it does not tell the agencies how

to take optimal advantage of the thoughtfulness and knowledge of the American

public in shaping agency plans. The NEPA process requires agencies to involve the

public, but it does not say how best to engage informed interests and affected communities.

The burden has largely fallen on federal agencies to decide what to do with the diverse opinions of interested parties who choose to express their views on a proposed federal action. Under the traditional model for NEPA implementation, agencies announce their plans, share their analyses of potential impacts of a range of

options, solicit public comment, make decisions, deal with the fallout, if any, and

move on to the next project. The agency’s decision, though based on a collection of

views and interests, is generally not a collective decision. As noted above, that

means that parties too often feel aggrieved or alienated by the decision. Because many, though not all, decisions affecting the environment are made in the context of NEPA, NEPA often takes the blame for what is, in fact, not a problem

with the law, but a problem with the style of governance that agencies follow. What

prevents agencies from making timely decisions is not NEPA, it is the complexity

of the decisions for which they are responsible. What prompts litigation is not

NEPA, but the inadequate recognition or resolution of different values in the decision making process. NEPA, used strategically, can actually help address the problem of the disaffected citizen litigant and the problem of the indecisive or equivocal agency. These problems result from the way in which federal agencies organize themselves to make decisions on matters that affect the environment. By using NEPA better, the agencies

can bring NEPA closer to the intent of the framers of the statute.

Congress showed recognition of these problems with NEPA implementation in

1998 and the potential route to improvement when it directed the Morris K. Udall

Foundation to create the U.S. Institute for Environmental Conflict Resolution as an

independent, impartial federal institution to assist all parties in resolving environmental, natural resources, and public lands conflicts where a federal agency is involved, and ‘‘to assist the Federal Government in implementing Section 101 of the

National Environmental Policy Act of 1969.’’

In 2000, a bipartisan group of U.S. Senators from Idaho, Montana, Nevada and

Wyoming asked the U.S. Institute to investigate ‘‘strategies for using collaboration,

consensus building, and dispute resolution to achieve the substantive goals of

NEPA’’ and to ‘‘resolve environmental policy issues.’’ The U.S. Institute conducted

initial analytical work in response to the Senators’ inquiry, then, in 2002, created

a Federal Advisory Committee, formally known as the National Environmental Conflict Resolution Advisory Committee (NECRAC), to provide advice on future program directives—specifically how to address the U.S. Institute’s statutory mandate

to assist the federal government in implementing Section 101 of NEPA.

The NECRAC members come from every sort of community across the country

and have served at every relevant level of public and private sector leadership. They

are a remarkable group. The Committee includes ranchers, foresters, a utility executive, environmentalists, tribal leaders, litigators, planners, politicians, former and

current Congressional staff, grant makers, farmers, and scientists—they cover the

map. Many Committee members have strong partisan political credentials. The

Committee’s membership also includes several of the most seasoned dispute resolution professionals in the country; including individuals who literally pioneered the

field of environmental conflict resolution over 30 years ago. The members are veterans of some of the most intense battles in the country’s natural resource and enviVerDate 11-MAY-2000 14:00 Aug 04, 2005 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6621 J:\DOCS\20808.TXT HRESOUR1 PsN: HRESOUR1
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ronmental wars—livestock grazing, air and water pollution, protected species,

Indian rights, environmental justice, international boundaries, highway-building,

forest management, water allocation. This group is so diverse it had every reason to fracture and spin off in different directions long before it could render useful advice to the U.S. Institute. But that

didn’t happen. The Committee held together and found common ground. Despite the

times, the Committee never fell prey to partisan division. The Committee produced

and unanimously approved a very substantial report that is literally at the printers

today, though a near final draft is posted on the U.S. Institute’s website, http://

ecr.gov/necrac/reports.htm. I encourage the Task Force to consider the views of the

National Environmental Conflict Resolution Advisory Committee as you move forward to determine how to improve NEPA. Allow me to summarize the group’s work. The Advisory Committee:

• Analyzed the means by which environmental conflict resolution is employed by

federal agencies, and, using detailed case studies, focused considerable effort on

understanding the circumstances in which conflict resolution processes have

helped agencies make decisions that earned broad and durable support from

parties affected by or interested in the decision. The Committee considered

cases where the U.S. Institute had been involved as well as others; • Reviewed the language and legislative history of NEPA and federal court decisions interpreting the law; • Surveyed federal agencies to determine whether and how agencies apply the

national environmental policies articulated in Section 101 of NEPA; • Developed a comparison between the principles and policies expressed in NEPA

and the characteristics that define successful environmental conflict resolution; • Met with community leaders and advocates to learn about their experiences

with NEPA implementation; and, • Identified the principles and practices that have proven effective at engaging

those types of communities and interested parties who, though potentially affected by agency actions, typically lack the financial, technical or other resources that are needed to influence agency decisions or, irrespective of available resources, simply do not trust agencies to respect their interests. The Committee found that, three decades after NEPA was enacted, environmental

protection has become a widely accepted social goal, and the nation has enjoyed

many successes in conservation of public resources, reduction of pollution, and remediation of damage done by prior generations. Many of these achievements came

about through NEPA-governed decision processes. The traditional model for NEPA

implementation is not a failure.

The Committee also found that the traditional model for NEPA is certainly is not a complete success, either. The number of points where interests are coming into

conflict on environmental matters is not decreasing and environmental issues appear to be increasing in scope and complexity. The decision-making success stories,

though real, are shadowed by too many failures. The Committee reported that:

Agency decisions affecting the environment are often highly

confrontational. Project and resource planning processes routinely are too

lengthy and costly. Environmental protection measures are often delayed.

Public and private investments are foregone. Decisions and plans often suffer in quality. Hostility and distrust among various segments of the public

and between the public and the federal government seem to fester and

worsen over time. The traditional model for NEPA is not responsible for all

these problems—indeed it is not even applicable in all cases—but it does

not take full advantage of the many strengths of Section 101. NEPA, a tool

meant to foster better governance to help America find productive harmony

between people and nature, is now, in some cases, used or experienced as

a process available to delay or defer agency decisions or as a negative intrusion into socially important government and private sector initiatives.

People are inevitably going to have different views about federal actions

potentially affecting the human environment, and there is absolutely nothing wrong with that. It is a deeply rooted American value that citizens and

their government at all levels should be in continuous dialogue aimed at

successfully reconciling our diverse interests and values. We are a country

that prides itself on diversity—a hallmark of a pluralistic and democratic

society. It should not be surprising or seen as problematic that interests

and values will come into conflict—the fact that they do is a vital aspect

of societal growth and fuels creative aspects of our collective lives. But freedom of expression and freedom of thought and the right to petition for redress, and ultimately the right to vote, are about more than shouting into

a void.

14

Americans expect to be able to work things out and make things better

over time. It is not inevitable, and it is clearly not desirable, that society’s

ability to constructively address and resolve conflicts should languish or fail

to adapt to changing times. The current state of environmental and natural

resource decision-making is dominated by the traditional model, which too

often fails to capture the breadth and quality of the values and purposes

of NEPA. It cannot be the best we can do, nor can it be what NEPA’s drafters intended.

Could a different approach, in appropriate circumstances, better reflect NEPA’s policies and help our country achieve the law’s valuable purposes? The U.S. Institute’s

Advisory Committee believes that we can, in fact, do a much better job.

During the same three decades that have passed since NEPA was enacted, a new

profession has emerged that is committed to development and application of conflictavoidance and conflict-resolution techniques in the context of environmental decision-making and environmental disputes. ‘‘Environmental Conflict Resolution,’’ or

‘‘ECR,’’ is best understood as a mechanism to assist diverse parties to gain an understanding of their respective interests and to work together to craft outcomes that

address those interests in effective and implementable ways.

ECR takes many forms and can be applied in many settings, but in the context

of federal decision-making, it enables interested parties (including state, tribal, and

local governments, regulated parties, affected communities, and citizens) to engage

more effectively in the decision-making process. Interested parties are no longer

merely commenters on a federal proposal, but act as partners in defining federal

plans, programs, and projects. ECR offers a set of tools, techniques and processes

that can complement traditional NEPA processes and improve the procedural and

substantive quality of agency decisions.

The Committee reviewed numerous case studies of environmental conflict and

conflict resolution. Those studies revealed principles and practices of successful conflict resolution. These principles and practices significantly contribute to the establishment of appropriate levels of respect, trust, accountability, responsibility, and

shared commitment. The key factors leading to these results are commitment of

time and energy of all parties, balanced representation among interests, appropriate

use of third party neutrals, significant autonomy for the decision making group and

procedural fairness. Additional factors include reliance on an agreed scope of issues,

careful consideration of ‘‘implementability,’’ and access to reliable, relevant information.

The Advisory Committee found a striking similarity between the policies set forth

in Section 101 of NEPA and the principles and practices that characterize effective

environmental conflict resolution. Where NEPA calls for productive harmony, the

protection of health and environmental quality, sustainability and general welfare,

environmental conflict resolution practices call for balanced representation of affected interests and values. Where NEPA calls for social responsibility,

intergenerational welfare, sustainability and stewardship, environmental conflict

resolution calls for full consideration of the short- and long-term implications of

agreements and decisions, responsible and sustained engagement of all parties and

wide access to the best available information.

Well designed and executed environmental conflict resolution processes are capable of producing federal agency decisions that reflect NEPA’s principles. Common

interests can be identified. The range of disagreement can be narrowed. Decisions

can be made in a timely way and social and intellectual capital can be built. Federal

officials become partners with affected interests in a process where the issue is

‘‘owned’’ by all participants without the forfeiture of government’s legal limits and

responsibilities.

Said another way, NEPA’s policies and environmental conflict resolution techniques are available to serve as mutually reinforcing tools, which work in tandem

with NEPA’s analytical requirements, to help the federal government make sound

decisions. The policies framed in NEPA can provide a common language, while environmental conflict resolution practices can create the conditions under which a common language and productive strategies can be applied to reconcile different interests toward mutually agreed outcomes.

The Committee placed particular emphasis on the importance and effectiveness

of agency efforts to engage with potentially interested parties very early in the process of setting policy, defining programs, or framing projects. The investment of time,

effort, and thought ‘‘upstream’’ can reduce the risk of disputes ‘‘downstream,’’ when

positions may have hardened and options narrowed. Early engagement with potentially affected parties will also facilitate consideration of matters on broad substantive and temporal scales.

15

4The Committee recommended that the U.S. Institute:

• Work with the Council on Environmental Quality to develop approaches to implementing

Section 101 of NEPA through environmental conflict resolution; • Develop a ‘‘toolkit’’ of management approaches for federal executives to transform agency

culture in support of environmental conflict resolution and collaboration; • Develop cross-agency training on environmental conflict resolution and collaboration; • Identify ways to expand its leadership in developing applications of collaborative monitoring

in the context of alternative dispute resolution and adaptive management; • Collaborate with the Council on Environmental Quality to guide federal agencies and Affected Communities in the application of NEPA using the Affected Communities Subcommittee’s recommended framework for environmental conflict resolution and collaboration; • Continue to foster networks and partnerships that promote the best environmental conflict

resolution practices and promote use of technology to facilitate sharing of lessons learned,

science, literature and data; and,

• Obtain funding for and implement the U.S. Institute’s participation grant program.

• The Committee also recommends that other agencies of government, at all levels, take advantage of the resources represented by effective environmental conflict resolution techniques and the principles and policy of NEPA to improve the quality of agency decisions

and earn broader support from affected interests.

Mere involvement of appropriate interests is not enough, however, to improve decision-making. The decision-making process often can be improved if the involvement is governed by appropriate conflict resolution practices and principles and,

where useful, guided by experienced facilitators or mediators. This is especially important in high conflict, complex, multi-party disputes. Where the process of making

a federal decision involves the right parties, focuses on the full range of issues, uses

scientific and other advice, and follows the appropriate conflict resolution principles

and techniques, the odds are significantly improved that the quality of the decision

will be higher and the degree of public support for agency programs will be

strengthened.

Federal agencies bear a special responsibility to ensure that such processes are

appropriately designed and implemented. It may be far worse to attempt a poorly

designed environmental conflict resolution process than to follow the traditional

practice of agency decision-making without any conflict resolution process. Wellmanaged environmental conflict resolution practices repair and build relationships

and social capital, often critical to long-term implementation and administration of

federal programs. Poorly structured processes can be detrimental in the long run,

sowing or deepening distrust and disaffection.

The U.S. Institute’s Advisory Committee, while seeing great value in the use of

environmental conflict resolution and awareness of NEPA’s policy goals, recognized

that there are limits. Environmental conflict resolution techniques will not solve all

problems and not every party will accept NEPA’s policies or interpret them in the

same way. There will always be cases where brewing disputes cannot be avoided

and where existing disputes must be resolved through litigation or political intervention. Timing, parties, external events, information, rules, and resources: The

pieces have to fit together to create common ground.

The Advisory Committee concluded, however, that the number and severity of ‘‘intractable’’ cases can be reduced significantly by proper use of environmental conflict

resolution and awareness of NEPA’s policy—not because the various techniques or

statutory language possess any special remedial powers, but because our fellow citizens usually have the capacity to be creative and fair and to want good results for

the Nation as a whole.

The Advisory Committee made a series of recommendations to the U.S. Institute

designed to promote the use of environmental conflict resolution techniques across

the federal government along with increased awareness and use of Section 101 of

NEPA. 4 I would translate those recommendations somewhat to put them in the context of the work of this Task Force. First, the U.S. Institute’s work deserves your

full support. This is a valuable agency with tremendous potential to help avoid, resolve, or at least lower the temperature of the conflicts that plague environmental

and natural resource management and policy. Second, the agencies under the Resources Committee’s jurisdiction, at a minimum, should be challenged to demonstrate that they are committed to improving their governance of decisions potentially affecting the environment by using environmental conflict resolution and

NEPA Section 101 as important, early, integral components of their decision making

process. Finally, the agencies need adequate financial resources to do this work. I

would argue that, over time, the benefit of avoiding or resolving problems ‘‘upstream’’ will save many millions of dollars now thrown at paperwork exercises and

litigation.

16

NEPA can be used by agencies as a venue to bring interested parties together

early. Miners and ranchers; host communities and military base planners; neighboring states sharing a river; neighborhoods and transportation engineers; environmentalists and foresters. Public involvement is more than simply allowing the public to comment on a draft EIS. One of the fundamental purposes of NEPA was to

make our government smarter about what it does. Agencies do not have a monopoly

on good ideas, useful information, or fair outcomes. The analytical requirements of

NEPA can be carried out in a way that taps the knowledge, creativity, sense of responsibility, fairness and willingness to compromise that most of our fellow citizens

bring to the table.

In sum, NEPA is a valuable law, but its implementation needs to be improved

to address real problems experienced by affected interests. The statute will perform

at its best if the three key components of the law—policy, analysis, and public involvement—are regularly and reliably used in a complementary, mutually reinforcing way. We need to move beyond the current state where too often lots of paper

is linked to a limited amount of public involvement with little or no tie to national

environmental policy. It is an unstable structure, but it can be repaired with tools

that are at hand. When we get policy, analysis, and public involvement working together, we can fulfill the vision and intentions of NEPA’s sponsors.

Thank you for this opportunity to testify. I will be happy to respond to questions.

Appendix 1

National Environmental Policy Act of 1969

Title I

Congressional Declaration of National Environmental Policy

Sec. 101 [42 USC 4331].

(a) The Congress, recognizing the profound impact of man’s activity on the

interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances

and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that

it is the continuing policy of the Federal Government, in cooperation with State

and local governments, and other concerned public and private organizations, to

use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create

and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

(b) In order to carry out the policy set forth in this Act, it is the continuing

responsibility of the Federal Government to use all practicable means, consistent

with other essential considerations of national policy, to improve and coordinate

Federal plans, functions, programs and resources to the end that the Nation

may—

(1) fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;

(2) assure for all Americans safe, healthful, productive, and aesthetically

and culturally pleasing surroundings;

(3) attain the widest range of beneficial uses of the environment without

degradation, risk to health or safety, or other undesirable and unintended

consequences;

(4) preserve important historic, cultural and natural aspects of our

national heritage, and maintain, wherever possible, an environment which

supports diversity, and variety of individual choice;

(5) achieve a balance between population and resource use which will

permit high standards of living and a wide sharing of life’s amenities; and

(6) enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.

(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation

and enhancement of the environment.

17

Appendix 2

Law Review and Journal Articles on NEPA

1. Matthew J. Lindstrom, Procedures Without Purpose: The Withering Away of

the National Environmental Policy Act’s Substantive Law, 20 J. Land Resources & Envtl. L. 245 (2000).

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18

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19

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(2002).

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Context of State and Local Environmental Regulation, 9 UCLA J. Envtl. L.

& Pol’y 97 (1990). 54. Timothy Patrick Brady, Comment, ‘‘But Most Of It Belongs to Those Yet to Be Born:’’ The Public Trust Doctrine, NEPA and the Stewardship Ethic, 17

B.C. Envtl. Aff. L. Rev. 621 (1990).

55. James A. Kent & Kevin Preister, Using Social Ecology to Meet the Produc- tive Harmony Intent of the National Environmental Policy Act, 7 Hastings

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60. Recent Case, Administrative Law—Administrative Procedure Act—D.C. Circuit Holds That Trade Representative’s Failure to Prepare Environmental

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21 Am. Indian L. Rev. 297 (1997).

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64. Jonathan M. Cosco, Note, NEPA for the Gander: NEPA’s Applications to

Critical Habitat Designations and Other ‘‘Benevolent’’ Federal Action, 8

Duke Env L & Pol’y F 345 (1998).

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the Environmental Impact Statement Requirement of the National Environmental Policy Act, 62 Geo. Wash. L. Rev. 757 (1994).

67. Kristine Meindl, Case Note, Kootenai Tribe of Idaho v. Veneman: The

Roadless Rule: Dead End or Never Ending Road?, 14 Vill. Envtl. L.J. 151

(2003).

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Act: Agency Abuse of the Categorical Exclusion, 79 N.Y.U.L. Rev. 2312

(2004).

69. Joel S. Jacobs, Compromising NEPA? The Interplay Between Settlement

Agreements and the National Environmental Policy Act, 19 Harv. Envtl. L.

Rev. 113 (1995).

20

70. Jeffrey A. Berger, False Promises: NEPA’s Role in Airport Expansions and the Streamlining of the Environmental Review Process, 18 J. Envtl. L. &

Litig. 279 (2003). 71. Recent Development, Fourth Circuit Grants Standing but Denies an Injunc- tion Sought by the Governor of South Carolina to Prevent the Transportation of Plutonium into the State, 24 J. Land Resources & Envtl. L. 129

(2004).

72. Matthew William Nelson, Comment, NEPA and Standing: Halting the Spread of ‘‘Slash-and-Burn’’ Jurisprudence, 31 U.C. Davis L. Rev. 253 (1997).

73. Jill E. Horner, Note, People Against Nuclear Energy v. United States Nu- clear Regulatory Commissions: Potential Psychological Harm Under NEPA,

32 Cath. U.L. Rev. 495 (1983).

74. R. David Kitchen, Case Comment, NEPA’s Overseas Myopia: Real or Imag- ined? Natural Resources Defense Council, Inc. v. Nuclear Regulatory Commission, 71 Geo. L.J. 1201 (1983).

75. D. Kevin Dunn & Jessica L. Wood, Note, Substantive Enforcement of NEPA

Through Strict Review of Procedural Compliance: Oregon Natural Resources

Council v. Marsh in the Ninth Circuit, 10 J. Envtl. L. & Litig. 499 (1995). 76. Joan R. Goldfarb, Comment, Extraterritorial Compliance with NEPA Amid

the Current Wave of Environmental Alarm, 18 B.C. Envtl. Aff. L. Rev. 543

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77. Thomas O. McGarity, Implementing NEPA: Some Specific Issues: Article: Judicial Enforcement of NEPA-Inspired Promises, 20 Envtl. L. 569 (1990).

78. Seventh Annual Pace National Environmental Law Moot Court Competition:

Brief for Appellee and Amicus, State of New Union, 12 Pace Envtl. L. Rev.

707 (1995).

79. Tracey Colton Green, Providing for the Common Defense versus Promoting the General Welfare: the Conflicts Between National Security and National

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81. Richard M. Whitaker, Environmental Aspects of Overseas Operations, 1995 Army Law. 27 (1995). 82. Jennifer L. Davis, Comment, National Environmental Policy Act—Submis- sion of the North American Free Trade Agreement Without Environmental

Impact Statement To Congress Held Unreviewable, Public Citizen v. United

States Trade Representative, Suffolk Transnat’l L. Rev. 775 (1995).

83. Korey A. Nelson, Comment, Judicial Review of Agency Action Under the National Environmental Policy Act: We Can’t See the Forest Because There

Are Too Many Trees, 17 Tul. Envtl. L.J. 177 (2003). 84. Jeffrey M. Lovely, Comment, Protecting Wetlands: Consideration of Secondary Social and Economic Effects by the United States Army Corps of Engineers in Its Wetlands Permitting Process, 17 B.C. Envtl. Aff. L. Rev. 647

(1990).

85. Robert P. Frank, Comment, Delegation of Environmental Impact Statement

Preparation: A Critique of NEPA’s Enforcement, 13 B.C. Envtl. Aff. L. Rev.

79 (1985).

86. Richard Heisler, Comment, A Whale of A Tale: NRDC v. U.S. Navy and the

Attempt to Exempt the Exclusive Economic Zone from the National Environmental Policy Act, 10 Sw. J.L. & Trade Am. 125 (2003).

87. Robert L. Fischman, The EPA’s NEPA Duties and Ecosystem Services, 20

Stan. Envtl. L.J. 497 (2001).

88. Mary K. Fitzgerald, Comment, Small-Handles, Big Impacts: When Should

The National Environmental Policy Act Require An Environmental Impact

Statement?, 23 B.C. Envtl. Aff. L. Rev. 437 (1996).

89. Sandra P. Montrose, Comment, To Police the Police: Functional Equivalence

to the EIS Requirement and EPA Remedial Actions Under Superfund, 33

Cath. U.L. Rev. 863 (1984).

90. Paula A. Kelly, Comment, Judicial Review of Agency Decisions Under the

National Environmental Policy Act of 1969—Strycker’s Bay Neighborhood

Council, Inc. v. Karlen, 10 B.C. Envtl. Aff. L. Rev. 79 (1982).

91. Kourtney Twenhafel, Comment, Freeport McMoran’s Midas Touch: Testing

the Application of the National Environmental Policy Act to Federal Agency

Action Governing Multinational Corporations, 4 Tul. J. Int’l & Comp. L. 303

(1996).

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Some Specific Issues: Article; NEPA and Private Rights in Public Mineral

Resources: The Fee Complex Relative?, 20 Envtl. L. 649 (1990).

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93. The D.C. Circuit Rreview August 1999 - July 2000: Recent Decision of the

United States Court of Appeals for the District of Columbia Circuit: Environmental Law, 69 Geo. Wash. L. Rev. 644 (2001).

94. Peter Bucklin, The Importance of Standing: The Need to Prioritize Standing

Review Under the National Environmental Policy Act of 1969, 3 J.L. & Pol’y

289 (1994).

95. Case Note, Environmental Law—Retroactive Application of the National Environmental Policy Act, J. D. C., Jr., 39 Tenn. L. Rev. 735 (1972).

96. Comment, NEPA’s Role in Protecting the World Environment, 131 U. Pa. L.

Rev. 353 (1982).

97. Peter Fitzgerald & Vania J. Leveille, Note, When the National Environmental Policy Act Collides with the North American Free Trade Agreement:

The Case of Public Citizen v. Office of the United States Trade Representative, 9 St. John’s J.L. Comm. 751 (1994).

98. Maria C. Holland, Comment, Judicial Review of Compliance with the

National Environmental Policy Act: An Opportunity for the Rule of Reason,

12 B.C. Envtl. Aff. L. Rev. 743 (1985).

99. The D.C. Circuit Review August 1998 - July 1999: Recent Decisions Environmental Law, 68 Geo. Wash. L. Rev. 728 (2000).

100. Loretta V. Chandler, Comment, Taking the ‘‘Hard Look’’: 9th Circuit Review

of Forest Service Actions under NEPA, NFMA, and NHPA, 4 Great Plains

Nat. Resources J. 204 (2000).

Miss MCMORRIS. Thank you very much.

[Applause.]

Miss MCMORRIS. Next is Doug MacDonald.

STATEMENT OF DOUG MacDONALD, SECRETARY,

WASHINGTON STATE DEPARTMENT OF TRANSPORTATION

Mr. MACDONALD. Thank you, Congresswoman. I submitted my

testimony, but I think it’s more interesting just to follow on the remarks.

I’ve been Secretary of Transportation in Washington state. And

we have two responsibilities. The first is to provide a transportation systems that work for our communities. And the second is

to provide transportation systems that meet our citizens’ goals just

as strongly held that our environment be protected (unintelligible)

by what we do with transportation.

NEPA is absolutely fundamental to our doing both of those

things. NEPA, in our view, is one of the most important statutes

passed in the second half of the 20th century. It’s like the Civil

Rights Act. It’s fundamental to who we want to be as a people and

what we want to do. But NEPA has got some problems. And I

couldn’t agree more that the problem is to look at the implementation issue not the fundamental purpose. The fundamental purpose

is exactly right.

And I would also like to take up—I’ve never—we’ve never met

before. We are reorganizing how we talk about working with the

public in this state around the notion of engagement. I don’t—the

two words seem to be exactly right. It is just the point of engaging

people in public decisionmaking that is NEPA’s fundamental purpose and what we must recover from NEPA which in some instances we are (unintelligible) losing.

I want to make three small points about NEPA. I’m sure others

will add more. Number one, if you want NEPA to be improved, we

have to improve the ability of people to use NEPA. And that means

that the time for these 2,000-page documents that no one can read

and sit in the library untouched by any ordinary citizen or public

22

official who is supposed to take a view and then make a decision—

those days have got to stop.

In our state we try to move that process by the draft Environmental Impact Statement that we used for Alaskan Way Viaduct

project. It doesn’t look like any other EIS in the country. And the

main reason is we designed it so people could read it. And that is

a radical notion at this point in time.

We found great support from the Department of Environmental

Quality on this and some resistance from Federal agencies who

think it doesn’t have all the right checklists covered. We like to

think that the prime checklist would be whether it was written in

English so it could tell a story about what would have to happen

for the project to be achieved. It’s good. It’s bad. And how it would

work for the people of the community it serves.

We’d like to encourage you to look at the notion of a spreading

notion called the Reader Friendly Environmental Impact Statement. And we think if we could do that we would respond to exactly the point Mr. Jensen made that it’s time for the public to try

to rebuild trust in government. And that means the government

needs to try to talk simply and clearly with people about what

they’re doing.

The second point I want to make has to go to one of NEPA’s

great powers which has also been a problem. And that is the

spread of NEPA which was originally designed to assess a project

to decide whether it was to be a good project so that it now embraces this huge amount of detail about the specific provisions, the

specific permits under specific aspects under environmental laws.

And we find in order to analyze a project for NEPA, we virtually

have to design a project and get a chicken-and-egg problem where

we can never get out of the details (unintelligible) the fundamental

question of whether we should do a project. And if we should do

a project then let’s write the permits under the Federal laws and

state laws that protect our environment.

But we have so jumbled everything up that we are now spending

years developing analysis when what we should be doing is try to

figure out what’s the right choice for our communities based on the

issues we have to solve and the values that we hold.

We think this is a very technical problem. It is easy to state the

vision for how it might work better. But we have to untangle in

some respects NEPA assessment from the specific requirements of

the Endangered Species Act from the Clean Water Act from the

Clean Air Act from the—and now a whole range of new health

issues and so on which are very important, but we can’t do NEPA

assessment in permit writing all at the same time in our view.

The third problem we have is fitting NEPA’s role for Federal

agencies against the local and state decisions that people want to

make in their own communities about such sensitive matters as

growth management. Unlike Montana, who as we’ve spoken earlier, we in Washington state have a very strong Growth Management Act. It is not universally popular. It is our law. It is implemented by our communities. And in local processes we have adopted comprehensive management growth plans which we try to fashion for our own communities.

23

We find in NEPA that many of the judgments about what our

community is to be shaped like and should look from a growth

management standpoint are now being second-guessed by people

who I’m afraid I would have to call bureaucrats in the Federal government. We have no bureaucrats left in the state government. But

there are still one or two in Federal government. And we do sometimes find that people want to come to our state and readjust how

we are looking at the priorities we have set for our communities

and do that through a whole new start in the NEPA process to

fashion another set of visions on what our community should look

like.

Now, whether it’s the right vision is not easy to state. We are

dealing with many issues of which there are many viewpoints. But

we believe that having government be based where government

lives and where people’s lives are affected means that this is an important deference that NEPA should be paying and sometimes Federal agencies are losing in the NEPA process to local citizens and

local governments as they make the decisions about how their communities should be shaped.

We’d love to explore further with the Committee some of those

ideas. We have some others. But for the sake of time I’ll stop there.

We have to remember that we must have NEPA. We must, however, move more quickly. We have gridlock on important decisions

that must be made because we are spending years doing things

that people of common sense could do more quickly with goodwill

and good information and a notion that decisions must be made.

I’m (unintelligible) from the ’70s remembering that not to choose

is to choose. We have things that must be corrected in our environment. We have roads we cannot build that will make water quality

better. We are cooperating with the Sierra Club on important

projects in this state where we know that highway improvements

can benefit wildlife habitat.

We want to get to the place where good things can be done to

make—to match up our citizens’ expectations both for transportation and the environment. We need NEPA to help. NEPA is there

for that purpose. We’ve got to cut away at some of the thickets of

implementation issues which have made NEPA a less useful tool

than it should be for our decisionmaking processes. Thank you.

[The prepared statement of Mr. MacDonald follows:]

Statement of Douglas B. MacDonald, Secretary,

Washington State Department of Transportation

Thank you, Mr. Chairman, for convening and Representative McMorris for leading this Task Force and for holding this hearing so that people in our state can

share with you a spectrum of our views.

I am Secretary of Transportation in a state where our citizens expect two goals

to be met. They expect our transportation system to serve our state’s economy and

move people and goods efficiently in and between our communities. They also expect

our transportation system and its improvements to protect and enhance environmental values that are strongly cherished in our state.

NEPA was passed in 1970 with what seems to have been the original intent of

helping us to achieve both those two goals. NEPA is the foundation for harmonizing

the natural and built environments within the context of earth-friendly social and

political institutions. We are fond of saying that we regard NEPA as one of Congress’ most important initiatives in the second half of the 20th Century.

However, we also believe that over more than three decades problems and tendencies have emerged in the implementation of NEPA that are inconsistent with

24

NEPA’s original vision and detract from its usefulness. In those respects, there are

certainly opportunities to make constructive course corrections for NEPA. We think

these are opportunities to improve how NEPA is working today, not undercut its

valuable role.

NEPA’s core messages were clear and simple. Decision makers should understand

and consider the environmental consequences of their proposed actions. Citizens

should have access to assessment and disclosure of the environmental consequences

and be able to use the results as communities and their officials try to make good

choices of whether or not to undertake a project.

These messages can still be found in NEPA, but the trends of NEPA implementation often leave them deeply hidden by procedures that are too long and complicated

and documents and reports that no ordinary citizen, much less a busy public official,

would ever be able to understand.

So, one of the innovations and changes we have urged is that the documents prepared under NEPA be simpler and clearer, telling a story about a project and what

will be its costs and benefits.

Recently our draft Environmental Impact Statement for the Alaskan Way Viaduct

Replacement project—a major project in our state—took this course. Some have

criticized it but others, including the Council on Environmental Quality (CEQ) have

supported this effort to try and put citizens back in touch with NEPA and NEPA

back in touch with citizens.

We hope you will join the CEO in supporting what we call the ‘‘reader-friendly’’

approach to make these documents easier for people really to use. Specifically, Congress can assist this effort by communicating its support for the flexibility allowed

by NEPA, and opposing the continuing rigid, checklist approach which breed complex multi-layered documents.

Second, we are concerned about the way that practice under NEPA has allowed

the Environmental Impact Statement to become larger and larger in scope until it

is virtually an environmental umbrella document used to tease out, negotiate, settle

and explain virtually every detailed feature of how permits will be given for a

project.

NEPA should instead support a threshold decision whether or not a project seems

likely to be a good project. That should involve analysis to a reasonable depth to

allow the project to pass the ‘‘hard look’’ test advocated by federal court decisions.

We think that NEPA environmental assessment of a project should in most cases

be separated out from the actual settling and drafting of the terms and conditions

of permits under laws like the Clean Water Act or the Endangered Species Act.

But today NEPA implementers at federal agencies, instead of focusing on desired

outcomes, want every detail of a project. For example, federal resource agencies staff

are asking us to document all of the precise steps to build a new bridge, in order

to determine whether there might be an adverse effect on an endangered or threatened species.

That requires a lot of detail and indeed sometimes a large measure of project design at a point in the process where final design may be years away. While too

much design at the wrong time is very costly, there is great promise in reaching

early agreement among the transportation agency, federal resource agencies, tribes,

NGOs and the public on desired environmental outcomes, which is what NEPA

should facilitate.

This is a complicated subject and our formulation is much over-simplified. But

trying to do all the work at once, and before a decision is made about the wisdom

of a project, is one of the reasons why the cost in money, and even more importantly, in time, seems to have spun totally out of control.

We recommend looking for ways for permit writers under the individual permitting laws to go back to writing permits—not trying to drive their specific agency

agendas into the EIS process—which often results in making the process overly

technical, overly rigid and conservative in its judgments, and overly opaque to regular citizens.

Finally, we believe that particularly at a number of offices of the Environmental

Protection Agency—one of them is here in this state and we believe there are others

elsewhere—EIS ‘‘reviewers’’ have taken up substantive agendas that are not sanctioned in NEPA or any other federal law. The employees holding these ‘‘reviewer’’

responsibilities have great power, because they can grant or withhold ratings of EIS

that are very important in whether an EIS can survive public scrutiny.

The special issue we have is that in transportation the ‘‘reviewer’’ function is held

by someone who is personally antagonistic to transportation improvements that

build mobility for people who use automobiles. Why? Because more roads mean

more cars mean more sprawl and sprawl is a bad thing.

25

The Washington State legislature has passed landmark growth management leg- islation that vests especially in local government with some state management the

decisions about how growth will be managed. The law is complicated and not universally popular. It has supporters and critics. However, it is our law, in our state,

and it makes land use judgments the purview largely of local government. Local

governments have exercised their responsibilities to fill in the details of how growth

will be managed in our separate cities and counties. EPA, however, discounts and even disregards those judgments as its ‘‘reviewers’’ insist that new roads and other facilities that actually are consistent with local

growth management designations will not pass the screen of the EPA’s reviewers’

personal opinions and biases. We think this is not NEPA’s function and that the

Environmental Protection Agency should be constrained from allowing its agency

employees from participating in this fashion in ways that are contradictory to local

land use judgments already made by our communities. We feel this particularly because, as officials who care about transportation and the environment, the barriers to good transportation that these EPA employee judgments give rise to often have the effect, in our view, of worsening congestion, driving

up housing prices and actually helping to create, rather than discourage, highly dispersed land use patters that made transportation less efficient.

We believe that when a project is demonstrated to produce environmental effects

in the land use area that are consistent with land use plans adopted by our local

governments under the power of our state’s growth management act, that that

should be the end of the discussion.

Our communities are better served by using NEPA as the means to achieve agreement among the transportation agency, federal resource agencies, tribes, NGO’s and

the public about the best environment outcomes.

We suggest that NEPA in and of itself is adequate and useful. But through the

interpretation of federal agencies NEPA has become in many instances a blunt instrument that results in frustrating public involvement and makes it much more

difficult to arrive at thoughtful tradeoffs among transportation needs, project costs,

community values, and environmental issues.

Miss MCMORRIS. Thank you. Really appreciate you being here.

[Applause.]

Miss MCMORRIS. Bob, go ahead.

STATEMENT OF BOB GEDDES, GENERAL MANAGER,

PEND OREILLE PUBLIC UTILITY DISTRICT NO. 1

Mr. GEDDES. Thank you for opportunity to be here today. I am

Bob Geddes, General Manager of a small public utility district that

serves our county of about 12,000 residents. I have with me Mark

Cache, our Director of Regulatory Environmental Affairs. Mark is

the guy who gets to deal with the actual day-to-day ups and downs

of NEPA. And brought him along to have some input, if necessary,

also.

In trying to get a new license for our hydro project, which is a

60 megawatt hydro project on the Pend Oreille River, we have

spent about over 70 years now. And I had a report from staff the

other day that to get this far in the process, we have spent nearly

$10-and-a-half million.

NEPA is not to blame for all of that but obviously part of that.

And we just feel that there needs to be as—as many of the comments we’ve heard here already, that a better coordination with the

agencies to help this particular process along for re-licensing our

project.

So, I’ll submit the following comments, most of them around the

re-license effort that we are following.

In relation to that hydro project, obtaining a new license is generally considered to involve the potential for a significant environmental impact, and an EIS or EA is typically required. After an

26

agency issues a final EIS or EA that issues the record of decision.

Even though not a requirement of NEPA, several agencies have

policies that allow the administrative appeal process if NEPA review is triggered.

Under Section 4(e) of the Federal Power Act the Federal Energy

Regulatory Commission is required to accept any license condition

issued by a conditioning agency deemed necessary for protection of

Federal land.

In the case of the Box Canyon re-licensing, those agencies involved for us were the Department of Interior and the U.S. Forest

Service. The very nature of obtaining a new license and the submittal of conditions by the agency triggers the NEPA process for

us and for other licensees around the northwest and around the

Nation that are really getting into this process now. We’re on the

front edge of this, as you’ve heard many times.

