U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON : 

54–564 u 1999

THE IMPACT OF THE EXPANSION OF THE MINNEAPOLIS–ST. PAUL INTERNATIONAL AIRPORT

ON THE MINNESOTA VALLEY NATIONAL WILDLIFE REFUGE

OVERSIGHT HEARING

BEFORE THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

FEBRUARY 3, 1999

Serial No. 106–1

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://www.house.gov/resources
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MARK E. SOUDER, Indiana

GREG WALDEN, Oregon

DON SHERWOOD, Pennsylvania

ROBIN HAYES, North Carolina

MIKE SIMPSON, Idaho

THOMAS G. TANCREDO, Colorado

GEORGE MILLER, California

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

ROBERT A. UNDERWOOD, Guam

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-CHRISTENSEN, Virgin

Islands

RON KIND, Wisconsin

JAY INSLEE, Washington

GRACE F. NAPOLITANO, California

TOM UDALL, New Mexico

MARK UDALL, Colorado

JOSEPH CROWLEY, New York

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director
(III)

C O N T E N T S

Page

Hearing held February 3, 1999 .............................................................................. 1

Statement of Members:

Minge, Hon. David, a Representative in Congress from the State of Minnesota ............................................................................................................. 17

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

Ramstad, Hon. Jim, a Representative in Congress from the State of

Minnesota ...................................................................................................... 15

Prepared statement of ............................................................................... 16

Vento, Hon. Bruce, a Representative in Congress from the State of Minnesota ............................................................................................................. 3

Prepared statement of ............................................................................... 6

Young, Hon. Don, a Representative in Congress from the State of Alaska . 1

Statement of Witnesses:

Ashe, Dan, Assistant Director for Refuges and Wildlife, U.S. Fish and

Wildlife Service, Washington, DC accompanied by Richard Schultz, Refuge Manager, Minnesota Valley National Wildlife Refuge ....................... 20

Prepared statement of ............................................................................... 44

Response to questions from the Committee ............................................ 88

Response to questions from the Committee ............................................ 108

French, Nelson, Executive Director, Friends of the Minnesota Valley,

Bloomington, Minnesota ............................................................................... 25

Prepared statement of ............................................................................... 49

Grams, Hon. Rod, a United States Senator from the State of Minnesota ... 10

Prepared statement of ............................................................................... 13

Marzulla, Nancie, Defenders of Property Rights, Washington, DC ............. 24

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

Pickard, Lynne, Manager of Community and Environmental Needs Division, Federal Aviation Administration, Washington, DC .......................... 22

Prepared statement of ............................................................................... 46

Walsh, Mary U., Asst. Chief Counsel for Legislation, Dept. of Transportation, response to questions from the Committee ..................................... 111

Additional material supplied:

Committee on Resources, Memo from ............................................................. 70

Hartwig, William F., Regional Director, Dept. of the Interior, statement

by .................................................................................................................... 82
(1)

OVERSIGHT HEARING ON THE IMPACT OF

THE EXPANSION OF THE MINNEAPOLIS–ST.

PAUL INTERNATIONAL AIRPORT ON THE

MINNESOTA VALLEY NATIONAL WILDLIFE

REFUGE

WEDNESDAY, FEBRUARY 3, 1999

HOUSE OF REPRESENTATIVES, COMMITTEE ON RESOURCES, Washington, DC.

The Committee met, pursuant to other business, at 11:22 a.m.,

in Room 1324, Longworth House Office Building, Hon. Don Young,

[chairman of the Committee] presiding.

STATEMENT OF HON. DON YOUNG, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF ALASKA

Mr. YOUNG. The hearing will come to order. The purpose of this hearing today is to take testimony on the impacts of an airport expansion on one of our premier national refuges, the Minnesota Valley National Wildlife Refuge. The refuge is home to a broad range of wildlife species which de- serve every bit as much protection as do the species that live in

other national refuges, including in Alaska refuges such as the Arctic National Wildlife Refuge and Izembek National Wildlife Refuge.

Species living in this refuge include threatened bald eagles, 35

mammal species, 23 reptile and amphibian species, 97 species of

birds, including the tundra swans, migrating all the way from Alaska.

The new runway expansion will cause so much noise and disturb- ance that most of the facilities under the path of the runway will

be relocated. In fact, the refuge will be so impacted by the noise

that the FAA has agreed to pay the Fish and Wildlife Service over

$20 million to compensate them for taking of their property by virtue of noise.

Yet, with this level of disturbance, the Fish and Wildlife Service

and the FAA found that wildlife would not be disturbed so much

that the airport expansion should be stopped. They also found no

impact on the threatened bald eagle and no need for the protection

of the Endangered Species Act in this case. They found that the

wildlife in the refuge will adjust to the noise. They found that there

is little significant evidence that wildlife will be seriously harmed

by the 5,000 take-offs and landings per month at less than 2,000

feet above those important migratory bird breeding and resting

areas.
2

I’m not surprised by that. Most of us know that wildlife adjust

to human presence and in some cases actually thrive, and I have

an example of this.

This is my little caribou herd around the wells that have been

drilled in the terrible dastardly deeds of the oil companies, and are

migrating and living there very happily, scratching their backs on

the pipeline, resting their tired, weary souls under the derricks

that exist there. I mean, this is an example of how animals can adjust.

Most of us know that wildlife adjusts to human presence, and in

some cases actually thrive. Fairfax County, abundant deer and bird

and fox population can attest to that with all the building around.

We’ve got more deer and everything else than we’ve ever had before.

Certainly I would agree that airports must be safe and that

human life and safety come first. However, how many times have

the members of this Committee been told by the Clinton Administration that important safety projects cannot go forward because it

might—and I stress might—impact wildlife. This constant excuse

has been used many times in Alaska to oppose vital public safety

and health projects.

Mr. Pombo and Mr. Doolittle have heard that in connection with

their efforts to get vital flood control improvements needed for the

safety of their constituents in California, where we had to save the

Blue beetle or the Elderberry beetle.

I know, in fact, that wildlife and human beings can co-exist. In

the coastal plain of Alaska, just like I’ve shown, the caribou have

increased, the ducks have increased. I’m showing that picture

around to show you they can co-exist. Yet, some members of this

Congress, including some in this room and that are going to testify

later, have agreed to this airport expansion in Minnesota—have introduced legislation that would preclude most human activities in

the Arctic National Wildlife Range by designating it as wilderness.

I guess they believe that wildlife in Alaska can’t adjust to human

activities, but they can adjust in Minnesota, and I’m really saddened by that because we’ve probably put more money into our

wildlife than any other State. But apparently that wildlife in Minnesota is a lot smarter, and I can’t understand that at all. In addition, the Airport Commission, by taxing passengers flying through

Minneapolis, will pay over $20 million in compensation for the lost

use of refuge lands.

The Fifth Amendment of the Constitution protects private property when it must be used by the public. This administration has

consistently threatened to veto every bill that has been introduced

that would reduce the burden on private property owners when

they attempt to seek compensation for their lost property from the

U.S. Government. They have made the process so expensive, so

time consuming, so lengthy, and so difficult, that only the wealthiest land owners can have any hope of attaining the compensation

guaranteed under the Fifth Amendment.

Yet the Fish and Wildlife Service demanded and received compensation for the impacts on the people who use the refuge without

having to file a lawsuit or even threaten a lawsuit. They demanded
3

compensation and got it. I guess I should not be shocked at anything by this administration, especially their hypocrisy.

As you know, I support our refuges. I’ve introduced a refuge bill

that was signed into law. I have probably sponsored more refuges

laws, and I’ve worked with the refuge system. I want refuges to be

places where wildlife can thrive, and I want them to be accessible

to the public. I support adequate funding for the refuges. I agree

that refuges and wildlife should not be used to stop needed projects

and development in nearby communities, but there is a double

standard here, my friends. When I can’t build a road that saves

lives—and to my knowledge there have been no lives lost in this

Minnesota airport—yet I have lost 11 lives because this Congress

and certain Members of this Congress, especially from the delegations in Minnesota, want to have a wildlife refuge inviolate.

There’s something wrong with that. There’s a double standard

within the Fish and Wildlife Department, there’s a double standard

within the Members of Congress that don’t see that they parallel

and track one another. There is the ability to be compatible if we

work together. But when you exclude and put wildlife ahead of the

safety of people, you are doing great damage to, I think, to the system of Congress and the system of fairness.

I have asked Fish and Wildlife to be fair, and, frankly, to stop

discriminating against the rural people of America. It seems it’s all

right if it’s close to a large metropolitan area and you’ve got the

horse power, but when it’s a small, little town and there are only

300 people, they are not important. I don’t like the double standard, and before this is over we’re going to have lots of fun with this

issue, especially with the Fish and Wildlife.

As a Member of Congress I can understand. I don’t agree with

it, I don’t like it, but I can understand it. That Fish and Wildlife

has this double standard is wrong, it’s immoral, and it is corrupt.

[The prepared statement of Mr. Young follows:]

The CHAIRMAN. I recognize Mr. Vento.

STATEMENT OF HON. BRUCE VENTO, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF MINNESOTA

Mr. VENTO. Well, I thank the Chairman for holding the hearing

and for drawing together the Minnesota delegation in support of

this support of this wildlife refuge, Mr. Chairman. And I would just

point out on the basis of the Chairman’s remarks—he’s got a lot

of questions, and I think we have the answers for them, and I

think that this is not comparable to some of the examples that

were cited with regards to the impact on wildlife and the reasons

for the compensation that was and is provided here. Not one single

acre of this wildlife refuge is touched on the ground by this. This

is the issue of an aircraft overflight issue and a flight path over the

sight.

In fact, when this particular refuge was designated in 1976, it

specifically had provisions that said it would not impact the surrounding economic development. Beyond that, I would point out

that not only did they work very hard to come to an agreement

here—and I appreciate the Fish and Wildlife Service work, the

FAA, and the Metropolitan Airports Commission in Minnesota, the
4

work they did. They did a good job, but they also—in terms of this

compensation—but the Metropolitan Airports Commission has already paid out $100 million to, in fact, sound-proof homes in the

flight path in Minnesota. And when they get done, they are going

to spend about $300 million to sound-proof the homes.

And the compensation being offered here—the mitigation results—something in excess of $20 million—has really little to do

with the impact on the wildlife because that is very, very difficult

to document. It has to do with the center, the significant center

that has been built there that is used for interpretation and education in that area.

And I might add, Mr. Chairman, that I have a little experience

with this particular airport because as a junior high school teacher

about 22 years ago, I taught directly under the flight path of the

Metropolitan Airport, the international airport, and I can attest to

the fact that it is very difficult, even with my somewhat modest

voice, to in fact convey the various cognitive notions that I was trying to convey to those junior high school students.

Now I know I don’t have any such problem here this morning,

but I can assure you when the flights go over it is very difficult,

so it really means that the center that has been developed here and

the resources that have been developed here will probably, in all

probability, have to be moved to other sites to augment this. And

we have, literally, tens of thousands of students, of individuals,

that visit this particular center each year, and it’s been of tremendous value.

The agreement, of course, is the culmination of over two years

of negotiations. It’s a symbiotic relationship between all of those

that have been involved. The Federal Government recognized the

difficulties associated with creating a refuge in an urban environment, and we, in fact, responded to that by limiting it in law.

Beyond that, of course, we have, within law, under the transpor- tation law, the 4(f) provisions. Whenever a transportation project,

whether it’s a road, airport expansion, or others, they need to, of

course, work with the other Federal resources and entities and

land managers in that area.

And beyond that, Mr. Chairman, in the re-framed Fish and Wildlife law that you helped write, that you structured and passed

through Congress—a compromise—you, in fact, made special efforts to try and limit the ability of the Fish and Wildlife Service

in the designation process to limit them as to any rights that they

would have as to issues that are trans-boundary. That’s what you

did in that particular law. I don’t think I agree with it.

In fact, what my view is, I think that we should be looking to

land managers in most conservation units, whether they’re parks,

whether they’re wildlife refuges or others, to be working on a transboundary issue with the other entities.

I mean, it’s like the Everglades in Florida and the sheetflow that

goes into the Everglades. We have to have an expectation that

they’re going to be working with the Corps of Engineers, with the

Florida conversation districts, because of course what happens in

terms of that sheetflow dramatically and significantly impacts the

type of—what happens in the Everglades, and so we need to expect

land managers to be outside the box, to be outside their bound5

aries, to be voicing their concerns, to be representing the resources

and the concerns that they have in the forums, in the States, as

partnerships with the States, with the local governments and others—certainly other Federal agencies that are involved. And that

is the expectation that we should mandate of Federal land managers so that they are part of the solution rather than simply

standing off and entering these things and being involved in simply

court cases.

Now, if it’s overflight issues that you’re concerned about, I think

that the record will show that this Committee has had an aggressive posture with regards to the protection and addressing the

issues of overflights over parks, over wilderness, over range lands.

In fact, I think we need a better policy in terms of the reservation of air space that takes place on the part of our military. Increasingly, they are, in fact, taking over more and more air space

in the western part of the United States, albeit for justifiable reasons in their minds’ eye. But I think it’s very limiting in terms of

what it means, in terms of the use of the land on the surface and

what the impact is on grazing, what the impact is on recreation.

So we’ve got a long way to go in terms of addressing this, and

I’m pleased to see the Fish and Wildlife Service in the area I represent pursuing this. And I certainly welcome Mr. Schultz, who is

here, and the other witnesses: Mr. French from Minnesota, who

works with the Friends of the Minnesota Valley Wildlife Refuge.

They’ve done an excellent job, as well as the administrators with

the FAA and the Metropolitan Airports Commission, and I hope we

can get to some of those questions you raised, Mr. Chairman.

[The prepared statement of Mr. Vento follows:]
6
7
8

Mr. YOUNG. The gentleman’s time has expired. I would just like to again remind you—I just read your website. It talks about how

you spoke up, and your members, and stopped this criticism of this

invasion of this refuge, and then right on the same page saying

how you’re going to take and lock up the ANWR area in my State,

and it’s a refuge, too. I mean there is a two double standard here. Another gentleman says—Daniel Ashe, Assistant Director of Refuge and Wildlife—certainly hate to be in the position of losing any aspect of any refuge,

but the Minnesota Valley Refuge is an urban refuge, where urban

encroachment is a fact of life and you’re going to have to deal with

it. Well, what about my small towns up north? They are not urban,

but they are small villages, and there are people there and they’re

being impacted by actions of this Congress, and you have a double

standard, and that is incorrect.

I’m going to stress that again. A stabilized standard for all ref- uges should be put forth. If this was an urban refuge, it should

never have been created as a refuge. By the way, I think you had something to do with that.

Mr. VENTO. I did. I only came here in 1977 to help you with Alas- ka.

Mr. YOUNG. I know. I realize that.

Mr. VENTO. They sent me here. You needed that help. [Laughter.]

Mr. YOUNG. But, again, the reason for this hearing is the double standard within the agencies and the Members of Congress. If you

believe in a representative form of government, there has to be

some understanding and some belief that fairness is equal to justice.

The first two witnesses: the Honorable Rod Grams of the United

States Senate—and, boy, if I have kept the Senator waiting, I really apologize for that; the Honorable Jim Ramstad of the U.S. House

of Representatives.

Mr. VENTO. Mr. Chairman, I have Mr. Minge’s statement. He’s involved in an agricultural conference; he’s got some serious problems with regards to pork and other issues and he has asked to

have his statement put into the record in support of this agreement. Without objection, Mr. Chairman?

Mr. YOUNG. Well, it’s fine with me. I mean, it’s his district, you know.

Mr. VENTO. Thank you. [The prepared statement of Mr. Minge follows:]

STATEMENT OF HON. DAVID MINGE, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF MINNESOTA

Mr. Chairman and Members of this subcommittee, thank you for allowing me the opportunity to speak before this body regarding the proposed runway expansion of

the Minneapolis/St. Paul International Airport and its effects on the Minnesota Valley Wildlife Refuge. I applaud Chairman Young’s obvious concern for the well-being of the Minnesota Valley Wildlife Refuge and for the hundreds of species of plants and animals that

inhabit the 10,000 acres of this wondrous facility. The Resources Committee certainly has an obligation to look into any Federal project or land transaction that

could potentially threaten the full and continued operation of a national wildlife refuge, preserve or national park.

But I can assure Mr. Young that this refuge, of which a significant portion lies

within the boundaries of my Congressional District, will see little if any net loss as
9

a result of the recently proposed airport expansion/refuge mitigation project. Rather,

this collaborative effort by the Federal Aviation Administration, the U.S. Fish and

Wildlife Service, the Metropolitan Airport Commission and the Friends of the Minnesota Valley should be held up as an example of the kinds of innovative solutions

that become possible through cooperative efforts.

These types of expansion projects are frequently portrayed as a clash between

technological progress and conservation efforts, between business expansion and

natural resources preservation, between private and public interests. Yet in this instance, a very delicately balanced agreement among between diverse interests was

reached to accomplish a common goal.

During my six years in Congress, I have worked closely with the Friends of the

Minnesota Valley and the U.S. Fish and Wildlife Service in their efforts to create

and maintain a unique conservation and educational facility in the Twin Cities suburban area. I have been extremely pleased with the way the refuge has been run

and with the high quality of educational services that it provides for students and

adults. The opportunity for people from all over the United States to enjoy, appreciate and learn about these native species of wildlife without significant disruption

of the animals’ natural habitats is a tremendous resource that we cannot afford to

lose.

I also recognize the importance of maintaining an effective and efficient transportation infrastructure. As a main hub of airline transportation, Minneapolis/St. Paul

International Airport serves not only the citizens of Minnesota but fills a role as

an important junction point for thousands of other travelers who cross the Mississippi River every year. There is widespread agreement among state and local

leaders in Minnesota that an expansion of the existing airport is crucial, given the

increased demand for services and the potential for greater competition among airlines. The only reasonable alternative to expansion would be the construction of a

new airport, an option that many agree would be worse both economically and environmentally than expansion.

I am joined by a bipartisan group of eight other Members of the Minnesota Congressional delegation, who believe that the proposed airport expansion should be allowed to continue without hindrance.

When the expansion of our society causes a disruption of a sensitive environmental area, it is important that we consider many important factors to determine

the least intrusive means available to accomplish the expansion while falling within

reasonable economic parameters. I believe that the parties involved in this project

have done this. Their plan calls for compensation to the refuge of an amount no less

than $20 million. This funding will allow the refuge to relocate many of its outdoor

classrooms away from the noise of the runway, and it will allow for the replacement

of more than 4,000 acres of land.

I sympathize with Chairman Young’s frustration at not gaining approval for a

project in his home state of Alaska that he clearly believes is in the best interests

of his constituents. The derailing of a worthwhile project such as this expansion/

mitigation plan will have no effect on the ultimate passage or defeat of the Alaskan

project. The two projects are not analogous, they are not related and neither project

should have any dependence on the other. Each project should be discussed and debate on its own merits. In Minnesota, the stakeholders, including the ardent environmental advocates, have reached an accommodation. I hope that same can occur

in Alaska.

In a perfect world, the conflicts between society and the environment would not

occur. In a perfect world, the Minneapolis/St. Paul International Airport would be

located in an area that does not conflict with the Minnesota Valley Wildlife Refuge

or any nearby property owners. Certainly, we do not live in a perfect world.

But when both private and public interests, both business and environmental advocates, can come together and agree on a plan that will benefit millions of consumers, businesspeople and nature lovers—and, at the same time, serve the interests of economic expansion and progress—we should all take notice.

Mr. YOUNG. In all due respect for my good Senator, you have

other things on your mind today and the rest of the week, so I’d

like to suggest that if you would like to, Senator, go forth with this

discussion we have about an airport. By the way, how did you vote

on the Izembek Road?
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STATEMENT OF HON. ROD GRAMS, A UNITED STATES

SENATOR FROM THE STATE OF MINNESOTA

Senator GRAMS. I’ll tell you about that.

Mr. YOUNG. All right.

[Laughter.]

I’m very interested. I’m really am very interested. You know, this

is a long time coming. Go ahead, Senator.

Senator GRAMS. All right. Thank you very much. Good morning,

Mr. Chairman, and also members of the Committee. It’s great to

see you, and I want to thank you for allowing me to be a part of

this hearing and to provide my testimony.

And first, Mr. Chairman, I think it’s important to point out that

those of us in the Minnesota delegation approach this issue maybe

from different angles, but eventually we end up at the same point

and that is supporting the agreement that you are examining here

today.

First, Mr. Chairman, the legislation you introduced last year to

prevent the implementation of the Minnesota Valley National Wildlife Refuge Agreement clearly referenced—and what I’ve heard this

morning is your frustration with the administration’s unwillingness

to allow a road through the Izembek National Wildlife Refuge in

Alaska.

It comes as no surprise that Members of the Minnesota delegation were split on the Izembek road issue, but I want to stress that,

as a member of the Senate Energy and Natural Resources Committee, I voted in support of Senator Murkowski’s legislation to

build that road. Later on the Senate floor, I again supported Murkowski and voted in favor of the bill because I believe the Members

of the Alaska delegation made a convincing argument about the

health and safety of the citizens of King Cove, Alaska.

Now, Mr. Chairman, I have long been, and always will be, a

steadfast proponent of access to our natural resources and allowing

local officials more authority of land use issues. I’ve always felt

that the Federal Government exercises too much authority over

local units of government in virtually all matters, but, in particular, with regard to land use decisions.

And far too often the Federal Government has turned Federal

lands into playgrounds for the elite and cordoned them off to even

the most basic of uses, and this problem is only exaggerated in

States such as Alaska, Utah, Nevada, and Idaho, where the Federal Government owns more land than does all the citizens of those

States combined.

The King Cove situation is a perfect example of a pervasive belief

among government bureaucracies that their programs and initiatives are more important than the people that they will impact, or

in this matter the health and the safety of the citizens of King

Cove.

Mr. Chairman, my State, too, faces problems with an over-active

Federal Government bent on decreasing access to our natural resources and zeroing out timber sales on our national forests. This

Committee, last year, marked up legislation offered by Congressman Oberstar and I to restore access to the Boundary Waters

Canoe Area. And thanks to the efforts of Congressman Oberstar
11

and Vento, a common sense compromise was found which I hope

settles the portage issue for good. But when Members of Congress advocate more local input and common sense decisionmaking by the Federal Government, as

many of us have for so long, they are duty bound to support the

Federal Government when it acts consistent with that philosophy

as well. I’ve always been a strong proponent of bringing the Federal Government, the local governments, and the private sector together in a non-adversarial way to reach decisions on land use and

on environmental issues which benefit everyone. I believe only the most extreme activists really want to block any progress and reject compromise. In fact, I believe we must take and

make an effort to turn the corner on pitting property owners

against government and businesses against conservationists. It’s

always been my belief that all Republicans share a similar outlook,

considering it’s a vast improvement over the confrontational way in

which we seem to approach matters involving our Federal lands.

And that is why all Members of Congress should support the agreement reached on the Minnesota Valley National Wildlife Refuge. In Minnesota—one of the most environmentally conscious States in our country, by the way—all sides came together and worked together to reach a solution which will protect the wildlife and the

health of the refuge well into the 21st century and will also allow

for the badly needed expansion of the Minneapolis-St. Paul Airport.

Your legislation pointed out that the refuge is unique as an

urban wildlife refuge in a growing metropolitan area, and you were

right. When the refuge was created, this fact was not missed by

Congress. In fact, Public Law 94–466 dedicated one section to the

understanding that flexibility between the refuge’s needs and the

needs of a growing city would be necessary in the future.

Now let me read for the Committee a portion of section 9 of the

refuge enabling legislation, and I quote:

‘‘Nothing contained in this Act shall be construed as prohibiting

or preventing the provision of vital public services, including the

construction, improvement, and replacement of highways and

bridges or any other activity which the Secretary determines to be

necessary. Any activity referred to in this section shall be carried

out so as to minimize the disruption of wildlife and the reduction

of recreational and scenic values of the area.’’

Now, Mr. Chairman, I submit to you that the U.S. Fish and

Wildlife Service did more than comply with this law—they followed

it to the letter. And too often we quarrel about Federal agencies

that interpret laws their way and that ignore the intent of Congress. But, clearly, both the law and the intent were met by the

agreement and the actions of the Fish and Wildlife Service in this

case.

I believe it’s important to remind the Committee that the agreement does not allow a road to be built into the refuge. In fact, the

agreement does not allow the expansion of the runway to touch one

acre of land within the refuge. The agreement is aimed at mitigating expected but unmeasurable impacts from the noise of overflights on wildlife and on visitor enjoyment.

As the Committee is aware, the U.S. Fish and Wildlife Service

cannot exert jurisdiction over the airspace over refuges as a result
12

of the National Wildlife Refuge System Improvement Act of 1997—

I have just a little bit left, Mr. Chairman—therefore, organizations

like the Friends of the Minnesota Valley were left with just two options: either take the matter to court or work with the refuge and

other parties to seek a compromise resolution which benefited everybody. And I am proud to say that they chose the latter.

You will soon hear from Nelson French, who is the executive director of the Friends of the Minnesota Valley, and he will more

clearly explain the give-and-take that took place to reach this

agreement. But I can tell you that his organization, the U.S. Fish

and Wildlife Service, the Metropolitan Airports Commission, and

even the Federal Aviation Administration all set their differences

aside and forged an agreement based on a few primary points.

First, the agreement will allow for a new runway to be built at

the Minneapolis-St. Paul International Airport, and that some impacts will occur as a result. Second, those impacts are to be mitigated by a cash payment, as you mentioned, of not less than $20

million. The settlement received from the Metropolitan Airports

Commission will be spent on projects designed to offset or replace

refuge land, facilities, and/or programs impacted by the runway’s

construction and future operation.

And third, Mr. Chairman, all parties agree that the agreement

does provide full compensation to the refuge and that nothing in

the agreement precludes or limits the Fish and Wildlife Service

from continuing to appropriately manage refuge lands.

So not only does the agreement preserve every acre of refuge

land, it will actually expand its acreage and will allow it to purchase land within the refuge boundaries. And, further, not only will

the refuge expand, but its programs and facilities may improve and

expand as well. This refuge, following the agreement, will be a

more complete refuge and remain one of our Nation’s premier

urban wildlife preserves.

Now, Mr. Chairman, I regret that I have to come here this morning and defend this agreement with those who took part in its creation. The parties to the agreement should be here today briefing

the Committee and Congress on how they approached a very sensitive environmental issue and came out of it with a very workable

and common sense conclusion. We should be congratulating them

rather than questioning the wisdom of those actions.

Now I hope the members of the Committee will listen closely to

what took place in Minnesota, and I hope you will leave the hearing today with a new understanding of what actually happened and

also a new appreciation of the approach that the participants

chose.

Mr. Chairman, I’m confident this agreement will stand up to

scrutiny, and hopefully it will serve as a reminder that local interests can solve local problems, not only in Minnesota, but in Alaska

and in other States as well, with local solutions in a way that the

Federal Government can and should support.

So, again, Mr. Chairman, I want to thank you very much, and

also the members of the Committee, for the opportunity to be here

today and provide my statement. Thank you very much.

[The prepared statement of Senator Grams follows:]
13

STATEMENT OF HON. ROD GRAMS, A SENATOR IN THE SENATE FROM THE STATE OF

MINNESOTA

Good Morning, Mr. Chairman and members of the Committee. Thank you for allowing me to provide my testimony.