In 2003, the Forest Service changed its policy with respect to

NEPA compliance and the hydro re-licensing process. Currently the

Forest Service maintains that it is no longer required to prepare

its own NEPA document and issue a record of decision because

they rely on the EIS that is done by FERC. Their reasoning was

that the development of the Federal Power Act, Section 4(e) conditions does not constitute an independent agency action because the

NEPA action regarding licensing of a hydro project is first responsibility.

The Department of Interior has never completed a NEPA document when filing their conditions under the Federal Power Act in

hydro licensing proceedings. They also rely on FERC’s EIS.

Our experience in the re-licensing project, the process has been

that the Box Canyon Project, Interior filed with FERC their final

conditions for the project on May of 2004 under the Federal Power

Act Section 4(e) provision. FERC followed with issuing a final EIS

in September of 2004. Then the Forest Service filed their final conditions in January of 2005 after the final EIS was completed.

Interestingly enough, FERC’s EIS on the Box Canyon Project did

not endorse many of the agency’s conditions and therefore many of

those conditions remain unsupported by a final record of decision.

Under CEQ regulations, as an alternative to issuing its own

NEPA document, the agencies can review and adopt FERC’s EIS

or become cooperating agency in connection with the FERC prepared EIS. However, there is no indication that they adopted

FERC’s EIS. In fact, the Forest Service and Interior filed comments

later in this process noting that they do not support the findings

of FERC’s EIS.

Also, they are not a cooperating agency. They are a party/intervener and FERC has specifically rejected the proposition that intervener can also act as a cooperating agency because that would violate the Administrative Procedures Act.

Finally, in the conditions filed by the agencies, that is a requirement that a NEPA document be completed for the subsequent implementation of each and every condition when it involves Federal

lands. This is in addition to the NEPA process that FERC would

conduct prior to issuing the new license or approving the implementation plan under the new license.

27

FERC’s responsibility under the Federal Power Act also includes a developmental analysis, meaning they are required to review not

only the environmental issues but also operational costs and socioeconomic issues. FERC’s EIS in this case, for Box Canyon, did not

include the District’s rate information and impacts on the rates

that were shown in a socioeconomic report done independently by

a specialist for us in the field of economics.

So, really what’s broken and what can be fixed? We have a couple of suggestions. The Forest Service and Interior rely on FERC—FERC’s NEPA document for their actions. But FERC’s record of decision does not

support final conditions. There is no accountability between the

agencies, and there’s no recourse for us except to go to court.

I really can’t believe that that’s what Congress intended when

this process was set up. There should be better cooperation, we

think, between the agencies so that would allow us to work with

them to get to a final point.

There is a lack of proper NEPA process up front from the agencies when filing their conditions for the new license, but a duplication of the NEPA review afterwards when the condition is implemented. There again, we think better consistency is needed between the agencies.

Socioeconomic consequences of the agency conditions are not a

factor in the NEPA process. In our case, we have shown that the

implications for the re-licensing of Box Canyon are enormous on

power rates, loss of jobs and overall impact to our county. We think

that the socioeconomic impact should be integrated into the NEPA

process.

It’s just a fact of life with all decisions we make. We make those

kind of determinations: Is the cost worth it? We’re not going to get

out of the conditions but there needs to be a reasonable point for

what is being spent on those things too.

What is needed is better coordination between the agencies.

When one Federal agency relies on another’s NEPA document then

they should be bound to support the results or, at a minimum, prepare a separate NEPA document to support any decision in conflict

with the other agency’s conclusions. Clearly the agencies should be

working together for a better decision and not against each other

that then leaves the public empty-handed at the end of process.

Simply our two recommendations are that one coordinated NEPA

review by all the agencies should be enough and the socioeconomic

impacts should be part of the NEPA analysis.

We, too, believe that NEPA process in concept is a good idea. We

don’t think it needs to be gutted. We just think there is room for

some improvement here that would help in areas like ours.

Thank you for the opportunity to comment.

[The prepared statement of Mr. Geddes follows:]

Statement of Bob Geddes, Public Utility District No. 1

of Pend Oreille County

Background:

NEPA is a foundational national environmental statute applicable to nearly all

actions taken or approved by federal agencies. NEPA requires that before a federal

agency takes a major action it must disclose the environmental impact of the action

and evaluate alternatives that would have fewer environmental costs. If the action

28

may have a significant impact on the quality of the human environment, the agency

must prepare a detailed environmental impact statement (EIS) in accordance with

CEQ regulations. If an EIS is not required, an agency must still prepare an environmental assessment (EA) to support a finding of no significant impact (FONSI).

In relation to a hydroelectric project, obtaining a new license is generally considered to involve the potential for significant environmental impacts, and EIS or EA

is typically required. After an agency issues a final EIS or EA, it then issues a

‘‘record of decision’’ (ROD).

Even though not a requirement of NEPA, several agencies have policies that allow

an administrative appeal process if a NEPA review is triggered.

Under Section 4(e) of the Federal Power Act (FPA), the Federal Energy Regulatory Commission (FERC) is required to accept any license condition issued by a

conditioning agency deemed necessary for protection of federal lands. In the case of

Box Canyon Dam relicensing those agencies are the Dept. of Interior and the USDA

Forest Service.

The very nature of obtaining a new license and the submittal of conditions by the

agencies triggers the NEPA process.

In 2003, the USDA Forest Service (Forest Service) changed its policy with respect

to NEPA compliance in the hydroelectric relicensing process. Currently, the Forest

Service maintains that it is no longer required to prepare its own NEPA document

and issue a record of decision because they rely on the FERC EIS.

Their reasoning was that the development of Federal Power Act Section 4(e) conditions does not constitute an independent agency action because the NEPA action

regarding licensing of a hydroelectric project is FERC’s responsibility.

The Department of Interior (Interior) has never completed a NEPA document

when filing their conditions under the FPA in a hydroelectric license proceeding.

They, too, rely on FERC’s EIS.

Our Experience: The Box Canyon Hydroelectric Case

In the FERC relicensing process for the Box Canyon Hydroelectric Project, Interior filed with FERC their final conditions for the project on May 2004 under the

FPA Section 4(e).

FERC followed with issuing a final EIS in September 2004.

The Forest Service filed their final conditions January 2005, after the final EIS

was completed.

Interestingly, FERC’s EIS on the Box Canyon hydroelectric project did not endorse many of the agencies conditions, thus the conditions remain unsupported by

a record of decision.

Under CEQ regulations, as alternative to issuing its own NEPA document, the

agencies can review and adopt FERC’s EIS or become a ‘‘cooperating agency’’ in connection with the preparation of the FERC EIS.

However, there is no indication that they adopted FERC’s EIS. In fact, the FS

and Interior filed comments noting that they do not support the findings of FERC’s

EIS.

Also, they are not a cooperating agency; they are party/intervener and FERC has

specifically rejected the proposition that an intervener can also act as a cooperating

agency because such a stance would violate the Administrative Procedures Act

(APA).

Finally, in the conditions filed by the agencies, there is a requirement that a

NEPA document be completed for the subsequent implementation of each condition

when it involves federal lands. This is in addition to the NEPA process that FERC

would conduct prior to issuing the new license or approving the implementation

plan under the new license.

FERC’s responsibility under the FPA also includes a developmental analysis,

meaning they are required to review not only the environmental issues but also

operational costs and socio-economical issues. FERC’s EIS did not include the District’s rate information and impacts on rates that were shown in a socio-economical

report done by a specialist in the field of economics.

Conclusion: What’s Broken? Can it be Fixed?

• The FS and Interior rely on FERC’s NEPA document for their actions but

FERC’s record of decision does not support their final conditions. There is no

accountability and the only recourse for the licensee is court. Was that what

was intended by Congress in adopting the NEPA process?

• There is a lack of proper NEPA process upfront from the agencies when filing

their conditions for the new license but a duplication of the NEPA review afterwards, when the condition is implemented. Is there any consistency in the

NEPA process?

29

1 16 U.S.C. §§ 797(e) and 811.

2 42 U.S.C. § 4321, et seq.

3 40 C.F.R. § 1500, et seq.

• Socio-economical consequences of the agency conditions are not a factor in the

NEPA process. In our case, we have shown that the implications are enormous

on power rates, loss of jobs and overall impact on the community. Socio-economic impacts should be integrated into the NEPA process. • What is needed is better coordination between agencies. When one federal agency relies on another agency’s NEPA document, then they should be bound to

support the results, or at a minimum, prepare a separate NEPA document to

support any decision in conflict with the other agency’s conclusions. Clearly, the

agencies should be working together for a better decision and not against each

other and leave the public left empty handed. • One coordinated NEPA review by all involved agencies should be enough. • Socio-economic impacts need to be considered as part of the NEPA analysis.

Attachment A: Letter to Department of Interior to Prepare a NEPA Document

excerpts Pg. 1-5.

Appendix B: Letter to Department of Interior to Prepare a NEPA Document excerpts Pg. 1-4.

ATTACHMENT A

March 17, 2005

Mr. Willie R. Taylor

Director, Office of Environmental

Policy and Compliance

United States Department of the Interior

Office of the Secretary

Washington, D.C. 20240

(Via Federal Express)

Re: Box Canyon Hydroelectric Project-FERC Docket No. P-2042-013 Request for U.S. Department of the Interior to Prepare a NEPA Document and Issue a

Record of Decision regarding its Modified Conditions and Prescriptions Filed

Pursuant to Sections 4(e) and 18 of the Federal Power Act on May 20, 2004

Dear Mr. Taylor:

This letter is being submitted on behalf of the Public Utility District No. 1 of Pend Oreille County, Washington (‘‘District’’), Licensee for the Box Canyon Project (FERC

No. 2042-013). On May 20, 2004, the Department of the Interior (‘‘DOI’’) filed its

modified conditions and prescriptions (‘‘MCPs’’) under sections 4(e) and 18 of the

Federal Power Act (‘‘FPA’’) 1 with the Federal Energy Regulatory Commission

(‘‘FERC’’) for the Box Canyon Project. However, FERC’s Environmental Impact

Statement (‘‘EIS’’) does not endorse many of DOI’s MCPs, and in turn, DOI is highly

critical of FERC’s EIS. Thus, DOI’s MCPs remain unsupported by a Record of Decision (‘‘ROD’’) in violation of the requirements of the National Environmental Policy

Act (‘‘NEPA’’) 2 and the Council on Environment Quality (‘‘CEQ’’) regulations thereunder. 3 Further, DOI has failed to issue a supplemental EIS supporting its MCPs

and has thus improperly denied the District an opportunity to file an administrative

appeal of DOI’s MCPs in violation of NEPA and due process.

As will be discussed herein, DOI’s failure to comply with NEPA is unlawful. First,

due to the mandatory nature of § 4(e) conditions and § 18 fishway prescriptions, DOI

is the action agency for purposes of NEPA, not FERC, and therefore DOI retains

the responsibility to see to it that its MCPs are supported by a NEPA decision document. Moreover, DOI cannot avoid its responsibilities to issue a supporting NEPA

document because in this instance it has not properly relied on or ‘‘adopted’’ FERC’s

NEPA document. DOI is attempting to selectively rely upon FERC’s EIS on an

issue-by-issue basis as a supporting NEPA document for some purposes, while at

the same time rejecting it and declaring it inadequate wherever it is inconsistent

with DOI’s MCPs. DOI cannot have it both ways.

The purpose of this letter is to demonstrate that by failing to issue its own NEPA

decision document, DOI has not fulfilled its responsibilities under NEPA; and to

suggest two options DOI could undertake to bring itself into compliance with the

requirements of NEPA. The first option would require DOI to retract all of its criticism of the FERC EIS and properly ‘‘adopt’’ it and its recommendations and withVerDate 11-MAY-2000 14:00 Aug 04, 2005 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6621 J:\DOCS\20808.TXT HRESOUR1 PsN: HRESOUR1
30

4 42 U.S.C. § 4332 (2)(C).

5 40 C.F.R. Part 1500.

6 National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001) (citing 40 C.F.R. § 1501.4). 7 Id.

8 Id.

9 Confederated Tribes and Bands of Yakima Indian Nation v. F.E.R.C., 746 F.2d 466 (9th Cir.

1984). 10 40 C.F.R. § 1505.2. 11Department of the Interior Department Manual, Part 516, Chapter 2.2(F) (May 27, 2004). 12See generally, id. at Part 516 and specifically Chapter 7.

draw the § 4(e) and § 18 MCPs that the FERC EIS does not endorse. Alternatively,

should DOI wish to stand by its criticism of the FERC EIS, it must issue its own

supplemental EIS that provides the necessary support for its MCPs that the record

currently lacks. Following this, DOI must prepare a Record of Decision that will

allow access to an administrative appeal process that DOI has improperly foreclosed

through its arbitrary and capricious policy.

I. Background

A. The NEPA Requirements

NEPA is the foundational national environmental statute applicable to nearly all actions taken or approved by federal agencies. NEPA requires that before a federal

agency takes a major action, it must disclose the environmental impact of the action

and evaluate alternatives that would have fewer environmental costs. With the limited exception of the President, the Congress and the courts, NEPA’s requirements

apply to all agencies of the federal government. Specifically, NEPA Section 102(2)

requires federal agencies to include an environmental document in ‘‘every recommendation or report on...major Federal actions significantly affecting the quality

of the human environment.’’ 4

Under the CEQ regulations that implement NEPA, 5 an agency must first prepare

an environmental assessment (‘‘EA’’) if an agency’s regulations do not require the

preparation of a full EIS. 6 If the EA establishes that the agency action may have

a significant effect on the environment, an EIS must be prepared. 7 Otherwise, the

agency must issue a ‘‘finding of no significant impact’’ (‘‘FONSI’’) accompanied by

a ‘‘convincing statement of reasons’’ to explain why a project’s impacts are insignificant. 8 Since the issuance of a new license for a hydroelectric project is generally

considered to involve the potential of significant environmental impacts, an EIS or

EA is typically required. 9 After an agency issues a final EIS, it then issues a ‘‘record

of decision’’ (‘‘ROD’’) that notifies the public of its decision and triggers the administrative appeals process. 10

B. DOI’s NEPA Practice and Policy

1. The DOI Manual

Under its current practices, when an action is initiated by a bureau of the DOI,

then that bureau prepares environmental documents.

NEPA applies to Department and bureau decision making and focuses on

major Federal actions significantly affecting the quality of the human environment. 11

By contrast, when another agency is the lead agency, DOI only provides ‘‘review

and comment.’’ 12 DOI does not prepare environmental documents for hydroelectric

projects that are licensed by FERC because DOI considers the ‘‘major federal action’’

to be FERC’s. Instead, DOI reviews and comments on FERC’s NEPA document and

submits its mandatory conditions and prescriptions pursuant to the FPA. Chapter

7 of Part 516 of DOI’s Departmental Manual (‘‘Review of EISs and Project Proposals

by Other Federal Agencies’’) conveys this process. Section 7.2 states:

The Department considers it a priority to provide competent and timely review comments on EISs and other environmental or project review documents prepared by other Federal agencies for their major actions which significantly affect the quality of the human environment. All such documents

are hereinafter referred to as environmental review documents. The term

environmental review document as used in this chapter is separate from

and broader than the term environmental document found in 40 CFR

1508.10 of the CEQ Regulations. These reviews are predicated on the Department’s jurisdiction by law or special expertise with respect to the environmental impact involved and shall provide constructive comments to

other Federal agencies to assist them in meeting their environmental responsibilities. (Emphasis added).

31

13See id. at Chapter 1.1. 14 Id. at 1.7(B). 15 ERM00-2 (March 27, 2000). 16 Id. at section 1. 17 Id. at section 4(B). 1 16 U.S.C. § 797(e).

This language appears to be based on section 102(C) of NEPA, which provides: ‘‘Prior to making any detailed statement [EIS], the responsible Federal official shall

consult with and obtain the comments of any Federal agency which has jurisdiction

by law or special expertise with respect to any environmental impact involved.’’ Indeed, its Manual indicates that DOI considers itself bound by the requirements of

NEPA 13 and specifically states: The Department hereby adopts the CEQ Regulations implementing the procedural provisions of NEPA [Sec. 102(2)(C)] except where compliance would

be inconsistent with other statutory requirements. 14

2. DOI’s Environmental Review Memorandum No. ERM00-2

In 2000, the Director of DOI’s Office of Environmental Policy and Compliance issued a memo regarding ‘‘Departmental Participation in Hydroelectric Power Licensing by the Federal Energy Regulatory Commission.’’ 15 In the memo, the Director states:

Following an extensive Secretarial hydropower initiative (1998-2000) to improve bureau coordination, a number of existing Departmental policies and

practices in this area were revised and a number of new policies and practices were introduced. In addition, measures are provided to coordinate

legal and technical review and to assure the development of a sound administrative record in FERC licensing proceedings. 16

Regarding mandatory conditions and prescriptions, the Director states:

(1) Section 4(e) of the FPA requires FERC to accept any license terms and condi- tions, which the Secretary deems necessary for the protection and utilization

of a reservation under the Department’s supervision. The project must occupy

land within the reservation.... The Department’s comments will specifically

identify any Section 4(e) conditions and be supported by substantial evidence

in the record....

(2) Section 18 of the FPA requires FERC to accept any license terms and condi- tions for the construction, maintenance, and operation of such fishways as

may be prescribed by the Secretary. Departmental comments will specifically

identify any Section 18 prescriptions and be supported by appropriate fisheries information and substantial evidence in the record.... 17

Thus DOI, by its own admission, is bound by the requirements of NEPA, the CEQ regulations thereunder and the requirement that its MCPs be supported in the

record by substantial evidence. As will be seen however, DOI’s application of its policy in the Box Canyon relicensing violates these very requirements.

Attachment B

March 4, 2005

Ms. Linda Goodman

Regional Forester

U.S. Department of Agriculture

Forest Service Pacific Northwest Region

333 SW First Avenue

Portland, OR 97204

Re: Box Canyon Hydroelectric Project-FERC Docket No. P-2042-013 Request for U.S. Forest Service to Prepare a NEPA Document and Issue a Record of Decision regarding Conditions and Recommendations Filed Pursuant to Sections

4(e) and 10 of the Federal Power Act on January 12, 2005

Dear Ms. Goodman:

This letter is being submitted on behalf of the Public Utility District No. 1 of Pend Oreille County, Washington (‘‘District’’), Licensee for the Box Canyon Project (FERC

No. 2042-013). On January 12, 2005, the Forest Service (‘‘FS’’) filed its final conditions under section 4(e) of the Federal Power Act (‘‘FPA’’) 1 with the Federal Energy

Regulatory Commission (‘‘FERC’’) for the Box Canyon Project. In the past, pursuant

to its prior practice and policies, FS provided an opportunity to file an administrative appeal of final 4(e) conditions pursuant to 36 C.F.R. Part 215, which applies

32

2 42 U.S.C. § 4332 (2)(c).

3 40 C.F.R. Part 1500.

4 National Parks & Conservation Ass’n v. Babbitt, 241 F.3d 722, 730 (9th Cir. 2001) (citing

40 C.F.R. 1501.4). 5 Id.

6 Id.

7 Confederated Tribes and Bands of Yakima Indian Nation v. F.E.R.C., 746 F.2d 466 (9th Cir.

1984).

to FS decisions documented in a Record of Decision (‘‘ROD’’) following preparation

of an environmental analysis as required by the National Environmental Policy Act

(‘‘NEPA’’).

However, in a memorandum dated May 12, 2003, the FS announced a change in

its policy regarding its role in the hydropower licensing process. Under the new policy the FS purportedly ‘‘relies’’ on FERC’s NEPA analysis, instead of its own, to support its section 4(e) conditions. As a result, the FS no longer issues a separate

‘‘NEPA decision document’’ to support its conditions, and as a consequence of this

change in policy, these conditions are no longer subject to appeal under Part 215

of the FS’s regulations.

FS has attempted to justify its new policy that it no longer needs to issue an appealable NEPA decision document on two grounds: (1) the NEPA ‘‘action’’ is actually

FERC’s and not the FS’s; and (2) instead of issuing its own NEPA document as it

had traditionally done, FS will instead rely on the document prepared by FERC. As

will be outlined below, neither justification is warranted.

FS’s first justification fails due to the mandatory nature of 4(e) conditions; FS remains the action agency for purposes of NEPA, not FERC. FS’s second argument

fails because FS has not properly relied on or ‘‘adopted’’ FERC’s NEPA document.

FS is attempting to selectively rely upon FERC’s Final Environmental Impact Statement (‘‘FEIS’’) on an issue-by-issue basis as a supporting NEPA document for some

purposes, while at the same time rejecting it and declaring it inadequate wherever

it is inconsistent with FS’s 4(e) conditions. FS cannot have it both ways.

The purpose of this letter is to demonstrate that FS’s new policy is inconsistent

with the requirements of NEPA and to suggest two options FS could undertake to

bring itself back in compliance with the requirements of NEPA. The first option

would require FS to retract all of its criticism of the FERC FEIS and properly

‘‘adopt’’ it and its recommendations and withdraw the 4(e) conditions that the FERC

FEIS does not endorse. Alternatively, should FS wish to stand by its criticism of

the FERC FEIS, it must return to its prior policy of issuing its own EIS that provides the necessary support for its 4(e) conditions. Following this, FS must prepare

a Record of Decision that will reopen access to the administrative appeal process

that FS has improperly foreclosed through its arbitrary and capricious 2003 policy

change.

I. Background

A. NEPA Requirements and FS’s Practices

NEPA is the foundational national environmental statute applicable to nearly all

actions taken or approved by federal agencies. NEPA requires that before a federal

agency takes a major action, it must disclose the environmental impact of the action

and evaluate alternatives that would have fewer environmental costs. With the limited exception of the President, the Congress and the courts, NEPA’s requirements

apply to all agencies of the federal government. Specifically, NEPA Section 102(2)

requires federal agencies to include an environmental document in ‘‘every recommendation or report on...major Federal actions significantly affecting the quality

of the human environment.’’ 2

Under the Counsel on Environment Quality (‘‘CEQ’’) regulations that implement

NEPA, 3 an agency must first prepare an environmental assessment (‘‘EA’’) if an

agency’s regulations do not require the preparation of a full environmental impact

statement (‘‘EIS’’). 4 If the EA establishes that the agency action may have a significant effect on the environment, an EIS must be prepared. 5 Otherwise, the agency

must issue a ‘‘finding of no significant impact’’ (‘‘FONSI’’) accompanied by a ‘‘convincing statement of reasons’’ to explain why a project’s impacts are insignificant. 6

Since the issuance of a new license for a hydroelectric project is generally considered

to involve the potential of significant environmental impacts, an EIS or EA is typically required. 7 After an agency issues a final EIS, it then issues a ‘‘record of decision’’ (‘‘ROD’’) that notifies the public of its decision and triggers the administrative

appeals process.

33

8 36 C.F.R. § 215.7 (2002).

B. FS’s Prior Practice and Policy Were Consistent with the Requirements

of NEPA

Prior to 2003, FS’s policies and practices were consistent with the NEPA requirements outlined above. In FS’s own Hydroelectric Handbook, § 32.53b ‘‘Documentation for the 4(e) Report,’’ FS stated:

When an Environmental Impact Statement is Necessary. If the proposed

project may have a significant impact on the quality of the human environment as it relates to National Forest System lands, it is necessary to prepare an environmental impact statement (EIS) before responding with a

4(e) report containing conditions or making a recommendation concerning

the project’s compatibility with National Forest purposes. In that case inform FERC, in the initial 4(e) report, that there are significant impacts and

request designation as a cooperating agency. Prepare the 4(e) report containing conditions after issuance of the final EIS and record of decision (sec.

52.11 and sec. 54.43).

In § 32.6(2)(b) ‘‘Decision Documents,’’ the FS Hydroelectric Handbook, FS stated:

Restate the decision in the 4(e) report cover letter (sec. 52.21). If an environmental impact statement was necessary, issue a separate record of decision according to the procedures in FSH 1909.15 section 47 (sec. 32.53b).

If an environmental assessment was prepared, issue a decision notice and

finding of no significant impact (sec. 32.7).

Furthermore, under its prior regulations, FS listed the types of agency decisions

that were subject to appeal and included the following:

(a) Project and activity decisions documented in a Record of Decision [ROD] or

Decision Notice [DN], including those which, as a part of the project approval

decision, contain a nonsignificant amendment to a National Forest Land and

Resource Management Plan (36 CFR 219.10). 8

As indicated above, decisions subject to appeal had to have a ROD or DN, which

meant that the decision had to be supported by either an environmental impact

statement or an environmental assessment and declaration of no significant impact

prepared by the FS. Thus, under its traditional practice in a hydroelectric relicensing, FS would issue an ROD pursuant to NEPA that would give interested parties access to an administrative appeal of its final 4(e) conditions.

[Applause.]

Miss MCMORRIS. Thank you. Ms. Kimbell.

STATEMENT OF ABIGAIL KIMBELL, REGIONAL FORESTER,

REGION 1, U.S. FOREST SERVICE

Ms. KIMBELL. Thank you. Madam Chairperson and members of

the Task Force, my name is Gail Kimbell. I’m the Regional

Forester for the Northern Region of the U.S. Forest Service.

The Northern Region comprises 25 million acres on 13 National

Forests and Grasslands in Idaho, Montana and North Dakota and

is headquartered in Missoula, Montana.

Previously, I served as Associate Deputy Chief for the National

Forest System in Washington, D.C. And 20 years ago I served as

District Ranger in Kettle Falls. So, it’s nice to be here.

I’m joined today by Mike Oliver, who’s my Deputy Director of

Public and Governmental Affairs, by Kim (unintelligible), who’s the

Resource Forester at Sullivan Lake on the Colville National Forest,

and by Rick Braswell who is the Forest Supervisor on the Colville

National Forest.

I’m here today to address concerns regarding the ability of the

Forest Service to respond to restoration and forest health needs in

a timely manner. During the past two decades, forests and grasslands in the Northern Region have experienced protracted drought

accompanied by associated wildfires and forest insect epidemics.

34

To assess forest health of the national forests of the Northern Region, one need only drive Interstate 90.

Traveling west from Billings, Montana, you can view the Custer

National Forest in the distance to the south. You drive through big

timber at Livingston on the Gallatin National Forest, and you start

looking closer at pockets of dead trees.

As you climb up out of Livingston, you go through a pass with

some very interesting rock formations but where most of the pines

are dead. You continue west through the Gallatin National Forest

through Bozeman and on to Butte. As you drop down into Butte,

look south onto the Beaverhead-Deerlodge National Forest into the

Basin Creek watershed, which supplies the City of Butte with its

water. Look that nearly every tree is dead. I always make a wish

that a lightning bolt doesn’t strike anywhere near for the sake of

all the residents of Butte and certainly for those with homes in the

path of the prevailing winds.

You’ll continue north and west, you’ll see more beetle killed timber and trees across the Beaverhead-Deerlodge National Forest.

There are many privately held forested lands all along here that

have experienced the very same drought, the very same insect infestations. Many have been treated to removed the dead and dying

trees. There will be much of the same as you continue onto the Lolo

National Forest, and in addition you’ll see clear evidence of recent

forest fires. Again, some lands have been treated to remove the

killed trees.

Coming into Missoula, you see slopes of purple and yellow depending on the season. Pretty from a distance, but up close you

find that it’s knapweed, leafy spurge and yellow toadflax. All

invasive species. Further down the Clark Fork River, the hillsides

are covered with pockets of trees, large and small, of trees that

have succumbed to insects. You’ll also be driving through grossly

overstocked stands of trees highly susceptible to wildfire with

homes mixed in.

You’ll come through Superior and then climb to Lookout Pass.

Perhaps the toughest sight is the big sign welcoming you to Idaho

with a backdrop of extensive stands of dead trees on the Idaho

Panhandle National Forest. I can understand why Governor Kempthorne is not thrilled with that view.

The forest health issues are real and the impacts are extensive.

So, what are we doing about this? A lot. Is it enough to effect ecological change? Perhaps not.

The District Rangers across the Northern Region have been very

active with communities developing community wildfire protection

plans and designing hazardous field reduction projects. They have

used the Categorical Exclusions and other tools provided by the

Healthy Forest Initiative and the authorities in Title I of the

Healthy Forests Restoration Act. They’re also using all the old tools

as well.

We are currently using the most current science available from

our own research branch and from the universities in Montana and

Idaho to help design our projects. And, yes, we continue to be challenged on many of our decisions in both our own administrative review process and in the courts. In fact, we currently have at least

23 vegetation management projects in litigation today.

35

To respond to these challenges requires more staff time, more

documentation. Our limited resources are employed to defend the

decisions so crucial to restoring ecosystems.

There is no special budget for litigation, no special team of resource specialists. The same resource specialist charged with environmental analysis on future projects must delay work—must

delay that work to prepare extensive administrative records for

legal challenges.

Several speakers before me noted the stack of boxes behind you.

That, in fact, is an administrative record. That’s the administrative

record from the Colville National Forest for a road access project.

It was for the construction of 1.88 miles of road and .81 miles of

road reconstruction to access private lands adjacent to the Sullivan

Lake Ranger District on the Colville National Forest.

This was over a 10-year period. And, yes, it involves the complex

intertwining with the Endangered Species Act, the Clean Water

Act and others. And this is the administrative record. The good

folks from the Colville brought it in on a dolly today. It’s 16,000

pages. And, I’m sorry, the district judge who reviewed this said it

had been studied to death and for a small impact, and he didn’t

want to see it again.

In my testimony, there is attached an Exhibit 1. And I have a

larger copy of that photo. This photo demonstrates the judicial review requirements for documentation of the administrative record

for a project on the Helena National Forest in Montana. The original EIS was 592 pages. It seems paltry compared to the 15,000

pages in the administrative record. Judicial review also requires

the record be submitted in electronic format. Electronic formats are

extensive with hundreds of hyperlinks that must be carefully inspected to insure all supporting documents are appropriately referenced. As the required analysis and documentation increases,

these limited resources must also be committed to reassessing

projects adding another layer of delay—level of delay.

Delays in restoration and forest health treatments compound the

problem. More acres become more susceptible to catastrophic wildfire, insect, diseases and weeds continue to spread. Another example is the Jimtown project also on the Helena National Forest. This

project proposed to thin and underburn about 900 acres and

underburn 220 acres to make ponderosa pine stands less prone to

stand replacing wildfires and protect private property in the

wildland-urban interface.

There are 15 residences on inholdings in this area.

There is extensive public involvement. There were ground visits

to the 22 property owners in and around the area. And the Environmental Impact and Decision Notice were released in May of

2001.

There were a series of delays. Court date was set for October

2003, but it burned in July of 2003. And it burned quite hot on

National Forest, and it did not burn on the private lands that had

been treated along with it—or just before it. We were trying to

mimic the work that had been done on the private lands.

The decisions made in the courts can themselves have some serious impacts. The National Environmental Policy Act is sound policy for evaluating proposals, alternatives and (unintelligible) for inVerDate 11-MAY-2000 14:00 Aug 04, 2005 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6602 J:\DOCS\20808.TXT HRESOUR1 PsN: HRESOUR1
36

volving the public and for disclosing environmental effects and presenting the rationale for decisionmaking. But the Act in its implementing regulations lack definitive standards. Just recently a project from the Idaho Panhandle National Forest was considered in Idaho District Court and was upheld. It was appealed to the United States Court of Appeals for the 9th Circuit,

and a panel of judges overturned the lower court and in their ruling said they were raising the bar for evaluation of cumulative effects.

My resource specialists work hard to meet the goals and expecta- tions but that bar keeps moving. There are no standards in the law

to make the regulations and judges are free to set their own. Still

there is hope.

I see a change in the way interest groups of all kinds want to

come together and effect a better future for the resources and for

their communities. They all talk of sustaining healthy forest and

grasslands. Just this week the Bitterroot National Forest (unintelligible) the draft Environmental Impact Statement for a project in

the vicinity of the community of Sula. This response——

Mr. CANNON. Madam Chairman, I apologize for interrupting. But

I need to—I have to catch a plane a little later, and I noticed that

we’re significantly over time here. And I didn’t mean to interrupt,

Ms. Kimbell, but—may I just suggest that the Chair consider an

instruction to panelists.

Miss MCMORRIS. OK. I appreciate the testimony. If you can wrap

up, I want to get some time in here for questions. It’s very good.

Ms. KIMBELL. The Northern Region will continue to do what we

can, working with all the interested parties, with all the new tools

and lots of the old ones too.

Collaborative community planning is not an inexpensive or quick

process. But it’s a very necessary process. And we’re very excited

about the results of many of our collaborative efforts with communities across the Northern Region.

This concludes my statement. I’ll be happy to answer any questions you may have.

[The prepared statement of Ms. Kimbell follows:]

Statement of Abigail R. Kimbell, Regional Forester,

USDA Forest Service, Northern Region

Madam Chairperson and Members of the Task Force;

My name is Gail Kimbell. I am Regional Forester for the USDA Forest Service

Northern Region, which comprises 25 million acres on 13 National Forests and

Grasslands, in Idaho, Montana and North Dakota. I am based in Missoula, Montana. Previously, I served as Associate Deputy Chief for the National Forest System

in Washington, D.C.

I am here today to address you about the concerns regarding the ability of the

Forest Service to respond to restoration and forest health needs in a timely manner.

During the past two decades, Forests and Grasslands in the Northern Region have

experienced protracted drought accompanied by associated wildfires and forest

health issues such as invasive species and stress induced insect epidemics.

To assess forest health of the National Forests and Grasslands in the Northern

Region, one need only drive Interstate-90. From Billings you can view the Custer

National Forest in the distance and then the Gallatin National Forest up close. As

you climb out of Livingston, you start noting all the dead pine in amongst the very

cool rocks on the pass. As you drive into Butte, you can look south into the city’s

Basin Creek watershed on the Beaverhead-Deerlodge National Forest and fervently

hope a lightning bolt doesn’t strike anywhere near. Going further west, you drive

through parts of the Helena National Forest and onto the Lolo National Forest,

37

intermixed with private lands of many ownerships. You’ll note acres and acres of

burned forest. You will also see abundant understories of purple and yellow characterizing the presence of spotted knapweed, leafy spurge and yellow toadflax, all

invasive pest species. Keep driving I-90 down the Clark Fork River through Missoula and then on to Superior. There you will see pockets or hillsides of dead trees

or trees exhibiting stress as you continue on up the pass. Perhaps the toughest sight

is the big sign ‘‘Welcome to Idaho’’ as you cross onto the Idaho Panhandle National

Forests with the spectacular backdrop of extensive stands of dead trees. I can understand why Governor Kempthorne is not thrilled with that view. My point here

is that the forest health issue is real and the impacts are extensive. We are working

in cooperation with Forest Service Research, the State of Idaho and State of Montana using the Forest Inventory and Analysis (FIA) process to develop quantitative

data that will help determine the magnitude of various forest health problems. This,

along with the application of other science based evaluation provides a foundation

for the collaborative processes that are used to spend taxpayer dollars in the highest

priority places. Yes, we are being challenged on our decisions in the Northern Region. Many go on to court. In fact, we have 44 projects in some stage of litigation right now. These

projects represent an array of forest and rangeland management needs including 16

green timber sales, 5 salvage timber sales, 2 fuels reduction projects, 4 grazing allotments and combinations of these activities. The balance of the projects in litigation

cover a wide range of management activities such as easements, access, travel management, threatened and endangered species, and mining. Adequately responding to

these challenges continues to require more extensive environmental analysis and

more documentation. It is also important to note that each time we go through the

appeal process or the courts, much of our limited resources are employed to defend

the decisions we feel are crucial to restoring ecosystems and addressing forest

health concerns. There is no special budget for litigation, no special team of resource

specialists. The same resource teams that are charged with completing required

analysis on current and future projects must delay that work to prepare extensive

administrative records for legal challenges. Please refer to Exhibit (1). This photo demonstrates judicial review requirements for documentation of the administrative record for the Clancy-Unionville project on

the Helena National Forest in Montana. The original Environmental Impact Statement was a sizeable 592 pages with the appendices, but this seems paltry compared

to over 15,000 pages now in the administrative record. Judicial review also requires

this record be submitted in electronic format in addition to this mountain of paperwork. These electronic records are extensive with hundreds of hyperlinks that must

be carefully inspected to ensure all the supporting documents are appropriately referenced. As the required analysis and documentation increases, these limited resources must also be committed to re-assessing projects that have previously been

initiated thus adding another level of delay.

Delays in restoration and forest health treatments compound the problem as more

acres move into conditions that promote invasions of exotics, leave forests susceptible to insect and disease and predispose ecosystems to unwanted wildfire. An example of how process delays can negate the advantages of appropriate treatment is

the Jimtown project on the Helena National Forest in Montana. This project proposed to thin and underburn about 900 acres and underburn 220 acres to make ponderosa pine stands less prone to stand replacing wildfires and protect private property in the wildland-urban fire interface.

The project involved extensive public involvement. Letters were sent to the 22

property owners in the immediate area of the project and the District Ranger met

with 12 of the landowners individually on the ground. The public participation was

conducted in cooperation with the rural fire district. Public meetings and field trips

to the area were held and were attended by County officials, landowners and other

interested parties. The project also received letters of support from Lewis and Clark

County Disaster and Emergency Services and the Tri-County Fire Working Group

(A coalition of federal, state and local fire officials from Lewis and Clark, Jefferson

and Broadwater counties).

An Environmental Impact Statement and Decision Notice were released in May

of 2001. The project was subsequently appealed. At the appeals resolution meeting,

eight individual landowners requested the appellants withdraw their appeal, which

they did not. The project decision was upheld in August of 2001. The appellant filed

a complaint with Federal District Court to permanently enjoin the project which

was granted. A hearing date was set for October of 2003; however, in July of 2003,

approximately 45% of the project area burned in a running crown wildfire. The chronology (Exhibit 2) of this project shows how process and procedural delays hamper

the ability to get on top of forest health restoration needs especially when treatment

38

needs are time sensitive. Often delay is the objective of individuals or groups that

do not want to see any trees harvested. This is particularly true with fire and insect

salvage. Usually the value of any forest product is greatly reduced before the final

disposition of the appeals and litigation.