First, I think it is important to point out that all of us in the Minnesota delegation approach this issue from different angles—but eventually we all end up at the

same point and that is supporting the agreement you are examining today.

First, Mr. Chairman, the legislation you introduced last year to prevent the implementation of the Minnesota Valley National Wildlife Refuge agreement, clearly referenced your frustration with the Administration’s unwillingness to allow a road

through the Izembek National Wildlife Refuge in Alaska. It comes as no surprise

that the Members of the Minnesota Delegation were split on the Izembek Road

issue. But I want to stress that as a Member of the Senate Energy and Natural

Resources Committee, I voted in support of Senator Murkowski’s legislation to build

that road. Later, on the Senate floor, I again supported Senator Murkowski and

voted in favor of the bill. I believe the Members of the Alaska delegation made a

convincing argument about the health and safety of the citizens of King Cove, Alaska.

Mr. Chairman, I have long been and always will be a steadfast proponent of access to our natural resources and allowing local officials more authority over landuse decisions. I have always felt the Federal Government exercises too much authority over local units of government in virtually all matters—but in particular with

regard to land use decisions. Far too often, the Federal Government has turned Federal lands into playgrounds for the elite and cordoned them off to even the most

basic uses. And this problem is only exaggerated in states such as Alaska, Utah,

Nevada, and Idaho, where the Federal Government owns more land than do all of

the citizens of those states combined. The King Cove situation is a perfect example

of a pervasive belief in government bureaucracies that their programs and initiatives are more important than the people they will impact—or in this matter, the

health and safety of the citizens of King Cove.

My state, too, faces problems with an overactive Federal Government bent on decreasing access to our natural resources and zeroing out timber sales on our National Forests. This Committee, last year, marked up legislation offered by Congressman Oberstar and I to restore access to the Boundary Waters Canoe Area. And

thanks to the efforts of Congressmen Oberstar and Vento, a common-sense compromise was found which I hope settles the portage issue for good.

But when Members of Congress advocate more local input and common sense decision-making by the Federal Government, as many of us have for so long, they are

duty bound to support the Federal Government when it acts consistent with that

philosophy. I have also always been a strong proponent of bringing the Federal Government, local governments, and the private sector together in a non-adversarial

way to reach decisions on land-use and environmental issues which benefit everyone. I believe only the most extreme activists really want to block any progress and

reject compromise. In fact, I believe we must make an effort to turn the corner on

pitting property owners against government, and businesses against conservationists. It has always been my belief that all Republicans shared a similar outlook, considering it a vast improvement over the confrontational way in which we seem to

approach matters involving Federal lands.

That is why all Members of Congress should support the agreement reached on

the Minnesota Valley National Wildlife Refuge. In Minnesota, one of the most environmentally conscious states in our country, all sides came together and reached a

solution which will protect the wildlife and health of the Refuge well into the 21st

century and will allow for the badly needed expansion of the Minneapolis-St. Paul

Airport

Your legislation pointed out that the Refuge is unique as an urban wildlife refuge

in the middle of a growing metropolitan area—and you are right. When the Refuge

was created, this fact was not missed by Congress. In fact, Public Law 94–466 dedicated one section to the understanding that flexibility between the Refuge’s needs

and the needs of a growing city would be necessary in the future. Let me read for

the Committee a portion of Section 9 of the Refuge’s enabling legislation:

‘‘Nothing contained in this Act shall be construed as prohibiting or preventing

the provision of vital public services, including . . . the construction, improvement, and replacement of highways and bridges . . . or any other activity which

the Secretary determines to be necessary. Any activity referred to in this section

shall be carried out so as to minimize the disruption of the wildlife and the reduction of recreational and scenic values of the area.’’
14

Mr. Chairman, I submit to you that the U.S. Fish and Wildlife Service did more than comply with this law—they followed it to the letter. Too often, we quarrel

about Federal agencies that interpret laws their way, and ignore the intent of Congress. Clearly, both the law and the intent were met by the agreement and the actions of Fish and Wildlife Service.

I believe it is important to remind the Committee that the agreement does not allow a road to be built in the Refuge. In fact, the agreement does not allow the

expansion of the runway to touch one acre of land within the refuge. The agreement

is aimed at mitigating expected—but unmeasurable—impacts from the noise of overflights on wildlife and on visitor enjoyment. As the Committee is aware, the U S.

Fish and Wildlife Service cannot exert jurisdiction over the airspace over refuges as

a result of the National Wildlife Refuge System Improvement Act of 1997. Therefore, organizations like the Friends of the Minnesota Valley were left with two options—either take the matter to court or work with the Refuge and other parties

to seek a compromise resolution which benefited everyone. I am proud to say they

chose the latter.

You will soon hear from Nelson French, Executive Director of the Friends of the

Minnesota Valley. He will more clearly explain the give and take that took place

to reach this agreement—but I can tell you that his organization, the U.S. Fish and

Wildlife Service, the Metropolitan Airports Commission and even the Federal Aviation Administration, all set their differences aside and forged an agreement based

on a few primary points. First: The agreement will allow for a new runway to be built at the Minneapolis/ St. Paul International Airport, and that some impacts will occur as a result.

Second: Those impacts are to be mitigated by a cash payment of not less than $20 million. The settlement received from the Metropolitan Airports Commission

will be spent on projects designed to offset or replace Refuge land, facilities, and/

or programs impacted by the runway’s construction and operation. Third: All parties agreed that the agreement does provide full compensation to the Refuge and that nothing in the agreement precludes or limits the Fish and Wildlife

Service from continuing to appropriately manage Refuge lands. So, not only does the agreement preserve every acre of Refuge land, it will actu- ally expand its acreage and allow it to purchase land within the Refuge’s boundaries. Further: not only will the Refuge expand, but its programs and facilities may

improve and expand as well. This Refuge, following the agreement, will be a more

complete Refuge and remain one of our Nation’s premiere urban wildlife preserves. I regret that I have to come here this morning and defend this agreement and those who took part in its creation. The parties to the agreement should be here

today brieflng the Committee and Congress on how they approached a sensitive environmental issue and came out of it with a workable, common-sense conclusion. We

should be congratulating them, rather than questioning the wisdom of their actions. I hope the Members of the Committee will listen closely to what took place in Minnesota. I hope you will leave the hearing today with a new understanding of

what actually happened and a new appreciation for the approach the participants

chose. I am confident that this agreement will stand up to scrutiny and serve as

a reminder that local interests can solve local problems with local solutions—in a

way the Federal Government can support. Again, Mr. Chairman, I thank you and the Members of the Committee for the op- portunity to be with you today

Mr. YOUNG. Thank you, Senator, and I do compliment you. I know how you voted on it. I checked it before you got to the table.

Senator GRAMS. Thank you.

Mr. YOUNG. And I do appreciate your comment about—and again, why I’m disturbed is that, you know, you have a larger

State. You have a lot more people involved, and there is a double

standard here. There was never an attempt by Fish and Wildlife

on the local or the Federal level ever to reach a compromise with

this Congressman on the Izembeck Road, and they never, ever,

ever could prove the facts that they were putting forth. They were

all fictitious. The propaganda that came out of many of the Congressmen and the other organizations that oppose the Izembek

Road disallowed the safety factor for those people. And just because

there are only 300 and you’ve got 3 million, I think that’s very inappropriate, and I want to stress that again.
15

I do thank you, and I know you have other things on your mind.

I don’t have any questions. Does anybody have any questions for

the Senator?

Senator GRAMS. But I just wanted to say, Mr. Chairman, I agree

with you, and I think fairness is a big issue, whether it’s 300 or

3 million. And I will continue to support efforts like this in the future.

Mr. YOUNG. I thank you, and you’re excused if you have to go.

I know you’ve got other things on your mind.

Mr. Minge, do you have—you’re not on—yes, he is; Mr. Ramstad

is on the agenda. I have to go to Mr. Ramstad and then you’ll have

an opportunity to speak.

Mr. Ramstad—and I know how you voted.

STATEMENT OF HON. JIM RAMSTAD, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF MINNESOTA

Mr. RAMSTAD. That’s right, Mr. Chairman.

Mr. YOUNG. I also know you’re a sponsor of ANWR, an original

sponsor for two years in a row, two terms in a row, which is in my

State.

Mr. RAMSTAD. That’s right, Mr. Chairman.

Mr. YOUNG. No, you can testify.

[Laughter.]

Mr. RAMSTAD. But I certainly appreciate the fact that you’re letting me—those factors not withstanding—testify today, Mr. Chairman. I did support the FY 1999 Omnibus Appropriations bill, Mr.

Chairman, which was a compromise on the Izembik road, just like

we have a compromise before the Committee today, and——

Mr. POMBO. Mr. Chairman? Mr. Chairman?

Mr. YOUNG. Yes.

Mr. POMBO. May I compliment Mr. Ramstad on learning so

quickly how to get along on this Committee.

[Laughter.]

Mr. RAMSTAD. Well, one thing we agree on, thanks to the chairman’s great State, their favorite son, the only native Alaskan ever

to play in the National Football League, who happens to be my

cousin, just got another Super Bowl ring Sunday blocking for John

Elway of the Denver Broncos—number 69, Mark Schlereth. So we

can agree on that.

Mr. YOUNG. That’s the only reason I bet on Denver, so I can say

that right now.

[Laughter.]

Mr. RAMSTAD. Well, thank you again, Mr. Chairman, and members of the Committee. This agreement, which Senator Grams outlined, between the Metropolitan Airports Commission and the Fish

and Wildlife Service concerning the Minnesota Valley National

Wildlife Refuge, is a practical, reasonable, common sense solution

to the problem of urban encroachment.

The agreement is supported by all parties—the Metropolitan Airports Commission, the Federal Aviation Administration, the Fish

and Wildlife Service, Friends of the Minnesota Valley National

Wildlife Refuge, and the Minnesota congressional delegation.

And, Mr. Chairman, this agreement is a real tribute to all of

these parties who worked very, very hard to craft this practical,
16

common sense compromise. It will improve the airport, improve the

refuge, and improve Minnesota. I want to commend, from the Metropolitan Airports Commission, Dave Dombrowski and Nigel

Finney, who spearheaded the effort on the part of the MAC; they

are here today; Nelson French, whom Senator Grams mentioned,

representing the Friends of the Minnesota Valley National Wildlife

Refuge, and Rick Schultz, the refuge manager, who does such an

outstanding job throughout the year, every year, managing that

great refuge; and Dan Ashe, who is the Assistant Director of the

Minnesota Office of the Fish and Wildlife Service, who is also, I understand, going to testify today.

I regret, Mr. Chairman, that there have been a few misunderstandings about the scope of the agreement. For example, I’ve seen

in certain accounts that the runway is going to intrude on the refuge. In fact, the runway is not going to expand into the refuge. It

will come no closer than 1.25 miles from the refuge. So, it is not

true that the runway will in fact extend into or onto the grounds

of the refuge. That is simply not true.

The impact of the refuge on the new runway will be the increased noise of take-offs and landings. Yes, there will be more

noise, and this was a big concern to me when I first learned of the

proposal. But due to good faith efforts of all parties involved, this

agreement has been reached, which does, I believe, protect the refuge, increase visitor usage, and allow for the needed runway expansion without the loss of one acre—without the loss of one acre

of the existing refuge. And the mitigation, which will amount to not

less than $20 million will allow the refuge to purchase new land

and construct a new visitors’ center.

So, again, I just want to thank all of the parties to this agreement. It proves that government can work when people—local people—work together with government officials, in this case from the

Metropolitan Airports Commission, from the Fish and Wildlife

Service, and from the refuge.

So, thank you for the opportunity to testify today and to express

the concerns of Minnesotans and others who support this agreement.

[The prepared statement of Mr. Ramstad follows:]

STATEMENT OF HON. JIM RAMSTAD, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF MINNESOTA

Mr. Chairman and members of the Committee, I appreciate the opportunity to

testify today on an issue of great importance to the people of Minnesota.

The recent agreement between the Metropolitan Airports Commission and the

Fish and Wildlife Service regarding the Minnesota Valley National Wildlife Refuge

will provide at least $20 million to mitigate the noise impact of a new runway being

built near the Refuge.

This agreement is supported by the Metropolitan Airports Commission, the Federal Aviation Administration, the Fish and Wildlife Service, the Friends of the Minnesota Valley National Wildlife Refuge and the Minnesota Congressional delegation.

This agreement is a tribute to each of these parties and represents a common-sense

approach by all sides. It will improve the airport, improve the Refuge and improve

Minnesota.

Regrettably, there have been a number of misunderstandings about the scope of

the agreement. For example, press accounts have reported that the runway would

intrude into the Refuge. Let me assure everyone that this agreement will not allow

the construction of a runway within the boundaries of the Minnesota Valley National Wildlife Refuge.
17

The impact on the Refuge of the new runway will be the increased noise of takeoffs and landings. While I admit this was a concern to me when I first learned of

this project, good-faith efforts by all parties yielded a comprehensive agreement that

protects the refuge, increases visitor usage, and allows for the runway expansion

without the loss of one acre of the existing refuge.

In fact, the mitigation funds will allow the Refuge to purchase new lands and construct a new visitors center.

Each of the parties involved in this agreement, many of whom are here today,

must be commended for working together to create a pragmatic, common-sense solution to this issue.

Again, Mr. Chairman and members of the Committee, thank you for the opportunity to testify today to express the concerns of Minnesotans and others who support this agreement.

Mr. YOUNG. Thank you, Mr. Ramstad.

Mr. Minge.

STATEMENT OF HON. DAVID MINGE, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF MINNESOTA

Mr. MINGE. Thank you, Mr. Chairman. I’d just like to briefly

state that most of the Minnesota Valley Wildlife Refuge is in the

2nd Congressional District, and we view this as a tremendous resource, not just for the district and for the State, but for the entire

country, and it’s with some regret that we see any portion of this

district compromised. In that respect we appreciate your solicitude,

Mr. Chairman, for the problems that are faced by the refuge in our

State.

There are some very positive things about this agreement, and

certainly Mr. Ramstad and Mr. Grams have already alluded to several of them. I would like to point out a couple of others. There has

been tremendous pressure to consider the development of another

airport in the Minneapolis-St. Paul metropolitan area. That would

take many thousands of acres, and many of those acres would be

environmentally fragile.

This expansion of a runway minimizes the chance that we will

have to have a new airport developed, and if you look at what happened in Denver, Dallas-Fort Worth, and you see what a new airport means in terms of its impact on the communities where it’s

located, you understand that this is no small consideration. And I

think that we should weigh this as we deliberate the objections

that have been raised to the process that is being undertaken here.

I would also like to emphasize that the Friends of the Minnesota

Valley, headed by Nelson French, have been very vigilant in contesting anything that would constitute development that would

compromise this refuge. And I think it’s quite a tribute to them

and to the compromise that they have supported this, they recognize that there are additions to the refuge and a relocation of the

center that will actually enhance the refuge and in the long-run

make this a more valuable resource for our area.

Finally, I would like to say that I have spent a fair amount of

time at the refuge, and as much as I share the concerns that you

have, Mr. Chairman, and several others, about anything that

would constitute a compromise here in a context that you feel

might have been unfairly handled in Alaska, I do think that we

have achieved an accommodation here that is reasonable.

And I would simply urge that in your State every effort be made

to bring all of the stakeholders together so that, like was done in
18

Minnesota, you could have those groups that have been perhaps

more contentious, that have been a burr under the saddle for you,

if I may say that, on board and supporting whatever resolution you

feel would be best in your State. And I think that’s what has happened here. Thank you very much. Otherwise, I have submitted my

statement for the record.

Mr. YOUNG. I appreciate that, and I want you to understand, the

purpose of this hearing is not necessarily to criticize the Valley

Commission or the Airport Commission. I am very concerned about

the Fish and Wildlife and asking compensation of $20 million.

Frankly, that does not help the wildlife out at all. And I also—Fish

and Wildlife used arguments on the national level and on the local

level in my area that any activity on the refuge would diminish the

purpose of the refuge, and yet you know that this is a heavily used

refuge which you are representing. And again, it’s a double standard.

And, you know, we tried, with the Fish and Wildlife. We tried

to explain what we’re trying to do. We tried. We said we would

build the road without charging the taxpayers one nickel, and they

said it was going to cost $100 million. This is pure nonsense. We

tried to give them more land. We actually had an increase in the

amount of land, and they wouldn’t accept that. They just said, ‘‘No,

we’re going to tolerate it. This is a national issue because there are

only 300 people involved.’’

I can understand your desire not to build another airport because

it does take a tremendous amount of land. I’m not going to argue

the merits of building the other airport. I’m arguing the merits of

how the Fish and Wildlife conducted itself, and even how the Commission was blackmailed into paying that compensation of $20 million—and for what? To my knowledge there is nothing that is going

to improve the wildlife at all.

There’s not a dollar going to be spent on improvement of the

wildlife. It’s usually spent on moving the buildings, re-establishing

new buildings, or buying other private land. It’s not for the wildlife.

And you know, it’s just a total, total lack of consideration. This is

a classic example where, I guess, might is right; the few are discarded and the many survive, and the Federal agency that really

is supposed to represent everybody on an equal basis has frankly,

I think, done the wrong thing—not the people of Minnesota, but

the agency itself.

So, I thank you for your comments and we’ll get to the rest of

it. Thank you very much.

Mr. VENTO. Mr. Chairman, just a comment. I appreciate my colleagues’ testimony, all of them in support of this agreement, and

I think that we should—there’s a vast difference between an air

flight path and a road through a wilderness refuge in Alaska. I

mean, you’re comparing apples and oranges here, and the fact is

if there’s a case with regards to any wildlife refuge in Alaska that

you’re looking for compensation because of the impact of aircraft

overflights, I would be happy to ally my efforts with yours to gain

that type of compensation in that case. And the fact is, this is

based upon, yes, the education and resource center that has an

overflight path that’s going to go over it by virtue of this extension

of the runway.
19

And in addition to that, there are 4,000 acres—there is some

acreage being added to this refuge to try and compensate for the

impact on the wildlife in that area. But, frankly, as you had noted

rightly, because of the laws that you wrote in 1997 and because of

the 1976 law which established this, the Fish and Wildlife Service

really has very little legal standing to, in fact, pursue the protection of that wildlife. Plus, I think the science is difficult in terms

of making the justifications for it.

But, nevertheless, they’ve been successful, even with these types of handicaps, using the 4(f) provisions of the transportation law for

an aircraft overflight path—a flight path, not a road—and this is

not a wilderness-designated Fish and Wildlife Service, as was the

instance. So, this comparison is completely erroneous that you are

attempting to portray. That you have a problem in Alaska, I admit

that. I am attempting to designate ANWR’s wilderness. I plead

guilty with 150 sponsors in the last session. We feel strongly about

it.

Mrs. CHENOWETH. Will the gentleman yield?

Mr. VENTO. No, not at this point. But the fact is that this comparison is completely erroneous. It just has no comparison, and I

think——

Mr. YOUNG. With all due respect, the gentleman knows that is

not true. There is a great comparison; there is a tremendous comparison.

Mr. VENTO. I think in your mind, Mr. Chairman.

Mr. YOUNG. In your mind you think there’s no comparison at all,

and I understand that. But in the reality, there is a double standard here. Now you know and I know that we tried to reach

solutions——

Mr. VENTO. Do you have any instance where there is an aircraft

overflight problem in Alaska—an impact—you could find physical

resources? I’d be happy to join you in terms of trying to mitigate

that particular problem. That’s the issue here. It isn’t a road. Nobody’s putting a road through this particular wildlife refuge, which

isn’t a wilderness, incidentally, as the one in Alaska is. I understand. I respect your views and your right to hold an opinion on

this, but I think, to say the least, the analogy is confusing.

Mr. YOUNG. The gentleman from Nevada.

Mr. GIBBONS. Thank you, Mr. Chairman, and I do take exception

to my colleague’s comments from Minnesota because as I recall,

wasn’t it just the end of last year when you objected to an overflight for an airport in Nevada because it was 5,000 feet above a

refuge and you said it was totally objectionable to the wildlife habitat to have an airport that had a proposed flight path 5,000 feet

above the ground? Not 500, not a half-a-mile away, a mile-and-ahalf and 5,000 feet, and you objected to that.

Now, to come here and say that you don’t have any objection to

500 feet over a wildlife habitat, and yet to have objected last year

to a 5,000 foot or greater seems to me to be, you know, crossing

similar arguments without the same degree of good faith involved

with what we’re talking about here. That was an aircraft overflight.

Mr. VENTO. Would the gentleman yield?

Mr. GIBBONS. No, I won’t yield. I’ll yield back to the Chairman.
20

Mr. YOUNG. The gentlelady.

Mrs. CHENOWETH. Mr. Chairman, I think the gentleman from

Minnesota is very good at trying to redefine the problem, but the

question here is, as Fish and Wildlife stated, in their opinion in

this particular case, wildlife could habituate to the human activity—5,000 flights a day at a low altitude. Yet in Alaska, there were

very, very few vehicles traveling on a gravel road, and they didn’t

even give anyone the chance to even evaluate whether the wildlife

could habituate to that minimum human impact. And that’s what

this hearing is all about. It’s the inconsistencies of the way the

Fish and Wildlife apply their policies, and this is one of the most

glaring inconsistencies.

So, I don’t think we ought to redefine the problem. This is—definitionally—this is what the problem is about, and for years we’ve

been asking the Fish and Wildlife Service to really examine whether wildlife could habituate to human activity, and obviously in this

case it is true.

Mr. YOUNG. The next panel—panel two: Mr. Ashe, Ms. Pickard,

Ms. Marzulla, and Mr. French.

We have a vote, so I’m going to make a suggestion that we go

over and vote and come back as rapidly as possibly, and the witnesses can go to the restroom if you want to because you have been

sitting here all morning. Approximately, I would say 12:30 p.m. because we have two votes in a row.

[Recess.]

Mr. YOUNG. But we had a series of votes, so it took a little

longer, and we’ll try to progress forth.

The first person on the panel is Mr. Ashe, Assistant Director for

Refuges, Fish and Wildlife Service. He is accompanied by Mr.

Schultz, Refuge Manager, Minnesota Valley National Wildlife Refuge. Second is Ms. Lynne Pickard, and Ms. Nancie Marzulla and

Mr. Nelson French. Mr. Ashe, you’re up.

Mr. ASHE. Good morning, Mr. Chairman.

Mr. YOUNG. And welcome, by the way, to the Committee, all committees. You used to work with Mr. Jones; I remember you, and I

hope you haven’t gone too far astray, but go right ahead.

STATEMENT OF DAN ASHE, ASSISTANT DIRECTOR FOR REFUGES AND WILDLIFE, U.S. FISH AND WILDLIFE SERVICE,

WASHINGTON, DC ACCOMPANIED BY RICHARD SCHULTZ,

REFUGE MANAGER, MINNESOTA VALLEY NATIONAL WILDLIFE REFUGE

Mr. ASHE. Thank you, Mr. Chairman. Good morning, and as you

said, my name is Dan Ashe and I am the U.S. Fish and Wildlife

Services Assistant Director for Refuges and Wildlife, and Mr. Rick

Schultz is with me today, and he is our manager at Minnesota Valley National Wildlife Refuge.

And Minnesota Valley Refuge is somewhat unique in the refuge

system, as it is located largely in an urban setting, co-existing with

over 2 million Twin Cities residents. Since establishment, the refuge has acquired 10,000 of its authorized 14,000 acres, built a

state-of-the-art wildlife and interpretation visitors’ center, and developed top-flight public use programs and facilities.
21

In establishing the refuge, Congress recognized its urban setting

and the need for the Service to work and balance the needs of the

refuge with the urbanization of the Twin Cities area. The enabling

legislation provided that nothing in this Act shall be construed as

prohibiting or preventing the provision of vital public services.

Further, under the National Wildlife Refuge System Administration Act, the Service has no authority to regulate air space above

a refuge. And since this particular project will not be built upon

refuge lands, the Service had no direct means to influence it. However, under section 4(f) of the 1966 Department of Transportation

Act, the Transportation Secretary may not approve a project that

requires the use of any publicly-owned land, including wildlife refuges, unless there are no feasible and prudent alternatives to using

that land and unless the project considers all possible planning to

minimize the resulting harm.

It was under this provision of law that we were able to work cooperatively with the Metropolitan Airports Commission and the

FAA to ensure that the disturbance to the wildlife and wildlife-dependent recreation was minimized. It was clear that the overflights

from the proposed runway expansion would significantly affect

noise-sensitive public activities on the refuge. The intense noise at

frequent intervals will significantly impede normal conversation of

refuge visitors. Our long-standing and traditional outdoor activities, including conservation education, birding activities, youth waterfowl hunting, and our visiting public’s ability to view wildlife in

its natural setting without significant intrusions will be compromised.

In view of these noise impacts, FAA correctly determined that

construction and operation of the runway will result in a constructive use of refuge lands by the airport and are therefore subject to

section 4(f) of the Transportation Act. Consequently, cooperative

discussions among the parties led us to the agreement that is reflected in the MOU involving the Metropolitan Airports Commission, the Service, and the FAA.

The MOU provides for mitigation that will replace approximately

4,000 acres of refuge lands, construct a new visitor facility away

from the aircraft noise, replace education and interpretive facilities,

provide additional operations funds to support the cost of running

two facilities rather than one, and offset the Service’s planning and

administrative costs in support of this project.

Our estimate of this total mitigation project was $26.9 million.

Nearly 60 percent of the mitigation will be directed to land acquisition. To the degree possible, all of these mitigation projects will be

determined through the refuge comprehensive planning process,

which will allow for thorough public involvement.

Mr. Chairman, the impact of this proposed project on the refuge

are regrettable, but unavoidable. They were outside of our direct

jurisdiction and control. But I must note in concluding that we are

pleased with the agreement reached, and I believe that both the

American people and the citizens of the Twin Cities region are

well-served and that Congress should be proud of the spirit of cooperation exhibited by these three agencies and by private citizens

as represented by groups like the Friends of Minnesota Valley.
22

I hope people like Lynne Pickard and Nigel Finney are proud of

their work, and when our testimony is over I’ll provide them both

with the National Wildlife Refuge System blue goose pin as a very

small recognition of their good work in behalf of the Minnesota Valley Refuge and America’s National Wildlife Refuge System.

I want to thank you, Mr. Chairman. I’m looking forward, I think,

to the opportunity to answer your questions.

[The prepared statement of Mr. Ashe may be found at end of

hearing.]

Mr. YOUNG. Thank you, Mr. Ashe.

Ms. Pickard.

STATEMENT OF LYNNE PICKARD, MANAGER OF COMMUNITY

AND ENVIRONMENTAL NEEDS DIVISION, FEDERAL AVIATION ADMINISTRATION, WASHINGTON, DC

Ms. PICKARD. Thank you, Mr. Chairman. I’m Lynne Pickard,

Manager of the Community and Environmental Needs Division at

FAA. Thank you for allowing me to appear before you on behalf of

Susan Kurland, Associate Administrator for Airports, who is at our

Southwest Region Partnership Conference in Texas today.

The Metropolitan Airports Commission’s plans for expansion of

the Minneapolis Airport include a new 8,000-foot air carrier runway and associated development to improve airport capacity, operations, safety, and reduce airline delays.