Still, the Forest Service is starting to see a change in the way communities are

working together with land managers to address the most important priorities that

must be addressed if we are to sustain healthy forest and range lands. People want

something better for Idaho and Montana and I am sensing there is an evolution

underway in the manner in which interest groups are willing to come together and

talk. This week, the Northern Region released the Draft Environmental Impact

Statement for our first project developed under HFRA. This project was developed

in a collaborative manner with the community of Sula, Montana and it responds to

the needs outlined in the Community Fire Protection Plan.

The Forest Service and other federal agencies are working hard to address these

ecosystem health issues. These are huge problems and many factors such as weather and other natural processes are out of our control. However, we are making

progress using new tools we have been given by Congress and the Administration.

We are doing lots of community collaboration and environmental analysis. We’ve

completed over 100 projects using Categorical Exclusions (CEs) from the Healthy

Forests Initiative (HFI). We have several project proposals ongoing using the authorities under Title I from the Healthy Forests Restoration Act (HFRA) and have

initiated another based on the Council on Environmental Quality’s Guidance for Environmental Assessment of Healthy Forest Projects on the Butte Ranger District of

the Beaverhead-Deerlodge National Forest.(http://www.fs.fed.us/r1/bdnf/)

The Northern Region leads the nation in application of Forest Stewardship Contracting. Projects such as the Clearwater Stewardship Pilot project on the Lolo

National Forest are producing tangible results in forest health restoration while

helping local economies. This project included 640 acres of selective timber harvest,

much of which was in the wildland-urban fire interface around the town of Seeley

Lake, Montana. We are making good use of all these new authorities where it is

appropriate. We also recognize the tools have size and other legal limitations, so

there are still places where treatments need to be applied on a landscape level.

The Northern Region will continue to do what we can, working with all the interested parties, using the tools we have been given. Undoubtedly, everyone is interested in healthy, diverse and vibrant ecosystems that are managed in a sustainable

manner. We need to focus our efforts and resources on what we collectively agree

are good for the land and not continue to expend an inordinate amount of time

mired in process. We believe the President’s Healthy Forests Initiative and the new

authorities provided under HRFA put us on a strong path toward addressing these

problems and focusing on solutions that ultimately improve the health of the land.

This concludes my statement. I will be glad to answer any questions you may

have.

NOTE: Exhibit 1 has been retained in the Committee’s official files.

Exhibit 2

Task Force on Improving NEPA

TESTIMONY OF REGIONAL FORESTER GAIL KIMBELL

APRIL 23, 2005 - SPOKANE, WASHINGTON

Chronology Jimtown Vegetation Project

May 2000 Scoping initiated for project. The purpose of the project is to create sustainable conditions less prone to stand-replacing fire within a ponderosa pine forest.

May 2001 Decision Notice issued. The decision implements 860 acres of

forest thinning using timber harvest with subsequent underburning and 220 acres of underburning alone.

June 2001 Native Ecosystems Council appeals the decision.

August 2001 Regional Forester affirms the decision, appeal denied.

October 2001 Native Ecosystems Council files a complaint in District Court to

permanently enjoin the project.

July 2003 A human-caused fire which originated within the Jimtown Project

area was reported about noon west of the Jimtown Road. By

nightfall the fire had jumped the county road, forced evacuation

of the area residents, taken out the power for the nearby commuVerDate 11-MAY-2000 14:00 Aug 04, 2005 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6621 J:\DOCS\20808.TXT HRESOUR1 PsN: HRESOUR1
39

nity of York, and burned about 600 acres. The fire ultimately

burned just over 1,000 acres and cost $1 million to suppress.

Approximately 50% of the project area slated for thinning was

burned in a mixed lethal fire or running crown fire. The fire

spread was quite rapid and fire intensity was severe. For that reason, firefighting activities were essentially limited to slurry drops

by air tankers and flanking actions by ground forces with more aggressive action along defensible spaces on private property. FS

personnel have concluded that completion of the fuel reduction actions tied to the Jimtown project would have allowed firefighters

to safely take more direct action against a lower intensity ground

fire, resulting in much quicker control with fewer burned acres.

March 2004 The U.S. District Court issues an order denying Native Ecosystem

Council’s motion for Summary Judgement.

March 2004 Native Ecosystem appeals the District Court ruling to the Ninth

Circuit Court.

February 2005 Ninth Circuit panel hears oral argument of the case. As of 4/19/

05, the case is awaiting disposition.

Miss MCMORRIS. Thank you very much. Really appreciate it.

[Applause.]

STATEMENT OF MICHAEL KAKUK, ATTORNEY,

KAKUK LAW OFFICES, P.C.

Mr. KAKUK. Madam Chair, members of the Task Force, Michael

Kakuk from Helena, Montana. I’m an attorney in private practice.

And I will get you folks back on time.

I represent the Montana Contractors’ Association, which is highway contractors, the Montana Building Industries Association,

home builders, the Montana Association of Realtors and the Western Environmental Trade Association, which is a trade association

composed of development, construction, extractive and motorized

recreation. But I’m not here representing them today. I’m here on

own time. So, any of my comments should not be attributed to any

of my clients, simply myself. But for these clients, I would not be

here.

As far as my clients are concerned, there’s two goals to the

National Environmental Policy Act or the Montana Environmental

Policy Act and that would be the opportunity for public involvement. And I liked Mr. Jensen’s comments about public engagement. I’m hoping that’s going to go someplace. And the other goal

is to understand the potential impacts of your actions. However,

some of the perceived issues that were coming out of the implementation of trying to reach these two goals, and I again agree with

Mr. Jensen, that these are symptoms. These are not the root cause.

These are the symptoms.

Never ending study. We’ve heard of that. How do you know when

we’re done with an environmental review? The judge tells you

you’re done. We’ve got inappropriate level of review. The level of

review, whether it’s an EA or an EIS or a mitigated EA, is not (unintelligible) so much by the level of potential impacts as it is by the

level of public and privacy regarding that proposed project.

And, three, we have inappropriate use. I’m a member of the

American Federation of Musicians, you’d think I’d know feedback,

right.

We’re seeing inappropriate use of the environmental policy reviews. For example, we’ve got Highway 93 in Montana, one of the

40

most deadly stretches of highway in the country. And the Montana

Department of Transportation said we’ve got to go from two to four

lanes. And we had people living down south of Missoula that said,

well, go ahead and do that. But we want you to study the impacts

of growth.

And not only do we want you to study it, we want the Federal

Highway Commission to actually regulate growth alongside those

roads. That’s inappropriate.

You can go ahead and study it. There is a connection between

building roads and growth. Of course there is. But the control

should come from the local government. And, again, we don’t have

a growth management act at a statewide level. And local government’s very difficult to get them to do basic planning and zoning.

And that again goes back to this idea of public engagement. If we

can get a more creative dialog, I think some of these things are

going to go away.

So, what have we done in Montana?

You’ll see on page 2 of my testimony that one—the first thing we

did was increase due process protections for project sponsors. Not

cutting the public out, just making sure the project sponsor has the

opportunity to be as involved in the process as the public.

Second, we clarified the distinction that in Montana you cannot—

the agency may not withhold, deny or impose conditions on any

permit based on MEPA. I don’t care what you find in the Montana

Environmental Policy Act, you can’t mitigate or deny based on that.

You’ve got to have it.

You’ve got to have that authority in your underlying statutes, the

Water Quality Act, the Air Quality Act, et cetera.

Montana Environmental—and that P doesn’t stand for protection. This is not a protection act; this is a policy act. And we felt

that going beyond that was actually unconstitutional delegation of

legislative authority. That was changed in 2001.

What have we seen? We’ve actually seen a decrease in lawsuits

regarding this. Now, it’s anecdotal. I didn’t have the time to actually go through and do a statistical analysis. I can’t sit here and

say that but for this change we wouldn’t have seen the decrease

in lawsuits. But the agencies are telling me—and I checked with

the agencies.

I even checked with the environmental organization as well, one,

the Montana Environmental Information Center before I came here

said this is my role. What would you like me to tell them about?

And I’m seeing a decrease in lawsuits. Again, anecdotal.

OK. So, what’s next? Very interested in Mr. Jensen’s three-part

approach. Getting back to the policy. We’ve got the same policy in

Montana. And it isn’t applied because it is so broad and it’s nebulous. Difficult to put qualifiers on it. And, again, I really like the

idea of this going from public involvement to public engagement.

If we can take the heat down, I think things are going to smooth

out. But until that happens, the first thing we’re going to do this

interim we’re looking at more modifications. Though I have to tell

you the last thing we did this year in 2005 just a couple weeks ago,

we put a clear trigger. How do you go from an EA to an EIS? We

know that if it’s significant, you’re going to do significant impacts,

you do an EIS. How do you make that determination?

41

We’re now requiring in Montana that there is a written deter- mination by the agency based on material evidence identified in

the determination that there will be a significant impact or a potential for significant environmental impact before the agencies can

charge the sponsor for this EIS. What’s next? We’re looking at side boards. We’ve got to help the agencies determine when they are finished. What makes a valid

environmental document.

Two, we’re going to—we’re looking at categorizing impacts; pri- mary, secondary, tertiary. For example, the tertiary impacts maybe

that doesn’t trigger an EIS. Maybe tertiary impacts are raised but

not analyzed. And, third, we’re looking at the distinction between

the actual substantive laws, the regulatory laws, and NEPA and

the state act.

NEPA predates our Water Quality Act and our Air Quality Act. Those two acts have taken a lot of the responsibilities that were

under MEPA and they’ve included it in the substantive acts themselves. Maybe it’s time to contrast and compare and making sure

that those twin goals which my clients support and endorse public

involvement, public engagement, and look before you leap are met

in an efficient and effective manner. Thank you. [The prepared statement of Mr. Kakuk follows:]

KAKUK LAW OFFICES, P.C.

40 WEST 14TH ST., SUITE 2D

HELENA, MT 59601

APRIL 20, 2005

Representative Cathy McMorris

Chairwoman

Task Force on Improving NEPA

Committee on Resources

Re: NEPA/MEPA — A Montana Perspective

Dear Representative McMorris:

Thank you for the invitation to address the Task Force on Improving NEPA regarding my experiences with the National and State Environmental Policy Acts. I

hope that these brief comments will prove useful. It’s important to note that while

I have represented many clients and their associations regarding environmental

issues, these comments are my own and should not be attributed to any other person or organization.

Environmental Review Goals

• Opportunity for public involvement

• Understand the potential impact of the action

Perceived Implementation Issues

• Never ending study

Æ Increased cost

Æ Delays

* Short Montana construction season

Æ Agencies have no clear stopping point

• Inappropriate issues

Æ Sewer extension—road impacts

Æ Road construction—water quality impacts

Æ Road construction—land use issues

• Inappropriate level of review

Æ EIS not warranted for non-regulatory impacts

Montana’s Response

• Increased due process protection. (See Attachment 1.)

42

Æ Project alternatives proposed by the agency must be reasonable, technologically achievable, and economically feasible. Æ Agency must consult with project sponsor regarding alternatives identification. Æ Sponsor may request a review of the agency’s alternatives identification

before the appropriate board. Æ Agency director must endorse any findings of significance.

Æ Sponsor may request a review of the agency’s findings of significance before the appropriate board.

Æ Clear time limit, and time limit extension process, for review completion.

Æ Sponsor may request a review of the agency’s time limit extensions before the appropriate board.

Æ Agency must conduct a meaningful ‘‘no-action’’ alternative review, looking at all impacts of the project’s non-completion.

Æ Agency must consider regulatory impacts on private property.

Æ Sponsor may appear before the EQC or agency director to discuss the review process issues.

Æ In any challenge to an agency’s MEPA decision, the burden of proof is

on the challenger to show that the review was inadequate.

Æ Court may not consider evidence not submitted to the agency during the

review process and must remand back to the agency for consideration.

Æ Court may only set aside MEPA decision with clear and convincing evidence that the decision was arbitrary or not in compliance with the law.

• Clarification between substantive and procedural agency authority, i.e., the

agency may not withhold, deny, or impose conditions on any permit or other authority to act based on MEPA.

• EIS trigger, i.e., the agency must make a written determination, based on material evidence identified in the determination, that there will be a significant environmental impact or a potential for a significant environmental impact.

Next Steps

• Get the agencies out of the ‘‘weighing game’’, e.g. no significance determinations.

• Ensure compliance with MEPA goals of ‘‘public involvement’’ and ‘‘hard look’’

through other means: web sites, regulatory statutes, etc.

Thank you again for the opportunity to appear before the Task Force and I appreciate your attention to these important matters.

SINCERELY,

MICHAEL S. KAKUK, ATTORNEY

75-1-201. General directions—environmental impact statements. (1) The

legislature authorizes and directs that, to the fullest extent possible:

(a) the policies, regulations, and laws of the state must be interpreted and administered in accordance with the policies set forth in parts 1 through 3;

(b) under this part, all agencies of the state, except the legislature and except as

provided in subsection (2), shall:

(i) use a systematic, interdisciplinary approach that will ensure:

(A) the integrated use of the natural and social sciences and the environmental

design arts in planning and in decisionmaking that may have an impact on the

human environment; and

(B) that in any environmental review that is not subject to subsection (1)(b)(iv),

when an agency considers alternatives, the alternative analysis will be in compliance with the provisions of subsections (1)(b)(iv)(C)(I) through (1)(b)(iv)(C)(III) and,

if requested by the project sponsor or if determined by the agency to be necessary,

subsection (1)(b)(iv)(C)(IV);

(ii) identify and develop methods and procedures that will ensure that presently

unquantified environmental amenities and values may be given appropriate consideration in decisionmaking, along with economic and technical considerations;

(iii) identify and develop methods and procedures that will ensure that state

government actions that may impact the human environment are evaluated for

regulatory restrictions on private property, as provided in subsection (1)(b)(iv)(D);

(iv) include in each recommendation or report on proposals for projects, programs,

and other major actions of state government significantly affecting the quality of the

human environment a detailed statement on:

(A) the environmental impact of the proposed action;

43

(B) any adverse environmental effects that cannot be avoided if the proposal is implemented; (C) alternatives to the proposed action. An analysis of any alternative included in the environmental review must comply with the following criteria: (I) any alternative proposed must be reasonable, in that the alternative must be achievable under current technology and the alternative must be economically

feasible as determined solely by the economic viability for similar projects having

similar conditions and physical locations and determined without regard to the economic strength of the specific project sponsor; (II) the agency proposing the alternative shall consult with the project sponsor re- garding any proposed alternative, and the agency shall give due weight and consideration to the project sponsor’s comments regarding the proposed alternative; (III) if the project sponsor believes that an alternative is not reasonable as pro- vided in subsection (1)(b)(iv)(C)(I), the project sponsor may request a review by the

appropriate board, if any, of the agency’s determination regarding the reasonableness of the alternative. The appropriate board may, at its discretion, submit an advisory recommendation to the agency regarding the issue. The agency may not

charge the project sponsor for any of its activities associated with any review under

this section. The period of time between the request for a review and completion

of a review under this subsection may not be included for the purposes of determining compliance with the time limits established for environmental review in 75-

1-208.

(IV) the agency shall complete a meaningful no-action alternative analysis. The no-action alternative analysis must include the projected beneficial and adverse environmental, social, and economic impact of the project’s noncompletion. (D) any regulatory impacts on private property rights, including whether alter- natives that reduce, minimize, or eliminate the regulation of private property rights

have been analyzed. The analysis in this subsection (1)(b)(iv)(D) need not be prepared if the proposed action does not involve the regulation of private property. (E) the relationship between local short-term uses of the human environment and

the maintenance and enhancement of long-term productivity; (F) any irreversible and irretrievable commitments of resources that would be in- volved in the proposed action if it is implemented; and (G) the details of the beneficial aspects of the proposed project, both short-term and long-term, and the economic advantages and disadvantages of the proposal; (v) in accordance with the criteria set forth in subsection (1)(b)(iv)(C), study, de- velop, and describe appropriate alternatives to recommend courses of action in any

proposal that involves unresolved conflicts concerning alternative uses of available

resources;

(vi) recognize the national and long-range character of environmental problems and, when consistent with the policies of the state, lend appropriate support to initiatives, resolutions, and programs designed to maximize national cooperation in anticipating and preventing a decline in the quality of the world environment;

(vii) make available to counties, municipalities, institutions, and individuals advice and information useful in restoring, maintaining, and enhancing the quality of

the environment;

(viii) initiate and use ecological information in the planning and development of

resource-oriented projects; and

(ix) assist the environmental quality council established by 5-16-101;

(c) prior to making any detailed statement as provided in subsection (1)(b)(iv), the

responsible state official shall consult with and obtain the comments of any state

agency that has jurisdiction by law or special expertise with respect to any environmental impact involved and with any local government, as defined in 7-12-1103,

that may be directly impacted by the project. The responsible state official shall also

consult with and obtain comments from any state agency with respect to any regulation of private property involved. Copies of the statement and the comments and

views of the appropriate state, federal, and local agencies that are authorized to develop and enforce environmental standards must be made available to the governor,

the environmental quality council, and the public and must accompany the proposal

through the existing agency review processes.

(d) a transfer of an ownership interest in a lease, permit, license, certificate, or

other entitlement for use or permission to act by an agency, either singly or in combination with other state agencies, does not trigger review under subsection

(1)(b)(iv) if there is not a material change in terms or conditions of the entitlement

or unless otherwise provided by law.

(2) The department of public service regulation, in the exercise of its regulatory

authority over rates and charges of railroads, motor carriers, and public utilities,

is exempt from the provisions of parts 1 through 3.

44

(3) (a) In any action challenging or seeking review of an agency’s decision that

a statement pursuant to subsection (1)(b)(iv) is not required or that the statement

is inadequate, the burden of proof is on the person challenging the decision. Except

as provided in subsection (3)(b), in a challenge to the adequacy of a statement, a

court may not consider any issue relating to the adequacy or content of the agency’s

environmental review document or evidence that was not first presented to the

agency for the agency’s consideration prior to the agency’s decision. A court may not

set aside the agency’s decision unless it finds that there is clear and convincing evidence that the decision was arbitrary or capricious or not in compliance with law.

(b) When new, material, and significant evidence or issues relating to the adequacy or content of the agency’s environmental review document are presented to

the district court that had not previously been presented to the agency for its consideration, the district court shall remand the new evidence or issue relating to the

adequacy or content of the agency’s environmental review document back to the

agency for the agency’s consideration and an opportunity to modify its findings of

fact and administrative decision before the district court considers the evidence or

issue relating to the adequacy or content of the agency’s environmental review document within the administrative record under review. Immaterial or insignificant

evidence or issues relating to the adequacy or content of the agency’s environmental

review document may not be remanded to the agency. The district court shall review

the agency’s findings and decision to determine whether they are supported by substantial, credible evidence within the administrative record under review.

(4) To the extent that the requirements of subsections (1)(b)(iv)(C)(I) and

(1)(b)(iv)(C)(III) are inconsistent with federal requirements, the requirements of subsections (1)(b)(iv)(C)(I) and (1)(b)(iv)(C)(III) do not apply to an environmental review

that is being prepared by a state agency pursuant to this part and a federal agency

pursuant to the National Environmental Policy Act or to an environmental review

that is being prepared by a state agency to comply with the requirements of the

National Environmental Policy Act.

(5) (a) The agency may not withhold, deny, or impose conditions on any permit

or other authority to act based on parts 1 through 3 of this chapter.

(b) Nothing in this subsection (5) prevents a project sponsor and an agency from

mutually developing measures that may, at the request of a project sponsor, be incorporated into a permit or other authority to act.

(c) Parts 1 through 3 of this chapter do not confer authority to an agency that

is a project sponsor to modify a proposed project or action.

(6) (a) (i) A challenge to an agency action under this part may only be brought

against a final agency action and may only be brought in district court or in federal

court, whichever is appropriate.

(ii) Any action or proceeding challenging a final agency action alleging failure to

comply with or inadequate compliance with a requirement under this part must be

brought within 60 days of the action that is the subject of the challenge.

(iii) For an action taken by the board of land commissioners or the department

of natural resources and conservation under Title 77, ‘‘final agency action’’ means

the date that the board of land commissioners or the department of natural resources and conservation issues a final environmental review document under this

part or the date that the board approves the action that is subject to this part,

whichever is later.

(b) Any action or proceeding under subsection (6)(a)(ii) must take precedence over

other cases or matters in the district court unless otherwise provided by law.

(7) The director of the agency responsible for the determination or recommendation shall endorse in writing any determination of significance made under subsection (1)(b)(iv) or any recommendation that a determination of significance be

made.

(8) A project sponsor may request a review of the significance determination or

recommendation made under subsection (7) by the appropriate board, if any. The

appropriate board may, at its discretion, submit an advisory recommendation to the

agency regarding the issue. The period of time between the request for a review and

completion of a review under this subsection may not be included for the purposes

of determining compliance with the time limits established for environmental review

in 75-1-208.

75-1-208. Environmental review procedure. (1) (a) Except as provided in

subsection (1)(b), an agency shall comply with this section when completing any

environmental review required under this part.

(b) To the extent that the requirements of this section are inconsistent with federal requirements, the requirements of this section do not apply to an environmental review that is being prepared jointly by a state agency pursuant to this part

45

and a federal agency pursuant to the National Environmental Policy Act or to an

environmental review that must comply with the requirements of the National Environmental Policy Act.

(2) A project sponsor may, after providing a 30-day notice, appear before the environmental quality council at any regularly scheduled meeting to discuss issues regarding the agency’s environmental review of the project. The environmental quality

council shall ensure that the appropriate agency personnel are available to answer

questions.

(3) If a project sponsor experiences problems in dealing with the agency or any

consultant hired by the agency regarding an environmental review, the project sponsor may submit a written request to the agency director requesting a meeting to

discuss the issues. The written request must sufficiently state the issues to allow

the agency to prepare for the meeting. If the issues remain unresolved after the

meeting with the agency director, the project sponsor may submit a written request

to appear before the appropriate board, if any, to discuss the remaining issues. A

written request to the appropriate board must sufficiently state the issues to allow

the agency and the board to prepare for the meeting.

(4) (a) Subject to the requirements of subsection (5), to ensure a timely completion

of the environmental review process, an agency is subject to the time limits listed

in this subsection (4) unless other time limits are provided by law. All time limits

are measured from the date the agency receives a complete application. An agency

has:

(i) 60 days to complete a public scoping process, if any;

(ii) 90 days to complete an environmental review unless a detailed statement pursuant to 75-1-201(1)(b)(iv) is required; and

(iii) 180 days to complete a detailed statement pursuant to 75-1-201(1)(b)(iv).

(b) The period of time between the request for a review by a board and the completion of a review by a board under 75-1-201(1)(b)(iv)(C)(III) or (8) or subsection

(10) of this section may not be included for the purposes of determining compliance

with the time limits established for conducting an environmental review under this

subsection or the time limits established for permitting in 75-2-211, 75-2-218, 75-

10-922, 75-20-216, 75-20-231, 76-4-125, 82-4-122, 82-4-231, 82-4-337, and 82-4-432.

(5) An agency may extend the time limits in subsection (4) by notifying the project

sponsor in writing that an extension is necessary and stating the basis for the extension. The agency may extend the time limit one time, and the extension may not

exceed 50% of the original time period as listed in subsection (4). After one extension, the agency may not extend the time limit unless the agency and the project

sponsor mutually agree to the extension.

(6) If the project sponsor disagrees with the need for the extension, the project

sponsor may request that the appropriate board, if any, conduct a review of the

agency’s decision to extend the time period. The appropriate board may, at its discretion, submit an advisory recommendation to the agency regarding the issue.

(7) (a) Except as provided in subsection (7)(b), if an agency has not completed the

environmental review by the expiration of the original or extended time period, the

agency may not withhold a permit or other authority to act unless the agency makes

a written finding that there is a likelihood that permit issuance or other approval

to act would result in the violation of a statutory or regulatory requirement.

(b) Subsection (7)(a) does not apply to a permit granted under Title 75, chapter

2, or under Title 82, chapter 4, parts 1 and 2.

(8) Under this part, an agency may only request that information from the project

sponsor that is relevant to the environmental review required under this part.

(9) An agency shall ensure that the notification for any public scoping process associated with an environmental review conducted by the agency is presented in an

objective and neutral manner and that the notification does not speculate on the potential impacts of the project.

(10) An agency may not require the project sponsor to provide engineering designs

in greater detail than that necessary to fairly evaluate the proposed project. The

project sponsor may request that the appropriate board, if any, review an agency’s

request regarding the level of design detail information that the agency believes is

necessary to conduct the environmental review. The appropriate board may, at its

discretion, submit an advisory recommendation to the agency regarding the issue.

(11) An agency shall, when appropriate, consider the cumulative impacts of a proposed project. However, related future actions may only be considered when these

actions are under concurrent consideration by any agency through preimpact statement studies, separate impact statement evaluations, or permit processing procedures.

46

Miss MCMORRIS. Thank you. Thank you very much.

[Applause.]

STATEMENT OF JOHN ROSKELLEY, MEMBER, EASTERN

WASHINGTON GROWTH MANAGEMENT ACT HEARINGS BOARD

Mr. ROSKELLEY. Madam Chair and distinguished members of the

Task Force, my name is John Roskelley. And I was a Spokane

County Commissioner from 1995 to 2004. I currently serve on the

Eastern Washington Growth Management Hearings Board. I’m

here to testify in support of the National Environmental Policy Act.

And I will be done when that red light pops on.

Lewis and Clark explored the west 200 years ago. They were in

awe of this country’s pristine rivers, endless forests and abundant

wildlife. Today they would turn over in their graves if they were

to see what 200 years of our stewardship has done to our environment. They would embrace and strengthen the NEPA.

The National Environmental Policy Act is one of the most important environmental laws this nation’s government has passed to

the benefit of its people and the environment. No other law protects this nation’s greatest assets; its water, air and natural resources, and yet allows reasonable use of these resources.

As it is stated in the purpose of the Act, the NEPA is a policy

which encourages productive and enjoyable harmony between man

and his environment. Those who wrote the law in 1969 took into

consideration that there has to be a degree of compromise between

our citizens’ societal needs and the degree of impact of those needs

on the environment. As a responsible society, we need to find a balance, a harmony, as written by Congress, between man’s wants

and the environment he needs to sustain life.

The NEPA is about democracy. Congress, in its wisdom, declared

that is the continuing policy of the Federal government, in cooperation with state and local governments, and other concerned public

and private organizations to create and maintain conditions under

which man and nature can exist in productive harmony. They included present and future generations of America. Here, Congress

explicitly states that not only are governments responsible to protect the environment, the people of this nation have a definite role

to play in this policy as well.

One of the key components in the NEPA concerns the public. The

NEPA is designed to ensure broad opportunities for public involvement. Congress realized when they wrote the Act that they represented their constituents, but who better than local citizens

would be able to address the impacts of Federal actions in their

area. The United States is an enormous country, well over 250 million people. Not everyone will be happy with certain decisions concerning their home area, but at least the opportunity is there for

them to express their opinion.

The NEPA is also the law not only requires Federal agencies to

look before they leap, but also forces these agencies to think outside the box. The NEPA’s requirement that decisionmakers prepare

and provide the public with an adequate range of alternatives is

the mechanism that forces agencies to look beyond the ‘‘our way or

the highway’’ approach.

47

Most experts consider the law’s requirement to study, develop and describe appropriate alternatives to recommended courses of

action to be the very heart of the Act. Not only does the development of alternatives help result in better decisions on the ground,

the process educates the public as to the potential risks and benefits these various alternatives could have on the environment and

communities.

On a personal level, the NEPA has allowed me the opportunity for the past 20 years to monitor timber sales and other actions in

the panhandle of north Idaho. I’m on their contact list. I have used

our national forests for decades for elk, deer and bear hunting. As

the years went by, my hunting areas were decimated by inappropriate logging techniques and opened up to four-wheelers and

snowmobiles by road building. I fought back the only way possible:

Monitoring individual timber sales in areas I was familiar with.

The NEPA required the agencies to create alternatives and allows

me to voice my concerns.

The NEPA fulfills its mission. It has proved to be effective and

requires Federal agencies to look to the future when designing or

implementing large projects or actions. I suggest Congress investigate the 133-year-old Mining Act rather than the NEPA. The

Mining Act——

[Applause.]

Mr. ROSKELLEY. The Mining Act has cost taxpayers billions and

destroyed millions of acres, yet Congress refuses to take on the

powerful mining industry.

I have traveled extensively throughout the world, spending

months in places like Pakistan, India, Tibet, Nepal and Bhutan.

And it has been my experience, whether the country is led by a

president or a dictator or a king, that how they take care of their

environment is symbolic of how they take care of their citizens. In

other words, I would not like to live in some of those countries.

Congress needs to stay the course and enthusiastically support

the National Environmental Policy Act and strengthen it. Generations will thank you for your vision. Thank you.

[The prepared statement of Mr. Roskelley follows:]

Statement of John Roskelley, Board Member,

Eastern Washington Growth Management Hearings Board

Madame Chair and distinguished members of the Task Force, my name is John

Roskelley. I was a Spokane County Commissioner from 1995 to 2004 and currently

serve on the Eastern Washington Growth Management Hearings Board, which is a

quasi-judicial Board that ‘‘hears and determines’’ appeals concerning counties, cities

comprehensive plans, the Shoreline Management Act and State Environmental Policy Act.

The National Environmental Policy Act is one of the most important environmental laws this nation’s government has passed to the benefit of its people and

environment. No other law protects this nation’s greatest assets; its water, air and

natural resources, and yet allows reasonable use of these resources. As is stated in

the Purpose of the Act, NEPA is a policy which encourages ‘‘productive and enjoyable harmony between man and his environment.’’ Those who wrote the law in 1969

took into consideration that there has to be a degree of compromise between our

citizen’s societal needs and the degree of impact of those needs on the environment.

As a responsible society, we need to find a balance, a harmony, as written by Congress, between man’s wants and the environment he needs to sustain life.

NEPA is about democracy. Congress, in its wisdom, declared that it is ‘‘the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations...to create and

48

maintain conditions under which man and nature can exist in productive harmony,

and fulfill the social, economic, and other requirements of present and future generations of Americans.’’ Here, Congress, the representatives of the people, explicitly

state that not only are governments responsible to protect the environment, the people of this nation have a definite role to play in this policy as well. One of the key components in NEPA concerns the public. NEPA is designed to ensure broad opportunities for public involvement. Congress realized when they

wrote the Act that they represented their constituents and who better would be able

to address the impacts of federal actions in their area. The United States is an enormous country, with well over 250 million people. Not everyone will be happy with

certain decisions concerning their home area, but at least the opportunity is there

for them to express their opinion.

NEPA is also the law that not only requires federal agencies to ‘‘look before they leap,’’ but also forces them to do something that can be challenging inside the federal bureaucracy—to think outside of the box. NEPA’s requirement that decision

makers prepare, and provide the public with, an adequate range of alternatives is

the mechanism that forces agencies to look beyond the ‘‘our way or the highway’’

approach. Most experts consider the law’s requirement to ‘‘study, develop, and describe appropriate alternatives to recommended courses of action’’ to be the very

heart of the Act. Not only does the development of alternatives help result in better

decisions on the ground, but it educates the public as to the potential risks and benefits various approaches being contemplated in a major federal action that could adversely impact the environment and communities. Although I can’t say I was an enthusiastic supporter of the North-South Spokane Freeway, especially where it has now been located, I had ample opportunity to express my concerns thanks to NEPA. Through NEPA, the public was able to not only

participate in the process, but substantially improve this Federal highway project.

The process is long and it involves listening to the public and sister agencies, but

NEPA prevents many mistakes that would cost the public a lot more in the long

run. In the case of the North-South Freeway, the NEPA allowed the public to help choose the location and route for this road based on where the least damaging impacts to the community was likely to occur. Rather than eliminate hundreds of single family homes along the Nevada or Crestline corridors, both alternative routes,

citizen input convinced the transportation planners to move the freeway to an railroad corridor, saving those homes and creating the potential for commercial development in another area of town.

NEPA fulfills its mission. It has proven to be effective and requires Federal agencies to look to the future when designing or implementing large projects or actions.

I suggest Congress investigate the 133 year-old Mining Act, rather than the NEPA.

The Mining Act has cost taxpayers billions and destroyed millions of acres, yet Congress refuses to take on the powerful mining industry.

I have traveled extensively throughout the world, spending months in places like

Pakistan, India, Tibet, Nepal and Bhutan. It has been my experience, whether the

country is led by a president, dictator or king, that how they take care of their environment is symbolic of how they take care of their citizens. In other words, I would

not like to live in some of those countries. Congress needs to stay the course and

enthusiastically support the National Environmental Policy Act and strengthen it.

Our children and our children’s children will thank you for your vision.

Thank you.

Miss MCMORRIS. I also want to recognize Judy Olson is here

from Senator Murray’s office. She’s the District Director. Thanks,

Judy.

At this time, we’re going to open it up for questions.

And we’ll have five minutes for each Member. And we’ll just go

back and forth between the Republicans and the Democrats.

So, Mr. Cannon, if you want to start.

Mr. CANNON. Thank you, Madam Chair. And, Ms. Kimbell, I

would like to apologize for interrupting you. There ought to be a

more gracious way to do that, but under the circumstances there’s

not. And again I apologize. I’m going to have to leave quite soon.

Could I ask you one question. Just if you’re aware—there’s been

some studies. Are you aware of what the cost incurred by the

49

Forest Service is in anticipation of or for litigation? Have you seen

any of those studies?

Ms. KIMBELL. I have seen a number of studies. And yet just in

having had a lot of personal experience with our budgeting and

tracking systems, I don’t know that we have real accurate numbers, where we could talk about what exactly litigation costs. There

are a lot of hidden costs in responding to litigation.

Mr. CANNON. Just for the group and for the discussion here. I’ve

seen numbers between 48 and 58 percent of the department’s budget. Is that consistent with your experience.

Ms. KIMBELL. I would think that would be high. But it is—but

it is——

Mr. CANNON. The 58 percent would be the high end including

loss of the activity that goes into the permitting process. Is 48 percent high in your experience? Prior to the Act?

Ms. KIMBELL. It’s a very difficult number to ascertain because

you need to be able to value the loss of resources, as I talked about

with the loss of commercial value and different resources when

there are delays in the litigation process.

Mr. CANNON. The reason I suggest that number, this is a—we

spend an inordinately large amount of money on talking and thinking and analyzing and not enough money—I think everybody in

this room is going to agree that we don’t spend enough money on

actually helping the forests.

In fact, Utah was I think the first state to actually do forest wilderness. We’re very proud of that. And I don’t think—if we ask for

vote—and I’m going to ask for a vote later on—but if we ask for

a vote on this issue, I don’t think anybody would want to tradeoff

our watersheds and our forests for litigation preparation.

You know, I was a real fan of Scoop Jackson’s. And I just want

to (unintelligible) momentarily. He did many things and he did

them very well and had a great balanced idea. But he was also famous for his determination that America be powerful, both economically and militarily, and in virtually every other way. I suspect he actually would like to encourage mining in America. I’m

not sure if he’d want to discourage it, just reviewing the Mining

Act. We may have to do that at some point. Maybe do it in—and

do it in a way that would improve the way we use our land. But

personally you should all know that I like the idea of mining and

getting the resources here.

But on the other hand, I was also a big fan of Mo Udall who was

the Chairman of the House Interior and Insular Affairs Committee

when NEPA was passed. I think he was Chairman then. And his

brother, Stewart Udall, was the Secretary of the Interior at the

time. And my first job as a lawyer was working for Stewart (unintelligible), who I still call a close friend.

So, I was sort of intrigued by what Mr. MacDonald said when he

focused on the purpose of NEPA. And here’s where we’re going to

ask you guys for some involvement here. Like somebody on the outside had a sign saying how can you hear if you don’t hear, and you

can’t hear if people don’t speak. So, we’d like to have at least some

feedback on this.

50

How many of you all are familiar—you’ve heard Mr. MacDonald.

How many of you feel like you’re fairly familiar with the language

of Section 101 of NEPA, which is the Purpose.

[Show of hands.]

Mr. CANNON. We want a little more participation. I think that

Mr. Inslee said there were about 120 green stickers. I haven’t

counted them all, but—you heard—in fact, Mr. MacDonald, would

you just sort of repeat what the purpose of NEPA is.

Mr. MACDONALD. I’m happy to give you my sense. It’s to develop

information about environmental consequences, the governmental

action, so that the people who have to make decisions about what

to do can make wise decisions. And so that the citizens can see how

those decisions are made on what basis and can participate with

public officials.

Mr. CANNON. I’m going to cut you off because we actually have

the Purpose here, so—because I want everybody to vote. OK.

And that is the—The purposes of the Act are to declare a

national policy to encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and

stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important

to the Nation; and to establish a Council on Environmental

Quality.

So, with that statement out in front—and we’re all familiar with

it—can I just ask how many of you believe those words and think

that those are appropriate framework or context for the National

Environmental Policy Act.

[Show of hands.]

Mr. CANNON. I think that that’s—that’s almost unanimous. Is

anyone opposed to that approach?

I just want the record here of this hearing to reflect that we have

a consensus on a framework. And I hope that we are able in our

legislative and (unintelligible) processes to come up with a way to

stay within that framework and help things work a little better.

Because we have—we are doing things to the environment today—

I think, Mr. MacDonald, you said that not acting is acting. Things

are happening in our environment today that we need to be able

to deal with more judiciously, more quickly, and in a way that actually enhances the environment for all of us. Thank you.

Miss MCMORRIS. Thank you very much. Mr. Inslee.

Mr. INSLEE. Thank you. Mr. Geddes, I wanted to ask you about

your Box Canyon concerns a little bit. And the best I get a sense

of what you’re talking about is that the agencies were not coordinated that you had different decisions. And in fact one decision did

not support the other by a different agency. That’s the way I would

characterize what I heard is the agencies were really not coordinating their decisionmaking. Is that a fair kind of characterization.

Mr. GEDDES. Yes, it is.

Mr. INSLEE. Now, this happened in 2001, 2002, 2003, 2004, all

the way to 2005. It’s going on. Is that kind of a fair——

Mr. GEDDES. Yes.

Mr. INSLEE. And who was the President during those years?

Mr. GEDDES. [No response.]

51

Mr. INSLEE. I’ll fill in. It was President Bush. And the reason I

ask you this is that isn’t it the responsibility of the President of the

United States in a circumstance like this to pick up the phone and

knock some heads together, agency heads, and tell them to coordinate their activities so that we could get a responsible decision and

the agencies that are consistent with one another. And that apparently has not happened. Why has it not happened?

Mr. INSLEE. Why hasn’t the leader of the executive branch got

these two agencies to work together?

Mr. GEDDES. I can’t answer it. I don’t know why it hasn’t happened.

Mr. INSLEE. Have you called the President? This is a serious

question. I mean, this is a serious question to me whether you’ve

tried to use the elected officials to get the agencies to do the job

that they should do.

Mr. GEDDES. Actually, I have in the last couple of years have

spent way more time in Washington, D.C., than I care to. We

have——

Mr. INSLEE. That’s not a majority, I hope.

Mr. GEDDES. We have made some efforts in that area, some serious effort, to work politically through this with some success and

obviously not the ultimate success.

Mr. INSLEE. Well, let me just suggest to you that—that what I’m

hearing is not necessarily a failure of the statute that’s drafted by

Henry Jackson. But it’s a failure of the executive branch to insist

that these Federal agencies get their act together and work together in a consistent way, which I think may be able to be resolved by the executive branch headed by the President George

Bush. I encourage you to at least think about that.

One other issue, if I can. We had a bill go through Congress

Thursday, the Energy Bill. And there was a provision in it that affected hydroelectric re-licensing. And I’m not actually positive

whether it was changed to the NEPA or the—or the licensing. I

think it was just a licensing provision referred rather than NEPA.

And it—what it did is it said that if there was—if the licensee, the

applicant, disagreed with the decision by the agency, the licensee

would have the right to appeal the decision to an expedited process.

But nobody else could. Nobody else in this room could. None of the

people with green stickers.

None of the environmental community. None of the tribes.

None of the faith community. Nobody except the licensee.

Now, I have a little problem with that because to me just allowing the licensee to ask for an appeal right isn’t fair when you’re not

asking or allowing any of the citizens to do that.

What’s your reaction to that issue? How should we think about

it when it comes time to looking at NEPA.

Mr. GEDDES. I can understand your concern in that. We were interested in seeing that kind of an approach in the Federal reform

area. I think it’s a balance to—an effort to balance the mandatory

conditioning authority that the agencies now have under the 4(e)

conditions.

We are simply dictated to in the 4(e) conditioning authority. FERC is the final agency there, but they have to accept the 4(e)

conditions that are submitted by the Interior and Forest Service,

52

in our case, and include them in the license, whether they’ve gone

through NEPA review or not.

And in this case they have not.

Mr. INSLEE. Would you ever suggest to this panel that we adopt

a law to allow the licensee to have a right, for instance, to appeal

that other citizens do not have?

Mr. GEDDES. [No response.]

Mr. INSLEE. I hope you’re going to say no. It’s a rhetorical question.

Mr. GEDDES. OK. I’m sensing there’s more to your question. So,

what is the rest of it.

Mr. INSLEE. No. I’m just—it’s a serious question.

Do you think when we’re looking at NEPA, broadly speaking,

should we ever give, you know, the licensee or the applicant who

wants to build a mine or a dam or a building or whatever else, give

them a right to a hearing or an appeal that the citizens would not

have?

Mr. GEDDES. No, that wouldn’t seem fair. No.

Mr. INSLEE. I’m with you on that. I (unintelligible) to Congress

later.

Mr. MacDonald, I’m intrigued by your—your efforts of making

the EIS’s readable. And looking at yours in the Viaduct (unintelligible) about 160 pages and pretty easy reading and comprehensible. Tell us how you achieved that. What obstacles you had. And

how we think about that in Federal——

Mr. MACDONALD. The first obstacle we had was to convince all

the consultants that they should go to an (unintelligible) writing

course. And we did that. And the second obstacle we had was to

engage people who could draw pictures of the thing, because pictures are worth a thousand words. The third thing we had was to

address the document.

Who is the audience for the document? And we decided that the

audience for the document was people who were going to use the

viaduct, not the permit writers and not just the judge but the

judge’s clerk. But we had to draft the documents so that the people

who wanted to use it could read it.

And then we worked on it for a long time. And wrote it and rewrote it. And we actually got a lot of people signing it. There were

a lot of our friends at the Federal Highway Administration. They

saw the value of trying to get people together in a program.

Now, (unintelligible) programs. Even people here in Spokane

know it’s a long way from rebuilding a road. You’re going to have

to pay for it. But what we do what we can do is get citizens together about how it will serve the community and what will happen with fish in Elliott Bay or with air quality to the neighbors in

ways that they can make good, solid consensus, common sense

judgments about what to do.

Miss MCMORRIS. Thank you. What I’m thinking is I’ll just go

back and forth.

Mr. INSLEE. Thank you.

Miss MCMORRIS. Mr. Gohmert.

Mr. GOHMERT. Thank you. I appreciate all the testimony and, of

course, we want to hear from anybody that wants to be heard. ObVerDate 11-MAY-2000 14:00 Aug 04, 2005 Jkt 000000 PO 00000 Frm 00056 Fmt 6633 Sfmt 6602 J:\DOCS\20808.TXT HRESOUR1 PsN: HRESOUR1
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viously our time is limited in this hearing. But anybody that wants

to submit anything in writing, please do so.

You know, I’ve seen an ad that ran in the paper about this. And

it seemed like it was doing a bit of fear mongering, saying that now

what’s—there’s a move afoot spearheaded by California Congressman Richard Pombo to weaken the National Environmental Policy

Act to silence our say in what the government does to our property,

parks, waterways, lands and wildlife. We can’t let that happen.

You know. We want to hear from people. And I’m telling you what

so that people understand where I’m coming from. I don’t need this

job. I’ve got three daughters that I could do a whole lot better for

if I were not in public service. And the day I feel like I’m not going

to help make this place better for my kids, I’m going home. I’m

not—I’m away from home today trying to participate in this process. I do want to hear.

And as a former judge for a lot of years, credibility to me is so

important. So, you got to be careful when you’re saying I’m not

going to use all my time. I’m going to be short and go over it hurts

credibility. When you say something that kind of mongers fear, you

know, like I’m sure—surely, Mr. Roskelley, you didn’t mean that

we all need to quit and go home and set up another task force.

Maybe you did.

Mr. ROSKELLEY. Absolutely not.

Mr. GOHMERT. To review the National Mining Act.

Because you said we ought to be spending our time doing that

and not doing this. What you’re telling me, you’re wasting your

time. You ought to be back home with your kids instead of wasting

it here. Let somebody review the Mining Act.

I mean—so words have meaning. I’d encourage you to please be

careful because I think most of us do want to create a better world

and better environment we’re living in.

Secretary MacDonald, as a judge one of the things I had to keep

pounding on lawyers was that they like to copy and paste. And, you

know, computers have been bad about that. They allow people to

make a copy of this, paste it on here, and before you know it,

you’ve got this huge ridiculous report.

And the thing that I pounded into people that came before me—

and I’m wondering if we may need some restrictions to get people

to use—or to create EIS’s that actually can be read. But my slogan

was, and nobody came to understand it, ‘‘Longer is lazier.’’ If you

want a long document, you’re just copying and pasting just to create—you know, just to tear down trees, just so you can have this

big record. That’s lazy.

And if you want—if you go beyond a certain number of pages

then that’s too lazy and your document loses credibility. If you

want it better and to be considered as credible then it ought to be

shorter. And you ought to go through and, like you all did, edit,

edit, edit until you get it succinctly where people can understand

it. So, I appreciate the efforts there.

Ms. Kimbell, let me ask you, you talked about the trees—all the

dead trees and beetles. Could you tell me how you feel Federal law

prevents you from helping create more healthy forests.

Ms. KIMBELL. Federal law doesn’t prevent us from creating

healthier forests. There’s only so far that budget and time will

54

allow. And we’ve—given the extended drought that we’ve experienced here in the Northwest and with the stress on trees, the trees

are dying faster than we’re able to respond. So, we’re prioritizing

our work and working directly with communities that have concerns about their communities from a wildfire perspective. And

that’s where we’re prioritizing our work.

Mr. GOHMERT. Well, when you talked about the beetle infestation, I got the impression that you were saying somebody’s laws

were preventing you from going in and preventing the spread of

those beetles that were killing off all the forests.

Ms. KIMBELL. I intended to give an impression of an assessment

of health of the forests in the Northern Region.

We are experiencing pretty extensive beetle attacks. And we’ve

had some very extensive wildfires that are getting to those overstocked stands.

No. There are no Federal laws preventing us from treating lands.

There are some different considerations that we have to take certainly in planning for treatment of different areas.

Mr. GOHMERT. Well, you’d agree that our goal is healthy forests.

And it’s a matter of getting there. So, when you talk about, you

know, all the dead trees, I’m just trying to get what we do in

Washington to help you locally, which is where things need to happen where people know what’s going on, make the forests healthy.

If there’s a beetle infestation, then go stop it. What do we need to

do to help you do that.

Ms. KIMBELL. The local level people are very committed and

working together just for interest of working together every day to

help make—for a healthier forest. We do have this difference—or

we have a lack of standards in the law and the regulations that

would give people both communities and my resource professionals

a target to work against.

Mr. GOHMERT. So, you’re saying we need better standards.

Ms. KIMBELL. We need better standards in the regulations for

the implementation of the National Environmental Policy Act.

Mr. GOHMERT. Do you have any recommendations in that regard.

Ms. KIMBELL. Certainly, for——

Mr. GOHMERT. I’d be interested, if you would submit any in writing. I mean, it’s easy to say we all need to come together. But we

need something that we can work on from Washington.

Ms. KIMBELL. In fact, I can submit that to the Chairwoman next

week.

Mr. GOHMERT. Thank you.

Miss MCMORRIS. That would be great. Thank you.

I wanted to just go back to Mr. Jensen. And I appreciated your

big picture analysis and I think many in the room did. Could you

just describe some of the on-the-ground problems that we’ve run

into and if you have some thoughts. Related to—I think you were

wanting to comment on possibly——

Mr. JENSEN. I have an on-the-ground problem.

Mr. Geddes’ point about hydropower licensing. It’s a good example but it’s not quite the predictable one.

The Federal agencies set mandatory conditions on hydropower licenses. They don’t review those conditions under NEPA before they

55

hand them off to FERC. FERC reviews them under NEPA, but

they have no discretion as to those conditions.

There are elements throughout government where agencies who

are doing things, you know, put quotes around it, for the environment, think that NEPA doesn’t apply to those things for the environment. When I talked about the Purpose, Section 101, being

taken out of NEPA, that’s evidence of the problem. Because the response by the hydropower industry in the most recent legislation

can be understood as an effort to get an alternative analysis, get

public involvement, get engagement in that part of the hydropower

licensing decision that sets these conditions. There really isn’t a

meaningful opportunity. You either believe in the conditions or you

don’t. The fact is that mandatory conditions don’t get scrubbed

through NEPA.

It’s an artifact of the way the laws were written. It wasn’t an intentional design. It’s fixable by administrative action. The agencies

won’t want to do it because it’s time and it’s effort. But if the

Forest Service has to think about how it manages forests, the people who are setting 4(e) conditions, mandatory conditions under the

Federal Power Act, ought to be thinking about those conditions.

You know, ought to be getting public involvement.

There are good conditions and bad conditions from whatever perspective you take. That’s an on-the-ground problem. It’s an in-theagency problem. But for the hydropower industry, it’s a real issue.

And it’s driven—this misapplication of NEPA has driven a tremendous amount of advocacy and rhetoric around hydropower licenses.

And a lot of the legislature we’ve see in the last ten years, if somebody had really sat down and thought about it, it would have been

about fixing resource agency NEPA process and not about fixing

Federal hydropower licensing.

I’ll say this is gratuitous in a way. But FERC has done a better

job, Federal Energy Regulatory Commission, has done a better job

than virtually any other agency in trying to figure out how to implement NEPA. And it’s an artifact of the way Congress has piled

responsibilities on that agency.

There are very few other agencies that have to think about as

many things concurrently as FERC does when they’re issuing a hydropower license or the other major areas, interstate natural gas

lines. They go through—that agency does virtually all of the NEPA

compliance, virtually all of the Clean Water Act compliance, virtually all the Endangered Species compliance.

It’s one of the few places in government where, for the most part,

one brain has to get around all of the issues.

And it’s natural in the hydropower context because when you put

a big chunk of concrete in the middle of a river, everybody’s values

are implicated; energy, environment, recreation, residents. So,

FERC has done a very good job.

This is an outliner in the FERC process. And it’s one that deserves some attention. It may have a fault that addressed in the

legislation. I think there might be a more direct way of getting

there.

You asked for on-the-ground examples. The—NEPA doesn’t write

bloated EIS’s. Agencies write bloated EIS’s. The EIS’s get like that

when agencies don’t know what they’re doing, don’t know how to

56

decide about what they’re doing, or when they’re uncomfortable

with the facts of what they’re doing.

And so you just start papering stuff. And it goes on and on and

on. It’s not ill will. It’s not contempt for parties. It’s not bad—it’s

not a bad attitude. It’s just confusion in the agencies, 99 percent

of the time. Because they’re under such pressure. They have resource constraints. They don’t know which way to jump.

I’ll give you an example. I assume you’re going to head down to the (unintelligible) southwest. I practice a lot of NEPA law. One of

my clients had been ordered by a state agency to build power line

that would cross the border between U.S. And Mexico. The region

needed additional transmission support. The power kept going out.

And the state decided that the place to put the power line was on

Federal land.

Miss MCMORRIS. I’m going to have to ask you to wrap up.

Mr. JENSEN. I’m sorry. OK.

The state ordered the utility to put the power line on Federal

land. Federal land agency hadn’t been consulted.

You can imagine that the NEPA process run by that Federal

agency decided whether to issue a right-of-way for a line it didn’t

ask for, that the state had imposed on it. Went on and on and on.

When you get down to—if you get to Arizona, that’s one to look at.

Miss MCMORRIS. Good.

Mr. JENSEN. But Delay, confusion, excess paper and people being

frozen out of the process, whether it be the project proponent, such

as my clients are, or they’re the neighbors.

Ms. KIMBELL. Madam Chairman, may I provide a very quick

comment.

Miss MCMORRIS. Sure. Very quick and then I’ll have to move on.

Ms. KIMBELL. There are many, many layers of law. Many, many

layers of regulations. And I think, you know, with the previous

FERC example, you know, those 4(e) conditions come from the

forest planning process, which has tremendous public involvement

and who does go through administrative review, very often goes

through litigation. So, they do go through a NEPA process, and yet

there are many overlapping laws and it certainly deserves a look.

Miss MCMORRIS. Thank you. OK. Mr. Inslee, do you have any

other questions.

Mr. INSLEE. Ms. Kimbell, I want to ask you about this cumulative impact issue. You indicated its difficult in that regard. And

I’ve got to tell you, I am deathly afraid of the condition of our

forests in basically the entire western United States with the huge

insect infestations. It has some thinning issues. And we have this

incredible drought. It’s been on us for six or seven years in the

western United States, grossly speaking.

The best evidence that I’ve been able to see suggests that we’re

in a period of climate change globally. And the evidence suggests

that this has the potential and maybe the probability of putting us

in a regimes much more frequent droughts in the western United

States. Which I understand stress of trees make them more susceptible to insect infestation.

Now, this is caused by a cumulative impact of our carbon dioxide

issues throughout the world, not just America. It’s a cumulative effect. About as cumulative as you get.

57

Now, some of us think that this is a major environmental issue

we should deal with. And that Congress and the agencies need the

science to decide and make decisions on energy, whether it’s going

to result in more global warming (unintelligible) drought (unintelligible) more insect infestation.

So, to do that, I—you know, I would think we need actually more

cumulative information than we have right now, because frankly

the Congress has—it’s like an ostrich.

It’s doing absolutely nothing about this problem, which I think

is affecting our forests.

How do we dovetail your concern about a moving target on what

is a cumulative impact and where we set that bar compared to this

issue? Do you have any thoughts?

Ms. KIMBELL. I think you’ve got a double pronged thing going

there in that one part of that is the science. The science of what’s

happening on the forested stands across the United States. What’s

happening with differences in climate with climate shifts, climate—

perhaps climate change. And we work very, very closely with

Forest Service research. In fact, most of the research that’s done

on things like (unintelligible) is done by the United States Forest

Service. It’s done in concert with different universities.

In the work that we do, we—and when we analyze the facts, we

work closely with forest research with the local universities, in my

case with the Universities of Montana, Idaho and North Dakota, in

analyzing the effects of our projects.

The other piece is where is there a standard, a standard of cumulative effects. There is a standard that can measured in process

that isn’t a measure of science but rather a measure of using that

available science and using it in your analysis to develop your

project and to make your decision.

Mr. INSLEE. Mr. Jensen was talking about problems in the implementation of the Act. He said it several times that he foresees bigger problems in the implementation of the Act than the statute

itself. And he has ascribed some of that to lack of training, lack of

understanding by the agency employees about their requirements.

Or I think he added a discomfort with what was going on, too. That

might be a little pejorative, but I think that’s what he said.

Tell us about your budgetary situation. Is the budget a concern

in your ability, for instance, to train and really bring your employee staff to be really knowledgeable of the standards—the difficult standards you have? Is that an issue you have now.

Ms. KIMBELL. Budget for training is a matter of prioritizing

where you put your training dollars. And that is not the specific

issue I don’t believe. It is when—in my case, I have 23 vegetation

management projects that are in litigation now. There was a decision made several months ago that changes the bar. It raised the

bar for analysis for all those 23 projects that were completed some

years ago. So, in order for those projects to be able to meet that—

they are not going to meet that current raised bar because of the

decision made at the 9th Circuit.

That’s been something that over my 31-year career has been happening on a pretty regular basis. That bar keeps raising so all

those projects that were completed in recent years may not meet

that bar by the time it gets in front of a judge.

58

Mr. INSLEE. Thank you.

Miss MCMORRIS. I want to just thank all the panelists for being

here. I have found your comments to be very helpful. And I think

we all did. I recognize you all have busy schedules and taking your

time today is very helpful to us.

We may have some additional questions that we’ll submit to you

in writing. And I’d just appreciate it if you would respond to those

questions in writing as we move through the next six months of

this Task Force work.

We’re on a goal of being out of here by 1:00 o’clock.

So, I’m going to go ahead and get the next panel up so we can

try to stay on track.

Miss MCMORRIS. On the second panel, we have Duane Vaagen.

He’s President of Vaagen Brothers Lumber.

Luke Russell, Director of Environmental Affairs for Coeur

d’Alene Mines Corporation. He joins us from Idaho to talk about

NEPA’s role in projects in Idaho and Alaska.

William D. Kennedy, Chairman, Board of Directors of the Family

Farm Alliance. He comes to us from Klamath Falls, Oregon, to tell

us about how NEPA can affect farming.

Craig Urness, General Counsel of Pacific Seafood Group who will

tell us about NEPA’s role in fisheries conservation and management.

Janine Blaeloch, Director of the Western Land Exchange Project.

Janine has extensive experience with NEPA in the land exchange’s

context and is here to share some of those with us.

And last, but certainly not least, is Paul Fish, President of Mountain Gear, Incorporated, a locally based and rapidly growing business here in Spokane. And he will share his perspective on public

participation.

The Task Force welcomes all of you.

As I mentioned earlier, it’s the policy of the Resources Committee

to swear in witnesses. So, I’ll just ask you to stand and raise your

right hand at this time.

[Witnesses sworn.]

Miss MCMORRIS. Thank you. Let the record reflect that the witnesses answered in the affirmative.

And, once again, I’ll just point out this is the clock. Each one has

been given five minutes to make their opening comments. And I’m

going to try to keep us better on track so we can have more questions. And your testimony will appear in full for the record.

So, Mr. Vaagen, will you please begin.

STATEMENT OF DUANE VAAGEN, PRESIDENT,

VAAGEN BROTHERS LUMBER

Mr. VAAGEN. Thank you, Task Force Chairwoman McMorris and

other members of the Task Force. Five minutes for 35 years is

awful quick. But I’ll do my best here.

I’m the President of Vaagen Brothers Lumber in Colville, Washington. I appreciate the opportunity to testify before this hearing

about NEPA. Vaagen Brothers dates back over 50 years in Colville.

Two guys, my dad and uncle, started it making railroad ties. They

grew to Colville, Chewelah and Spokane, Washington. And hit high

59

strides in the early ’80s with operations further, too, with Republic

and Ione employing 500 employees.

But in the recent years, we’ve had to adjust quickly. We’re down

to Colville. We’re back at 135. Unfortunately Republic and Ione

have been (unintelligible) and that’s because of the process, policy

and people, some of our own.

We have adjusted to small diameter logs to treat the small di- ameter stands (unintelligible). (Unintelligible) works very well. We

also have a (unintelligible) plant and we make our own energy.

We’ve done this out of where this situation was take us last 50

years. And we would like to salvage the burnt logs and the dead

wood. But there is a delay. And if you don’t get them before they’re

worthless, they are worthless.

We are in forest health crisis. It appears it’s getting worse every

year with no—or with a lack of vision, leadership or direction. Despite the efforts of Healthy Forests Restoration Act, the problem is

worsening faster than our constrained ability to solve it. I believe

the inaction is driven by the analysis paralysis that has created—

is created at this time by the NEPA.

Wildfires average 5 million acres in this country every year. We

salvage and rehabilitate less than 5 percent of those acres, as we

disagree on how to treat them. Gifford Pinchot, the founder of the

U.S. Forest Service, said that the cornerstone of conservation was

to prevent waste of forest resources. We are now wasting our resources because of an environmental analysis process that can’t

recognize a dying forest from the dead trees.

I would like to give a couple examples to the Task Force. North of us here about 70 miles (unintelligible) is—there was a fire at Mt.

Leona in 2002. 5,000 acres. There was a debate on what we could

do with that. The Republic mill was (unintelligible) to shutting

down but later did. We agreed on 1200 acres to salvage, and in the

last few weeks we settled on 225 acres. That produced about a

week-and-a-half run for the Republic mill. If we would have

salvaged 80 percent, we’d have half a year.

The following year at Togo, 2003, 5,000-acre fire. This time we

had done much better. I don’t know how they got (unintelligible)

with the NEPA, but it was very fast. We salvaged 1200 acres,

about 10 million feet. That was enough for a two months’ supply

at Colville. If we’d done 80 percent, it probably would have been

enough for almost a year. And at this time we only have about a

2- to 3-month supply of Federal timber contract.

Anybody that relies on 50 percent on Federal timber is out of

business or is going out of business. So, we either have to further

downsize, move to another place of need, or fold up the tent if

something isn’t changed soon. There is a time factor that is important.

So, why can’t the dead and the dying trees be salvaged? Well, we

think NEPA is part of it. We think it does need some streamlining.

It used to be EIS, EA’s. There’s just so many delays. And with

small diameter stands, it’s a big issue. They don’t have a very long

shelf life. Very, very short shelf life. A matter of six months.

On the Colville National Forest, we have about 300,000 acres in

need of thinning. The solution is to treat all these stands before

wildfires devastate them. We have the technology. We have the inVerDate 11-MAY-2000 14:00 Aug 04, 2005 Jkt 000000 PO 00000 Frm 00063 Fmt 6633 Sfmt 6602 J:\DOCS\20808.TXT HRESOUR1 PsN: HRESOUR1
60

frastructure. We can treat that within 20 years. But the problem

that we’re dealing with NEPA, we don’t see it when we get there.

I would like to see somebody help us with this situation. We have a local stewardship group, when we talk about public involvement. It’s very unique. It’s called the Northeast Washington

Forestry Coalition. It’s made up of community business, elected officials, environmental and forest representatives. After two years of

collaboration, intense collaboration, we all agree that the Colville

Forest needs to thin 10 to 15,000 acres of trees annually. With

NEPA in its current form, we’re struggling to get that done. We’d like to help the Forest Service, but it’s like sending your athletes to the Olympics with handcuffs behind their back. We’re

just not getting there. So, we need the regulations to settle the shock and the turmoil. The cost for the Federal government is $121 per thousand, probably runs us about $20 per thousand. And we have a state SEPA,

which is State Environmental Policy Act. And that makes business

difficult but you stay in business. If you had to rely on NEPA and Federal timber supply, you’re out of business.

I would offer four recommendations. I’m going to brief here.

Miss MCMORRIS. Thank you.

Mr. VAAGEN. Reform NEPA to expedite salvage and rehabilita- tion projects that will treat areas within six months of forest fires

and bug infestation. Two: Require Federal agencies to consider the environmental im- pacts of not taking action on a specific project. Three: Require our land managers to treat and manage our dying forests which will help ensure that the current infrastructure and

capacity of our industry will remain. Without the infrastructure in

place, the risk of catastrophic fire and managing our forests becomes nearly impossible. And four: Promote and streamline NEPA approvals for large- scale and long-term stewardship programs on the national forests.

NEPA analysis procedures are limiting our ability to undertake

these common-sense stewardship programs. And five. Encourage and streamline NEPA requirements for small local community forest thinning projects that are 80 acres

and under.

And I also have a report that I would like to submit and testimony of a program I did two weeks ago in Coeur d’Alene. [The prepared statement of Mr. Vaagen follows:]

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

Good morning Task Force Chairwoman McMorris, and other members of the Task Force, my name is Duane Vaagen, and I am the President of Vaagen Bros. Lumber,

(VBL) located in Colville, Washington. I sincerely appreciate the opportunity to testify before you today on the very important issue of streamlining and improving the

National Environmental Policy Act (NEPA). This issue is of critical importance to

efforts to conserve watersheds and wildlife habitat, and to protect people and property, in and around our national forests and other public lands in northeast Washington.

The history of Vaagen Bros Lumber, Inc. dates back to the 1950’s when Bert and

Bud Vaagen began making railroad ties. Over the next 20 years, they grew the business and employed 135 people with operations in Colville, Chewelah, and Spokane,

Washington. They also were the first in the area to put in a biomass cogeneration

plant in the late 1970’s. These independent sawmillers hit full stride in the mid

61

1980’s, with 3 operations in Colville, Ione, and Republic, Washington, eventually

employing 500 employees. With the pullback of federal timber programs in the early

1990s, VBL had to adjust quickly to stay in business. VBL became a leader in the development of small log technology and forest thinning, and innovation has always been a corner stone for our company’s success.

Today, our only active operation is our state-of-the-art sawmill, co-generation facility, and small log handling facility located in Colville that employs 135 people fulltime. However, without a program to restore forest health and thin small diameter

stands on federal lands, VBL will have to shrink our operation further, move to another area of need, or just fold up the tent. We are in a forest health crisis that appears to be getting worse every year with no apparent vision, leadership, and direction. Despite recent efforts like the Healthy

Forests Restoration Act, the problem is worsening faster than our constrained ability to solve it. Simply stated, insect and disease epidemics from over-stocked stands

lead to a dying forest. Dead forests lead to catastrophic wildfire. This leads to communities and lives being threatened or destroyed from out-of-control wildfires. This

problem has been building momentum and gaining severity for the past 15 years. I believe that this inaction is being driven by the analysis paralysis that has been created by the National Environmental Policy Act. Each of us has a responsibility

to care for our national forests, unfortunately, the very laws that were intended to

ensure for that care are actually preventing us from taking action. It is not right

and every American should be appalled by the federal government’s mismanagement of our public lands.

Wildfires are burning an average of over 5,000,000 acres per year annually. Sadly, less than 5% of those forests are being salvaged and rehabilitated and vast tracts

of our damaged forests, watersheds, and wildlife habitat are being left to rot, reburn, and degrade. Gifford Pinchot, the founder of the U.S. Forest Service, said that

the cornerstone of conservation was to prevent waste of forest resources. We are

now wasting our resources because of an environmental analysis process that can’t

recognize a dying forest form the dead trees. I would like to give the Task Force a good example of what I’m talking about. In 2002, 5,000 acres burned on Mt. Leona on the Colville National Forest located

less than 15 miles from our mill in the tiny town of Republic, which was the town’s

largest employer. As a result of the initial cumbersome NEPA process, it was determined that only 1,500 acres would be salvaged. Additional NEPA process delays and

appeals further reduced this to only 220 acres that were actually salvaged, and this

only happened because of the attention of high level officials at the Department of

Agriculture. Salvaging only 4 percent of the burned and devastated area, over a

year after the burn occurred, resulted in less than 2 weeks worth of timber for the

Republic mill. Salvaging 80% of the Mt. Leona Fire would have kept that mill running for 1 year and provided funds for the restoration of the forest. NEPA failed

both the forest and the local community.

In another instance, the 2003 Togo wildfire fire resulted in 5,000 acres being

burned with only 1,200 acres being salvaged. In this case, the 10 million board feet

that was salvaged represented a 2-month supply for our small-log sawmill in

Colville. Again, had we salvaged 80% of this fire, this would have generated 80 million board feet or over 1-year supply for the Colville mill and provided money to rehabilitate the forest, wildlife habitat, and watersheds.

Why can’t burnt, dead, and dying wood be salvaged? I believe that answer is

NEPA. Burnt wood has a commercial value for 1-2 years. After that, restoration of

the forest can only be accomplished at a high cost to the federal treasury; a cost

that government does not presently have the means to provide. Presently, the

Forest Service NEPA process, complete with inevitable protests, lawsuits, and analysis paralysis, usually takes 1.5 to 2 years leaving little to no value to the dead timber. The fact of the matter is the Colville National Forest is dying and burning-up

at least twice as fast as it is being salvaged. It is a sad state of affairs when we

now see that VBL could operate solely on the dead and burned timber on the

Colville, without ever cutting a green tree, yet NEPA constrains federal land managers from restoring our national forests to benefit clean air, clean water, and wildlife habitat, let alone providing jobs in our local communities. We can and must do

better than this.

I previously said the problem is gaining momentum and getting worse. On the

Colville National Forest, there are approximately 300,000 acres of forest in need of

thinning. The solution is to treat all of these stands before wildfires devastate these

areas. We have the current capability, and current infrastructure, to treat all of

these acres within 20 years. Unfortunately, the application of NEPA is preventing

us from being good stewards of our forests and the communities that depend upon

them.

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Sadly, we are presently treating less than 1% of the acres needed each year. We have a local stewardship collaboration group called the Northeast Washington

Forestry Coalition. It is made up of elected officials, community business, environmental, and forest representatives. We have concluded after 2 years of collaboration

that the Colville National Forest needs to thin 10,000 to 15,000 acres annually.

With NEPA in its current form, it is virtually impossible for the Forest Service to

address the backlog, let alone get ahead of mortality on our forests. NEPA regulations have the agency in shock and turmoil. The cost of putting tim- ber sales up on the Colville is now a staggering $121.00 per thousand board feet.

The majority of this cost is associated with NEPA compliance. By comparison, that

is the entire cost of local private wood delivered to our mill in Colville. I will tell

you that we have local and state regulations, including a State Environmental Policy Act (SEPA) that are very difficult, but we can work with them and stay in business. To rely on USFS timber for 50% or more of your supply is the kiss of death

for our businesses and local communities!

What I find interesting is that our good neighbors to the west, the Colville Con- federated Tribes, coincidentally have the same amount of timber management acres

as the Colville National Forest. They have an exemplary forest management program. They also have to comply with NEPA. Their annual harvest is 75 million feet.

The Colville National Forest is approximately 25 million feet and is now forecasted

to decline to about half this amount within 2 years. As a further comparison, the

tribe has one NEPA Coordinator while the adjoining Okanogan National Forest has

31 people.

I keep hearing that the National Forest System needs more funding and people to treat the forest. When the analysis paralysis first set in, we were told that the

Forest Service needed to complete ‘‘bigger and better’’ Environmental Assessments

(EA). When EAs were being successfully challenged in court, we were told that ‘‘bigger and better’’ Environmental Impact Statements (EIS) would get the process moving again. These ‘‘bigger and better’’ documents have only presented those who wish

to stop all land management activities more procedural targets to challenge in court.

Quite frankly, without improvements to NEPA, I have little hope that our trusted

federal land managers will be able to get back to managing our national forests, as

envisioned by Gifford Pinchot. I am a practical person. For me, common sense dictates that we ask what are the

environmental consequences of not treating and restoring our national forests? In

my view, smoke-filled air, wasted natural resources, impaired watersheds, and destroyed wildlife habitats are the antithesis of the protections originally envisioned

by NEPA. Unfortunately, the federal agencies aren’t even considering the impact of

not taking action in NEPA process. Simply put, NEPA is killing the very forest that

it seeks to protect. Unfortunately, nobody is apparently asking this common sense

question.

As I said earlier, it is your job and mine to restore our national forests and protect our local communities. I would like to offer the following solutions as a first step: 1. Reform NEPA to expedite salvage and rehabilitation projects that will treat areas within 6 months of forest fires and bug infestation. 2. Require federal agencies to consider the environmental impact of NOT taking action on a specific project 3. Require our land managers to treat and manage our dying forests, which will help ensure that the current infrastructure and capacity of our industry will

remain. Without this infrastructure in place, reducing the risk of catastrophic

fire and managing our forests becomes nearly impossible 4. Promote and streamline NEPA approvals for large-scale and long-term stew- ardship programs on national forests. NEPA analysis procedures are limiting

our ability to undertake these common-sense stewardship programs. 5. Encourage and streamline NEPA requirements for small local community forest thinning projects that are 80 acres and under. Finally, I would like to introduce into the record a presentation that I gave just

last week to the second annual international Small Log Conference. As part of this

conference, over 120 participants from all over the world toured our facility in

Colville. Without exception, there was unanimous agreement that what we’re doing

at Colville is part of the answer, not the problem, in restoring our forests. Unfortunately, as now implemented, the same cannot be said about NEPA.

Thank you for the opportunity to testify and I would be happy to attempt to answer any questions that you might have.

Miss MCMORRIS. Thank you. Thank you very much.

Mr. Russell.

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STATEMENT OF LUKE RUSSELL, DIRECTOR,

ENVIRONMENTAL AFFAIRS, COEUR D’ALENE MINES CORP.

Mr. RUSSELL. Ms. McMorris, members of the Committee. Thank

you very much for the opportunity to be here. My name is Luke

Russell. I’m the Environmental Director for the Coeur d’Alene

Mines Corporation located in Coeur d’Alene just across the state

line. And based on an earlier comment, I see I brought a hundred

of my closest friends. Coeur d’Alene Mines is an international mining company. We have operations throughout the world but also in Idaho, Alaska

and Nevada. My personal experience includes over 22 years working with NEPA on the permitting, reclamation of hard rock mines. As it’s been stated earlier, the original intent of NEPA was sim- ple and appropriate. Environmental considerations must be included in the decisionmaking process of Federal agencies. We’ve already heard testimony with regard to the extensive litigation,

delays and escalating costs which have created a lot of uncertainty

in the business climate today. It’s very difficult to make a business

decision.

As part of my job, I’m asked to review mergers, acquisitions. And the first thing I’m asked is, How long will it take and what will

it cost to permit. In most jurisdictions of the world, I can answer

that with a high level of certainty. In the United States, however,

that’s a very difficult decision and, as we heard earlier, the bar is

moving. I’d like to give you a few examples of my company’s experience with NEPA.

In the early ’80s, we permitted a mine called the Thunder Moun- tain Mine. It’s located in central Idaho in the cherry stem of the

Frank Church River of No Return Wilderness. It was an open pit,

a cyanide heap leach operation. The company spent about $360,000

on baseline environmental studies getting ready for the EIS. The

EIS itself cost about $160,000. That mine was built, operated and

closed successfully.

Fast forward to 1992. My company permitted an underground

mine in Alaska outside of Juneau. The company spent about $10.8

million in engineering and environmental studies. And the EIS

itself cost $1.3 million. That process took four years. And the gold

prices dropped from about 500 to $380 an ounce. The company

needed to retool the project and redesign it due to the economic

conditions.

Five years later, we proposed a new plan of operation. And the

Forest Service conducted a supplemental EIS to tier off that first

EIS. That project, again, engineering and environmental studies

was about 4.4 million. And that supplemental EIS was $1.6 million.

Some of the reasons I think for this expanding time and escalation in cost you’ve already heard. Inefficient scoping. Most issues

are considered significant due to the threat of litigation and appeals. Alternatives are sometimes carried in analysis that are not

economically viable that are akin to (unintelligible) who forced to

carry an alternative that had a negative 15 percent rate of a return

because of the concern, again, of appeal and litigation.

Well, how can this Task Force help improve NEPA.

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First, I believe that the statute (unintelligible) and the regulations need a very hard look and an overhaul. We need certainty in

the business climate. And in this process we’d recommend that the

statute and its implemented regulations have mandatory timeframes. The public, the applicant, the agencies need to be involved,

but they can’t be an never ending process. There needs to be mandatory timeframes.

A screening process. NEPA envisioned that there would be

scoping that would identify the significant issues for analysis and

then dismiss those that were insignificant. As I mentioned, alternatives that are studied must be viable. Recommend that the Act

take a good hard look at the (unintelligible) of the Clean Water Act

where they look at practicability. For an alternative to be considered practical, it needs to be capable of being implemented after

taking into account the cost, existing technology and logistics in

light of the overall project purpose and balance of relevant environmental considerations.

Cooperating agencies. We heard already that the agencies sometimes don’t engage until very late in the process. The statute

should be revised to ensure and encourage and enforce all agencies

involved with interest in the decisionmaking get involved early.

We’ve also heard about due process for the process proponent.