In making our decision on whether to approve the project, FAA

evaluated the anticipated impacts on the Minnesota Valley National Wildlife Refuge in an environmental impact statement and

in accordance with section 4(f) of the Department of Transportation

Act of 1966. Section 4(f) is an important environmental statute, as

Mr. Ashe explained. It provides special protection to publicly-owned

parks, recreation areas, wildlife and waterfowl refuges, and historic

sites of national, State, or local significance. Section 4(f) applies exclusively to decisions by the Department of

Transportation, including FAA decisions on airport development. It

permits FAA to approve the use of protected section 4(f) resources

for an airport project, only when two standards are met: (1) there

is no feasible and prudent alternative to the use of section 4(f) resources, and, (2) the transportation project includes all possible

planning to minimize harm.

These standards apply whether the use of section 4(f) land is

physical, as in constructing on the land, or constructive. Constructive use occurs when a transportation project located near but not

in the section 4(f) resource impacts it in a way that substantially

impairs its activities, features, or attributes. FAA made a constructive use determination with respect to the Minneapolis Airport

project on the publicly-owned portion of the Refuge closest to the

airport.

Specifically, FAA determined that noise increases from aircraft

operating on the new runway would substantially impair human

outdoor educational and environmental interpretive activities, such

as school field trips and scouting visits, as well as recreational activities such as nature walks, bird watching, and fishing.

There is no physical use of the Refuge for the airport project, nor

does FAA anticipate adverse impacts on the ecological integrity of
23

the Refuge. The Department of the Interior was consulted on potential jeopardy to endangered species and critical habitat and determined no adverse effect in this regard. In accordance with section 4(f), FAA determined there is no feasible and prudent alternative to the constructive use of the Refuge.

There was a very sweeping analysis of alternatives. Alternatives

that were examined and rejected include possible new sites for an

airport, alternative expansion concepts for the Minneapolis airport,

high-speed, inner-city rail, a remote runway concept linked to the

Minneapolis airport by high-speed transit, the shifting of some

aviation users to supplemental airports in the region, alternative

flight procedures that might avoid the Refuge, and the alternative

of taking no action at all.

Having found no feasible and prudent alternative, FAA participated in a mitigation plan reflected in the Memorandum of Agreement between the U.S. Fish and Wildlife Service and MAC, with

FAA as a concurring party. This was developed during consultations over a period of two years and provides a specific program to

minimize harm to the refuge.

Mr. Ashe outlined the details of the mitigation. I won’t repeat

those, except to say that the Memorandum of Agreement also recognizes that the Refuge lands that are subject to constructive use

because of aircraft noise will still continue to function as a diminished value wildlife refuge area under U.S. Fish and Wildlife Service management.

The payment of funds by an airport proprietor needing to use a section 4(f) resource to the agency owning the resource so that a

comparable replacement can be provided is one of several accepted

methods of minimizing harm under section 4(f). The replacement of

section 4(f) lands and facilities, as well as design measures to minimize harm, are recognized in published FAA environmental guidance.

FAA has also long recognized that environmental mitigation associated with an airport capital development project qualifies as a

capital cost of the airport. There are precedents in FAA experience

for the type of mitigation agreed to for the Minneapolis airport

project.

I should also note here that the Metropolitan Airport Commission is paying the compensation. There will be no FAA airport improvement program funds used in that compensation. No Federal

funds will be used.

I should point out that section 4(f) mitigation for airport development is not a frequent occurrence. This is consistent with the purpose of the statute, which is intended to protect section 4(f) resources, and to set a high standard for their use. Simply put, FAA

does not issue a sizable number of section 4(f) determinations because we try not to use section 4(f) resources. Most of our determinations are for uses of urban parks, such as local parks, ball

fields, and publicly-used school playgrounds because these tend to

be the types of section 4(f) resources in close proximity to airports.

In summary, in formulating the section 4(f) mitigation plan for

the Minneapolis airport project, the relevant agencies considered

the air transportation needs of the region, the impacts on the Minnesota Valley National Wildlife Refuge, the availability of any fea24

sible and prudent alternatives, and all possible planning to minimize harm.

Thank you for the opportunity to testify this morning, Mr. Chairman. On behalf of Administrator Jane Garvey and Associate Administrator Susan Kurland, I would like to say we appreciate your

interest in FAA’s perspective on this project, and I would be

pleased to answer any questions.

[The prepared statement of Ms. Pickard may be found at end of

hearing.]

Mr. YOUNG. Thank you, Ms. Pickard.

Nancie, you’re up next.

STATEMENT OF NANCIE MARZULLA, DEFENDERS OF

PROPERTY RIGHTS, WASHINGTON, DC

Ms. MARZULLA. Thank you, Mr. Chairman, and members of the

Committee. We are enormously pleased to have the opportunity to

testify before you here today on behalf of Defenders of Property

Rights.

I’m here today to testify or to comment, not on the merits of the

proposal which we do not take a position on, but rather to comment

on the irony of the situation in which the U.S. Fish and Wildlife

Service is here before you asking for over $20 million in payment

for the damage to or injury to its property rights.

And I say irony, because at Defenders of Property Rights we litigate cases and represent property owners whose constitutionallyprotected property rights have been injured or damaged as a result

of actions taken by the U.S. Fish and Wildlife Service, pursuant to

its regulatory authority under the Endangered Species Act, and in

those cases—many, many of those cases—the U.S. Fish and Wildlife Service is actively opposing the compensation to pay for the

damage to the property rights of the private land owners, and so

we find it ironic for the Fish and Wildlife Service to be in this posture they are in today.

With respect to the cases that I refer to and are set forth in more

detail in my written testimony that I’ve submitted to you, let me

highlight just one example for you today. We represent John Taylor, an elderly man in his eighties, who sought permission from the

U.S. Fish and Wildlife Service over two years—now going on three

years—ago to build a one-story modular home on his small residential lot in Fairfax County, Virginia. He wants to build the home to

accommodate his elderly wife, who has been ill and is now confined

to a wheelchair.

Because Mr. Taylor’s land is next to public land on which there

is a bald eagle’s nest, the Fish and Wildlife Service refuses to grant

him permission to build the wheelchair-accessible home unless he

agrees to the following conditions. They include constructing a platform for bald eagles to nest in the national forest; contribute

money—his money—to fund a salmon restoration plan because eagles like to eat salmon; to agree to accept full responsibility for any

possible harm done to the eagles if they abandon the nest, even if

they leave for reasons beyond Mr. Taylor’s control; and agree to a

permanent deed restriction that forever bars outdoor use of the

yard during the months the eagles like to nest. This would be from
25

July to November, thus making it unlawful to barbecue, mow the

lawn, or have children playing outside during that time period.

As I said, we represent Mr. Taylor in his attempts to either obtain permission from the Fish and Wildlife Service to use his land

or to obtain just compensation for the taking of his property rights.

Unless Mr. Taylor agrees to these preposterous conditions, Fish

and Wildlife Service has told me orally that it will continue to

block his building a home on his land as it has done for this threeyear time period. We are now, in fact, being forced to file a lawsuit

on behalf of Mr. Taylor in Federal court seeking compensation for

the taking of Mr. Taylor’s property rights.

But, unfortunately, as I alluded to, Mr. Taylor’s case is not an

isolated example. Indeed, his case is typical in that often the property owner loses the ability to use his land and is forced to seek

compensation in court where the Fish and Wildlife Service fights

him tooth-and-nail opposing the payment of just compensation.

Thus, it is indeed ironic that Fish and Wildlife Service is here

today asking for the payment of the damage to its property, in the

face of its defiant position toward the constitutionally-protected

property rights of private land owners.

We at Defenders have been before Congress many times testifying about the need for legislative reform to ensure that private

property owners are paid just compensation for the taking of their

property.

We have also testified on more than one occasion about the need

for reform of the Endangered Species Act, one of the most Draconian laws on the books in terms of its impact on private property

rights. The problems with the Act are exacerbated by the expansive

application given the Act by the Fish and Wildlife Service. The

Fish and Wildlife Service has consistently opposed every attempt

to reform the laws to grant a measure of protection of the rights

of private property owners, which are routinely damaged or destroyed by the Service acting under laws such as the ESA.

We are pleased to see that the Fish and Wildlife Service has suddenly discovered the importance of private property rights—at least

its own property rights. Now that the Service has experienced first

hand the destruction of its property rights by governmental action,

we would expect its support for property rights legislation in the

106th Congress.

Thank you.

[The prepared statement of Ms. Marzulla may be found at end

of hearing.]

Mr. YOUNG. Thank you, Ms. Marzulla.

Mr. French.

STATEMENT OF NELSON FRENCH, EXECUTIVE DIRECTOR,

FRIENDS OF THE MINNESOTA VALLEY, BLOOMINGTON, MINNESOTA

Mr. FRENCH. Mr. Chairman and members of the Committee, I’m

Nelson French, executive director of the Friends of the Minnesota

Valley.

It is indeed an honor to be invited to appear before you today to

speak with you about the Minnesota Valley National Wildlife Refuge and the recently-concluded discussions between the Fish and
26

Wildlife Service, FAA, and MAC regarding the mitigation of impacts associated with the expansion of the airport in the Twin Cities.

The Friends of the Minnesota Valley was incorporated in June

of 1982 as a non-profit organization and is one of many similar organizations cooperating with the Fish and Wildlife Service in local

communities across the country. Many of the members here—many

of you who have refuges in your districts—may be well-familiar

with your Friends organizations.

Before we get to the question and topic I was asked to comment

on today, I would like to share with you a bit about our history and

the way in which we have chosen to work within our community,

as I believe it is relevant to the issue being discussed today.

The dream of having a national wildlife refuge in the Minnesota

Valley was developed in the early 1970’s by a group of citizens

called the Burnsville Environmental Council. Frustrated with their

failure to stop the expansion of landfill operations in the Burnsville

portion of the Minnesota River flood plain, they decided that a

more comprehensive approach was necessary to protect the river

bottoms in their community.

As a result, in 1974 the Burnsville group produced a 24-page

booklet that proposed a Minnesota River national wildlife refuge

and recreation area. The Council sent the booklet to everyone, from

local city councils to the President of the United States. Fortunately, then-Congressman Bill Frenzel responded by asking the Department of Interior to investigate the feasibility of establishing a

national wildlife refuge in the valley.

The result was the development in 1975 of a proposal for such

a refuge. The Burnsville Council reached out across the river and

then asked the Bloomington Resources Commission for help. Together they formed a local group known as the Lower Minnesota

River Valley Citizens Committee. Now that group is known as the

Friends of the Minnesota Valley. This citizens’ committee kept up

the contacts between volunteers and invited people to share in the

vision of the refuge proposal along a 34-mile stretch of the Minnesota River.

Countless presentations were made to communities and community groups up and down the river for the purpose of educating people about the project, seeking endorsements, and working out consensus on issues of concern within the community.

After this engaging process, the citizens’ committee was able to

get support and resources from more than 40 private groups and

public groups, including local and national conservation organizations, chambers of commerce, corporations, the Jaycees, State agencies, the Minnesota legislature, and local units of government.

Through this process many issues were worked out between the

stakeholders, who had differing views of the refuge proposal, and

consensus was reached.

In July of 1975, then-Senator Walter Mondale and Hubert Humphrey introduced a bill to establish the Minnesota Valley National

Wildlife Refuge. Then Congressman Oberstar, along with former

Congressmen Frenzel and Hagedorn, introduced a similar bill in

the House of Representatives. By late September, 1976, both

Houses of Congress had passed the authorizing legislation which
27

we’ve heard discussed today, and President Ford signed the bill

creating the Minnesota Valley National Wildlife Refuge on October

9, 1976—a true community-based and bipartisan effort. The Minnesota Valley National Wildlife Refuge is a magnificent urban refuge that owes its existence to groups like the Friends of the Minnesota Valley and our precursor citizens groups.

Our group did not stop with the establishment of the refuge,

however. Our efforts now are focused more broadly on protecting

the lower Minnesota River watershed and its environs. Since establishment of the refuge, we have successfully worked with the congressional delegation and the State legislature to acquire refuge

lands and associated State properties—two State parks at each end

of the refuge—to construct a visitor and education center, which is

now a model for nationwide use, and provide an excellent environmental education resource for the Twin Cities public-at-large.

While continuing to work on the basic issues of non-profit organizational existence, like fundraising and membership development—

and we now have over 600 members—the Friends have helped enlist volunteers. We have enrolled over 10 percent of the refuge

neighbors in our private lands registry program. These are voluntary private citizens recognizing the value of their private property adjoining the refuge.

We have coordinated efforts for water quality monitoring with 13

public schools in the area. We communicate with residents of the

watershed regularly and raise awareness of this resource within

the Twin Cities, and we are increasingly fostering partnerships to

improve the lower Minnesota River watershed and ecosystem, a

program begun Minnesota River basin-wide by Governor Carlson

eight years ago.

The current situation: In February of 1998, the Friends of the

Minnesota Valley, following this style of working in the community,

began to see if we could develop, in association with the Airports

Commission and other local stakeholders, an agreed upon solution

to the potentially contentious issue of expansion of the airport.

We knew the 1996 decision by the Minnesota legislature to expand the airport and route air traffic over the refuge had to be implemented. After extensive review of the situation, our organization, in concert with 16 local and national conservation and community groups supported the concept of mitigating these impacts

associated with the expansion of the airport.

We co-sponsored, in association with these groups and others, a

public open house at which time representatives from all three

Federal agencies—excuse me—the Airports Commission and the

two Federal agencies—appeared for the first time together in public to respond to the questions that were revolving around this

issue. The outcome of that meeting was significant progress towards the necessary development of a community consensus on the

mitigation package.

I can’t sit here and say that we don’t regret the loss to the public

of the resource that’s being lost here—the Black Dog Lake unit and

the Meadow Lake units of the refuge. They will no longer be available for outdoor, educational, classroom use, birdwatching and

other such things.
28

We, however, recognize that the airport must expand to meet the

needs of the flying public, and we have contended that expansion

of the airport at this location will result in less overall environmental and natural resource damage in Minnesota than would construction of a new airport on a 21-square mile site affecting many

private agricultural landowners.

The Friends of the Minnesota Valley——

Mr. YOUNG. How much more do you have?

Mr. FRENCH. I have about two minutes.

Mr. YOUNG. Take one minute.

Mr. FRENCH. One minute. Okay. We applaud the Airport Commission, the FAA, and the Service for recognizing the serious nature of these impacts. We look forward to working with the Service

and the community to develop the National Wildlife Refuge Enhancement Act required comprehensive conservation plan to further the refuge values in this watershed.

I now want to respond to the question that the Committee asked

me to respond to. In your letter to us you asked this question: ‘‘The

Committee would appreciate your addressing the issue of how the

Fish and Wildlife Service agreement for compensation will impact

the rights of private property owners to receive compensation for

the constructive use of their land in connection with the protection

of wildlife.’’ In analyzing that question—and I’m not sure we’re the

ones that need to be asked that—it is our understanding that private wildlife lands are not eligible for review under the constructive use provisions of section 4(f) of the 1966 Department of Transportation Act.

It is also our understanding that the agreement between the

Fish and Wildlife Service and the Airports Commission will have

no impact on the rights of private property owners to receive compensation for their land through a fee title acquisition transaction

in connection with the protection of wildlife.

This concludes my prepared remarks. We really thank you for

the opportunity to be with you today. Mr. Chairman, and members,

I’ll be happy to respond to any questions that you have. Thank you.

[The prepared statement of Mr. French may be found at end of

hearing.]

Mr. YOUNG. Thank you, Mr. French.

Dan, who instigated, or where did the idea for compensation to

the Fish and Wildlife come from? Was that instigated by your department, or was that instigated by the FAA?

Mr. ASHE. I think during the process of developing the environmental impact statement on the proposed runway project and our

comments and response to the analysis of alternatives in the draft

environmental impact statement, it was the Fish and Wildlife Service who raised the possibility that there would be a constructive

use of the Minnesota Valley National Wildlife Refuge and that the

4(f) provisions of the Transportation Act would apply.

Mr. YOUNG. Actually, the instigating of a fee was started in your

department.

Mr. ASHE. I believe the original proposal for a mitigation package

was transmitted from us to the FAA.

Mr. YOUNG. Okay. Ms. Pickard, where is that money coming

from?
29

Ms. PICKARD. As I said, the Metropolitan Airports Commission is

paying the money.

Mr. YOUNG. And they are getting the money from——

Ms. PICKARD. There will be no Federal funds. They may use——

Mr. YOUNG. And they are getting the money from where?

Ms. PICKARD. They may use airport revenue for the compensation. They may also use some passenger facility charge money, and

they may use other money that is not within any knowledge of the

FAA, unrelated to the airport.

Mr. YOUNG. Have you studied the constitutionality of this?

You’re spending money not appropriated by Congress, and you’re

actually putting a tax on the passengers to pay the $20-some-odd

million to Fish and Wildlife, are you not?

Ms. PICKARD. You’re referring to the passenger facility charge.

Passenger facility charge moneys are eligible for environmental

mitigation related to an airport capital development project, and

this is considered within that scope. It’s local money, not Federal

money.

Mr. YOUNG. But it’s taxpayers’ money; it’s not local money.

Ms. PICKARD. It is a head tax, if you will——

Mr. YOUNG. And I thought only the Congress could pass tax law

when it comes to redistributing money from one agency to another

agency. So what I’m getting to is the Fish and Wildlife are circumventing this Committee in the appropriation process. You’re taking

over $20 million, and you put down this wish list—and that’s why

I asked you, Dan, where it came from—and you’re asking for new

employees, you’re asking for new facilities, boardwalks, et cetera,

et cetera. And I’ve got to ask you, what would have happened if the

Commission hadn’t agreed to this? The Commission is not losing

any money. They are taxing people to pay for this. Now if they had

not agreed to this amount of money, could you have stopped this

project?

Mr. ASHE. We could not have directly stopped the project, Mr.

Chairman. What we could have done was continue to express our

views about the impacts of the project on the Minnesota Valley National Wildlife Refuge, and the Federal Aviation Administration

has the responsibility to consider our views and comments in the

conduct of making their decision on the airport to approve the airport construction project.

Mr. YOUNG. Are you telling me the FAA could have gone ahead

and built this without your blessing?

Mr. ASHE. It’s their decision to make. They have a responsibility,

as I read the law, Mr. Chairman, to minimize and mitigate to the

extent feasible the impacts on refuge lands. We believe that they

have done that in good faith and done that in compliance with the

law as we recommended they do. But had we continued to—had

they not agreed to this agreement and we had continued to express

our reservation, then, again, FAA is the decisionmaker in this case.

And, Lynne, I don’t know if you have anything else to offer, but

they are the decisionmaker.

Mr. YOUNG. Well, you see what I’m leading up to. To me, this

looks like sort of a form of extortion because you’re not using

money to re-establish any wildlife; you’re using it to build a pretty

good layout—a visitors’ center, a walkway, observation towers, ob30

servation platforms, new personnel. I mean, it’s a great wish list

and I can understand the Commission doing this.

And, by the way, Mr. French, do you get any of this compensation money? Your agency? Your group?

Mr. FRENCH. Mr. Chairman?

Mr. YOUNG. Yes.

Mr. FRENCH. At this point in time we are not getting this money.

Mr. YOUNG. Are you in this mix of this $20 million at all, in any

way?

Mr. FRENCH. At this point in time, no.

Mr. YOUNG. What do you mean at this point in time? Are you

going to apply for it?

Mr. FRENCH. The community is discussing—no, we’re not going

to apply for it. I’m sorry, Mr. Chairman. The funds as I understand

it will be used to mitigate, through land acquisition and construction of facilities, the impacts associated with the new runway.

Mr. YOUNG. It goes back to what I said, Dan. You are mitigating

building the brand new facility, is what you’re doing.

Mr. ASHE. That’s correct, Mr. Chairman. What I would do,

though, is disagree with your assertion that we are circumventing

this Congress or circumventing this Committee or the Congress because the Minnesota Valley National Wildlife Refuge is an authorized refuge that’s been authorized specifically in legislation by Congress. The legislation directs us to establish and maintain a visitor

center and visitor facilities.

The Congress, through the appropriations process, sets the level

of FTE’s that the Service can have. So, we can gain dollars to help

us achieve an objective. We can’t achieve that objective unless we

have authority granted to us by Congress, and in this case we do

have that authority. So I guess I would disagree with your assertion that we are circumventing Congress. We are going to replace—

it is our intention to replace the facilities that we believe will be

impacted by the noise created by this runway expansion.

Mr. YOUNG. Well, another thing is, Dan, you know and I know

that moneys being spent should go either through the Treasury or

should go through the appropriation process. And I’m concerned

primarily with the purchase of land, and it goes back to private

property rights again. Now are you—with the agency—you have inholdings or adjacent holdings—are you enforcing the buffer zone

concept that those people have to sell? Or is it willing buyer, willing seller?

Mr. ASHE. We would acquire land, as we do in every instance,

from willing sellers.

Mr. YOUNG. Without putting any restriction on them or anything

else, like they did in California?

Mr. ASHE. Yes. No, sir; without putting any restrictions on them.

Mr. YOUNG. Okay, you heard what Ms. Pickard—not Ms.

Pickard, Ms. Marzulla—had to say about in Fairfax—was that in

Fairfax?

Ms. MARZULLA. Fairfax County, Virginia.

Mr. YOUNG. Have you got that documented?

Ms. MARZULLA. Oh, we do, yes.

Mr. YOUNG. Mr. Ashe, are there any salmon in Fairfax County?
31

Mr. ASHE. I’ve never heard of or seen a salmon in Fairfax County. That’s why it sounds rather far-fetched to me, Mr. Chairman.

I would like to—but I am not familiar with the case at all.

Mr. YOUNG. Well, I want to suggest, as the Deputy Assistant

Secretary, you get real familiar with that case real quick, because

this is the type of thing that gives you really black eyes. I mean,

I could see possibly the concern for the bald eagle, although they

will nest anywhere they want to nest. I think they’ve proved that.

Mr. ASHE. If the reference is to salmon in Fairfax County, I

guess I would posit myself that that reference is in error on somebody’s part, and I would gather that it’s probably not our biologist

who is claiming that there are salmon in Fairfax County.

Mr. YOUNG. Okay, I’m going to suggest——

Mr. ASHE. My guess would be that it might be shad or one of the

other anadromous species of fish that eagles feed on.

Mr. YOUNG. And this senior citizen is supposed to re-establish

the shad run? I’m going to suggest that the two of you sit down

and work this out somewhere along the line because this is the

thing I really like to go to ‘‘60 Minutes’’ about, and I have no reservations about going to ‘‘60 Minutes’’ about this if I can get some

assistance in doing it. Because this is an example of what occurs

with the lack of sensitivity within the agency itself.

And you know I’m not picking on you, Dan. The whole agency is

screwed up, if you want to know the truth.

[Laughter.]

I mean, I’ve watched it just deteriorate in the last six years to

the point where you have no consolation or no consideration for the

people that you’re directly interfacing with, and we see it probably

more in Alaska than in any place in the Union right now, especially the Izembek operation.

I’ve got a whole series of questions, you know, that just absolutely do not parallel what you’re saying here in your testimony,

and I won’t go into them because my time is up.

The gentleman from Minnesota.

Mr. VENTO. Mr. Chairman, I think that when we get into these

anecdotal stories that are sort of unrelated to the topic at hand

that it’s always good to hear both sides of it before we pass it over

to ‘‘60 Minutes’’ or to anyone else.

Mr. YOUNG. Well, I’m saying they had better fix it or it will be

on ‘‘60 Minutes.’’

Mr. VENTO. Let’s have a hearing on it and let everyone know and

put it on the table.

Mr. YOUNG. I want ‘‘60 Minutes.’’

Mr. VENTO. I know. I know what you want.

Mr. YOUNG. I want to be Bill Clinton; that’s what I want. I’m

going to spin this; that’s what I’m going to do.

Mr. VENTO. I know. You want a little word association game

here, you know. I understand. You know, I think it does not help

in terms of using this as a platform to get up and state, ‘‘We’re

mad as hell and we’re not going to take it any more.’’ Well, I’ve

done it, but I don’t think it particularly helps here in terms of

what’s going on.

The issue with the ticket tax—in fact, the revenues here, Ms.

Pickard, are coming from property taxes. They’re coming from
32

bonded debt; they could come from a variety of different funds that

the Metropolitan Airports Commission has. Is that correct?

Ms. PICKARD. The passenger facility charge would be an authorized fee on passengers using the Minneapolis-St. Paul Airport.

Mr. VENTO. Oh, I know what it is. I’m just saying that the money

that they are using here may come from a variety of different

sources. They are spending $5 billion to do this project.

Ms. PICKARD. The Metropolitan Airports Commission would have

to address that. I would assume it probably is. We have only given

them our opinion that they could use airport revenue or they could

use passenger facility charges.

Mr. VENTO. Well, they are using that money. We don’t approve

the money when they spend $100 million to insulate 4,300 homes.

The FAA didn’t necessarily have to pass judgment on that. That’s

their authority to use those dollars. Is that correct?

Ms. PICKARD. Sir, they certainly have authority to use airport

revenue appropriately for environmental mitigation without FAA

approval. We do have to approve the use of passenger facility

charges.

Mr. VENTO. Yes. Well, the governance structure—well, they paid

that money out of, I’m sure, part of it out of that, or at least when

it came into existence they planned on paying and buying—they

ended up paying $200 million more for the same purpose in terms

of insulating homes in the area against such structure. I’m just trying to point out that private property here is impacted and is compensated where there is a demonstrated effect or where it has an

impact insofar as their agreement. Now I don’t know that it’s gone

to court to establish what the property rights issue is.

Mr. Ashe, and Mr. Schultz, who is with you, the Director, I

guess, of this Fish and Wildlife Service area, was there any suspension of any of the NEPA laws or EIS laws with regards to this

issue?

Mr. ASHE. No. In fact there was complete compliance, and in fact

that is, in my view, one of the major contributing factors to what

led to the positive resolution in this case, was that we had an agency that took its environmental analysis responsibilities very seriously, looked at all of the alternatives, compared the impact of the

various alternatives on the refuge and provided that analysis for

both the public and for the Fish and Wildlife Service and other

agencies to see. So there was complete compliance as far as I could

tell.

Rick?

Mr. VENTO. Rick—Mr. Schultz? I guess he’s agreeing with you.

Mr. SCHULTZ. Yes, I feel that. Mr. Chairman, I feel that FAA and

MAC did a very nice job of going through the environmental compliance documents. They had both the draft EIS, which was a thorough analysis of the environmental issues associated with the new

runway expansion, plus they had the final EIS. They also had the

4(f) evaluation which addressed environmental compliance issues

as well.

Mr. VENTO. There’s a suggestion, of course, that the information

or documentation with regards to the impact on the fish and wildlife in the area—the fauna and flora—was not as well-documented,

that it was not, in this instance, possible to document what the im33

pact is. But the 4,000 acres of land that are going to be purchased

here to augment and mitigate this, will in fact have a positive impact on the fauna and flora in the area and the purpose and mission of the Fish and Wildlife Service. Is that correct, Mr. Ashe?

Mr. ASHE. I believe it’s correct. Rick could probably provide you

with a more specific answer. I’d like him to address that.

Mr. VENTO. Yes.