The applicant needs to be involved. With our project in Alaska, the

U.S. Forest Service said we could not be an active participant or

other publics, NGO’s, environmental organizations would also have

to be active participants. It seems crazy that the project proponent

would not be active in the process of a NEPA valuation.

One final recommendation is we go to court. That’s the way the

decisions are made. We recommend that NEPA consider establishing under counsel environmental regulations the creation of an

ombudsman with decisionmaking authority, where parties could go

to resolve conflicts rather than go to court.

Conclusion. A year or so ago, former EPA Administrator Whitman stood on the shores of Lake Coeur d’Alene and said what we

need is more progress and less process.

Two weeks ago, I sat with a NEPA coordinator for a project in

Alaska. And he said don’t talk to me about project changes. Whether they’re good or bad, we’re tied to the process. Clearly such focus

away from better decisionmaking and paralysis by process was not

the original intent of NEPA.

Thank you for your time this morning.

[The prepared statement of Mr. Russell follows:]

Statement of Luke Russell, Director, Environmental Affairs,

Coeur d’Alene Mines Corporation

INTRODUCTION

On behalf of Coeur d’Alene Mines Corporation, I am pleased to present testimony

today before this Task Force formed to examine potential improvements in the

National Environmental Policy Act (NEPA).

Coeur d’Alene Mines Corporation, based in Coeur d’Alene Idaho, is the world’s

largest primary silver producer, as well as a significant, low-cost producer of gold.

The Company has mining interests in Idaho, Alaska, and Nevada as well as in Argentina, Australia, Chile and Bolivia. The company has extensive experience with

the NEPA process in Idaho, Alaska as well as in Nevada in the permitting and closure of hard rock mining projects.

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My experience includes over 22 years working with NEPA in the permitting, rec- lamation and closure of hard rock mines in the western United States. I have

worked in government and in industry and am currently the Environmental Director for the company. The National Environmental Policy Act was passed at the dawn of our countries environmental awareness. In the late 1950’s President Eisenhower created a commission to develop a 10 year plan for America. Of the 15 listed priority items the

environment was not one of them. Then came two important publications: Silent

Spring and Night Comes to the Cumberland. These were clarion calls for the public

consciousness on the environment and for federal agencies to seriously consider environmental effects of its actions. The passing of NEPA created the Council on Environmental Quality (CEQ) and lead to creation of the Environmental Protection

Agency along with several environmental legal centers which through litigation

helped defined the law we have today. This began a continuum of environmental

awareness by our society, American industry, including mining, and the federal regulatory agencies. The original intent of NEPA was simple and appropriate: Federal agencies must ensure that environmental amenities and values be given appropriate consideration

in decision making, along with economic and technical considerations. Federal actions significantly affecting the quality of the human environmental are to include

a detailed statement which has became known as the Environmental Impact Statement (EIS), on the environmental impact of the proposed action, any adverse environmental affects, alternatives to the proposed action, relationship between local

short-term uses and enhancement of long-term productivity, as well as any irreversible and irretrievable commitments of resources associated with the proposed action.

The Act was envisioned to supplement existing federal authorities and programs.

The simplicity of the law, however, may have lead to its shortcomings. While the

statute includes no judicial review provision the early court decisions set the course

that NEPA would not be enforced by the federal agencies charged with considering

the environmental affects of its decisions, but by the courts. Thus NEPA is implemented and enforced by costly and time consuming litigation.

NEPA’s brief and often vague provisions have provided the courts opportunity to

create extensive NEPA ‘‘common law’’. For example, the statute does not specify:

• The definition of a significant impact to the ‘‘human environment’’ which then

triggers preparing an EIS,

• The timeline for completing an EIS,

• The scope of an impact statement and level of necessary baseline study,

• The level of analysis in relation to scope of project,

• The range and extent of alternatives an agency must consider,

• When an agency must hold hearings as part of its environmental review process

and who may have standing in such hearings,

• Whether agencies may decide not to prepare an EIS. The CEQ has authorized

agencies to make a decision that an EIS is not required, but the courts have

placed limitations on whether this decision can be made.

The federal courts have thus been left to define and enforce the act. The courts

have been influenced by the hard look doctrine, as the purpose of NEPA was to ensure federal agencies consider environmental values in decision making. Agencies

today are driven by this fear of appeal or litigation. The result is a longer and more

costly process, not necessarily the making of better decisions.

As a part of my job, I participate in evaluations of potential mergers and acquisitions of mining projects throughout the world. In considering a new project the first

thing I am asked is how long will it take and what will it cost to get it permitted.

I can answer this questions will a high degree of confidence in most jurisdictions

around the world, with the exception of the United States. When I first began working with NEPA in the mid 1980’s the time and cost to prepare an EIS for a mining

project took about 18 months and cost about $250,000-$300,000. Today an EIS for

a mining project may take 5-8 years and cost $7-8 million or more, before factoring

in expected appeals and litigation of the ultimate decision. Thus, it is very difficult

to make business decisions in the U.S. under the current permitting environment

on federal lands.

CASE HISTORIES

In the mid-1980’s, Coeur developed the Thunder Mountain Mine in Central Idaho

which was located in the cherry stem of the Frank Church River of No Return Wilderness area on private and U.S. Forest Service administered lands. The project was

an open pit mine and cyanide heap leach operation. It was located upgradient of

Outstanding Resource Waters (ORW) that supported steelhead and salmon fisheries.

The company spent approximately $360,000 in baseline studies for the EIS while

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the NEPA third-party contractor costs were approximately $160,000. The project

was operated and closed successfully. In comparison, in 1992 a Final EIS and Record of Decision (ROD) were issued for

the company’s Kensington Project in Alaska, culminating a four-year environmental

baseline and EIS analysis. The cost of the engineering and environmental baseline

programs involving freshwater quality and fisheries, wildlife, geotechnical, and the

marine environment, to mention only a few categories, was approximately $10.8 million with the attendant third-party EIS totaling $1.3 million. The project was not

built because gold prices had fallen from nearly $500/oz. to about $380/oz. during

this exhaustive NEPA analysis; and one of the cooperating agencies, EPA, took the

position that the project as designed would not meet water quality standards. In 1997, the company retooled the project to address improving the project eco- nomics and agencies concerns. Only a Supplemental EIS was determined to be required by the USFS lead agency. However, the cost of this ‘‘supplemental’’ analysis

was an additional $4.4 million and $1.6 million more was spent for engineering and

environmental studies and the SEIS.

Once again, while the highest engineering and environmental design standards were maintained throughout the process, the price of gold had further declined to

about $290/oz. Once again, an optimization program was initiated by Coeur to reduce capital and operating costs, and maintain environmental performance. A second Supplemental EIS was required for the scaled-down project, and in 2004 the

Final Supplemental EIS was issued. The cost: approximately $4 million in engineering feasibility studies and a new environmental baseline program, and $1.7 million

for the Supplemental EIS.

One reason for this expanding time and escalation in cost to complete NEPA is there are now very few issues an agency is willing to consider insignificant, due to

concern about having their decision appealed. NEPA intended agencies to scope a

project to identify and eliminate from detailed study the issues which are not significant. Applicants today, however, are required to fund exhaustive study and analysis on almost every issue. We are expected to prove effects are negative and then

mitigate for any change in the environment whether or not it would have a significant impact to the environment.

There is nothing in NEPA that requires mitigation for environmental effects. While mitigation is addressed under other federal laws including the Clean Water

Act, federal agencies in response to fear of litigation are attempting to require mitigation or compensation under the Act for even temporary effects. This is contrary

to the originally intent of the law. NEPA intended to encourage agency cooperation however, this is not mandatory nor is it happening very well. For example at the Beartrack Mine Project near

Salmon, Idaho the National Marine Fisheries Services (NMFS) did not engaged in

the NEPA process. They also did not engage during the public comment period in

the Corps 404 permit process. Yet, after the close of the NEPA process and a week

after the close of the Corps 30 day public notice on the wetland mitigation plan for

the project, NMFS provided comments that the ROD be reopened and the 404 permit should be denied. This lead to company, state and federal agencies embarking

on a multi year and 1/2 million dollar effort to address NMFS concerns; Concerns

that were ultimately proven to be overstated.

There is increasing emphasis by federal agencies to use consensus based management in the NEPA process. This involves seeking that all potential stakeholders

come to agreement on the scope of NEPA analysis and alternatives for consideration. The NEPA process was intended to involve and inform the public, but ultimately the decision must be made by the federal agencies, not by a vote of the participants.

Another reason for escalating time and costs to complete NEPA has been pressure

on agencies to require all other permits and approvals be obtained before completing

the NEPA process. This presents a catch 22 scenario. This strategy by project opponents only adds to the cost and time to compete NEPA. For example, again from

our Kensington mine, the Forest Service’s 2004 ROD was appealed on the basis that

other permitting processes had not yet been completed. While the Regional Forester

denied this appeal it created project and investment uncertainty, caused delay in

the processing of other state and federal permits, and added to the cost as the third

party contractor that assisted in preparing documents for review by the regional

forester. NEPA was not intended to be the master approval of a project but rather

ensure environmental effects be given appropriate consideration in the decision

making process

NEPA was intended to be a forwarding looking to guide federal decision making

through evaluation of environmental impacts, along with economic and technical aspects, of proposed actions. Our Rochester Mine in Nevada has been an operating a

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surface mine since 1988 and has undergone several NEPA analyses. The mine is

fully developed and the area of impact defined by as built drawings. We are nearing

the end of the mine’s life and have an approved reclamation and closure plan for

the project by the state and Bureau of Land Management. Now that the mine is

nearing closure we have been required to embark on an EIS for closure. The noaction alternative will be the currently approved reclamation plan for the project.

We must question what major federal decision will be made under these circumstances that requires an EIS? Requiring an EIS after a mine is developed and

operated, only adds cost and uncertainty to the project. These examples illustrate the uncertainty, delay and associated escalating costs in the federal permitting process as a result of NEPA. As a consequence many companies, including mining companies, look overseas for their project investments. Figure 1 provides data presented in the recent National Academy of Sciences review

of hardrock mining regulation and clearly illustrates the declining trend in the number of plans of operations being filed for mining projects. I am confident these trends

are continuing today. For most projects, the time, cost and uncertainty of obtaining

approvals is simply too great in the United States and mining investment looks elsewhere. The cumbersome NEPA process is key to this circumstance. What has been

lost over the years is the balanced look as envisioned under NEPA to consider environmental, economic and technical considerations.

A year or so ago, former EPA Administrator Whitman stood on the shores of Lake Coeur d’Alene and stated that what was needed in the environmental debate today

was progress and less process. Two weeks ago, I sat with the NEPA coordinator on

our project in Alaska and was told we were not talking about more or less impact

of proposed project changes, but that we were tied to process. Clearly such focus

away from better decision making and paralysis by process was not the original intent of NEPA.

RECOMMENDATIONS

How can this Task Force help improve NEPA?

First, the statute is in need of major overhaul not simply a tune up. Some key areas this Task Force could evaluate in improving NEPA include: 1) Mandatory timelines. The NEPA process typically begins by the applicant en- tering into a memorandum of agreement with the lead agency that outlines

funding and contractor selection to prepare the EIS. This typically includes a

schedule for completing the statement. Yet, neither the schedule nor cost is

considered binding by the agencies. There is no enforcement mechanism in

NEPA to ensure that project schedules are met and costs to perform the analysis are appropriate to the level of decision to be made. An updated Act should

include enforceable time limits to complete the NEPA process timely. 2) Local Government Involvement. Local communities, most affected by federal decisions, tend to be disenfranchised from the NEPA process. They find it difficult to become cooperating agencies. The federal agencies may not recognize

them as they don’t have a land use plan, or they lack the resources to participate. While the BLM has recently initiated a program to reach out to local

communities the NEPA statute needs to be amended to formally include local

communities and governments in this role.

The benefits of granting cooperating agency status to local governments include; disclosure of relevant information early in the analytical process, receipt

of technical expertise, avoidance of duplication with state, tribal and local procedures, and establishment of a mechanism for addressing intergovernmental

issues. Such status would neither enlarge nor diminish the decision making

authority for either federal or non-federal entities.

3) Criteria for Standing. For the price of a postage stamp a party can appeal a

NEPA decision even if they were not actively involved in the process. The statute should be amended to clarify that parties must be involved throughout the

process in order to have standing in an appeal.

4) Cooperating Agencies. The intent of NEPA was to ensure agency coordination

in making federal decisions that significantly affect the human environment.

In practice, however, some federal agencies are seen as less than cooperating.

EPA for instance has had a track record of not providing meaningful comment

until very late in the process. This leads to delay and additional cost as the

lead agency then tries to address their comments or concerns very late in the

game. As discussed previously, the National Marine Fisheries Services also has

a track record of weighing in very late in the process to escalate Endangered

Species Act issues or concerns. The statute should be modified to clarify that

federal agencies with an interest must also be engaged throughout the NEPA

process.

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5) Applicant Involvement. The current NEPA process minimizes the role of the

applicant. The applicant is expected to pay for the third party analysis and has

the technical expertise to assist in evaluation of technical and economic aspects

of the proposal as well as reasonable alternatives. Yet, the role of applicants

is generally minimized due to perceived biases in the evaluation. During the

recent supplemental EIS for our Kensington project the U.S. Forest Service

took the position that Coeur, as the applicant, could not actively participate

in the process, or other ‘‘publics’’ such as the Sierra Club or other NGO’s would

also need to be afforded a seat at the table. The statute should be amended

to clarify that the applicant is to have standing as an integral player in the

NEPA evaluation process.

6) NEPA Baseline Data. A plan of operation that will trigger a NEPA analysis

typically is prepared using considerable amounts of baseline information on

project aspects like climate, geology, hydrology and engineering evaluations

used in designing the proposed project. Once NEPA is triggered however, federal agencies tend to minimize this information and then begin anew to obtain

baseline environmental and engineering information. This duplication adds to

the cost and time required to compete NEPA. The statute should be revised

to allow early baseline information to be utilized in the formal NEPA process.

7) Scope of Analysis, NEPA makes no distinction between level of analysis for a

new project, an existing project, or a project entering into closure. A 20 acre

mine may go through the same rigorous process as a 2000 acre mine. The analysis should be commensurate with federal decision to be made and status of

a project. The analysis must consider not only the environment, but cost and

technology as well.

8) Litigation Bonds. Under other legal precedents a litigating party may be asked

to post a bond for delays in a project in order to avoid frivolous lawsuits. Such

a provision does not exist under NEPA. If a party firmly believed it had

grounds to challenge a federal decision following NEPA, then it should be reasonable for them to post a bond should their challenge be overturned.

9) Screening Process. NEPA envisioned that the scoping process would identify

and eliminate from detailed study the issues which are not significant or which

have been covered by prior environmental review (Sec. 1506.3). Yet in practice

the agencies commit a large amount of time, resources and applicants money,

evaluating alternatives and issues raised by agencies or the public that are not

significant, simply to try to avoid future litigation. Again at our Kensington

project one alternative that was carried throughout the analysis and required

exhaustive analysis had an estimated negative 15% return on investment for

the company. This analysis obviously did not balance the environmental, economic or technical considerations as required under NEPA. The law needs to

be fixed to require the consideration of economic criteria in determining reasonably alternatives for the analysis.

The accepted regulatory concept of practicability, as taken from the Clean

Water Act implementing regulations, should be incorporated into the NEPA

regulatory framework. For a project alternative to be considered, it should be

required to be supported by feasibility and engineering studies, and be capable

of being implemented after taking into account: a) cost, b) existing technology,

and c) logistics in light of the overall project purposes to be balanced with relevant environmental considerations.

10) NEPA Ombudsman. One option that may deserve consideration would be to

create within CEQ an Ombudsman with decision making authority to resolve

conflicts within the NEPA process. This would provide a much needed balance

to the pressures put on agencies by environmental law centers, NGO’s and

by applicants so the original intent of consideration of environment, cost, and

technology was being made.

CONCLUSION

The original intent of NEPA was simple and appropriate: Federal agencies must

insure that environmental amenities and values be given appropriate consideration

in decision making, along with economic and technical considerations. The implementation of the Act has been and continues to be bogged down in unnecessary

analysis, litigation and escalating costs. The Act needs an overhaul to return to its

original purpose and some suggestions for doing so have been presented herein. I

thank you for the opportunity to comment before this Task Force today.

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

STATEMENT OF WILLIAM D. KENNEDY, CHAIRMAN,

BOARD OF DIRECTORS, THE FAMILY FARM ALLIANCE

Mr. KENNEDY. Chairwoman McMorris and all members of the

Task Force. My name is Bill Kennedy. And I’ve traveled here today

from Klamath Falls, Oregon, on behalf of the Family Farm Alliance. The Alliance is focused on one mission, to ensure the availability of reliable, affordable irrigation water supplies to Western

farmers and ranchers.

Our ranch is operating one of 1400 family farms and ranches

that depend on water supplies from the Klamath Irrigation Project.

Our ranch is designated as a private wildlife refuge for their operation stronghold.

The members of the Family Farm Alliance have many examples

of how onerous and expensive processes associated with NEPA

compliance contributed to halting the development of otherwise feasible water supply enhancement projects in the western states. As

a matter of fact, just last week our President, Pat O’Toole, provided

two detailed case studies relative to this matter to the House Subcommittee on Water and Power at an oversight hearing in Washington, D.C.

Today I want to provide a sobering example that demonstrates

the apparent double-standard agencies sometimes exhibit when it

comes to NEPA compliance. In my example, compliance with NEPA

by Federal agencies was bypassed to the detriment of my entire

community. I’m talking, of course, about the 2001 curtailment of

Upper Klamath Lake water to the landowners in the Klamath IrriVerDate 11-MAY-2000 14:00 Aug 04, 2005 Jkt 000000 PO 00000 Frm 00073 Fmt 6633 Sfmt 6602 J:\DOCS\20808.TXT HRESOUR1 PsN: HRESOUR1
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gation Project. Proper treatment of NEPA in 2001 would have

served to protect our rights and livelihoods, prevent destruction of

the human environment and their communities and avoid outright

catastrophe.

For 90 years, Klamath Project reservoirs and diversion facilities

were operated to serve the authorized irrigation purpose of the

Klamath Project. There were no downstream river—Klamath River

flow requirements; no minimum upper lake reservoir requirements.

The focus on the project was to optimize irrigation diversions.

In 1995, Reclamation announced that it would develop a plan for

the long-term operation of the Klamath Project. The Klamath

Project Operations Plan, or KPOP, was to define water allocation

scenarios in various year types. Reclamation also stated that it

would prepare an analysis of environmental impacts under NEPA

prior to adopting the KPOP.

In 1997, Reclamation made a fundamental change in the operation of the Klamath Irrigation Project. In 1997 the Project was operated to increase flows in the Klamath River and to maintain high

lake levels in the Upper Klamath Lake reservoir.

The change in operations led to a lawsuit under NEPA. Water

users in 1997 contended that the change in operating criteria required an EIS under NEPA. The court admonished Reclamation to

comply with NEPA with respect to any such future plans regarding

Project operations.

Reclamation at that time represented that it would conduct

NEPA review in the future and, in particular, it would complete an

EIS for long-term operations of the Project by 1999.

Move forward to 2001. Four years have elapsed since Reclamation’s commitment to comply with NEPA and two years have

passed since Reclamation represented to the court that it would

complete an EIS for long-term operation of the project.

NEPA requires Federal agencies to prepare an EIS before the

implementation of major Federal actions significantly affecting the

quality of the human environment. The Federal government in

2001 fulfilled none of the NEPA obligations. Instead they merely

adopted an Operating Plan in 2001 that ultimately harmed our

rural communities.

One of NEPA’s goals is to facilitate widespread discussion and

consideration of the environmental risks and remedies associated

with a project, thereby augmenting the informed decisionmaking

process. NEPA is a deliberate command that the consideration of

environmental factors not be shunted aside in the bureaucratic

shuffle.

The Committee should be aware that in 2001 when a lawsuit

was filed by water users claiming violations of NEPA and seeking

immediate water deliveries, the court in its preliminary injunction

found there was likely not a violation of NEPA because the Endangered Species Act would trump NEPA.

In effect, the multi-year delay in evaluating potential impacts to

agricultural communities and wildlife led to a situation where such

impacts did not have to be evaluated at all. We were told that impacts to our environment, our communities, our wildlife, do not

count.

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In summary, the issuance of the Biological Opinions and the adoption of the 2001 Klamath Project Operations Plan were subject

to full NEPA compliance, which Reclamation admitted it did not

undertake. Even though the EA prepared by Reclamation disclosed

potential environmental effects from Project operations that could

prove significant, Reclamation did not issue a finding of no significant impact. Additionally, Reclamation admitted that it not prepare an EIS prior to the issuance of the 2001 plan.

Federal agencies cannot pick and choose when they will comply with NEPA, or do so in a way that will destroy families, social

structures, communities and the environment. A massive change in

historical operations does require NEPA compliance.

We have several recommendations about how NEPA can be applied in an arbitrary fashion. On the one hand, an advocacy group

points out that NEPA has not been adequately addressed and the

court shuts down the intended action. On the other hand, in my

case, a judge agrees with the plaintiff that NEPA has not been implemented and still allows for the action in question to continue.

While the 2001 Klamath/NEPA issue is personally frustrating to

me, I can tell you that the Family Farm Alliance is very concerned

with this issue from a broader policy standpoint, especially as it relates to the development of new water supply enhancement proposals. We have a few specific recommendations that we hope the

Task Force will consider as it deliberates this matter. And many

of them have already been stated—or are found in my written testimony.

In conclusion, I believe that the 2001 Klamath Basin crisis

opened the eyes of many policymakers and agency managers in

rural communities throughout the United States.

We are seeing improved coordination and cooperation on the

Basin, particularly from local officials employed by the Bureau of

Reclamation and the U.S. Fish and Wildlife Service. Cooperative efforts are important for moving projects through NEPA and permitting processes. Establishing working relationships with agencies involved in the NEPA process and permitting critical. Good cooperation and communications between agencies and groups with an understanding of each participant’s expectations will help in future

problem resolution.

Keep it out of the court. Thank you.

[The prepared statement of Mr. Kennedy follows:]

Statement of William Kennedy, Chairman of the Board,

Family Farm Alliance

Chairwoman McMorris and Members of the Task Force:

My name is Bill Kennedy, and I traveled here today from Klamath Falls, Oregon

on behalf of the Family Farm Alliance. The Alliance advocates for family farmers,

ranchers, irrigation districts, and allied industries in seventeen Western states. The

Alliance is focused on one mission—To ensure the availability of reliable, affordable

irrigation water supplies to Western farmers and ranchers.

The ranch that I operate is one of 1,400 family farms and ranches that depend

on water supplies from the Klamath Irrigation Project (‘‘Project’’). I sit on the Board

of Directors for several irrigation districts, and I’m also a board member of the

Klamath Water Users Association.

I am encouraged that the Task Force on Improving the National Environmental

Policy Act (NEPA) has been formed to address the current state of this important

environmental law. While the Task Force will likely hear many stories of how agency interpretation of NEPA compliance has slowed or even stopped development of

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projects throughout the West, I would like to give you a slightly different perspective today. The members of the Family Farm Alliance have many examples of how

onerous and expensive processes associated with NEPA compliance contributed to

slowing and complicating the development of otherwise feasible water supply enhancement projects in Western states. In fact, the president of the Alliance—Patrick

O’Toole of Savery, Wyoming—recently provided two detailed case studies relative to

this matter to the House Subcommittee on Water and Power at an oversight hearing

last week in Washington, D.C.

However, today I want to provide another, even more serious example that demonstrates the apparent double-standard agencies sometimes exhibit when it comes

to NEPA compliance. While NEPA can sometimes be employed by agency staff in

a manner that makes development very difficult and expensive, in my situation,

compliance with NEPA by federal agencies was bypassed, to the detriment of my

entire community. I am talking, of course, about the 2001 curtailment of Upper

Klamath Lake water to the landowners in the Klamath Irrigation Project. We believe that a proper treatment of NEPA in 2001 would have served to protect our

rights and livelihoods, prevent destruction of the human environment and their

communities, and avoid outright catastrophe. Ultimately, however, the federal government chose to operate Project facilities in a way that eliminated any and all deliveries of water for Klamath Project irrigation on 170,000 acres of land. In addition,

two national wildlife refuges went dry.

The heart of this matter is a change in the operating criteria or rules for the

Klamath Project announced on April 6, 2001, well into the normal irrigation season.

Instead of operating to serve irrigation water needs, the Klamath Project that year

was to be operated to cause water shortage and devastate water users, ignoring all

other water use and activities in the Klamath Basin.

Klamath Project Farming

Thousands of people—family farmers and ranchers, their employees, and agriculture-related businesses—make their living directly from farming and ranching in

the Klamath Project. In turn, their activities support the communities of Malin,

Merrill, Bonanza, Tulelake, Newell, and Klamath Falls.

The irrigated farm land of the Klamath Project includes about 230,000 acres. Of

this, the great majority is served from diversions from Upper Klamath Lake and

points immediately below on the Klamath River. Another area is served via Lost

River and the two smaller reservoirs on the Lost River System—Clear Lake and

Gerber Reservoirs. Farmland in the Klamath Project produces well over $100 million annually in direct revenue, and generates roughly $300 million in economic activity, supporting the farm families, farm workers, businesses and local communities. In addition, there are two national wildlife refuges in the Klamath Project

area: Lower Klamath National Wildlife Refuge and Tulelake National Wildlife Refuge. The refuges have rights inferior to irrigation for water, but rely on the same

delivery system for water as irrigation. The refuges are heavily dependent on ‘‘return flows’’ from irrigated agriculture in the Klamath Project.

Klamath Project irrigation and refuges are, of course, only some of the many uses

of water in the much-larger Klamath Basin. Upstream of Upper Klamath Lake,

there is an estimated 200,000 acres of irrigated land and other uses that divert

water. Downstream, on tributaries to the Klamath River in California, there are

large areas of irrigated lands, particularly in the Shasta and Scott River Valleys,

and an out-of-basin export to the Central Valley of California from the Trinity River

that, in the recent past, amounted to one million acre-feet of water per year. Nevertheless, in the long history of the Klamath Project up to 2001, the water supply has

ordinarily been sufficient to meet these uses, and there have been only a few years

when water shortage occurred to either Klamath Project irrigation or refuges. These

shortages occurred late in the irrigation season when forecasted supplies did not

fully materialize.

Historic Operations

For 90 years, Klamath Project reservoirs and diversion facilities were operated to

serve the authorized irrigation purpose of the Klamath Project. There were no

downstream Klamath River flow requirements or minimum Upper Klamath Lake

reservoir elevations binding on Klamath Project irrigation users. The focus of

Project operations was to optimize irrigation diversions. Upper Klamath Lake reservoir elevations were the result of releases for power generation, judged against irrigation. Clear Lake and Gerber Reservoirs have also been operated historically to

conserve water for, and provide water to, the irrigation districts on the east side

of the Klamath Project.

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Demand for Change in Purposes of Operation

Starting in the 1990’s, political and regulatory demands have affected activities at the Klamath Project. For example, in 1988, the short nose sucker and the Lost

River sucker, two species that live in Upper Klamath Lake, were designated as endangered under the Endangered Species Act (ESA). Biological opinions issued by the

U.S. Fish and Wildlife Service in 1992 and 1994 concerning operation of the Klamath Project identified Reasonable and Prudent Alternatives (RPAs) to avoid jeopardy

to suckers. When the suckers were listed, there had been no mention whatsoever

of reservoir elevations as a factor affecting sucker populations. Nonetheless, these

biological opinions included minimum reservoir elevations to protect the suckers.

These operating elevations were adopted by the Bureau of Reclamation (Reclamation). The reservoir elevations pertaining to Upper Klamath Lake generally allowed

the Project to operate for its intended purposes. During the mid-1990’s, a court

found the reservoir elevations pertaining to sucker populations in Clear Lake and

Gerber Reservoirs to be arbitrary and capricious, and they were invalidated in a

succession of decisions.

In late 1994, demands were made by various parties that Reclamation reprioritize and reallocate water. In particular, demands were made that Reclamation take

steps to increase both Klamath River flows (as measured at Iron Gate in California)

and Upper Klamath Lake reservoir elevations above and beyond the adopted ESA

lake levels. The demand was that new flow requirements and lake elevations be set

with Klamath Project irrigation and refuges eligible for only the amount of water

left over.

In 1995, Reclamation announced that it would develop a plan for the long-term

operation of the Klamath Project. The Klamath Project Operations Plan (‘‘KPOP’’)

was to define water allocation scenarios in various year types. Reclamation also

stated that it would prepare an analysis of environmental impacts under NEPA

prior to adopting a KPOP. The KPOP was to be adopted before the 1996 irrigation

season. A draft long-term KPOP was prepared but not released. Instead, a water

‘‘advisory’’ was released for 1996, and Reclamation stated that it would prepare a

long-term KPOP and Environmental Impact Statement (EIS) by 1998.

Changes to Klamath Project Operations

In 1997, Reclamation made a fundamental change in the operation of the Klamath Irrigation Project. Prior to that time, Project reservoirs and other facilities were

operated to ensure irrigation deliveries; the authorized purpose of the Project. In

1997, priorities were reversed, such that the Project was operated to increase flows

in the Klamath River and to maintain high lake levels in the Upper Klamath Lake

reservoir, with only the water left over being available for irrigation and wildlife refuges that the Project had previously served for nearly a century. In more blunt

terms, the Project was operated in a manner to promote the potential for water

shortages.

The change in operations led to a lawsuit under NEPA. Water users in 1997 contended that the change in operating criteria required an EIS under NEPA. The matter did not come before the court until July of 1997, by which time the court concluded that there would not be any injury (i.e., there turned out to be enough water

to meet irrigation and wildlife refuge needs during the irrigation season in 1997).

The court admonished Reclamation, however, to comply with NEPA with respect to

any such future plans regarding Project operations.

Reclamation, at that time, represented that it would conduct NEPA review in the

future and, in particular, that it would complete an EIS for long-term (multi-year)

operations of the Klamath Project by 1999. The NEPA claim was ultimately dismissed as moot. In the stipulation for dismissal, Reclamation represented that it

would comply with NEPA for its future operations plans. The stipulation also recognizes that for purposes of the NEPA analysis, the ‘‘baseline’’ for determining impacts

would be full agricultural water deliveries.

2001 Operations Plan

By 2001, four years had elapsed since Reclamation’s commitment to comply with

NEPA and two years had passed since Reclamation represented to the court that

it would complete an EIS for long-term operation of the Project. However, that year

the federal agencies sought to bypass both their legal duties to the water users and

NEPA, based on provisions of the ESA. The resulting action was based, in part, on

the amazing conclusion that such shortages are a ‘‘reasonable and prudent’’ alternative that fulfills the purposes of the Project.

On April 6, 2001, Reclamation announced another one-year change in the historic

operation of the Project. That change ultimately had dire repercussions for our community. On that day, USFWS and NMFS each issued new biological opinions (for

74

suckers and newly-listed coho salmon, respectively) for Klamath Project operations.

To achieve the Klamath River flows at Iron Gate in California and the Upper Klamath Lake elevations specified as ‘‘reasonable and prudent alternatives’’ in these

opinions would result in no water whatever for 170,000 acres in 2001. The same

date, Reclamation issued a plan adopting these standards, literally triggering disaster.

NEPA requires federal agencies to prepare an EIS before the implementation of ‘‘major Federal actions significantly affecting the quality of the human environment.’’ The federal government in 2001 did not fulfill their NEPA obligations. Instead, they merely adopted an Operating Plan in 2001 that ultimately harmed our

family farms and rural communities.

Impacts to the Community

The types of economic, human, and environmental suffering threatened by the 2001 Plan were catastrophic. Hundreds of farm and ranch families without income

experienced hardship trying to support themselves. Their ability to pay bills and

service debt was impaired. Collateral (land, equipment) was forfeited. Bankruptcy

occurred. Similar types of impacts occurred for farm employees, and for the owners

and employees of the agriculture related businesses. Long-term supply arrangements were lost because of nonperformance. The demand for social services increased. Some people simply moved out. City parks, schoolyards, and cemeteries went without water. Farm fields became fields of weeds and dust. Tremendous wind-borne soil erosion occurred, impairing

land productivity and causing air pollution. Irrigated farmland provides food and habitat for the abundant waterfowl, deer, antelope, and other species. This value was also lost. Tragically, two of the nation’s

premier national wildlife refuges were left without water for wetlands and waterfowl habitat.

Increased chemical use needed to control weeds and pests has occurred in the

years since 2001. Fields left fallow in 2001 showed decreased production in subsequent years. The harm to the Upper Klamath Basin was overwhelming, and we are to this day feeling its effects.

NEPA Disregarded

As previously noted, NEPA requires the preparation of an EIS before the imple- mentation of actions significantly affecting the quality of the human environment.

One of NEPA’s goals is to facilitate widespread discussion and consideration of the

environmental risks and remedies associated with a project, thereby augmenting an

informed decision-making process. NEPA is a deliberate command that the consideration of environmental factors not be shunted aside in the bureaucratic shuffle. The

requirement for pre-decision environmental review applies both to new projects and

changes to an ongoing project. In addition to the discussion of impacts of an action, core elements of an EIS are

the identification of alternatives and mitigation measures. If an agency is uncertain

whether an EIS is required, before making any decision to go forward with a federal

action, the agency must prepare an environmental assessment (EA). If the agency

determines, based on the EA, that a proposed action has the potential to ‘‘significantly affect the quality of the human environment,’’ then the agency must prepare

an EIS. But the agency must prepare at least an EA and ‘‘convincing’’ findings in

the record before concluding that impacts will not be significant. Otherwise, the failure to prepare an EIS is inconsistent with the law.

In the 2001 Klamath Project case, there was no EIS and no EA, and, it would appear, no NEPA compliance.

The 2001 Plan Represented ‘‘changes in the programmed operation of an

existing Project.’’

The 2001 Operating Plan was a revision to the ongoing management of the Klam- ath Project. In addition to revising the water allocation scheme, the authorized purposes of the Project were subordinated to guaranteeing Klamath Lake reservoir elevations and flows at a specific location in the Klamath River. Regardless of the purpose of the change, the reallocation was a dramatic change from historic operation

of the Klamath Project, and NEPA should have applied. In 1996, Reclamation committed to NEPA compliance for both annual and longterm plans. The federal government took no action to comply with NEPA before deciding to adopt the 2001 Plan. Four years had elapsed since the court admonished

the federal government to comply with NEPA for its changes from historic operations. The completion of an EIS slipped and slipped again, and, in 2001, the agencies proposed to devastate farm families, Klamath Project communities, and the enVerDate 11-MAY-2000 14:00 Aug 04, 2005 Jkt 000000 PO 00000 Frm 00078 Fmt 6633 Sfmt 6621 J:\DOCS\20808.TXT HRESOUR1 PsN: HRESOUR1
75

vironment without any meaningful or public consideration of impacts or alternatives.

The 2001 Plan Was a Major Federal Action

The decision to adopt the 2001 Plan was a major federal action. It had the potential to dramatically affect the environment. Proper timing of environmental review

is one of NEPA’s central themes. The purpose of such early review, of course, is to

prevent the proposal from gaining such momentum that the government loses the

ability to avoid or minimize significant environmental effects, and so that delayed

environmental review becomes a post-hoc rationalization for the project.

On April 6, the day of issuance of the 2001 Operations Plan, Reclamation did not

release any NEPA documentation. Reclamation first produced an Environmental Assessment (‘‘EA’’) only after water users filed a lawsuit.

Unfortunately, the preparation of an EA does not necessarily constitute NEPA

compliance. For actions that cause significant adverse effects, an EIS must be prepared, analyzing impacts, mitigation, and alternatives. If the agency concludes there

are no significant impacts, it must prepare a Finding of No Significant Impacts

(‘‘FONSI’’). In 2001, there was no doubt whatever that the impacts from change in

operation of the Project would be monumentally significant.

The federal government admitted that they failed to complete the required NEPA

review before issuing the 2001 Plan. They further claimed that the 2001 Plan represented an annual operations plan for a continuously operating reclamation project,

and so they should not have to complete NEPA review for the Plan. The 2001 Plan

represented a complete abandonment of the authorized purpose of the Project and

a major change in historical operations as recognized by the court previously. Thus,

the 2001 Plan was a ‘‘major federal action’’ requiring an EIS under NEPA.

Reclamation’s concession that the issuance of the 2001 Plan was subject to NEPA

appears to suggest that Project operations may be subject to NEPA’’. but only a little bit of NEPA.

Finding of the Court

The Committee should be aware that when a lawsuit was filed by water users

claiming violations of NEPA and seeking immediate water deliveries, the court in

its preliminary injunction ruling found there was likely not a violation of NEPA because the ESA would trump NEPA. That preliminary ruling was effectively the end

of that case because it was our only hope for obtaining historic water deliveries in

2001.

In effect, the multi-year delay in evaluating potential impacts to agricultural communities and wildlife led to a situation where such impacts did not have to be evaluated at all. We were told that impacts to our environment, our communities, our

wildlife, do not count.

The further irony, of course, is that the National Academy of Sciences later confirmed that the water allocations to ESA-listed fish in the Klamath River and Upper

Klamath Lake were not scientifically justified, meaning the severe impacts to our

community which did not count and were not considered, were not necessary.

Summary

In summary, the issuance of the Biological Opinions and the adoption of the 2001

Klamath Project Operations Plan were subject to full NEPA compliance, which Reclamation admitted it did not undertake, much less complete. Even thought the EA

prepared by Reclamation ‘‘disclosed potential environmental effects from Project

operations...that could prove significant,’’ Reclamation did not issue a FONSI. Additionally, Reclamation admitted that it ‘‘did not prepare an EIS prior to the issuance

of the 2001 Plan either.’’

Federal agencies cannot pick and choose when they will comply with NEPA, and

do so in a way that will destroy family farms, social structures, communities, and

the environment. A massive change in historical operations requires NEPA compliance.