Mr. SCHULTZ. When we went into negotiations with FAA and

MAC on this issue, we had two basic principles here. One was to

assure that there was a no-net loss of wildlife habitat associated

with the project, and number two, we wanted to assure that there

would be a no-net loss of the opportunity for the public to view

wildlife in its natural setting. And the compensation that we have

agreed to will allow us to fulfill those principles.

Mr. VENTO. I just would, again, want to point out there is no

road going through here. This isn’t a wilderness area. And with response to my colleague from Nevada, I did review just briefly the

Ivanpah Airport issue, and I find that in the legislation there is a

suggestion.

The proposal was to suspend NEPA and to suspend FLPMA and

to override the BLM local policy with regard to—just as starters.

So, it may be that one of my concerns, as the gentleman stated,

was clearly the fish and wildlife or the impact on the Mojave and

other things, but I’d be happy, you know, to work with him on that

particular issue.

And the major point here is, of course, to compensate where

there is an impact on public land and certainly where there is a

legally documented legal impact on private property, as we’re

doing, obviously, with these flight paths. And I know this is a big

issue in the West, and I think, obviously, confusing it with roads

through a wilderness wildlife refuge is so——

Mr. YOUNG. The gentleman’s time is up. I just want to make one

suggestion. According to this one requirement by the Fish and

Wildlife, they want so many roads and trails built, so many observation areas built. This is all in the refuge—and parking lots. I

mean, this is going to be built. Is that correct, Mr. Schultz?

Mr. SCHULTZ. Mr. Chairman, that is correct. The mission of the

Minnesota Valley National Wildlife Refuge has two components to

it. One is to restore and protect habitats for fish and wildlife; the

other is to provide wildlife-dependent recreation and environmental

education activities.

Mr. YOUNG. Okay. Why I’m bringing this up is he keeps talking

about a road through a wilderness which was created by this Congress that already had 40-some odd miles through Izembek.

Mr. VENTO. Well, they are replacing the——

Mr. YOUNG. No; I’m just saying, they are replacing it, but they

are putting it in the refuge, and all we wanted is a little, old, silly

gravel road, just so I can save my people.

May I make a suggestion to the members here? He keeps referring to the purchase of 4,000 acres. Now, have you identified those

4,000 acres? Have you talked to those landowners, and what are

their feelings about being purchased?

Mr. ASHE. I think our normal procedure with regard to refuge acquisition would be to establish a refuge boundary. We do an envi34

ronmental analysis. In this case, maybe some parcels are already

within the existing refuge boundary, in which case we’ve already

done that type of analysis and public input. As I indicated, our desire in this case is to implement the mitigation agreement through

the development of our comprehensive conservation plan for the

refuge, which will involve, again, public notification.

Mr. YOUNG. I know my time is up, but I want to get it straight.

If I find one member that is being brow-beaten into selling his land

because you’ve put a border around him, you’re going to be back

before this Committee again.

Mr. VENTO. Mr. Chairman?

Mr. YOUNG. This is what I’m trying to say: You say you’re going

to buy 4,000 acres, and, you know, when you purchase 4,000 acres,

$20 million is being raised by users’ fees on people who fly through

the Minneapolis Airport. I’m just—I want to make sure that you’re

not really using the big, heavy hammer.

I’m out of time. Mr. Pombo.

Mr. VENTO. Well, Mr. Chairman, let me just point out that there

is also an active program by the State, the RIM program and the

conservation reserve program—that they have actually had a series

of agreements up and down the Minnesota River Valley which are

quite substantial, and it might be well for Mr. Schultz to address

that since you’re concerned. So there have already been initiatives

on those areas.

Mr. YOUNG. Well, I’m not concerned about the State; I’m concerned about the role of the Fish and Wildlife. That’s my jurisdiction. Now the State can do anything they want to do. But I’m just

saying—I’m very conscious. I’ve seen this happen to—Mr. Pombo

may ask a question about it later on—but I’ve seen it happen in

other areas of the United States.

Mr. Pombo.

Mr. POMBO. Thank you, Mr. Chairman.

Mr. Ashe, in your prepared statement, you state that in the

Wildlife Refuge System Improvement Act of 1997 that Fish and

Wildlife Service has no authority to regulate air space above a refuge. You further state that, ‘‘I want to emphasize again that no

part of this runway will be constructed on either existing or future

refuge lands.’’

You also state in your printed testimony that publicly-owned

land under the Transportation Act—‘‘publicly-owned land from a

public park, recreation area, or wildlife and waterfowl refuge of national, State, or local significance.’’ If you have no authority to regulate air space and if none of the refuge land is going to be used

for this runway, how do you tie in section 4(f) in order to obtain

the mitigation money?

Mr. ASHE. I guess I would say, going back to Ms. Pickard and

the testimony of FAA, that section 4(f) contemplates two types of

use of public lands, both physical use—occupying the property—so

if they did our land for a runway or a road, that would be physical

use.

Mr. POMBO. Which you state is not the case.

Mr. ASHE. Is not the case in this instance—or constructive use,

which means the presence of noise generated by aircraft overflights

is essentially rendering our refuge useless, from the standpoint of
35

achieving the purposes which Congress has legislated us to accomplish at that refuge. But we have a public education mission at

Minnesota Valley Refuge, where the public has made substantial

investment.

Mr. POMBO. So it’s your guess—guess—that 4,000 acres of the

refuge will be rendered useless because of this runway, and you’re

going to take the money and buy 4,000 acres somewhere else in

order to mitigate, to make up for the impact.

Mr. ASHE. What we have said is that the noise generated from

the aircraft will make it difficult for us to accomplish our conservation education and wildlife interpretation mission on those portions

of the refuge, and we have asked——

Mr. POMBO. So it’s not a full taking; it’s a partial taking of the

use of that part of the refuge.

Mr. ASHE. Well, it’s not a taking at all. We are relying on the

constructive use provisions in section 4(f) of the Transportation Act,

which provides for mitigation in this case.

Mr. POMBO. And the constructive use is the partial taking of that

property. The language that you are using is the same language

that refers to private property in that it is a partial taking use. It

is a constructive use of your property, just as if some other activity

limited the use of your property, it would be a partial taking, a

partial taking of that property, a partial use of that property.

I am somewhat confused as to—with all of the laws that are out

there right now—how you can still have a mitigation and still require the payment of $20 million on that, because even in reading

your statement, I don’t see how you start here and end up with requiring that $20 million payment.

But I do need to ask you, was a section 7 consultation done

under Endangered Species with FAA on this?

Mr. ASHE. Well, the FAA considered the impacts of the proposed

runway on the federally-listed species that are present in the Minnesota Valley refuge area in the conduct of doing their EIS, and

the Service reviewed their analysis and made the determination

under the Endangered Species Act that it was not likely to affect

the bald eagle, which is the resident species there.

Mr. POMBO. Weren’t there other endangered species that were

looked at on this as well, or was the bald eagle the only one?

Mr. ASHE. Rick is in a better position. The bald eagle is the principal species.

Mr. SCHULTZ. Yes, both the bald eagle and the peregrine falcon

are in the area. The peregrine falcon nests on a hacking box on a

NSP power plant tower about two miles away from the end of the

runway.

Mr. POMBO. Excuse me—on a power plant tower?

Mr. SCHULTZ. That’s correct.

Mr. POMBO. Okay.

Mr. YOUNG. If the gentleman from California would do me a

favor, I’d like to have you take the gavel. Would you take the gavel,

the gentleman from California?

Mr. POMBO. Yes, I’ll take the gavel, but I don’t want you to take

me time.

[Laughter.]
36

Mr. YOUNG. You can do anything you want when you’ve got the

gavel, buddy.

Mr. POMBO. If I’ve got the gavel, then I guess I get to keep asking questions.

Mr. YOUNG. You can ask questions as long as you want, as long

as you’ve got the gavel.

I just want to ask, when did this project start?

Ms. PICKARD. The FAA began our review in the early 1990’s,

with the Federal EIS starting in 1994 or 1995. The State legislature had been dealing with about seven years’ worth of planning

studies before that point.

Mr. YOUNG. All right. Before I relinquish this, Richard, just one

thing. I’m still confused about—my interpretation of the Constitution is the protection of the private property right holder, and

you’re not private property. Fish and Wildlife is public property,

and I don’t see where you have the authorization to be compensated by another Federal agency or by the airport.

You know, if I was really nasty, I’d likely take to filing a lawsuit

to stop this project, because I don’t think you have the authority

to do what’s been done—either one of you. And if you read the Constitution very carefully, it says ‘‘use’’ and it refers to the private citizen, not another Federal agency. I mean it’s something I want you

to think about for a while. I know you struck a deal; I understand

that. But you’re messing with the constitutional law here and it

really concerns me a little bit.

Mr. Pombo, you’re up.

Mr. POMBO. [presiding] I just wanted to get back to the issue of

section 7 consultation. You identified at least two endangered species that were looked at as part of this. Under section 7, under the

Endangered Species Act, could you have not stopped the construction of this runway if there was not sufficient mitigation to mitigate any impact against those endangered species?

Mr. ASHE. If there were an effect on the endangered species then

we could have, but what we would do under the section 7 process

is notify the action agency, in this case FAA, that there are endangered species present and there is or is not the likelihood of take

in association with the project.

Again, it’s the action agency that has the responsibility to avoid

take. The law prohibits take. And it’s our responsibility at the Fish

and Wildlife Service to advise Federal agencies of the potential effects of a project and whether a project is likely to affect endangered species and whether a jeopardy situation may arise in the

conduct of an agency conducting their activities. So, it would be our

responsibility to advise them.

In this case we did look at the available information and made

a determination that the activity was not likely to affect the endangered species.

Mr. POMBO. Under the current interpretation of the Endangered

Species Act, take includes harassment, and it’s your testimony that

the 7,000 flights a month present no harassment or take of the endangered species.

Mr. ASHE. That was our assessment in looking at the project. I

guess I would point out to the Committee—and I heard a number

of members raising issues surrounding the potential impacts of
37

overflights on species—and I guess I would just point out that the

impacts of overflights on species are case-dependent. It depends on

the species; it depends on the airport; it depends on the types of

aircraft that are flying; it depends on the time of year that they’re

flying. And so, looking at any one instance and the specific facts

around that instance may lead to a different conclusion.

We have a very active, very vibrant bald eagle population about

three miles south of here at Mason Neck National Wildlife Refuge,

itself right in the flight path of National Airport, and so there are

many instances in which wildlife can adapt to aircraft overflight

and do adapt well to aircraft overflight. There are other situations

where they do not adapt well to aircraft overflight, and it is dependent upon the species and upon the facts of the specific case.

Mr. POMBO. My time has expired, but I think what you’re hitting

on is exactly the problem that a number of members have with the

Fish and Wildlife Service. It’s that at certain times, depending on

whatever conclusion you come to, sometimes these are okay, and

other times they are not okay. And it appears to a lot of us that

there is a regional decision that is made as to when it’s okay and

when it’s not okay, depending upon what part of the country it is

or whose ox is being gored by it. And at other times it appears that

if there is a sufficient payment made to Fish and Wildlife Service,

a lot of times the problems aren’t as severe as they would be otherwise.

It makes me wonder if my county had raised $20 million in some

kind of a tax and paid Fish and Wildlife off, if we would have been

able to maintain our levees, because we were told no and we didn’t

have endangered species. It was potential habitat. They couldn’t

find an elderberry beetle for miles anywhere near the levees that

we were trying to maintain, but there were elderberry bushes

there, so it was potential habitat, so we were told we couldn’t do

maintenance on our levee system. I wonder if we would have put

$20 million into some kitty if we could have done it, and that’s the

question that a lot of us have.

Mr. Gibbons.

Mr. GIBBONS. Thank you, Mr. Chairman, and in response to my

colleague from Minnesota, I want to ensure him and his staff that

we are willing to work with you on this Ivanpah bill; however, it

does not, and the language in the bill is absolutely, specifically

clear, that it does not waive any environmental impact law. It does

not waive FLPMA. It’s all stated within the bill that those were to

be complied with, and fully. So, I appreciate your comments, and

I look forward to having my staff work with you on the issue.

Following on with what my colleague from California was talking

about on the endangered species and that, Mr. Ashe, I know that

in the environmental impact statement that was prepared, there’s

a quote in there that in essence says that wildlife or waterfowl appear to readily habituate to frequent aircraft overflights: ‘‘It is concluded that aircraft noise within the affected environment would

not significantly diminish the wildlife habitat in the refuge.’’ Is that

true?

Mr. ASHE. That’s true. Well, I would say——
38

Mr. GIBBONS. Now explain to me how aircraft noise, whether it’s

in Nevada, Minnesota, California, or Timbucktu, does not impact

wildlife habitat.

Mr. ASHE. I guess what I would say is I think you correctly

quoted our citation in the environmental impact statement. I think

that what we have said is the impacts on wildlife from the overflight, in our view, were uncertain. We did not feel that what we

knew about the impacts of overflights——

Mr. GIBBONS. Well, the uncertainty is not in your language. It

says, ‘‘It is concluded’’——

Mr. ASHE. Right.

Mr. GIBBONS. [continuing] ‘‘that aircraft noise within the affected

environment would not significantly diminish the wildlife habitat

in the refuge.’’

Mr. ASHE. And, again, that’s our conclusion, because we did a literature search, we looked at the available scientific information on

the impacts of similar types of overflights, and we did not feel that

there was a way that we could conclusively determine that there

would be an impact.

Mr. GIBBONS. So, I can go back and I can use the same argument

on any other project which has an overflight and say that you don’t

have literature or statements available to say it would impact wildlife habitat.

Mr. ASHE. No, sir. No, sir. I believe what I tried to explain to the

Committee just a few moments ago, and perhaps did an insufficient

job, was that it depends on the type of the species and the time

of the year and the type of aircraft.

Mr. GIBBONS. Well, you can’t tell me—and I’m an airline pilot—

that an airplane makes a different noise in California than it does

in Minnesota when it’s landing or taking off. You can’t tell me that

an aircraft makes a different kind of noise in Nevada than it does

in Minnesota.