Klamath water users believe Reclamation had an obligation to consider and protect the contractual rights of water users. Indeed, Reclamation admitted that in its

aborted NEPA process, it intended to look at its contractual obligations to water

users, and would have evaluated, as potential alternatives, means by which those

rights could have been protected. However, when it abandoned NEPA, it also abandoned even a superficial effort to consider its contractual obligation and the rights

of Project water users. And it did this without any analysis or justification whatsoever.

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Recommendations

It is difficult for me to come away from the events of 2001 and offer up meaning- ful lessons learned. For the purposes of today’s hearing, I believe the example I have

just laid out demonstrates that NEPA ‘‘like so many federal laws and regulations—

can be applied to any situation in a manner that is largely dependent on the demeanor of the agency staff that has jurisdiction in the manner. It is clear that

NEPA can be applied in an arbitrary fashion. On the one hand, an advocacy group

points out that NEPA has not been adequately addressed and the court shuts down

intended actions. In another case, a judge agrees with a plaintiff that NEPA has

not been implemented, and still allows for the action in question to continue.

So, the best advice we have to offer in these situations is to stress the importance

of developing sound, working relationships with the federal agencies in your neighborhood.

While the 2001 Klamath NEPA issue is personally frustrating, I can tell you that the Family Farm Alliance is very concerned with this issue from a broader policy

standpoint, especially as it relates to the development of new water supply enhancement proposals. We have a few specific recommendations that we hope the Task

Force will consider as it deliberates this matter:

1. NEPA analyses should require that value be assigned to continued agricultural production in a project area. 2. Impacts of drought and continuing water demands must be assessed and built into the NEPA process. 3. Anything that can be done to streamline the overall permitting process (NEPA, ESA, Clean Water Act, etc.) should be encouraged. The federal government

should consider developing a binding ‘‘pre-application’’ meeting, where the

project proponents and all applicable federal agency representatives are

present to provide a realistic, initial assessment of whether or not ‘‘stopper’’

issues or other regulatory-related fatal flaws will make permitting a prolonged

and expensive endeavor.

4. Agency work on biological opinions should be required to keep pace with devel- opment of NEPA compliance documents. This could lead to improved regulatory streamlining and minimization of big surprises at the ‘‘end’’ of long and

expensive regulatory processes. 5. Congress should consider legislation that would allow the state’s legislative and planning process to be considered in establishing purpose and need for

construction of dam and reservoir projects. 6. If Congress is unwilling to expand the state’s role in establishing the purpose or need for a project, the project sponsor and the state must work within existing guidelines to maximize opportunities. Working within either existing or expanded federal guidelines would facilitate the NEPA analysis, from which all

other permitting processes will tier. The challenge will be to convince regulators, during the permitting process, that the benefits of constructing a proposed future project outweigh the adversities; consequently, there is a justifiable ‘‘purpose and need’’ for the project.

7. Developing a reasonable range of alternatives is also very important in project

planning and the NEPA process. Alternatives must meet the need and purpose

for the project and must be capable of being implemented. It is important to

use the NEPA process to help determine the most appropriate alternative from

the set of reasonable alternatives.

8. Cooperative efforts are important for moving projects through the NEPA and

permitting processes. State and local sponsors should become cooperating agencies in the NEPA process if possible and if not, should be allowed to serve on

the project EIS interdisciplinary team.

Dam and reservoir projects are complex and often controversial. A dedicated local

sponsor or project proponent and a documented ‘‘purpose and need’’ are minimum

requirements for success.

Conclusions

I do not expect that the events of 2001 in the Klamath Basin will be resurrected.

I believe that the 2001 crisis opened the eyes of many policy makers and agency

managers. We are seeing improved coordination and cooperation in the Klamath

Basin, particularly from local officials employed by the Bureau of Reclamation and

the U.S. Fish and Wildlife Service. Cooperative efforts are important for moving

projects through NEPA and permitting processes. Establishing working relationships with the agencies involved in the NEPA process and permitting is critical.

Good cooperation and communications between agencies and groups, with an understanding of each participant’s expectations, will help in future problem resolution.

Thank you.

77

Miss MCMORRIS. Thank you very much. Mr. Urness.

STATEMENT OF CRAIG URNESS, GENERAL COUNSEL,

PACIFIC SEAFOOD GROUP

Mr. URNESS. Thank you. Members of the Task Force, my name

is Craig Urness. What I will testify to today will have a familiar

ring but will relate to our ocean off the West Coast here.

I’m the General Counsel for subsidiaries of Pacific Seafood

Group, one of the larger processors and distributors and fresh and

frozen seafood on the West Coast. Our group is headquartered in

Oregon and has companies in that state, as well as in Alaska,

Washington, California, Nevada, Texas, Utah and British Columbia. We employ over 1700 full-time workers, including seven here

in Spokane at our distribution facility and over 100 up in Mukilteo,

Washington, as well.

Our premise here is very simple. And while we look at it with

regard to the Act that governs our fishery’s management, it would

seem to have broader policy implications and that is, simply put,

that if an Act itself provides substantially or completely for the requirements and policy objectives of NEPA, then NEPA should not

be required in addition to.

At Pacific Seafood, because we rely heavily on the availability of

wild-harvested seafood to meet our customers’ needs and to keep

our coastal processing plants busy, fisheries conservation and management issues are, of course, very important to us. We need to ensure that the species we process and sell are available both now

and into the future. At the same time, fisheries managers must

provide timely and efficient regulations based on the best scientific

information available. We therefore work with the Pacific Fishery

Management Council, one of the eight Federal bodies established

in 1976 under the Magnuson-Stevens Fishery Conservation and

Management Act. And it is here at the heart of fisheries conservation management that we see the National Environmental Policy

Act acting as a roadblock rather than promoting sound decisionmaking.

In order to be practical and effective, fishery management decisions must be made on a timely basis and with the most up-to-date

data possible. You do not want to allow harvest of a fish stock

based on old information, as you run the risk of either over-harvesting a stock that has declined or forcing fishermen to discard

their catch because fish are far more numerous than had been previously assumed. In some cases, fish species are both migratory

and subject to rapid fluctuations in population, size and availability. Pacific whiting, one of our major products, is a good example.

The Magnuson-Stevens Act requires the regional councils to carefully scrutinize the available scientific data, take steps to keep harvest at sustainable levels, consider all socioeconomic environmental

impacts, and make all decisions through a very open and public

process. Up to about five years ago, the rigorous requirements of

the Magnuson-Stevens Act were considered sufficiently analogous

to the NEPA process so as to avoid the need for lengthy, expensive

EIS statement.

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Beginning about the year 2000, the U.S. Department of Commerce, which oversees Federal fisheries management through its

National Marine Fisheries Service, found itself defending against

several lawsuits on fisheries conservation and management issues.

Attorneys routinely began alleging violation of NEPA. And not surprisingly, several of these complaints were granted on that basis.

As a result, the regional fishery management councils now produce

an EIS for every fishery regulation.

There are many, many fisheries on our west coast and in our nation. And these decisions must be made quickly to be effective both

environmental purposes and for a rational use of our resource.

Let me give you some examples of how the NEPA requirements

are affecting our fisheries conservation and management.

The timeframe for decisionmaking has become so long that we

are operating on outdated scientific information. Before NEPA requirements, we could use catch data and scientific information

from 2004 to prepare a stock assessment in 2005 that could be

used to set harvest levels beginning in January of 2006. Today,

after NEPA, that same 2004 data sets harvest levels in 2007. In

other words, we’re using three-year-old data for most species to determine how much fish we can catch. This is no way to currently

manage fisheries.

This is another example. Pacific Council has been grappling with

a complex restructuring of the groundfish fishery. The effort started two years ago and is not expected to produce results until at

least 2009. Now, I’m a part of that process. And that is the best

case scenario. This assumes that the Council will be able to afford

the complex NEPA analysis requirements. In frustration a number

of fisherman and processors are now considering legislative relief.

While we’d rather support the process, an industry-developed approach to rationalizing the fishery with strong conservation controls seems to be the only quick way to sustain economic viability.

Even the most inconsequential regulatory changes are delayed.

One of our fishermen wanted to change some gear.

The Council advised the fishermen simply that you better wait

until next year because the cost and time to do this would be too

great.

Last, but not least, as a result of an expired NEPA analysis that

didn’t consider that there would be more fish in the ocean of a particular species, last year 130,000 metric tons of Pacific whiting

were set off limits. A negative impact on our coastal communities

of over $25 million, with no additional environmental benefit. In

fact, it is much more likely that it had a negative environmental

impact because of the nature of the species that was left in the

ocean.

When the Task Force makes its final recommendations, I hope

it will consider the provisions of section 3 of H.R. 3645, introduced

by Congressman Young of Alaska in the 108th Congress. The bill

offered a rational approach by deeming the fisheries management

decisions made following the strict provisions of the Magnuson-Stevens Act are in compliance with NEPA. And whether enacted as

separate legislation, part of a package of NEPA reforms, or through

the reauthorization of Magnuson-Stevens, this legislative approach

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will restore the ability of our fisheries managers to timely conserve

and manage our fish stocks. Thank you very much.

[The prepared statement of Mr. Urness follows:]

Statement of Craig Urness, General Counsel, Pacific Seafood Group

Mr. Chairman, Members of the Task Force, my name is Craig Urness. I am the General Counsel for subsidiaries of Pacific Seafood Group, one of the larger processors and distributors of fresh and frozen seafood on the west coast. Our group is

headquartered in Oregon and has companies in that state, as well as in Alaska,

Washington, California, Nevada, Texas, Utah and British Columbia. We employ

over 1700 full-time workers, including seven at our sales and distribution facility

here in Spokane.

Because we rely heavily on the availability of wild-harvested seafood to meet our

customers’ needs and to keep our coastal processing plants busy, fisheries conservation and management issues are very important to us. We want to ensure that the

species we process and sell are available both now and in the future. At the same

time, we need fisheries managers to provide timely and efficient regulations, based

on the best scientific information available. We therefore work—both directly and

through the West Coast Seafood Processors Association—with the Pacific Fishery

Management Council, one of the eight federal bodies established in 1976 under the

Magnuson-Stevens Fishery Conservation and Management Act to manage our nation’s marine fisheries. And it is here, at the heart of the fisheries conservation and

management process, that we see the National Environmental Policy Act—NEPA—

acting as a roadblock rather than promoting sound decision-making.

In order to be practical and effective, fishery management decisions must be made

on a timely basis and with the most up-to-date data possible. You don’t want to

allow harvest of a fish stock based on old information, as you run the risk of either

over-harvesting a stock that has declined, or forcing fishermen to discard their catch

because fish are far more numerous than assumed. In some cases, fish species are

both migratory and subject to rapid fluctuations in population size and availability;

Pacific whiting, one of our major products, is a good example.

The Magnuson-Stevens Act requires the regional councils to carefully scrutinize

the available scientific data, take steps to keep harvest at sustainable levels, and

make all decisions through a very open and public process. Until about five years

ago, the rigorous requirements of the Magnuson-Stevens Act were considered sufficiently analogous to the NEPA process so as to avoid the need for lengthy, expensive, environmental impact statements. Beginning about the year 2000, the U.S. Department of Commerce—which oversees federal fisheries management through its

National Marine Fisheries Service—found itself defending against several lawsuits

on fisheries conservation and management issues. As a matter of course, the plaintiffs’ attorneys routinely alleged violation of NEPA, a charge with which many

judges are sympathetic. And, not surprisingly, several of these complaints were

granted. As a result, the regional fishery management councils now have to produce

an environmental impact statement—EIS—for every fishery regulation.

As a practical matter, most fisheries harvest decisions offer two extremes: no fishing, and the maximum amount that scientists say you can catch and still allow relative population stability. As a fisheries manager, you pick a point someplace in between that recognizes scientific uncertainty and maximizes economic and social benefits. But that’s not good enough for NEPA; instead, you have to have an identifiable range of alternatives, analysis of the good and bad of each alternative, and a

rationale for rejecting all the alternatives that you didn’t include, no matter how

unrealistic they are. And if you have an annual fishing season, you have to do this

each and every year.

Let me give you some examples of how the NEPA requirements are affecting fisheries conservation and management on the west coast:

Example 1: The time frame for decision-making has become so long that we are

operating on outdated information. Prior to the imposition of NEPA requirements,

we could use catch data and scientific information from 2004 to prepare a stock assessment in 2005 that would then be used to set harvest levels beginning January,

2006. Now, after NEPA, that same 2004 catch data and 2005 stock assessment are

used to set harvest levels for 2007; in other words, we are using 3 year old data

for most species to determine how much fish we can catch. This is no way to manage fisheries. While NEPA is not entirely to blame, it adds considerably to the

length of time needed without adding to the knowledge base.

80

Example 2: The mind-numbing paper-work requirements erode support for fisheries management. The Pacific Council has been grappling with a complex restructuring of the groundfish fishery. The effort started two years ago and is not expected

to produce results until at least 2009. This assumes that the Council will be able

to afford the complex NEPA analysis requirements. In frustration, a group of fishermen and processors is now considering specific legislative relief to cut through the

Gordian knot of NEPA compliance. While they would rather support the Council

process, they see an industry-developed approach to rationalizing their fishery with

strong conservation controls as the only hope to sustain economic viability.

Example 3: The most inconsequential regulatory changes are delayed. At Council

meeting held earlier this month, one fisherman who delivers fish to our company

sought a minor regulatory change in the description of fishing gear. The current regulations were promulgated in the 1980’s; since that time, advances in technology

and the desire to reduce bycatch and deploy environmentally friendly nets have led

to significant modifications in how fishing gear is built and used. The request was

to change the gear definitions in regulations to match what is commonly used so

fishermen would not be cited for using illegal gear. The advice received from federal

regulatory staff was to make the request next year because the time and effort required under NEPA to address this minor regulatory change was so great that it

might not get done if handled separately, rather than as part of a larger regulatory

package.

Example 4: Complying with NEPA costs us real dollars. We manage our commercial and recreational groundfish fishery with a complicated set of science-based regulations involving harvest limits and closed areas bounded by water depths in order

to protect sensitive species of fish. Last year, our harvest of Pacific whiting was

capped at numbers below biologically acceptable levels because the NEPA analysis

done the previous year did not anticipate an increase in fish numbers. As a result,

over 130,000 metric tons of fish were set off limits to U.S. fishermen—a negative

impact on our coastal communities of over $25 million, with no additional environmental benefit. On other occasions, closed areas could not be modified because scientifically calculated boundary lines had not been analyzed under NEPA in the previous year.

In sum, we have an already complex fisheries management system that bases its

conservation measures on science but that is collapsing under the weight of NEPA’s

administrative paperwork burden. NEPA does not lead to better, or even different,

fisheries conservation decisions; these are based on science. It does lead to costs, to

delays, to extra work, and to decreased revenue for coastal communities.

When the Task Force makes its final recommendations, I hope it will consider the

provisions of section 3 of H.R. 3645, introduced by Congressman Young of Alaska

in the 108th Congress. That bill offered a rational approach by deeming that fisheries management decisions made following the strict provisions of the MagnusonStevens Act are in compliance with NEPA. Whether enacted as separate legislation,

part of a package of NEPA reforms, or through the re-authorization of the Magnuson-Stevens Act, this legislative approach will restore the ability of our fisheries

managers to conserve and manage fish stocks without drowning in paperwork.

Thank you for inviting me to testify today. I would be happy to answer any

questions.

Miss MCMORRIS. Thank you. Thank you for being here.

Ms. Blaeloch.

STATEMENT OF JANINE BLAELOCH, DIRECTOR,

WESTERN LAND EXCHANGE PROJECT

Ms. BLAELOCH. Madam Chairwoman, thank you for inviting me

to testify on the role of the National Environmental Policy Act. My

name is Janine Blaeloch. I’m Director of the Western Land Exchange Project, the Seattle based, non-profit organization that

monitors Federal land exchanges, sales, and conveyances across the

West. My organization works with NEPA every day, mainly helping local citizens learn how to use NEPA to participate in decisions

regarding their public lands.

NEPA is primarily a tool of democracy and disclosure.

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The statute and its regulations provide a clear, consistent structure for citizens to participate in decisions affecting the environment and to understand the possible impact of a project. Under

NEPA one not only can advocate in favor of or against a project,

but is invited to provide substantive knowledge that can help the

agency make a better decision.

Our group sees this occur every day, literally, where local citizens offer unique knowledge that informs land exchange and other

public land decisions.

Our group scrutinizes scores of projects every year, but we challenge very few of them. Indeed, as currently interpreted, NEPA

does not allow us to dispute a project just because we think it is

harmful but only if the process itself has not been properly followed. When the public is given good information, fair alternatives,

and the opportunity to give input, challenges are not necessary nor

will they, unfortunately, be successful.

But if implementation is poor, controversy and opposition will

arise. One such case was the Huckleberry Land Exchange of the

late 1990s here in Washington state, between the Forest Service

and the Weyerhaeuser Timber Company. The Muckleshoot Indian

Tribe, an environmental group, and a community group challenged

the EIS for this land exchange because the significance of the traded lands was totally obscured in the environmental analysis. Not

only was old-growth forest being exchanged for Weyerhaeuser

clearcuts, but so was an ancient trail that the ancestors of the

Muckleshoot Indians had used for thousands of years. The outcome

of the challenge was an improved analysis, the exclusion of the

Indian trail and important ecological areas, including virtually all

of the old-growth forest, and a slightly smaller land exchange.

More important than the specific outcomes have been the longerterm improvements in the Forest Service’s land exchange proposals, environmental studies and decisions that we have witnessed. Because NEPA has made room for citizen involvement and

knowledge, land exchange proposals and decisions have visibly improved since our challenge of the Huckleberry Land Exchange eight

years ago. In this way, NEPA is unquestionably fulfilling its purpose.

Most of the people our organization works with do not necessarily identify themselves as environmentalists. But we found

that when a favorite place is about to be traded or sold, citizens

of all persuasions are inspired to mobilize. They soon learn that the

most dependable tool they have at their disposal is the National

Environmental Policy Act.

An example from outside this region illustrates the eagerness

with which people engage in these decisions. In the Arizona’s Verde

Valley, a congressional land trade has failed to pass for several

years in a row. The developer proposing the exchange had gone to

Congress because he did not want to wait the two to three years

it would take to get through the NEPA process for the exchange.

More than five years later no one was happy.

Verde Valley citizens there have wanted a NEPA process, including an analysis of alternatives that could forestall adverse impacts

on groundwater in their area. Citizen interest has been so intense

that in 2003 Senator McCain, the bill’s sponsor, was compelled to

82

call a meeting in the small town of Camp Verde and an astonishing

600 people showed up. The Senator had to ask the fire marshal to

suspend the fire code as people filled the aisles of the high school

gym. The phrase that most stands out for me in Title I of NEPA is

section C, in which Congress recognizes that each person should

enjoy a healthful environment and has a responsibility to contribute to its preservation and enhancement. This part of NEPA is

fulfilled in citizen action. Citizens may end up disappointed in a result, but our organization has yet to encounter anyone who regretted participating or who did not feel empowered by NEPA. Americans want to be part of our government’s decisions. To alter this cornerstone of civic engagement would betray those who

have already given of their time and energy and those who have

yet to discover this priceless tool of democracy. Thank you again for allowing me to testify.

[The prepared statement of Ms. Blaeloch follows:]

Statement of Janine Blaeloch, Director,

Western Land Exchange Project

Madame Chairwoman, thank you for inviting me to testify on the role of the National Environmental Policy Act. My name is Janine Blaeloch. I am Director of

the Western Land Exchange Project, a non-profit public-interest organization that

monitors federal land exchanges, sales, and conveyances across the West. My organization works with NEPA every day, mainly through helping local citizens learn

how to use NEPA responsibly and effectively to participate in decisions regarding

their public lands.

NEPA is primarily a tool of democracy and disclosure. The statute and its regula- tions provide a clear, consistent structure for citizens to participate in decisions affecting the environment and to understand the possible impacts of a project. Under

NEPA, one can not only advocate in favor of or against a proposal or an alternative,

but is invited to provide substantive knowledge that could help the agency make

a better decision. We see examples of this every day, where local citizens offer

unique knowledge that informs land exchange decisions.

Our organization scrutinizes scores of projects every year, but we challenge very

few of them. Indeed, NEPA does not allow us to dispute a project just because we

think it is harmful, but only if the process itself has not been followed properly.

When the public is given good information, fair alternatives, and the opportunity

to give input, challenges are not necessary (nor will they be successful).

On the other hand, if implementation is poor, controversy and opposition will

arise. One such example was the Huckleberry Land Exchange of the late 1990s,

here in Washington State, between the Forest Service and Weyerhaeuser Timber

Company. The Muckleshoot Indian Tribe, an environmental group, and a community group challenged the EIS for this land exchange because the significance of the

traded lands was totally obscured in the environmental analysis. Not only was oldgrowth forest being exchanged for Weyerhaeuser clearcuts, but so was an ancient

trail that the ancestors of the Muckleshoot Indians had used for thousands of years.

The outcome of the challenge was an improved analysis, the exclusion of the Indian

trail and important ecological areas—including virtually all of the old-growth

forest—and a slightly smaller land exchange.

In a trade that followed in 1998, between Plum Creek Timber and the Forest

Service, a ‘‘streamlining’’ of the NEPA process had dire results. Because the government had agreed to complete an expedited EIS for the I-90 Land Exchange, several

errors and oversights occurred that in fact ended up delaying the project significantly. Chief among those errors was to shortcut the wildlife surveys on the federal

trade lands—and after the deeds had been exchanged, Plum Creek biologists discovered that the Forest Service had traded to the company a nesting area of the Marbled Murrelet, a listed threatened species. Also overlooked in the sped-up process

were the concerns of citizens in Randle, Washington, a distressed former logging

community whose watershed was being traded to the company. More such obstacles

resulted in the trade being largely reversed. Had an adequate NEPA process been

implemented in the first place, bad decisions and small disasters could have been

avoided.

83

In our experience, NEPA rarely stops a project altogether, but it can substantially

improve the outcome. When we challenged the Crown Pacific Land Exchange in central Oregon, a quick settlement resulted in the preservation of 3,000 acres of rare

eastside old growth. Again, the exchange ended up being only slightly smaller, but

citizen participation in the decision vastly improved the outcome for the environment.

More important than the specific outcomes in these exchanges have been the

longer-term improvements in the Forest Service’s land exchange proposals, environmental studies, and decisions. Because NEPA has made room for citizen involvement and knowledge, land exchange proposals and decisions have visibly improved

since our challenge of the Huckleberry Land Exchange 8 years ago. In this way,

NEPA is unquestionably fulfilling its purpose.

Most of the people our organization works with do not identify themselves as environmentalists, but when a favorite place is about to be traded away, citizens of all

persuasions are inspired to mobilize. They soon learn that the only dependable tool

they have at their disposal is the National Environmental Policy Act.

I would like to add two examples from outside this region that illustrate the eagerness with which Americans engage in these decisions. Citizens of Mayer, Cordes

Junction, and Dewey, Arizona had to school themselves in the NEPA process when

the Bureau of Land Management announced a plan to dispose of 17,000 acres in

their area for subdivision development. The nearby Agua Fria River has already run

dry for seven years, and the impacts to groundwater could be disastrous. Through

the public involvement mechanisms of NEPA—no appeals, no litigation—the communities have compelled the BLM to back up and take a more prudent approach.

Just 35 miles away, in Arizona’s Verde Valley, a congressional land trade has

failed to pass for several years in a row. The developer proposing the exchange had

gone to Congress because he did not want to wait the two to three years it would

take to get through the NEPA process for the exchange. More than five years later,

no one is happy.

Verde Valley citizens want a NEPA process, including an analysis of alternatives

that could forestall adverse impacts on groundwater in their area. Citizen interest

has been so intense that in 2003 Senator McCain, the bill’s sponsor, was compelled

to call a meeting in the small town of Camp Verde and an astonishing 600 people

showed up. The Senator had to ask the Fire Marshall to suspend the fire code as

people filled the aisles of the high school gym.

On its website, the Task Force seems to imply that one purpose of NEPA was to

avoid litigation, but in searching the preambles and purposes statements in the

statute, I see no such idea. Instead, there are references to ‘‘restoring and maintaining environmental quality,’’ ‘‘man and nature...exist[ing] in productive harmony,’’

and other positive, forward-looking goals. I am afraid that the leaders of the Task

Force may be less interested in following NEPA’s intent than in freely re-interpreting it to its detriment.

The phrase that most stands out for me in Title I of NEPA is section (c), in which

Congress recognizes that each person should enjoy a healthful environment and has

a responsibility to contribute to its preservation and enhancement. This is the part

of NEPA is fulfilled in citizen action. Citizens may end up disappointed in a result,

but our organization has yet to encounter anyone who regretted participating or

who did not feel empowered by NEPA. Americans want to be part of our government’s decisions. To alter this cornerstone of civic engagement would betray those

who have already given of their time and energy and those who have yet to discover

this priceless tool of democracy.

Thank you for your consideration.

Miss MCMORRIS. Thank you for coming.

[Applause.]

Miss MCMORRIS. Mr. Fish.

STATEMENT OF PAUL FISH, PRESIDENT,

MOUNTAIN GEAR, INC.

Mr. FISH. Madam Chair and distinguished members of the Task

Force. My name is Paul Fish. I’m the President of Mountain Gear,

a retailer of outdoor gear based here in Spokane. For the record,

I’d like to register my opposition to any amendments to the

National Environmental Policy Act.

84

I started my business in 1983 as a way to get more people out

to enjoy our region. I have a passion for adventure, and selling outdoor gear seemed like a great way to make a living. Mountain Gear

is a growing company. We employ over 80 people, and we’re part

of the $18 billion per year outdoor recreation industry.

As a business person, I’m here to talk about the importance of

NEPA in protecting the region’s natural places. The lakes, rivers,

mountains and forests of the Northwest serve as important habitat,

provide recreational opportunities and jobs for the people in the

area. As such they are an invaluable resource, and decisions regarding them should be made with care and a critical eye for their

long-term viability as provided for currently under NEPA.

While I make my living helping people recreate on our public

lands, I believe that everyone should leave the land so that others

can use it and enjoy it later. An understanding of potential impacts

of actions is key to ensuring that we do not damage the land. This

is the key element of NEPA, ensuring the government and the public understand the impacts of Federal actions on our environment.

Our economy depends upon a healthy environment.

Recently Spokane adopted the fitting slogan, ‘‘Near nature, near

perfect.’’ This is the reflection of the importance of the Spokane

River and the nearby mountains, to our quality of life and the economy of this region. Not only do we explore these places during our

free time, they are compelling reasons to bring new businesses and

visitors to the area.

I recently held a dinner for outdoor businesses and economic development interests to discuss the possibility of creating a recreation business cluster here. We discussed goals and methods to

grow our businesses and bring new like businesses to the region.

It was clear the business leaders in our community understand the

intrinsic link between a healthy environment and a healthy economy.

NEPA’s good for our communities, our environment and good for

business. NEPA helps ensure that we manage our natural resources for the benefit of everyone by requiring that the government is accountable for its decisions. The heart of NEPA is its requirements for public participation and that a wide range of alternatives be considered, including those that will minimize possible

damage to our health, environmental and our quality of life.

NEPA is currently being implemented in the re-licensing of

Avista’s dams on the Spokane River. The NEPA analysis ensures

that considerations such as water quality, flows for kayakers and

fish, water for our waterfalls and many other issues are fully analyzed and disclosed to the public for their review and comment. As

a result, the public has actively participated in the re-licensing of

the Avista dams.

Further, NEPA is one of the only laws that ensures that the Federal agencies fully consider the impacts of their actions on our nation’s invaluable historic and cultural resources. For example,

NEPA requires that the Forest Service must consider and evaluate

how their timber sales might impact the Lewis and Clark Trail.

Protecting the Trail benefits everyone and enhances the tourism

and recreational economies of rural areas.

85

As I earlier stated, I oppose any amendments to weaken NEPA.

Some businesses cut corners to generate short-term returns. But

short-term thinking can have disastrous consequences, especially

when it comes to spending taxpayers’ money on projects that might

harm citizens or their environment. This is not good for our environment or for business.

Over the past few years, there have been several limitations

placed on protections that NEPA provides to communities in order

to speed up the process, including sidestepping NEPA by creating

categorical exclusions. This limits the information available as well

as the opportunity to provide public review, essentially cutting the

interested public out of the process.

Limiting public involvement, restricting information and weakening environmental review won’t avoid controversy and certainly

don’t improve projects. Likely it will increase divisiveness and risk

additional resource damage that’s bad not only for my business but

for the region in the long haul.

NEPA’s promise of review and public involvement must be safeguarded, not sacrificed in the name of expediency. Some would

blame NEPA for delaying projects, but examining projects in detail,

predicting outcomes and thereby providing good information for decisions is good business sense.

Rather than amending or otherwise circumventing NEPA, I

would urge (unintelligible) the Federal agencies responsible for implementing the law get the resources they need to do the job right

and in a timely manner.

Business and the environment can and must exist in a sustainable manner. NEPA has proven to be the key to smart sustainable

management of our environment. To weaken this protection for

short-term gain under the guise of streamlining would be irresponsible to the people and the communities of this great country. Furthermore, as a businessman I firmly believe it would weaken our

economy in the long haul. Thank you.

[The prepared statement of Mr. Fish follows:]

Statement of Paul Fish, President, Mountain Gear Inc.

Madame Chair and distinguished members of the Task Force, my name is Paul

Fish. I am the founder and President of Mountain Gear Inc., a multi-channel retailer of outdoor recreation equipment based in Spokane. For the record, I would

like to register my opposition to any amendments of the National Environmental

Policy Act (NEPA).

I started this business in 1983 as a way to get more people out to enjoy the spectacular places in our region. I have a passion for adventure, and selling outdoor gear

seemed like a great way to make a living. Mountain Gear is a growing company,

we employ over 80 people and it is part of the Eighteen billion per year recreation

industry that relies on our Nation’s public lands and waters.

As a business person, I’m here to talk about the importance of NEPA in protecting

this region’s natural places. The lakes, rivers, mountains, and forests of the Northwest serve as important habitat for fish and wildlife, provide recreational opportunities and jobs for citizens. As such they are an invaluable resource and decisions regarding them should be made with care and with a critical eye for their long term

viability as provided for currently under NEPA.

While I make my living helping people recreate on our public lands, I believe that

everyone should leave the land so that others, including our children, can use it and

enjoy it later. Knowledge and an understanding of potential impacts of actions is

key to ensuring that we do not damage the land—this is one of the key elements

of NEPA—ensuring that the government and its citizens understand the impacts of

federal actions on this Nation’s natural resources.

86

The economy of the Inland Northwest depends upon a healthy environment. Re- cently, Spokane adopted the fitting slogan ‘‘Near nature, near perfect.’’ This is a reflection of the importance of the Spokane River, the nearby mountains, and the

sagebrush steppe to our quality of life and the economy of this region. Not only do

we explore these places during our free time, they are compelling reason to bring

new businesses and visitors to the area. I recently held a dinner at my home for

regional outdoor businesses and economic development interests to discuss the possibility of creating an outdoor recreation business cluster. We discussed goals and

methods to grow our businesses and bring new like businesses to the Spokane area.

It was clear that business leaders in this community understand the intrinsic link

between a healthy environment and a healthy economy. NEPA is good for our communities, our environment and good for business. EPA helps ensure that we manage our natural resources for the benefit of everyone by

requiring that the government is accountable in its decision making process and

allowing the public a voice in that decision making process. The heart of NEPA is

its requirements of public participation and that a wide range of alternatives be

considered—including those that will minimize possible damage to our health, environment or quality of life. NEPA is currently being implemented in the relicensing of Avista’s dams on the Spokane River. The NEPA analysis ensures that considerations such as water quality, flows for kayakers and fish, water for our waterfalls and many other issues are

fully analyzed and disclosed to the public for their review and comment. The public

has actively participated in the relicensing of the Avista dams. Without NEPA and

the public input it requires, the low flows that dry up our famous falls every summer might have continued. Further, NEPA is one of the only laws that ensure that federal agencies fully con- sider the impacts of their actions on our Nation’s invaluable historic and cultural

resources. For example, NEPA requires that the Forest Service must consider and

evaluate how their timber sales impact the Lewis and Clark Trail. Protecting the

Trail benefits everyone and, frankly, benefits the tourism and recreational economies of many rural areas. As I stated earlier, I oppose any amendments to weaken NEPA. In business, it is not uncommon to cut corners to generate short term returns. But short term

thinking can have disastrous consequences, especially when it comes to spending

taxpayer money on projects that might harm citizens or their environment. This is

not good for our environment or for business. Over the past few years, there have

been several significant limitations placed on the protections that NEPA provides

to communities in order to speed up the NEPA process, including side stepping

NEPA by creating categorical exclusions for certain types of projects. This severely

limits the information available, as well as the opportunities to provide public review for my customers and interested businessman like myself; essentially cutting

us out of the process. Limiting public involvement, restricting information, and

weakening environmental review won’t avoid controversy or improve projects, it will

increase divisiveness and risks and additional resource damage that is bad not only

for my business but for the region over the long haul. NEPA’s promise of project review and public involvement must be safeguarded, not sacrificed in the name of expediency. Some would blame NEPA for delaying

projects, but examining projects in detail and predicting outcomes and thereby providing good information for decisions is good business sense. Rather than amending

or otherwise circumventing NEPA, I would urge you to ensure that the federal agencies responsible for implementing the law get the resources they need to do the job

right and in a timely manner. Business and the environment can and must coexist in a sustainable manner.

NEPA has proven to be the key to smart sustainable management of our environment. To weaken this protection for short term gain under the guise of streamlining

would be irresponsible to the people, communities of this great country. Furthermore, as a businessman I firmly believe it would weaken our economy in the long

haul.

Thank you

Miss MCMORRIS. Thank you, Mr. Fish.

[Applause.]

Miss MCMORRIS. OK. We’re going to move onto questions now.

Mr. Vaagen, you referenced, I think, this presentation—Whose job

is it? Would you like that included in the record?

Mr. VAAGEN. Please.

87

Miss MCMORRIS. OK. Without objection, so ordered.

[NOTE: The information submitted for the record has been

retained in the Committee’s official files.]

Miss MCMORRIS. Then I wanted to go back to you, Duane.

I commend the efforts that you’re undertaking right now to work

with the environmental groups and industry in northeast Washington to really take a look at what’s going on in the Colville

National Forest. And I wanted you to just comment on what do you

believe is really preventing you from moving to treat and protect

the national forest.

Mr. VAAGEN. Candidly——

Mr. GOHMERT. We prefer that. Candid.

Mr. VAAGEN. The agency does have their hands tied behind their

backs. I believe in the public involvement and people. And it’s been

that way for years and years. And we’ve gotten better mostly every

year. The problem is this paralysis and going in circles. Whose job

is it? Whose risk is it?

I probably won’t be around before this gets solved. It’s been going

on for 35 years. We’ve been at this a long time. The agency cannot

move quick enough with NEPA analysis. If you have forest that die

in an instant in a fire and it’s destroyed within a year of any commercial value, a year-and-a-half to two-year analysis is not going

to work. It’s a waste of time so don’t go there. Just let us designate

it something else, barren, dead and that’s it.

I just think—we’re trying to restore a healthy forest, and it’s getting unhealthier by the year. You drive around in this area and

you see it whether you know the difference between forest species

and types and stands and elevation, you just see an orange tree.

What’s worse than an orange tree is a complete black tree, and not

burned. One after it loses its needle it’s down to 10 percent moisture content, and that’s great fuel.

British Columbia has a beetle problem that’s as big as the State

of Washington. That’s where we see a fire in five years. Washington state is the only state in this area that hasn’t had a major

fire in the last seven years. Our time is coming, unfortunately. And

we need to prevent them instead of reward them.

I just think it’s a constrain in the analysis. And other people—

is it their responsibility? And what’s the output? Who has the pride

and compassion? It’s all the people. But who lives here? It’s the

people in the community who have been here for generations.

They’re going to admire and protect that environment and that

forest.

Others come in and they leave.

Miss MCMORRIS. Do you think that there’s a better process or a

simpler process that could replace the environmental assessment.

Mr. VAAGEN. Well, I think it worked before. I think as long as

it’s tailored and used for its intended purpose, it works. If it’s used

as a tool or a ploy to stop something, then we need to call it something else.

Miss MCMORRIS. OK. Mr. Russell, under Federal law Federal

agencies are responsible for completing the NEPA analysis. Is it

your impression that agencies are shifting the cost to the applicant,

or how are they funding those costs.

88

Mr. RUSSELL. Well, our experience has been that (inaudible)

start the process with (inaudible) understanding you pay for the

NEPA analysis, which is in principle fine. It’s when we go onto ad

nauseam analysis on alternatives that are unviable on issues that

are not significant to the human environment may reflect some biases of agency individuals that may be against the particular

project. Very difficult to nail down what those costs may be to

chase those types of issues through the NEPA analysis.

So, certainly the cost is escalating to the applicant.

But there is a burden on the agencies as well. Because they bring in all their resource (unintelligible) to the NEPA process. But if we

had definitive timeframes and scopes, then that process is manageable and it’s not a huge diversion from their other duties. And they

do have other duties in their Federal roles.

Miss MCMORRIS. OK. Thank you. Are you ready to go next.

Mr. INSLEE. I’m always ready.

Miss MCMORRIS. OK.

Mr. INSLEE. Madam Chair, I’d like to submit for the record. I

have this CD here with a copy of (unintelligible) CQ regulations.

And (unintelligible) also letters and friends of the Clearwater, I’d

like to (unintelligible).

Miss MCMORRIS. Absolutely. Without objection so ordered.

[NOTE: The information submitted for the record has been

retained in the Committee’s official files.]

Mr. INSLEE. Mr. Vaagen, this is not a question. I just want to say

I’m heartsick about the situation of the forests in our state. And

I think they’re very dire and will become more dire. And I think

one of the reasons is that our climate is changing dramatically.

And I just want to let you know that that’s something I care about

deeply. And I really believe that the Federal government is not

doing its job at really assessing the depth of that problem, number

one, and number two, really doing anything meaningful to respond

to it.

And I can tell you I have (unintelligible) those in Congress, and

they have done nothing to respond to this local issue which is effecting our forests with trees right here in the county. That’s a

statement more than anything else.

Mr. Russell, I wanted to ask you for your expertise and if you

could help us maybe on this issue with—issue of Hauser, Idaho,

where there was this railroad sighting facility or fuel loading facility. And the railroad (unintelligible) apparently (unintelligible)

without any NEPA compliance is my understanding.

Can you share any guidance as to how that happened, if you

know at all. And this may be outside your area.

Mr. RUSSELL. It is. And on the risk of being out of bounds, I am

not that directly involved with that. Because there is the Federal

Transportation Act. The question is a major Federal decision and

that would trigger NEPA. From the state level where they were

seeking authorization, there is no NEPA requirement at the county

level. That issue for permits and approvals.

I personally believe the county did a pretty darn good job of the

process of reviewing that and stipulating, I think, to some 33 conditions before it failed. Was in the construction quality assurance and

quality control which is mind boggling to me personally and has

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given a concern raised by the community and the local county commission. I think it was a construction implementation problem.

Mr. INSLEE. Yeah, I don’t know the circumstances. I am concerned about that where you cite something in the state that might

not have (unintelligible) environmental protections. It gets in the

aquifer. My citizens in my state.

This is one reason to have some Federal (unintelligible). And I

have to assume there is some Federal committee. And I’m going to

try to get to the bottom of this and share that information with the

panel as to how this happened. Because it could be a very significant issue.

[Applause.]

Mr. INSLEE. Mr. Urness, could you give us any guidance. I’m sensitive to this issue of information kind of stale.

Just to let you know. I have been bragging about the Pacific decisionmaking, and I think our goal is to get to the rest of the oceans

to come up to our level of decisionmaking for its biological compliance.

So, we’d like to do anything that would remove something that

would encourage the other fisheries to come up to our level of compliance of biological issues. I’m sensitive to your—what you’re telling us is that decisions are made on stale information.

What would you suggest to try to accelerate the decisionmaking

(unintelligible), one, public input and, two, requirement of fair assessment alternatives by these agencies.

Mr. URNESS. Magnuson-Stevens lists sort of the premise again of

our whole position. This particular regulatory scheme, MagnusonStevens provides for significant public involvement. And, again, up

until 1980, Magnuson-Stevens and the Fisheries Management

Councils did not go through the additional NEPA process. It was

felt that their process in and of itself was public enough and it was

able to involve the entire range of decisions.

By definition, in a fishery you have two ranges of decisions. You

don’t fish a stock or you fish it to its optimum yield. And it’s all

based on best scientific information available.

Where NEPA creates the issue in our setting, not dissimilar to

a burned down forest, where not quite as severe because you can

still assess and catch fish, but you’re doing it on three-year-old

data. The ocean conditions, as we know—look at this year’s salmon

run versus last year.

Those salmon are out there somewhere. They didn’t just disappear. But the ocean conditions change drastically and quickly.

And three-year-old data may cause us to overfish the same species

that was said to be healthy three years ago.

Under the previous Magnuson-Stevens we were under a two-year

window. That’s still not fast enough really. But you are right. The

Pacific Fisheries Management Council is among the leaders of the

eight regional councils. I would agree with that.

Mr. INSLEE. Do you think this is—could we—if we had more resources for these fishery agencies, would that help accelerate this

decisionmaking or not? Do you think that’s an issue or not.

Mr. URNESS. Certainly you could throw more resources at the

agency and more support. But I don’t think that that will increase

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the timeline. I think it would—my opinion is it would simply add

to the bureaucracy.

Mr. INSLEE. So, what you’re suggesting is maybe it needs both,

some type of a timeline and maybe resources.

Mr. URNESS. Possibly. The timeline, again—I’m not against

NEPA. The position that I have with respect to fisheries management is if NEPA can be fully utilized or if NEPA—all of the policies

of NEPA are incorporated in them—and if this was subsequently

enacted law, of course. And so it does have arguably everything

that NEPA requires within it in and of itself. And at NEPA additional regulations on top is what’s causing the delay. That’s my

problem. I don’t know if I’m answering your question.

Mr. INSLEE. Yeah. With this detail we’ll talk about this in depth

in the next couple months.

Mr. Fish, I just wanted to thank you for coming and to find out

where all my kids’ tuition money went. I appreciate that.

Mr. FISH. Appreciate that.

Miss MCMORRIS. Mr. Gohmert.

Mr. GOHMERT. Thank you, Madam Chairman. Again we appreciate your time in coming out. And this is important, I think, that

we hear from folks.

First of all, is Julie Gelasso (phonetic), is she—yes. OK. Do you

mind if I make this part of the record?

Ms. GELASSO. I’d appreciate it since you were asking for public

input.

Mr. GOHMERT. Yeah. And that’s what I’d like. I wasn’t going to

do it unless you said it was OK. But I’d like to and I appreciate

the input.

Miss MCMORRIS. OK. So, without objection, so ordered.

[NOTE: The information submitted for the record has been

retained in the Committee’s official files.]

Mr. GOHMERT. Thank you. That has to do with a project at the

head of the Spokane River. And I haven’t been to Coeur d’Alene

since ’69 at the Boy Scout jamboree up there.

It was beautiful.

Ms. GELASSO. Farragut.

Mr. GOHMERT. At Farragut, right. It was a beautiful area. I

really enjoyed that. The hospitality there was wonderful as well.

Let me go back Mr. Urness and follow up on Congressman

Inslee’s question. What specifically would you say we should do to

improve that? Because obviously if—you know, if they’ve got data

from 2004 and by 2007 there is an extreme shortage in one type

of fish, well, we don’t need to be having an order that says go by

2004.

How do we improve that? I mean specifically. Not in generalities.

Not just put resources or let’s—do you think just putting a timeline

on is adequate.

Mr. URNESS. The specific fix I believe is for either if—if in the

NEPA reform process is, one, to recognize that certain acts conform

to the NEPA standards and policies. Recognize that.

Now, there may be fisheries management decisions within the

fisheries management councils that may involve a broader spectrum where NEPA may be appropriate. But for the vast majority

of the fisheries management decisions that are made, the process

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that is very public and very scientific base and considers a range

of alternatives, by the Act’s definition and its own words, to add

this additional layer of analysis, which is effectively how Department of Commerce has initiated it—and it’s out of fear of lawsuits

because of these activities that really didn’t occur until 2000 that

they may be over-cautious in pursuing the additional NEPA analysis. When in fact prior to that fisheries management—and, again,

I would agree with Congressman Inslee, the Pacific Regional Council is a leader that said even two years, which is what we were

under before, that’s a long time in managing fisheries that we have

out here, or anywhere for that matter.

Mr. GOHMERT. Well, and you mentioned the range of alternatives. And that’s been used by other witnesses as well. Some saying fair alternative. Some saying wide range of alternatives. But

what the statute 1502.14 says itself is vigorously explore and objectively evaluate all reasonable alternatives. And for alternatives

which were eliminated from detailed study then you’ve got to give

reasons why they were eliminated.

So, a wide range, it seems to me, if that’s what people adopt, it’s

just going to take a whole lot more time.

Whereas it’s what’s reasonable. And if there is something that is

reasonable that’s excluded, you got reasons and that can be questioned in public.

Mr. Kennedy, let me go back to you and talking about litigation.

We just heard—well, we heard a lot about that. But there was—

in the Klamath litigation you mentioned a judge was finding that

ESA would trump NEPA. I realize you’re not an attorney, but what

was the basis for finding that? Do you recall.

Mr. KENNEDY. The good news is I’m not an attorney, and the bad

news is that I’m not an attorney.

But in regards to that specific situation it was the most frustrating scenario. We were in a year—it was not the driest year on

record. Yet the (unintelligible) and a lot of our adversaries were

claiming that it was because of the drought that we weren’t getting

the water that we had stored in our reservoir. A judge said, yeah,

you’re right. NEPA wasn’t applied correctly. Don’t worry about it.

The ESA will take care of it anyway.

And that was really, really frustrating. Because we spent hundreds of thousands of dollars (unintelligible) where we were trying

to use NEPA the way it was, what I believe, intended to be used

as, to consider involvement from—from the communities large—I

think if you look at all of the suggestions that have been talked

about today, no one is advocating for dismantling NEPA or the

ESA. And the Family Farm Alliance certainly advocates for

strengthening and modernizing both the Endangered Species Act

and NEPA, and also very soon the Clean Water Act.

[Applause.]

Miss MCMORRIS. Going back just a follow-up, Mr. Kennedy. So

then, how did the Bureau of Reclamation justify their decision to

not undertake, much less complete, the NEPA review.

Mr. KENNEDY. To be quite honest, I don’t think they had an excuse. They said they didn’t do it. And they didn’t. They didn’t comply with it. They didn’t enforce it.

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The local Reclamation office, the management office in Klamath

Falls is under the mid-pacific region. And the mid-pacific region is

that of Sacramento. They were handed a mandate prior to January

19th of the year 2001 that sort of sent this bomb off. The bomb was

handed to the new administration. And the environmental assessment that was done on the Klamath project operation for that year

is what initiated the dismantling of our irrigation deliveries, which

was the purpose of our project that was built in 1905.

Miss MCMORRIS. Would you talk just a little bit further about

your idea of this binding pre-application meeting and how you envision that working and how that might help.

Mr. KENNEDY. That’s a concept that several people have talked

about. I think that something similar was mentioned here earlier

in the first panel that there be an obsmen—can’t say it—obsmen.

Miss MCMORRIS. Ombudsmen.

Mr. KENNEDY. Anyway, you have a process that is very considerate and very deliberate and complete. Doesn’t take eons to go

through. And it’s binding. It’s something contrary or as an alternative to running through a court where you’re going to have a

judge sitting on the bench making the decision on a natural resource issue that he doesn’t really have a clue about. That’s what

that is all about.

Miss MCMORRIS. In your experience, were the local water agencies considered cooperating agencies.

Mr. KENNEDY. We’ve for years and years requested what is called

intervener status in the process. And we have yet to be formally

recognized as having that status in any of the processes including

this.

Miss MCMORRIS. OK. I wanted to go to Ms. Blaeloch and just

ask—you stated in your testimony that NEPA rarely stops a project

altogether. And I recognize that the law doesn’t. But it’s the challenges to the process that do stop projects. And I just wondered if

you agreed or—and if you think that litigation is the best way for

us to really think through how we’re going to best protect the environment in—within—when we’re thinking about these projects.

Ms. BLAELOCH. I think it does delay projects sometimes. But it

tends not to stop them. And it will, in our experience, might alter

a project after litigation. But normally the way that the courts—

I’m not an attorney—but the way that the courts have interpreted

NEPA so far is that it’s a procedural law rather than a substantive

law.

And so they will not normally make a judgment against a decision but only the way the decision was arrived at, whether or not

procedures were followed.

And I don’t think anyone would prefer to go through litigation.

But the problem is not, as someone mentioned earlier, the law. It’s

noncompliance with the law. So, the reason that people sue is because other people have broken the law. And so I think that goes

back to the inconsistencies of the implementation of NEPA. And

need of education among agency staff in how to responsibly, efficiently and in compliance with the law implement it.

If we really had that, we’d have a lot less litigation. But as long

as people are not complying, then citizens will find it necessary to

challenge the agencies to comply.

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Miss MCMORRIS. What has started out, in my opinion, as very

well intended has now resulted basically in most projects either

agencies not taking action for fear of a lawsuit or the projects being

ended up in court.

And part of my goal is to just figure out is there a better way

than doing so much of this through the court action.

Ms. BLAELOCH. And I agree. I would love to see really consistent,

faithful NEPA implementation. And one of the things that—speaking in the arena of my—of the projects that we look at, which are

land exchanges, sales, conveyances over the 11 western states,

which encompasses usually about 70 projects that we’re monitoring

at one time, and about 300 projects that are proposed every year.

As I remarked in my testimony, largely as a result of the

Huckleberry litigation, which was a real shock to the Forest Service, you know, instead of just standing back on their heels, the

Forest Service, which is an agency that I regularly criticize, decided, you know what; we’re going to do something about this. Because we don’t want to have to come to a standstill on land exchanges. And they were receiving a huge amount of grief over this

issue.

And so what they did in response to that litigation was they

went through a major two-year process that rewrote their implementation guidelines for land exchange analysis. They started talking to the public about land trades, which they had previously

treated as sort of complex, secret real estate transactions. And they

just stepped up and said we’re going to try to do this right.

And so our experience has been normally there are not very

many EISs that come out, maybe one a year on a land trade,

maybe two. Mainly they’re environmental assessments. And there

are very few legal challenges.

And in my opinion, it’s largely—and I’m talking about the Forest

Service here, not the other land management agencies. It’s because

the Forest Service really decided that they wanted to get their act

together. And they started writing consistent guidelines for their

staff on how to implement NEPA for land trades.

Who knew? You know. I didn’t expect it to happen. But it was

a really positive outcome of what happened to be unexpected litigation.

Miss MCMORRIS. Mr. Urness wanted to make a comment, I

think. And then——

Mr. URNESS. I do have a comment. I’ll be very brief because I

want to make sure I—within the context of Magnuson-Stevens and

NEPA, what—the point I want to just make sure I’m getting home

clearly is it is having the unintended effect of worsening a process

and worsening the ability of decisionmakers to apply good environmental decisions and socioeconomic decisions.

Because the Act itself provides that decisionmakers and the public need to make their decisions on the best available science. This

gets back to this—we’re now doing it on a two-year delay. But

NEPA has created a three-year delay.

If the Act itself provides that the process is public, (unintelligible) anything because that’s not what we want to do. The intent

is to have a timely use of the information that we have. Otherwise

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our policies are not as effective as they could be. I just want to

make sure I got that across.

Miss MCMORRIS. Very good. Mr. Inslee.

Mr. INSLEE. Thank you. Mr. Russell, you were telling us about

this mine—you were telling a story about a particular mine. I think

you said in Alaska, I think. And you had about $1.6 million costs

of (unintelligible). Is that what you said.

Mr. RUSSELL. Correct.

Mr. INSLEE. What mine was that.

Mr. RUSSELL. It’s called the Kensington Mine.

Mr. INSLEE. Kensington.

Mr. RUSSELL. Kensington.

Mr. INSLEE. So, give us—assuming that that project went

through, what would be the value of minerals taken out of that

over the lifetime of the mine, if you’re—I’m trying to get some

sense of the scope of the project.

Mr. RUSSELL. The proposal was that the mine would mine a

million ounces over ten years; 100,000 ounces a year. That would

depend on the price of gold and the cost to produce.

Mr. INSLEE. So with today’s prices, what’s the gross value of that.

Mr. RUSSELL. The gross value would be somewhere at $4-and-ahalf million. That’s the gross value. That doesn’t account for the

cost to permit, the cost to construct it or the cost to operate. Those

would all be subtracted from that.

Mr. INSLEE. So would the gross value be 4-and-a-half million and

you said 1.6 million in the permitting process.

Is that what you’re saying?

Mr. RUSSELL. I’m sorry. I think I misspoke if I said $4-and-a-half

million. It would be considerably more than that. It would be $450

an ounce times a million ounces.

Mr. INSLEE. So, it’s 450 million.

Mr. RUSSELL. Correct.

Mr. INSLEE. So, you’d be taking about $450 million of the gold

out, and you have an investment of $1.6 million in the permitting

process.

Mr. RUSSELL. Well, no.

Mr. INSLEE. Is that right or not.

Mr. RUSSELL. No. That was just the EIS piece. Then we spent

10.8 million on the environmental studies and engineering the first

time, the first EIS. And that is just to get to the point that you

could get authorization from the Forest Service to construct the

project. That doesn’t include your capital costs or your operating

costs.

Mr. INSLEE. So, that would be about 7-and-a-half percent of the

value of the minerals you take out of the mine; is that about right?

I’m doing quick math.

Mr. RUSSELL. Well, that’s—again, that’s gross value. It doesn’t

account for the cost—you know, the capital costs of that original

project was about 200 million. And the cost to operate was about

$350 an ounce that first (unintelligible).

Mr. INSLEE. But in any event, you’re spending about 7-and-a-half

percent. That doesn’t make the project uneconomical then; is that

a fair statement? Because I assume that’s the case that you’re pursuing it.

95

Mr. RUSSELL. Oh, we’re pursuing it. But certainly the difficulty

we saw was not only the cost but the time that it took to get

through the process, where we lost a window of opportunity when

gold was $500 an ounce.

Mr. INSLEE. But let me ask you kind of a hard question. Mr. Russell, you made a comment about needing to reform the mining laws

in this country. And I share this view in at least one respect. I

have always found it very troublesome that everybody in this room

pay their taxes on April 15, I think—I’m going to check on that actually. And yet this one industry takes our gold out of our mountains and doesn’t pay any meaningful royalty to the—back to the

taxpayers for their asset.

Now we have a representative of the industry suggesting that we

in some sense make it easier to take our gold out of our mountains

and not pay us anything for the ore because we haven’t brought up

to speed this 1872 archaic Act that was really (unintelligible).

How are we to take that? How should we feel about that, while

the industry still refuses to pay the taxpayers the royalty for their

asset.

Mr. RUSSELL. Provided that the subject is germane to NEPA—

the mining industry——

Mr. INSLEE. Well, let me explain to you, sir, just so you know the

nature of my question. And I think that’s an important comment

you made. It’s germane to NEPA because industry is here and asking the panel to make it easier to take our ore out of our mountains

and not pay us anything for it. So, that’s sort of——

[Applause.]

Mr. INSLEE. That’s how I think it’s relevant.

Mr. RUSSELL. Well, the industry has been over the last several

years supportive of mining law reform, not to abolish the mining

law. And there’s been quite a bit of debate on this issue of royalty,

taxes or fees.

The controversy, in my view—and I’m not a mining law expert—

is that it’s not how it would be assessed on the gross value. As you

try to make this analogy of a very profitable mine without considering the cost of capital, the volatility in the mineral price during

the 10-year mine life, versus a net proceeds type of system where

you truly do have a, quote, unquote, profit that you pay some royalty or fee back to the Federal government.

That is the mining—the National Mining Association’s been proposing that for quite a while. But the issue is where do you—when

do you assess that particular (unintelligible).

Mr. INSLEE. I think it would be helpful to resolve this issue to—

and where we can move onto some of these other issues. And I say

that very sincerely because we answer to the public. And when I

go to the public and say the industry wants relief from some of

these issues to help in the NEPA process, the response is not

warmly received frequently because of this issue.

And I hope that in some sense you could help find a resolution

of this to get some royalty pay at a reasonable basis. That’s just

a—kind of a hope.

Do I have any time left?

Miss MCMORRIS. We’ll go around again.

96

But, Mr. Russell, I wanted just to follow up. Thinking of the mining industry and I guess from my perspective the fact that you are

mining metals that are very important to our country in a variety

of perspectives and important to our industry.

I wanted to ask if you could—can you quantify or do you have

numbers on, just in general, how much you spend on permitting in

this country and give us a comparison as—if you can, as to the cost

compared in this country versus other countries and the time lines.

And—and I guess it concerns me when you think about metals, and

many of these are so important to us, individually and to our industries, again, we see mining companies more and more going

overseas.

Mr. RUSSELL. We certainly see it in overseas. They have

laws——

Miss MCMORRIS. Excuse me, real quick. One other item I’d like

you to address is environmental standards in our country versus in

other countries too.

Mr. RUSSELL. I guess I’ll start there. The countries that we do

business in have laws that are very similar to NEPA, where a

statement on the environmental effect of the proposed project, alternatives to that are assessed. Those countries that we operate in

have mandatory timeframes, where that process needs to be complete.

So, our view is that the environmental standards and requirements are not much different country to country versus the U.S.

It’s the way they get applied and it’s the process.

So, for example, in Chile, which has environmental impact statute, has all the same requirements under Clean Air and Clean

Water. But you can get through that process by statute by the

number of days that that particular law allows. But you don’t get

tied up then into numerous appeals and litigation. And so you can’t

get the—so the cost of doing the baseline work and environmental

work is less because the agencies are not concerned about the

threat of being appealed. So, not all I’s are dotted and T’s crossed.

I mean there’s significant issues which is what NEPA was intended are addressed. And we find that those operations are done

in a way that does not adversely effect the environment and does

provide very important minerals, tax base and employment opportunities.

An earlier speaker said the (unintelligible) environment is poverty. And we would certainly agree with that. The mineral involvement is one of the only industries that creates wealth and creates

good-paying jobs in our economy.

Miss MCMORRIS. Thank you. I apologize, Mr. Gohmert. I took

your time. So——

Mr. GOHMERT. You didn’t take my time. I hope I’m still going to

get it.

Miss MCMORRIS. Yes. I—what I’m going to do is give you the

next—I’ll switch five minutes with you. Right? OK. It’s your turn.

Mr. GOHMERT. Thanks. I’m glad we get to follow up on some of

these things.

You know, Mr. Fish, you made a comment early in your presentation, something to the effect that you wanted to register your opposition to any change in NEPA. And if I understood you correctly

97

when you said that, that caused me great concern. And then later

you said you opposed any change that would weaken NEPA. I can

go along with you there. But if it’s opposition to any change at all,

then I have some serious concerns about your objectivity.

Mr. FISH. I believe we should have the NEPA document up on

the board because I—looking at it, it’s—looking at the purpose, it’s

really sound law. I would say I’m against any change that—any

amendment to it that would weaken it. And I would be against any

change to the core paragraph——

Mr. GOHMERT. To that policy. Sure. I think we’re in agreement

on it. OK.

I mean, it reminded me—you know, the true story about the lady

that wanted to cook her ham just like her mother did. She had a

great recipe. And, you know, you all recall the story. The first thing

the recipe called for is to cutoff the first two inches of the small

end.

And then some lady years later wanted a copy of that recipe. And

she called over and said, Why do you cutoff those two inches on the

small end? And she said, I don’t know. That’s my mother’s recipe.

So, she called her mother and said, Why did you—why does the

recipe call for cutting off those two inches? And she said, Because

when we were growing up, we never had a pan big enough to put

the ham in there.

And so, I mean, we need to go back time to time see what the

reason was for some of the laws and see if we need to fix them.

Mr. FISH. We can also—without changing I guess I’d say there

is a purpose to the law there. And that’s what’s important here.

And what I hear is a lot of industry people that are saying, hey,

I see—I see exclusions to the law.

I want mining industries out. I think that guts the law if we let

an industry out from under it.

Mr. GOHMERT. Well, and I can see why you might feel that. But

like, for example, with fishing, I think it’s ridiculous to be making

decisions based on three-year-old data. That needs to be streamlined. We could be hurting the environment more than helping.

But my time is pretty limited. Let me just hit a couple things I

was hoping to. In the——

Miss MCMORRIS. I think I had two minutes that—of your time

originally that I could actually give to you right now.

Mr. GOHMERT. But, you know, litigation is something that I—I’ve

dealt a great deal with, and in having been an attorney and then

a judge and a chief justice.

And we just went through the budget process in Congress. And,

of course, that doesn’t allocate money, it just gives a framework.

But that’s—it’s a tough issue to decide what kind of costs litigation

is going to have on your budget whether you’re a business or you’re

not for profit.

And I was curious, Ms. Blaeloch, you mentioned the—the effects

that you felt like were good things that arose out of litigation. How

do you all go about budgeting? Do you budget for litigation? Do you

litigate and then, you know, raise money to take care of it? How

do you go about doing that?

98

Ms. BLAELOCH. Well, in the Huckleberry case, we had a public

interest attorney who did that case for us. And he did not charge

us any money.

Mr. GOHMERT. Super. See, now there’s evidence that not all attorneys are bad people. They did it without charge.

But, I mean, let’s face it. There’s an awful lot of charge—awful

lot of costs to litigation. There just is. And I didn’t know how you

all went about handling that.

I was going to ask the same thing with some of the other folks.

Ms. BLAELOCH. We don’t have a budget for litigation.

We have filed—our group itself has filed two cases. We just got

a staff attorney three years ago. We have only three staff. We have

a less than $200,000 budget.

It’s staff time. It’s staff salary that goes to litigation. There’s only

one staff person who does litigation.

I think a lot of the costs associated with litigation that people

complain about are costs to the government. And, again, I would

say if the government didn’t break the law, they wouldn’t be sued.

And that’s—they would not have to sustain the costs of litigation.

Mr. GOHMERT. Of course that presupposes you win every case,

which doesn’t normally happen for anybody.

But I’m curious, Mr. Russell, what about you all’s situation on

litigation? How do you budget for litigation that occurs.

Mr. RUSSELL. That’s a good question. We—in our particular company, we know that these decisions will be either appealed or litigated. It’s difficult to budget for that under SEC rules that do you

know for sure you’re going to be litigated. No, we don’t. So, we expect it (unintelligible). Put it into our hours in the budget and our

cost of the project. Once the appeal is—the litigation is filed, then

we have to go back to our board and ask for some more money to

participate.

Mr. GOHMERT. And pardon my ignorance. One of my greatest

strengths is also the greatest weakness. I’m not afraid of embarrassing myself in front of people. But is there no—whether it’s a

royalty fee, something paid to the Federal government for the use

of mining Federal land.

Pardon my ignorance, but I don’t know. Is there nothing paid for

that.

Mr. RUSSELL. Under the current mining law, there is not a roy- alty for mining (unintelligible) and hard rock minerals. There are

certainly taxes paid to local economies as a result of a mining

project. A project that may be several hundred million capital costs,

several hundred jobs, the tax base from those is all a benefit to the

local economy. But under the current mining law, there is not

a——

Mr. GOHMERT. I mean, is there—like in oil and gas, we have oil

and gas in east Texas. There are lease payments, things like that.

Is there any lease payment or anything like that.

Mr. RUSSELL. There can be depending on a specific project, yes.

Mr. GOHMERT. OK. I’m just curious. Thank you. I know I’ve past

my time.

Miss MCMORRIS. Thank you.

Mr. INSLEE. Can I ask a couple more.

Miss MCMORRIS. Absolutely.

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Mr. INSLEE. Thank you very much. I wanted to express some congressional fallibility. I earlier said that 10 million was 7-and-a-half

percent of 450 million. It’s closer to 2 percent. My apologies for failing law school.

[Unintelligible]. There was a GSA study that looked at compliance and related issues particular to salvage sales and thinning

projects, particularly thinning projects. And they concluded, as I recall, that they felt that one of the major problems where—where

there was—when litigation did ensue or there were citizen complaints was a lack of training of the Forest Service personnel and

a lack of consistency of standards that the Forest Service gave

their managers to make decisions.

And, in fact, (unintelligible) GSA—GAO which is the investigatory arm for the Congress, they felt that they were—there was a

certain upper management failure to give decisionmakers standards by which to make decisions. And that was leading to chaos

and having—and citizens being very upset.

And my perception is that the Service is doing a little better job

trying to get now standardized decisionmaking protocols for their

decisionmakers in the field. That’s improving. That was a problem

and it is improving.

What’s your—do you have any comment on that or not?

Mr. VAAGEN. I think you hit part of the nail, maybe on the edge

here. I think they’re playing defense because they’re given so many

tasks to accomplish for all these people.

We pay stumpage for timber no matter what the diameter is.

And we hear that the small thinnings don’t pay. That’s not true.

We’ve been through a generation or two of people. And you ask me

where technology is and are we finding solutions and answers and

making progress. And we are.

So, what I’m saying is they don’t know what the latest is and

what works. We’re for a healthy forest and a good habitat, clean

water and clean air and all those things. The answers are out

there. We’ve got to find those. I hope that’s what your Committee

does.

And one of the things with the Forest Service, every year everything changes. The model changes. Everything everybody wants me

to do changes. So, we never finish anything because NEPA is a

year-and-a-half to two-year compliance on a project.

I’m wondering about the tribe. They go through NEPA too. Our

good neighbors to the west, the Colville Tribe. (Unintelligible)

NEPA coordinator but they have committees. And they went

through a two-year EIS on the whole reservation, the same size as

the Colville National Forest. They treat or harvest 75 million feet;

the Colville Forest is 25. And I think it’s going to go to under 10.

I don’t think we’re going to improve until we hit bottom. And I

don’t think we hit bottom yet. I just want to survive until we hit

bottom.

But this healthy forest and thinning thing has arrived.

I really hope you dig deep and find solutions for that. I think

they’re here right now.

Mr. INSLEE. Well, I got to tell you, I—I mean, I (unintelligible)

about this. I really do believe this has—there have been significant

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management failures in the Forest Service. It’s a difficult challenge. I understand that.

But there has been a lack of executive standardization in decisionmaking. And I think that is improving. That’s my perception.

Just a quick question of Mr. Urness. Have you given any thought

to programmatic EIS’s? Is that one approach that would help or

not, as far as this timing in the decisionmaking.

Mr. URNESS. Again, I’m not a member of the Fisheries Council.

I am part of the public participation. I do know that certain of the

decisionmaking processes do use programmatic EIS. I do know that

they currently do that. I can’t answer much beyond that.

Mr. INSLEE. Great. Thank you.

Miss MCMORRIS. Mr. Gohmert, do you have any further questions?

Mr. GOHMERT. Our time is at an end.

But I would like to thank everybody for your participation and

being here. And a lot of times we see groups and their eyes are

glazed over. And, you know, you feel like you’re wasting time. But

everybody has been alert. And—and, again, if you have something

you would like for us to consider, please submit it in writing. The

Chair has indicated that would be appropriate. The (unintelligible)

can be included. Because we do want to hear from you. And I don’t

think any of us want to, like Mr. Fish, weaken the reason for

NEPA. But we got to take a look at some of these things and see

if the circumstances like a (unintelligible) is changed and it’s time

to change the law in order to better effectuate the purpose for it.

So, thank you all for being here. Thank you for your participation. Thank you, Madam Chairman.

Miss MCMORRIS. Thank you. Thank you for coming.

Do you want to say anything before we wrap up?

Mr. INSLEE. I just want to thank the panel. Very interesting.

Thanks for folks who were interested enough to come out on a

beautiful day.

I just want to echo my colleague’s thoughts that if you have any

opinions about this and share them with us, we will make sure

they were distributed. I think it is important that you do that for

this Task Force to be successful, to get a full flavor of the public

insight. It is very important to know what the public thinks. We

could only handle 12 witnesses today. And I know we’ve got a lot

more people here. So, let us know what you think about all this.

Thank you.

Miss MCMORRIS. Very good. And I want to thank my colleagues

who traveled to my neck of the woods to be here today. Really appreciate you staying here and staying for three long hours.

The hearing record on this one will remain open for ten days.

There’s a website that has been set up. You can access it through

the House Resources Committee. We encourage you to offer your

thoughts, your comments regarding NEPA.

And to the panelists, thank you again. As with the first panelists, we may have additional questions for you that we’ll submit in

writing. And we would just ask for you to answer in writing.

You know, today we’ve heard from small business owners, public

sector entities, NEPA experts, those representing the environmental community. Although, you know, I always hesitate to give

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you that because I consider myself a very—I’m—I consider myself

an environmentalist. And what I am doing is trying to do what is

best for the environment too.

It concerns me. And I—I support—I think we—we look—we look

up here today and we see division of NEPA. But—and that NEPA law. And we talked about, you know, who here wants—Mr. Cannon asked the question: Who wants to change

the NEPA law.

But when you consider that every—nearly every word in that NEPA law has been litigated. And then every step now, as a result

of those, that litigation is being litigated. I only offer that we

shouldn’t close the door. We should be willing to at least consider

is there a better way to protect the environment, to make these decisions in such a way that do take into account the environment

but do also recognize that we want to make—that—that these

projects are done in such a way that protect the environment but

also can move forward. So, that’s not just a delay after delay, which

adds cost.

So, with that we’re going to close for today. This Task Force will be operating for six months. We’re going to go around the country.

Really appreciate everyone being here. You’ve been a great audience. And the meeting is adjourned. [Whereupon, at 1:30 p.m., the Committee Task Force was

adjourned.]

[Additional information submitted for the record follows:]

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

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

The Wilderness Society is a national environmental organization founded in 1935, with its headquarters in Washington, D.C. and with approximately 200,000 members. The Society is dedicated to protecting a national network of wild lands and

fostering an American land ethic. It fulfills its mission through education, analysis,

and advocacy. The Society works to ensure the wise management and protection of

America’s public lands, including our national forests, grasslands, parks, refuges,

and lands administered by the Bureau of Land Management. This testimony focuses

primarily on national forest policy.

The National Environmental Policy Act (NEPA) is the primary legal basis for public involvement and consideration of environmental issues in federal public land

management. Known as the ‘‘Magna Carta’’ of environmental laws, NEPA guarantees that Americans affected by a federal action will get the best information about

its impacts, a choice of good alternatives, and the right to have their voice heard

before the government makes a final decision.

In the Pacific Northwest, NEPA has played a key role in protecting the quality

of life that is vitally important to the region’s economic future. The federal government owns and manages 28 percent of all lands in the State of Washington and 53

percent of Oregon. As federal agencies with ‘‘multiple-use’’ mandates, the U.S.

Forest Service and Bureau of Land Management undertake myriad activities on

their lands that, cumulatively, have far-reaching consequences for the region’s environmental, social, and economic well-being.

During the 1970s and ‘‘80s, for example, the Forest Service and BLM systematically clearcut the ancient forests of western Oregon and Washington under a logging

policy aimed at liquidating the forests and replacing them with even-aged tree plantations. As new information became available about the unique ecological characteristics and values of ancient forests, federal land managers were required by NEPA

to re-examine their understanding of the environmental consequences of logging.

The end-product of the NEPA process was the Northwest Forest Plan, which established a regional network of Late Successional Reserves and Riparian Reserves to

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sustain the northern spotted owl, coho salmon, and thousands of other species that

rely on ancient forests.

Our experience in the Northwest has demonstrated that NEPA saves time and

money in the long run by reducing controversy, building consensus, and ensuring

that a project is done right the first time. For the past six years, The Wilderness

Society has been actively involved in the Lakeview Stewardship Group, a collaborative effort in southern Oregon aimed at restoring a portion of the Fremont

National Forest and providing socio-economic benefits to communities in Lake

County. Working with its partners in the Lakeview collaboration, the Forest Service

has successfully implemented numerous projects, including salvage timber sales,

with minimal controversy or delay. The NEPA process has provided much useful information to those involved in the Lakeview Stewardship Group, as well as providing the opportunity for participation by organizations and individuals that are

not part of the collaboration.

Unfortunately, through a series of regulatory actions that drastically curtail

NEPA implementation, the Bush Administration has greatly diminished public participation and environmental consideration in federal land management. The antiNEPA regulatory actions affecting Forest Service management of national forests

include:

• Categorical exclusion from NEPA documentation of hazardous fuel reduction

projects up to 1,000 acres in size;

• Categorical exclusion of salvage timber sales up to 250 acres;

• Categorical exclusion of green timber sales up to 70 acres;

• Categorical exclusion of land and resource management plans.

The categorical exclusion of Forest Service management plans from NEPA documentation is the most recent—and perhaps the most devastating—administrative

attack on the role of NEPA in national forest management. On January 5, 2005,

the Department of Agriculture issued regulations overhauling the national forest

planning process required by the National Forest Management Act of 1976. The regulations allow the Forest Service, for the first time, not to prepare an environmental

impact statement or assessment when it revises or amends its forest plans. Consequently, the public will not be able to comment on any alternatives to the agency’s

proposed plan or be informed by any analysis of the plan’s potential environmental

effects. Instead, the regulations require every national forest to adopt an ‘‘Environmental Management System’’—a way of auditing an organization’s environmental

performance that evidently provides no opportunity for public involvement.

The Administration claims that getting rid of NEPA will reduce the amount of

time and government expense devoted to forest planning and will allow the Forest

Service to accomplish more and better land management. However, the reality is

that successful public land management requires public trust and support, or at

least acceptance, of the land managers’ plans and proposals. Limiting public involvement and weakening environmental review do not foster trust, avoid controversy,

or improve projects. Furthermore, circumventing NEPA is likely to cost more time

and money in the long-run to fix ill-considered projects or repair resources damaged

by hastily and poorly planned government actions. NEPA helps ensure that federal

agency plans and projects are done right the first time.

Past congressional efforts to carve out exemptions or create special rules for reduced NEPA compliance, such as those contained in the Salvage Rider of 1995 and

the Healthy Forests Restoration Act of 2003, have never achieved their intended results on public lands. That is because the American people do not want to sacrifice

environmental quality or jeopardize the well-being of future generations for the

short-term economic gains resulting from ‘‘streamlined’’ review of environmentally

damaging activities on public lands.

In conclusion, The Wilderness Society urges the Resources Committee and Congress not to tinker with NEPA. It has proven to be an effective law in protecting

the environment and continues to play an essential role in fostering informed public

participation in the Pacific Northwest and across the nation. Rather than looking

for more ways to change NEPA, Congress should provide adequate funding for

NEPA implementation and exercise its oversight responsibilities by taking a hard

look at the ways in which the Bush Administration is dismantling NEPA.

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[A letter submitted for the record by Richard Artley, Grangeville,

Idaho, follows:]

APRIL 30, 2005

Dear NEPA Task Force,

Thank you for allowing me to submit my written testimony for the Congressional

record on the NEPA.

I recently retired from the U.S. Forest Service. I spent 16 years as the NEPA coordinator and NEPA advisor for the Nez Perce National Forest. I reviewed each NEPA

document (either EA/DN or EIS/ROD) before it was signed and finalized by the responsible official. If during my review, I saw a NEPA document that would not

stand up in court and had probable adverse environmental effects, I sent it back

to the District Ranger for rework. This happened many times during my reviews.

You see, the NEPA is a law that forces a government agency to look before it

leaps. This is only common sense. I am quite proud that the Nez Perce National

Forest is in much better ecological health due to my reviews. I saw some project

proposals that were so bad, that if they had been implemented, the environmental

damage clearly would have been major and long-lasting. In fact, the damage would

have been so major and long-lasting that it would have been impossible for man to

fix. The only possible fix would have been nature working by herself for several hundred years. Had there not been a strong NEPA, this ecological damage would have

happened again and again and again and again....

The motivating factor for people to destroy the environment was (and is) big

money extracting natural resources. Timber, minerals and grass for grazing were

the big three. The problem is, the corporations doing the extraction did not own the

land or the natural resources on the land. This land and resources are owned by

the public. Corporations should consider it a right to trash public resources for their

own private financial gain. Corporations are only allowed access to these public resources because of backroom meetings between senior Forest Service managers and

politicians. If the corporations are happy, the politicians are happy also.

Since this land and natural resources are owned by 293 million Americans, NEPA

dictates that the public has a say in what happens to their lands. It just makes

sense that the owner of an asset has a say in what happens to the asset. If the

NEPA were changed to take the public owners out of the process, it would be tragic.

There is no need to improve or streamline the NEPA. It’s working quite well right

now. Limiting public involvement and weakening environmental analysis would

only make our wonderful public forests look like they had been used for air force

bombing practice. It would also result in much more money being spent by the government to fight loosing court battles...when the money could be spent in a more

effective way elsewhere.

Lastly, the major criticism of NEPA is that it takes to long. This is true, a good

environmental analysis with the necessary fieldwork and inventory takes time.

What the detractors of NEPA do not understand is that this is time very well spent.

I am very strongly in favor of keeping the NEPA exactly as it is now.

Again, it all comes down to money. If this were put to a vote of the American

citizens, most would vote in favor of healthy public forestlands unmarred by the

hand of man, when their other choice is increasing the corporate bottom line.

SINCERELY,

RICHARD ARTLEY, 415 EAST NORTH 2ND, GRANGEVILLE, IDAHO 83530

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[A letter submitted for the record by Barbara Coyner, Princeton,

Idaho, follows:]

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

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Statement submitted for the record by Doug Heiken, Oregon Natural

Resources Council, P.O. Box 11648, Eugene OR 97440, 541-344-0675

Please accept the following comments from Oregon Natural Resources Council (ONRC) on the proposed changes to NEPA. Please make sure these comments are

included in the official record. ONRC uses NEPA on a daily basis to represent the

interests of approximately 6,000 members and tens of thousands of like-minded people who share our mission to protect and restore Oregon’s wildlands, wildlife, and

water as an enduring legacy. In our view, NEPA is not broken and does not need

‘‘fixing.’’ In fact, NEPA is the embodiment of Democracy as it applies to important

decisions affecting our common natural heritage. NEPA allows us to become informed of decisions affecting the environment and allows us to provide meaningful

and well-informed public comment on projects that directly affect our health, welfare, and quality of life.

ONRC’s primary goals are to protect and restore healthy ecosystems on federal

forest lands in Oregon. The long record of past agency management clearly shows

that prior to the passage of NEPA the Forest Service and BLM failed to protect public values such as clean water and air, fertile soil, and abundant wildlife, and the

evidence shows that after NEPA was adopted this situation slowly but surely

changed to the betterment of our nation and its people. While it is hard to prove

the causation behind this correlation, it only makes sense that public involvement

helps achieve public values and public objectives.

The vast majority of Oregonians drink surface water that flows from federal forest

lands. Public involvement is therefore sensible from the most fundamental level of

public health. Virtually every Oregonian has had formative experiences on public

forest lands, whether it was camping on the Oregon Coast with family, rafting the

whitewater of the magnificent Rogue River, hiking the Pacific Crest Trail with a

church group, or climbing Mt Hood with friends, Oregonians are connected with the

public lands and they have every right to fully participate in decisions affecting

their cherished public lands.

NEPA is the guarantee that Americans affected by a federal action will get the

best information about its impacts, a choice of sound stewardship alternatives, and

the right to have their voice heard before the government makes a final decision.

NEPA ensures balance, common sense and openness in federal decision-making, it

is an effective tool to keep ’Big Government’ in check. NEPA is an effective means

of ensuring accountability by federal managers, whether they are distant bureaucrats or potentially corrupt local managers.

At the heart of NEPA is its requirement that alternatives must be considered—

including alternatives that will minimize possible damage to our health, environment quality of life, or to protect human life from a wildfire. Comparing the relative

merits of several alternatives is a core requirement of rational decision-making. Absent this requirement, the decision-maker might propose a ‘‘good’’ alternative, but

might miss the opportunity to consider a ‘‘great’’ alternative suggested by the public,

a cooperating agency, or a scientific reviewer.

By making sure that the public is informed and that alternatives are considered,

NEPA has stopped some harmful projects and made countless projects better. Cutting corners on NEPA review can have serious adverse consequences, especially

when it comes to spending taxpayer money on projects that might harm citizens or

their environment. The value of our common air and water cannot be under-estimated. The value of ‘‘ecosystem services’’ is in the trillions. We must not diminish

these services without fully and consciously considering the consequences.

NEPA conserves public resources. Less waste is likely when federal decision-makers operate in the daylight where the public can see what they do. NEPA also saves

time and money in the long run by reducing controversy, building consensus, and

ensuring that a project is done right the first time. Limiting public involvement and

weakening environmental review won’t avoid controversy or improve projects.

NEPA requires federal agencies to use accurate scientific analysis and respond to

opposing viewpoints, which ensures that federal managers use modern standards

and ensures that they don’t put blinders on and ignore relevant information that

has a bearing on the decision. NEPA requires consideration of cumulative effects,

which simply means that federal managers should make decisions within the context of what happened before and what might happen later, and that the left hand

should know what the right is doing.

There is no need to improve NEPA...because it works. A recent example might

help. Several years ago, the Umpqua National Forest’s Diamond Lake Ranger District proposed to log thousands of acres of mature and old-growth forest (some even

in inventoried roadless areas) around Lemolo Reservoir in the High Cascades. In the

course of all stages of NEPA participation (scoping, public meetings and site tours,

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Draft EIS, Supplemental Draft EIS, Final EIS, ROD) the public was able to convince the Forest Service to modify the project so that it could eventually move forward with a modified design. The project was administratively appealed, but appellants agreed to withdraw the appeal in exchange for some changes to the design of

temporary roads to be constructed and assurances about protecting some large trees.

If not for NEPA, this project would certainly have ended up in a contentious lawsuit.

Another example relates to the government’s keen interest in wildland/urban fuel

reduction. NEPA ensures that the trade-offs between fuel reduction and wildlife

habitat and water quality are fully disclosed carefully considered. NEPA also helps

ensure that fuel reduction efforts are effective in terms of reducing fire hazards. It

is well known that thinning forests can reduce fire hazard by reducing surface fuels

and ladder fuels, but it is much less well known that thinning can also make fire

hazard worse by moving fuels form the canopy to the ground where they are relatively more available for combustion during a fire, and by increasing sunlight at

ground level which reduces fuel moisture and stimulates the growth of future ladder

fuels. When properly used, NEPA helps the decision-maker design fuel reduction efforts to optimize the competing values (e.g. reducing fire hazard vs. increasing fire

hazard, degrading water quality, degrading wildlife habitat, compacting soil, etc.)

(NOTE: The recent changes to HFRA that allow consideration of fewer NEPA alternatives run counter to this important function of NEPA.)

Please carefully review the following highly relevant press release from the period

when Chief Bosworth tried to address these issues.

http://www.onrc.org/press/040.bushattack.html

For Immediate Release: June 12th, 2002

For More Information Contact:

Doug Heiken, Oregon Natural Resources, Council p. 541-344-0675

James Johnston, Cascadia Wildlands Project, cell. 541-554-1151

Jasmine Minbashian, NW Old-Growth Campaign, cell. 360-319-3111

Mitch Friedman, Northwest Ecosystem Alliance, p. 360-671-9950 x13

ENVIRONMENTAL SAFEGUARDS UNDER ATTACK BY THE BUSH ADMINISTRATION

CONSERVATIONISTS DEFEND THE ‘‘ENVIRONMENTAL BILL-OF-RIGHTS’’

Eugene, OR—Conservationists responded to a report issued by Dale Bosworth,

Chief of the U.S. Forest Service, who will testify before the House Resources Committee Wednesday, June 12th about environmental laws that seem to prevent the

Forest Service from achieving its resource extraction goals (i.e logging targets).

Bosworth released a report titled ‘‘Process Predicament’’ which amounts to a long

list of examples of Forest Service ineptitude, but the report includes not a single

recommendation to fix the problem.

‘‘Today’s hearing is a set-up for the Bush administration to cook up a ‘‘solution’’

to the problem that will undoubtedly be a timber industry ‘wish list’ to weaken our

environmental safeguards,’’ said Doug Heiken of Oregon Natural Resources Council.

‘‘The bottom line is that the Bush administration is doing industry’s bidding by attacking environmental safeguards to make it easier for the timber industry to destroy our public land legacy.’’

‘‘The real problem is that the Forest Service continues to propose destructive

projects in sensitive areas like roadless areas, old-growth and watersheds that supply clean drinking water,—said Jasmine Minbashian of the Northwest Old-Growth

Campaign ‘‘The real solution is to stop logging in these sensitive areas and begin

to restore the damage from logging excesses of the past. Restoration is something

that everyone can get behind, so it won’t get bogged down in analysis.’’

The solution to gridlock, according to conservationists, is to continue to uphold the

core principles of informed decision-making and accountability and expect federal

forest managers to decide not to log mature and old-growth forests and instead

begin helping rural communities restore public forests and watersheds. Good decisions that restore the forest will be approved quickly without controversy and lawsuits, while bad decisions that destroy old-growth, should be stopped and held accountable.

‘‘Before we irreversibly destroy an old-growth forest or a blue-ribbon trout stream,

it is perfectly reasonable to expect an open and honest decision-making process,’’

said Doug Heiken of Oregon Natural Resources Council. ‘‘Even if it takes a little

more time, requirements for informed and accountable decisions are a small price

to pay to protect our children’s public land heritage. We must not relax environmental safeguards for the convenience of the timber industry or the bureaucrats.’’

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‘‘Environmental review shines a bright light on the dark truth of forest destruction, species extinction, and impaired water quality,’’ said Mitch Freidman of Northwest Ecosystem Alliance. ‘‘The Bush administration wants to pull the wool over the

eyes of the public and ignore the serious consequences of forest destruction. Clean

air, clean water and healthy forests are too important to sacrifice for the convenience of the timber industry.’’

James Johnston of Cascadia Wildlands Project points to the Northwest Forest

Plan, which requires logging some of the last ten percent of old-growth forests in

Oregon and Washington: ‘‘’Analysis paralysis’ is a Forest Service term for public

input. The problem isn’t the process, it’s the product. The public doesn’t support an

old-growth product. We need to focus on restoring forest health, not logging dwindling old-growth forests.’’

‘‘Millions of American’s get their drinking water from rivers and streams that flow

from the National Forests. Do we want to weaken our environmental laws to make

it easier for the timber industry to pollute our drinking water?’’ rhetorically asked

Regna Merritt of Oregon Natural Resources Council.

BACKGROUND INFORMATION ON PROCEDURAL SAFEGUARDS FOR THE ENVIRONMENT

The real source of gridlock

Agency ‘‘gridlock’’ is primarily the result of two things: (1) well-founded public opposition to controversial projects in sensitive areas such as old growth, roadless

areas, drinking watersheds, and important habitat areas, and (2) the agencies’ own

bureaucratic incompetence. The federal courts have found the Forest Service to be

in violation of environmental laws on numerous occasions.

Environmental safeguards are mostly procedural

Dale Bosworth recently said that the accumulation of congressional mandates,

laws and regulations has led to ‘‘analysis paralysis’’ within the agency. To understand this criticism one has to understand the nature of our environmental laws.

Our environmental laws rarely if ever say, ‘‘thou shall not pollute and destroy...’’

Our nation’s principle environmental safeguards are processes and procedures intended to achieve decisions that are fully informed and accountable. The most basic

premise of federal environmental law is that a federal decision-maker must ‘‘look

before they leap.’’

The U.S. Constitution does not protect the environment. Congressional acts like

the National Environmental Policy Act are like a ‘‘due process clause’’ for the environment. It’s the closest thing we have to a Bill-of-Rights for the environment.

These processes and procedures are the main way for the public to hold the government accountable for protecting our public land, air, and water. To suggest that we

weaken our environmental Bill-of-Rights shows just how extreme the Bush administration is.

Table of federal environmental processes, their sources in the law, and their reasonable purposes.

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Note: These laws are primarily directed to federal decisions affecting public land,

not private decisions affecting private lands.

Conservationists have a solution.

The obvious solution to the ‘‘process predicament’’ is to avoid logging in sensitive

areas. Last month conservation groups presented the Bush Administration with a

blueprint for increasing planning efficiencies. On May 2, 2002 Doug Heiken of Oregon Natural Resources Council gave a presentation to the Intergovernmental Advisory Committee (chartered under the Northwest Forest Plan) in which he said:

Focusing on less controversial thinning projects in young managed

stands instead of logging mature and old-growth forests will automatically

streamline project planning processes without weakening federal environmental laws:

a) Fewer wildlife surveys will be required because the old-growth species generally do not occur in the young tree plantations, so surveys will be triggered much

less often. All species associated with young forests were taken off the Northwest

Forest Plan survey list in 2001;

b) The agencies can typically prepare concise Environmental Assessments for restoration projects, instead of more lengthy Environmental Impact Statements that

are required under the National Environmental Policy Act for projects with significant impacts such as logging in roadless areas or old growth;

c) Consultation under the Endangered Species Act will go more smoothly because

restoration-oriented thinning projects generally have long-term benefits that outweigh potential short-term negative impacts. If thinning is part of a comprehensive

restoration effort including roads, streams, and uplands, then ‘‘What’s good for the

forest, should be good for the fish & wildlife;’’ and

d) Appeals and litigation will be minimized or eliminated if the agencies focus on

non-controversial projects.

[The complete statement is available on request from Doug Heiken dh@onrc.org]

The timber industry is cashing in their chips.

The northwest timber industry donated more than one million dollars to Republicans in one 48 hour period during the last presidential campaign and expects favors from the Bush administration.

PORTLAND, Oregon, May 22, 2000 (ENS)—Texas Governor George W. Bush, a Republican candidate for president, raised $1.7 million last week from timber executives and other major donors in Oregon. A dozen executives from the timber industry contributed $100,000 each to the Republican Party in exchange for a 45 minute

meeting with Bush. The executives aired grievances about federal policies toward

their industry, including the Northwest Forest Plan crafted in 1993 by President

Bill Clinton. U.S. Senator Gordon Smith, an Oregon Republican, set up the fundraising meeting so that Bush could ‘‘see their faces, hear their plea and understand

better the plight of rural Oregon.’’ The executives reportedly wanted reassurance

that, as president, Bush would listen to Senator Smith, a timber supporter and

chair of Bush’s campaign in Oregon.

Among the participants in the meeting were Howard Sohn, owner of Sun

Studs, Don Johnson of D. R. Johnson Lumber and John Hampton of Hampton Affiliates. The meeting was held hours before a fund raising gala with

donors offering $15,000 to $20,000 for the Republican Party and a chance

to meet Bush. The Portland ‘‘Oregonian’’ reported that the $1.7 million

raised sets a record for any Oregon campaign event.

http://ens.lycos.com/ens/may2000/2000L-05-22-09.html

‘‘The timber industry, on the other hand, is encouraged. During the presidential

campaign, industry executives got the Republican Party’s attention with a $1.5 million fund-raiser in Portland, Ore. About a dozen timber company executives and industry lobbyists met in December with some of Bush’s key natural resources officials to discuss land management policies.’’

Katherine Pfleger, Associated Press, December 29, 2001

Since Bush entered office, industry has repeatedly filed lawsuits against various

environmental laws and sought to negotiate with ‘‘friends’’ in the Bush administration to undo environmental requirements. In one case the Bush administration, in

response to a lawsuit filed by the suburban sprawl industry (a.k.a. the Homebuilders Association), agreed to rescind critical habitat designations for 19 stocks of

threatened and endangered salmon. The Bush administration agreed to this even

before the court had a chance to rule on the merits of the case and even though

conservation groups were denied their request to intervene in the lawsuit. See:

http://www.earthjustice.org/news/display.html?ID=338

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The timber industry currently has suits pending to remove both the Spotted Owl

and Marbled murrelet from the threatened species list, and to get rid of requirements to survey and protect wildlife on federal forests.

Oregon Natural Resources Council

5825 North Greeley, Portland, OR 97217-4145

Telephone: (503) 283-6343 (voice); (503) 283-0756 (FAX)

[A statement submitted for the record by David Kliegman

follows:]

Statement submitted for the record by David Kliegman, Executive Director,

Okanogan Highlands Alliance

The Okanogan Highlands Alliance (OHA) is a locally based public interest organization in Washington State, that has been following resource issues since the early

1990’s, and has put a great deal of effort into understanding projects the impact

people and the environment. We hope you will carefully consider and enter the following testimony submitted on behalf of OHA and incorporate it into your review

the role of NEPA in the States of Washington, Oregon, Idaho, Montana and Alaska.

The public relies on NEPA so that Americans affected by a federal action will get

the best information about its impacts, a choice of good alternatives, and the right

to have their voice heard before the government makes a final decision.

NEPA is an important check to helps balance, common sense and openness in federal decision-making, it is an effective tool to keep ’Big Government’ in check.

At the heart of NEPA is its requirement that alternatives must be considered—

including those that will minimize possible damage to our health, environment or

quality of life. NEPA also lets Americans have a say before the government makes

its final decision about a project.

By making sure that the public is informed and that alternatives are considered,

NEPA has stopped some damaging projects or made them better.

NEPA provides a ‘‘look before you leap’’ opportunity to federal decision makers.

Cutting corners in this process would have disastrous consequences, especially when

it comes to spending taxpayer money on projects that might harm citizens or their

environment.

NEPA works as it is, there is no need to improve it at this time.

Limiting public involvement and weakening environmental review won’t avoid

controversy or improve projects.

NEPA saves time and money in the long run by reducing controversy, building

consensus, and ensuring that a project is done right the first time.

NEPA’s promise of project review and public involvement should be protected, not

sacrificed in the name of speed.

‘‘[I]t is the continuing policy of the Federal government, in cooperation with State

and local governments, and other concerned public and private organizations, to use

all practicable means and measures...in a manner calculated to foster and promote

the general welfare, to create and maintain conditions under which man and nature

can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.’’

—The National Environmental Policy Act, Section 101(a), 42 U.S.C., 4331(a)

Thank you for the opportunity to submit testimony. Please enter this testimony

into the record of the role of NEPA.

Sincerely,

David Kliegman, Executive Director, Okanogan Highlands Alliance

PO Box 163, Tonasket, WA 98855

phone/fax 509/485-3361

email: kliegoha@televar.com

website: http://www.okanoganhighlandsalliance.org

‘‘Pure water is more precious than gold!’’

[A letter submitted for the record by Penny Lind, Executive

Director, Umpqua Watersheds, follows:]

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UMPQUA WATERSHEDS

UMPQUA WATERSHEDS, INC., PO BOX 101, 539 SE MAIN ST., ROSEBURG, OR 97470

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

UW@UMPQUA-WATERSHEDS.ORG / WWW.UMPQUA-WATERSHEDS.ORG

MAY 2, 2005

Representative Peter DeFazio

151 W 7th Ave. #400

Eugene, Oregon 97401

Dear Representative DeFazio,

The National Environmental Policy Act (NEPA) is under attack by the Bush administration. As you know, NEPA is one of America’s bedrock environmental laws.

Thirty-five years ago President Nixon signed this Act into law and today it is considered the most important environmental law that includes the public in decisionmaking.

At the heart of NEPA is its requirement that alternatives must be considered, administrative appeals must be answered and courthouse doors must remain open.

The results of NEPA outcomes secure our natural treasures by giving representation

with public involvement.

NEPA also saves time and money in the long run by reducing controversy, building consensus, and ensuring that a project is done right the first time. Cutting corners would have disastrous consequences, especially when it comes to spending taxpayer money on projects that might harm citizens or their environment.

Umpqua Watersheds has been involved in NEPA processes for the last 10 years.

At each point in the process of the Act we have experienced diverse positive and

challenging outcomes for our forests, rivers and communities. Most recently, we

came to agreement with the Umpqua National Forest at the administrative appeal

stage to settle on the Lemolo Project. The results will be restoration, some protections and jobs as opposed to controversy and environmental injustice.

Please support a strong, democratic NEPA and do not allow limits to public involvement, or environmental review.

SINCERE THANKS,

PENNY LIND, EXECUTIVE DIRECTOR

Submitted into testimony to the NEPA Task Force at: nepataskforce@mail.house.gov

cc: Representative Cathy McMorris, NEPA Task Force member

Umpqua Watersheds is dedicated to the protection and restoration of the watersheds in the Umpqua River basin and beyond.

[A letter submitted for the record by Mary O’Brien (Ph.D.,

Botany), Eugene, Oregon, follows:]

April 28, 2005

Re: NEPA Task Force hearing on the Role of NEPA in the States of Washington,

Oregon, Idaho, Montana, and Alaska.

Thank you for participating in the NEPA Task Force and spending Saturday,

April 23, 2005 in Spokane, WA. I traveled to the hearing from Eugene, Oregon. As

a staff scientist with various non-governmental organizations for the past 23 years,

I have worked with the National Environmental Policy Act (NEPA) almost every

day. Its regulations are essential to our nation, which has the technological capability, money, and population size capable of causing irreparable environmental destruction. NEPA regulations are the embodiment of democracy, foresight, and a

commitment to long-term local, national, and global quality of life.

Please enter these comments into the NEPA Task Force record on the hearing on

the Role of NEPA in the States of Washington, Oregon, Idaho, Montana, and

Alaska.

I wish to later (page 5) comment on a theme raised by essentially all presenters,

but first comment on a concern raised by the following presenters:

• Abigail Kimbell (Regional Forester, Region 1 U.S. Forest Service)

• Duane Vaagen (President, Vaagen Brothers Lumber)

• Luke Russell (Director, Environmental Affairs, Coeur d’ Alene Mines Corp.)

• Craig Urness (General Counsel, Pacific Seafood Group)

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The common complaint these presenters made regarding NEPA is the time (and

thus also money) that is spent on preparing NEPA documents and reaching decisions.

There are (1) inherent (good) reasons and (2) unnecessary (not good) reasons

NEPA processes take time. I urge the NEPA Task Force to clearly separate these

reasons and to address only the unnecessary reasons some NEPA processes take

time.

A. Good Reasons for NEPA Processes Taking Time

1. Looking before you leap takes time. NEPA was DESIGNED to be a ‘‘look before

you leap’’ process. We face countless ecological problems nationally and globally

because we plunged ahead with new enterprises and technologies. Look at

eastern Europe, where industrialization took place with extraordinary energy

and speed. Today, in some Russian cities, the life expectancy of males is 45

because of the resulting, persistent pollution. Here in the Pacific Northwest at

Hanford Nuclear Reservation, we plunged into nuclear weapons creation, and

are today essentially incapable of stanching the radioactive and toxic pollution

(e.g., chromium) leaking into the Columbia River from hastily-dumped wastes.

One could debate whether the haste at bomb-making and willy-nilly waste disposal was justified by extraordinary WW II concerns, but the reality is that the

haste made waste that so far eludes containment, let alone clean-up. Haste in

ordinary circumstances generally has the same results.

2. Assessing alternatives takes time. Alternatives assessment is the heart of the

NEPA process. It takes time to truly consider alternatives, analyze them, and

make changes to old agency habits when new alternatives seem a wiser course

of action. Assessing alternatives for energy use and production; transportation;

drought; climate change; invasive species; mining; fisheries; urban sprawl;

goods movement—- all deserve the full play of American creativity, innovation,

and foresight at both the local and national level. To shortcut alternatives assessment (including reasonable alternatives brought to the NEPA process by

communities, coalitions, or individuals) is to shortcut thinking.

As a member of various coalitions throughout the past 23 years, I have participated in the preparation of NEPA alternatives for vegetation management,

comprehensive management planning, gypsy moth treatments, transportation

projects, forest health projects, livestock grazing permits, and forest planning.

In every case, the alternatives we have developed have positively affected the

outcome of the decisionmaking, and have ultimately resulted in expressed appreciation by the agencies. I would be glad to describe each of these experiences

in more detail if you request.

3. Public participation (democracy) takes time. Allowing the public to help define

the issues at hand in a particular decisionmaking process that affects their

communities, nation, and/or future generations; contribute to alternatives that

will be analyzed; and join in the debate on alternatives is the essence of democracy. Democracy means government by the public. Obviously the lead agencies

for any given project or undertaking need to make the final decision, but the

question is whether the agencies will do this with democratic creativity or bureaucratic authoritarianism.

4. Examining relevant scientific information takes time. NEPA provides for the

examination of complex ecological effects—not only immediate, direct effects,

but also indirect and cumulative effects. As a society and in the Pacific Northwest, we have, during the past century, been learning about some of the indirect and cumulative environmental, cultural, and economic effects of building

dams without fish ladders; removing keystone predators and engineers from

watersheds; building nuclear power plants without nuclear waste storage; combining storm runoff and domestic sewage in one set of pipes; dumping PCBfilled electrical transformers on the ground; building roads on coast range

slopes that will fail in rain-on-snow events; straightening channels that don’t

allow rivers to rejuvenate watersheds; dumping mining tailings in rivers; and

building urban transportation systems around single-occupancy vehicles and

oil.

5. Public access to courts takes time. Under NEPA and the Administrative Procedures Act, American citizens do not have to stand by while agencies make inaccurate claims, fail to consider reasonable alternatives that have been brought

to them, or ignore uncomfortable scientific information.

Luke Russell of Coeur d’Alene Mines Corporation reported to the NEPA Task

Force that in Chile, a NEPA-equivalent system allows mining decisions to be

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made quickly because agencies don’t have to ‘‘worry about being appealed.’’ He

urged mandatory time frames as in Chile.

I asked Environmental Law Alliance Worldwide about the realities of mining

environmental assessment and mandatory timelines in Chile. Pamela Meunier,

attorney with FIMA (Fiscalia del Medio Ambiente) in Chile quickly responded

by email (27 April 2005) with the following note on environmental assessment

and a World Bank reference to mandatory timelines:

A recent World Bank report notes that, while the recently passed ‘‘Basic

Law’’ on the environment looks good in theory, the government agencies ‘‘do

not have the capacity to adequately meet the responsibilities assigned to

them by the law.’’

The report goes on to note the absence of regulations, the administrative

obstacles for proper environmental assessment and the lack of systematic

analysis or availability of environmental information necessary to assess or

enforce environmental standards. In some cases, the Bank warns that

timelines imposed on Environmental Assessments may ‘‘allow environmentally harmful projects to proceed that previously would have been

stopped...’’ Chile: Managing Environmental Problems: Economic Analysis of

Selected Issues, Dec. 1994, World Bank

More specifically, regulation of arsenic has recently been rolled back under

heavy pressure from the mining industry. Environmental assessment, despite

years of promised implementation, is still only carried out on a voluntary basis,

with little or no substantive participation from key stakeholders. Basic water

quality and quantity rights are severely restricted, affecting native and commercial fisheries, as well as human health in many communities. [Emphases

added]

6. It takes time to change unwise habits. When NEPA is working, then agencies

seriously consider new management options to unnecessarily destructive practices, policies, or projects; and devise new approaches. But agencies, like individual people, do not easily change habits, even if the habits are abusive or

self-defeating. The only kind of decisions that happen rapidly are those on

auto-pilot. If auto-pilot is environmentally and socially sound, then that’s fine.

But auto-pilot is not wise if it is having unnecessary, significant, adverse environmental or public impacts. It takes time to change entrenched, bad habits.

It is to be expected that Mr. Russell of Coeur d’Alene Mines wants to get his mining permits quickly. But look at the long-term human and environmental degradation that has been caused by heap leach gold mining; Butte mine tailings in Montana streams; mesothelioma deaths from asbestos production in Libby, Montana..

It is to be expected that Mr. Vaagen wants to get access to logs on public lands

as quickly as he can. But look at the long-term forest health degradation we are

facing throughout the Pacific Northwest due often in large degree to massive

clearcutting, single-aged tree plantations, steep-slope logging roads, fire suppression

in support of logging, and/or introduction of invasive species and root pathogens.

It is to be expected that Mr. Urness of Pacific Seafood Group wants rapid access

to ocean fish, but look at the global collapse of fisheries and the diseases being

spread to native fish by fish farm wastes.

It is to be expected that Ms. Kimball of Region 1 Forest Service wants to act rapidly in the face of drought and insect outbreaks in the forests she manages. She is

convinced that rapid logging and spraying are the actions to take, but many scientists provide evidence that this type of management will not necessarily lead to

or support long-term health of diverse forest types that depend on diverse fire regimes, Old Growth, native fish and wildlife; or that it will help forests resist

invasive species.

Clearly, NEPA law, policies, and regulations are designed to have agency and

project proponents pause before undertaking harvesting, logging, mining, spraying,

straightening, damming, constructing, selling off public lands, and other such significant extractive, corrective, and/or development activities. NEPA declares we are

not doomed, as a species, to endlessly repeat or add to global degradation. NEPA

regulations are our agreement, as a society, to be thoughtful and democratic. That

takes time.

B. Bad Reasons for NEPA Processes Taking Time

Whenever a presenter raises concerns to the NEPA Task Force about the length

of time or money that has been involved in a ‘‘NEPA’’ process or in getting to a

Final EIS and Record of Decision, it is important to ask follow-up questions to find

out why the process has taken so long. In my 23 years of experience with NEPA,

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some processes have taken years because of reasons not attributable to NEPA or

its regulations.

For instance, I was involved in a 9.5 year (1994-2003) process with the WallowaWhitman NF regarding a new Hells Canyon Comprehensive Management Plan EIS.

The Forest Service initially ignored the reasonable Native Ecosystems Alternative

that had been submitted by a coalition of individuals, organizations, and tribes during scoping. The Forest then developed a Final EIS without considering the Native

Ecosystems Alternative. Six days before sending the FEIS to the printer, the Forest

was finally convinced they would not survive a legal challenge, and agreed to issue

a new DEIS with the Alternative in it. Neither the Final EIS nor ROD, which were

substantially improved over the first DEIS, were litigated. The process would have

been at least 50% shorter had the Forest followed NEPA process and included the

reasonable Native Ecosystem Alternative in the first DEIS.

However, when Gail Kimbell (Regional Forester, U.S. Forest Service Region 1)

showed the NEPA Task Force a poster of a woman standing by two stacks of NEPA

documents developed over a period of 10 years for 1.88 miles of road to access private lands, no one on the Task Force panel asked her about the nature of concerns

that led to that lengthy process e.g., had the Forest Service tried to shortcut the

NEPA process? What were the contested issues in relation to the road? Who raised

them, and why?

Two other presenters reported that it was the failure to implement NEPA and alternatives assessment, not NEPA, that has caused decisionmaking delays:

1. Bob Geddes (Pend Oreille PUD) explained that the 7-year, $10.5 million Box

Canyon NEPA process has been lengthened by lack of proper NEPA compliance

by agencies. The U.S. Forest Service, he reports, isn’t doing its own NEPA

process but is not accepting conditions that FERC developed without NEPA.

2. William Kennedy (The Family Farm Alliance) testified that the Bureau of Reclamation has never conducted a NEPA review in relation to decisionmaking in

the Klamath River, although the Family Farm Alliance had encouraged it to

do so.

Both of these presenters have been involved in decisionmaking that has been protracted because NEPA was not followed. Thus, when a presenter complains about

the time and money spent on a given decisionmaking process that is subject to

NEPA, it is important for the NEPA Task Force to research such questions as:

1. Had the agency initially failed to implement good NEPA process and was then

legitimately challenged? For instance, did the agency fail to consider reasonable alternatives that had been submitted or requested during scoping process?

2. Had the agency failed to actively consider valid issues of key interested parties?

3. Did the agency try to avoid airing legitimate scientific controversy?

4. Did the agency present inaccurate ecological, economic, or social information

that was then challenged?

5. If litigation was involved, what were the key issues raised, and how did the

Courts rule?

6. Did the agency throw elements into the EIS or process that are not required

by NEPA?

7. Did the agency fail to consult with Council of Environmental Quality when

concerns were raised?

When Craig Urness (Pacific Seafood Group) complained that the NEPA process

prevents using real-time fish resource data, Jay Inslee wisely asked whether Programmatic EIS processes have been pursued. Mr. Urness answered no. Questions

such as Rep. Inslee’s get to the issue of whether a long decisionmaking process is

due to NEPA or to lack of inter-agency coordination, sloppy implementation, avoidance of key issues or information, failure to use a variety of NEPA processes, lack

of transparency, failure to seek Council of Environmental Quality advice, etc.

It is inappropriate to assume that when a decisionmaking process takes a long

time, this is due to NEPA law or regulations.

Local Decisionmaking for Non-Local Impacts?

Nearly all presenters advocated for local input, which is extremely important. Environmental impacts, however, are rarely local. Rep. Inslee, for instance, noted that

a hydropower siting decision can have widespread impacts. Likewise, impacts that

are largely experienced locally can cumulatively have regional, national, or global

impacts in light of similar localized impacts elsewhere.

Further, NEPA decisions often affect national public lands and/or public trust resources (e.g., water), and/or global commons (e.g., air). Every member of the nation’s

public is a legitimate participant in NEPA processes.

114

It is crucial that NEPA processes be open to both local and national (and often

even global) information and experience; local and federal governance; and local, regional, and national citizen., scientist and other expert input.

Thank you again for your participation in the NEPA Task Force. I sincerely urge

the Task Force to leave NEPA regulations intact. NEPA regulations serve our nation well.

SINCERELY,

MARY O’BRIEN (PH.D., BOTANY), PO BOX 12056, EUGENE, OR 97440

MOB@DARKWING.UOREGON.EDU

[A letter submitted for the record by The Honorable Denny

Rehberg, a Representative in Congress from the State of Montana,

follows:]

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[A letter and Spokesman-Review article submitted for the record

by Charles A. Thomas, Spokane, Washington, follow:]

APRIL 26, 2005

Dear Congresswoman McMorris:

Please keep this article in mind at your conference n Saturday. Think about who

makes and pushes at these rules.

SINCERELY,

CHARLES A. THOMAS, 1212 W. WHITE ROAD, SPOKANE, WA 99224

Attachment

Bans on building send prices up, so average buyers looking elsewhere, Thomas

Sowell says.

Open space laws leave many out in cold

Thomas Sowell, Creators Syndicate

April 20, 2005

Where can you make $2,000 a day, with no real effort? In San Mateo County,

California.

Before you start packing your bags to head there, you should know that the average homeowner in San Mateo County saw the value of his property increase by

$2,000 a day over the past month. The median price of a single-family home in the

county reached $896,000. But, if you don’t already own a home in San Mateo

County, you don’t get the two grand a day.

Someone from outside California might think that people must be building a lot

of new mansions in San Mateo County. But, in fact, there is very little building

going on there because most of the county is off-limits to building. These bans on

building are known by the more politically appealing name of ‘‘open space’’ laws.

These housing bans are the reason for rising home prices.

As for mansions, there are very few of those in San Mateo County. There are

some nice homes there and many very modest homes. They just cost the kind of

money that people pay for mansions elsewhere across the country.

Who can afford to live in such a place? Fewer people apparently. The population

of the county declined by about 9,000 people over the past four years.

Who’s leaving—and who is coming in? By and large, young adults who have not

yet reached their peak earnings years are finding it harder to afford housing in San

Mateo County and in other such counties up and down the peninsula from San

Francisco to San Jose. So, they are leaving.

116

Schools have had to be closed because there are not enough children. The number

of children is declining because people young enough to have schoolchildren are increasingly unable to afford the sky-high housing prices in communities that ban the

building of housing.

People who are sufficiently affluent can afford to move into places with severe restrictions on building. Those who bought their homes years ago, before these housing restrictions were enacted, are able to stay while the value of their homes rise.

Among other things, this means that many young adults cannot afford to live near

their parents, unless they actually live in their parents’ homes. This isolates the elderly from their children, which can be a growing problem as the infirmities of age

set in and their contemporary friends die off.

None of this just happened. Nor is it a result of market forces. What has happened essentially is that those already inside the castle have pulled up the drawbridge, so that outsiders can’t get in. Politically, this selfishness poses as idealism.

Much of this exclusionary agenda is pushed by people who inherited great wealth

and are using it to buy a sense of importance as deep thinkers and moral leaders

protecting the environment. The foundations and movements they spearhead are

driving working people out of areas dominated by limousine liberals, who are constantly proclaiming their concern for the poor, the children and minorities.

Meanwhile the poor, the children and minorities are being increasingly forced out

of the vast area of the San Francisco peninsula by astronomical housing prices and

are moving out into California’s interior valleys. But they are not safe there either.

The same wealthy busybodies who have made it an ordeal for less affluent people

to try to live on the San Francisco peninsula are now pursuing them out into the

interior valleys, where the environmentalist foundations and movements are trying

to get the same housing restrictions imposed.

This is not sadism—at least not in intent. These are green activists buying an artificial significance for themselves that they would never have had as mere inheritors of fortunes earned by others.

This is ultimately not about the environment but about egos. As T.S. Eliot said

more than 50 years ago: ‘‘Half the harm that is done in this world is due to people

who want to feel important. They don’t mean to do harm—but the harm does not

interest them. Or they do not see it, or they justify it because they are absorbed

in the endless struggle to think well of themselves.’’

117

[A letter submitted for the record by Hon. Mike Simpson and Hon. C.L. ‘‘Butch’’

Otter, Representatives in Congress from the State of Idaho, follows:]

118

119

[A letter submitted for the record by The Honorable Don Young,

a Representative in Congress from the State of Alaska, follows:]

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