Mr. ASHE. No, sir; I can’t do that, but I can tell you——

Mr. GIBBONS. Well, that’s what you’re trying to tell us.

Mr. ASHE. No, sir. What I’m trying to tell you is that a lesser

snow goose is different from a black brandt, which is different from

a bald eagle, which is different from a white ibis.

Mr. GIBBONS. Absolutely. Now where in the literature is there

that shows that those individual species are impacted by noise differently than the ones in this refuge?

Mr. ASHE. I think that we do have that information. I would like

Rick Schultz to be able to present that to the Committee.

Mr. SCHULTZ. I have with me today several literature reviews

that talk about the way aircraft impact different species of wildlife.

I can get that out of my briefcase, if you would like. There has been

an awful lot of work done on noise and aircraft overflights.

Mr. GIBBONS. I would like a copy of that, if you would provide

it to my office. I don’t know if the Committee needs it, but I would

sure like a copy of it for my office.

Mr. POMBO. Without objection, it will be included as part of the

record if you could provide that.

[The information may be found at the end of the hearing.]

Mr. GIBBONS. One final question, Mr. Chairman, if I can. The use

of the term ‘‘urban refuge’’ indicates that growth—urban growth—
39

is a reality that has to be dealt with, and I think that’s pretty

much your statement, isn’t it? The reality of urban growth, Mr.

Ashe?

Mr. ASHE. I think that we have a refuge that was established in

that context, and Congress gave us specific direction with regard

to our management and stewardship of that refuge.

Mr. GIBBONS. Well, your statement is an urban refuge, where

urban encroachment is a fact of life; you have to deal with it.

Mr. ASHE. Correct.

Mr. GIBBONS. In many of these cases that we see here in this

body, they deal with urban settings or community settings within

which there are nearby impacts. Those are facts of life, and whether it’s in Nevada or California, not only do we deal with them, but

you have to deal with them as well, and it distresses me to find

that this is a pick and choose sort of an organization, depending

upon whose ox is being gored about how you deal with the fact of

life about urban growth.

In my community we talk about this Ivanpah Airport, and there

is tremendous objection by your organization to a 5,000-foot overflight that has probably—and I’m going to look very closely to the

species in this book or this publication that’s being presented—may

not even be or exist in the proximity of the area of the Mojave Reserve. And I want to find that out for certain.

But I think that what you’ve presented here today says to me

very clearly that it depends upon whose ox is being gored that

you’re willing to mitigate or willing to find a way to allow for urban

growth to become a reality and deal with it.

Mr. Chairman, I yield back to you.

Mr. SHERWOOD. This has been a little interesting to me, and I’m

curious—and it’s rhetorical if the Fish and Wildlife Service is a little bit mystified at the fervor for which some of these questions

come, and I’d like to comment on that a little bit.

No one in the world should be more interested in the success of

the Fish and Wildlife Service than I. I’m an avid outdoorsman and

a hunter and a fisherman, but I think what you’re feeling today is

quite a little animosity of the Members of Congress toward the

Fish and Wildlife Service, which is very unfortunate. And I think

we all need to think about where that comes from, and it’s my

opinion where that comes from is we all have some specific area

in which we think the Fish and Wildlife Service has unnecessarily

trampled on the rights of individuals in our home district.

The second issue that I think that is holding this, that is keeping

this thing going today, is what we feel is an unconstitutional taxing

of U.S. citizens to fill the coffers of the Fish and Wildlife Service.

And I think if your Service is going to continue to do the work

which you obviously want to do and are trained to do and we agree

you should do, that you need to address those issues. And you don’t

necessarily have to address them to me, but I think those are

what’s on the mind of the Members of Congress. And I think that

if you don’t address them in the long run, it will impact your longterm funding.

Mr. POMBO. Mr. Vento, did you have anything more?

Mr. VENTO. Well, yes. I know we want to get going, and I don’t

want keep members. I appreciate the testimony of the witnesses,
40

and I would just say, Mr. Chairman, that—maybe I’ve got to give

my colleagues a copy of the book, ‘‘How to Talk Minnesotan’’ in

terms of trying to be understood.

But I think, it seems to me that, first of all, when this Fish and

Wildlife Service area was designated in 1976, it was limited in

terms of it was urban, it was recognized and used for education

and outdoor interpretive purposes, and that’s the reason for the addition of the land. It’s to provide areas that are away from this

flight pattern, which, I don’t know if you were here earlier, Mr.

Sherwood, when I said I used to teach under this flight pattern,

trying to talk to junior high school kids. And I guess that’s why I

developed this small voice I have.

In any case, the issue is then we come back in 1997 and we further limit the Fish and Wildlife Service not to be able to do this.

Now we’ve got 4(f), and they’ve got under the law, if you read it,

it specifically points out that public land—now this is one process.

Now if you like 4(f) and you think that’s the process that you would

like to put other property owners under, well, let’s look at it and

do it. But this is also a restriction on the Fish and Wildlife Service.

They’ve been restricted many different ways.

And so this is one process. I suspect that most private property

owners wouldn’t accept that type of limitation. It isn’t exclusively

used. Actually, we provided for soundproofing of homes in the area,

and it’s going to be something like 13,000 to 14,000 homes that will

be soundproofed in the end by using this particular fund, so I think

the fund is legally established. They are using other revenues here

to pay for this.

But, you know, to strip away all the powers in the Fish and

Wildlife Service—it seems like some of my colleagues are mad as

hell at you because you were successful in doing what you’ve done.

Well, I’m not; I favor this. And when this came up I obviously

voiced and sent some letters along to this group to encourage them

to work together, as I think did other members of the delegation.

Now if there are other ways we can do it—I think what you all

have to face up to is you have tied them down in certain ways, but

I think that we need to get land managers outside of their boundaries. They need to work on trans-boundary issues. They have to

have a voice in our local communities. I want them to do that in

my State and in my area, and I want them to do it, frankly, in all

the other areas in which we have a national interest.

Others are trying to quiet them, and if you think this is going

to stop me from pursuing the ANWR designation or intimidate

other members, I think you’ve got another guess coming. We are

going to continue. This is a process and a partnership that has

worked. You ought to be adopting it rather than challenging it and

trying to intimidate those that are pursuing it. I think it follows

the law, it’s good policy, it works out in terms of partnership. I

think we’ll get a lot more done working cooperatively than trying

to fight even these sorts of logical explanations.

Mr. Ashe.

Mr. ASHE. If I could, just for a moment, because I hear you, Mr.

Sherwood, and you certainly make a valid point. And I guess I

would use Minnesota Valley as an example, and I know that Members of Congress take issue with decisions that are made by the
41

Fish and Wildlife Service every day, but we have a refuge at Minnesota Valley and we duplicate that all over the country and are

taking it seriously. And when you see people here, like Nelson

French; Rick Schultz has gone out of his way in Minneapolis, as

did his predecessors, to reach out to the community and involve the

community.

And when Mr. Young expressed his concern earlier about our

planned acquisition program there, I would not only not expect to

see opposition to that, I would expect to see support for that in

Minneapolis because of the good relationship that Rick and Nelson

and his organization have built in the community there. And the

support that you see for this agreement in Minneapolis is reflective

of that good work, which is not to say that we don’t have a lot more

to do in terms of building those types of relationships more and

more across the country and get out of our refuge boundaries and

work more with communities, both on refuge management, endangered species, conservation, and other things. I think we certainly

can do a much better job of that and are doing, I think the record

shows, a better and better job.

What I would do again is caution—I’ve heard a couple of members implying that the Fish and Wildlife Service is inconsistent in

its application, and I would disagree with that, and I would argue

that the Committee does not want us to take a one-size-fits-all approach to aircraft noise or species impacts because that reduces our

flexibility and our ability to work with people on the ground to do

these kinds of things. And so I think that we try to do that judiciously. I realize, again, that, you know, legitimate and reasonable

people will disagree on things like this, about whether we have

been.

Mr. VENTO. Well, Mr. Chairman, my time has expired, but I was

going to point out that they’ve also—I wanted to try to emphasize

that through the Conservation Reserve Program and other Federal

programs, they have been instrumental in convincing farm groups

on a voluntary basis to set aside land in this corridor, as well as

the State program. In fact, we had a big signing out there with

Secretary Glickman and our Republican Governor Carlson and

many Members. So this has been a bipartisan effort to keep this

going.

Obviously, I understand your interest in using it as a platform

to take a shot at me on some of the issues in Alaska, but I think

that this is something that’s working. If you can get this type of

agreement, I would commend you to try and do it. I know you’ve

got a lot of problems there, and I think they are much more than

what we have.

Mr. POMBO. Well, I appreciate the gentleman’s comments and in

terms of whether or not this is going to stop you, nobody expects

it to. And quite frankly, you get it both ways. You get to take shots

at us, and you get your airport approved, so you get it both ways,

so why would you stop?

The problem is, if they treated you the same way that they treat

us, your airport would not have been approved and you would have

gone through years of hassling in order to make it work and then

maybe you’d see that there’s another side to this. I don’t think

there’s anything wrong with this airport. I think it’s fine. I think
42

it’s great that we are able to work out a way that they can build

this airport and extend this runway and do everything else.

The problem is, that’s not what we get, and maybe it’s partially

because maybe in my area there’s not enough money to make it

work for you. Maybe we don’t put enough money on the table to

make it work. I don’t know, but there is definitely a different

standard. There is definitely a different approach in dealing with

Fish and Wildlife in California than what has happened with this

specific case.

There is no way in the world that you can tell me that it is the

same approach, that it is the same even-handed, ‘‘we’ll work with

you, we’ll make it work’’ approach, because the first thing they tell

us is ‘‘No.’’ And maybe we just don’t put enough money in.

The anecdotal story that Ms. Marzulla told about somebody, an

individual property owner, who has a bald eagle’s nest near there

is told that putting a house on his property is not in line with protecting the habitat or not taking that bald eagle unless he puts

enough money on the table or agrees to let you control his property. Whereas, 7,000 flights a month coming out of this particular

airport is deemed not harassment and not a significant take of

those bald eagles, even the one that’s nesting on the power line—

or at the power plant. That one seems to be doing okay, but if this

guy wants to put a modular home on his property, all of a sudden,

hey; he can’t do that. He’s harassing this bald eagle.

There’s no consistency there. I’d be willing to be you though that

if he put $20 million on the table, you would not only let him put

his modular home in there, you would carry it in there.

Mr. ASHE. I think, Mr. Pombo, the issue is never money, the

issue——

Mr. POMBO. It is always money.

Mr. ASHE. The issue is always whether or not efforts are being

undertaken to mitigate and minimize the effects of a particular

project.

Mr. POMBO. The bottom line is it is always money. If a developer

is big enough, if the timber company is big enough that they can

put sufficient money on the table or give you control of enough of

their land, their problem goes away. But if it’s a small guy with

a few hundred acres, or in this case a lot, they do not have enough

to offer you in order for their problem to go away.

Mr. ASHE. I disagree with that, Mr. Pombo, and I think we——

Mr. YOUNG. Mr. Chairman?

Mr. POMBO. Well, we can go back and forth on that, but it’s the

case. I can cite you case-after-case-after-case where they were not

able to put enough on the table. I can give you cases in my district

where developers who put enough mitigation on the table were allowed to build and allowed to go, and ones that did not have the

size that they were able to afford to do it were not allowed to go.

It always comes down to money or control. If they give you

enough of their property, then you will let them go. If they put

enough money on the table, you will let them go. The species is secondary. It is a method for delivering power and money to the agency. It is the most effective tool that you guys have in order to do

that.
43

Mr. YOUNG. [presiding] Mr. Chairman, I deeply admire your comments. I’m going to let you preside more often.

Just for your information, I’ve already got an inquiry about a ‘‘60

Minutes’’ show, so you might really want to think about this. If we

can document it, you’re going to be on prime time TV, and we could

have lots of fun with it.

So, I want to thank you and thank the witnesses for being here,

and I’m going to suggest again—I heard Mr. Sherwood say it—

there is definitely, as I’ve said before, Mr. Ashe, your agency has

got a long way to go. I think you’ve gone too far to the left. You’ve

lost contact with the people. You talk about working with people;

my people have tried to work. It wasn’t your fault, Dan. Very

frankly, I know whose fault it was. The guy’s running for President

in the year 2000 and got directly involved in it, and you have to

be a good trooper. But the injustice of it was totally wrong.

I thank the witnesses. The Committee is adjourned.

[Whereupon, at 2:06 p.m., the Committee adjourned.]

[Additional material submitted for the record follows.]
44

STATEMENT OF DAN ASHE, ASSISTANT DIRECTOR FOR REFUGES AND WILDLIFE, UNITED STATES FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR

I am Dan Ashe, the Assistant Director for Refuges and Wildlife of the U.S. Fish and Wildlife Service. I am joined today by Mr. Rick Schultz who is the refuge manager of the Minnesota Valley National Wildlife Refuge. I appreciate the opportunity

to provide testimony to the Committee concerning the Minnesota Valley National

Wildlife Refuge and the agreement reached between the Metropolitan Airports Commission, the Federal Aviation Administration, and the Service to address the impacts of the Twin Cities airport expansion project on the refuge. The Minnesota Valley NWR was created over 25 years ago as a result of local residents’ strong interest in restoring and protecting fish and wildlife habitats of the

Lower Minnesota River Valley. These citizens brought together a variety of interests

. . . environmentalists, industry, transportation, elected officials, the general public,

and natural resource agencies who recognized the value of the natural resources of

the area. Based on their hard work and dedication, Congress passed Public Law 94–

466, the Minnesota Valley National Wildlife Refuge Act, on October 8, 1976, which

established the refuge. Unlike most other National Wildlife Refuges, Minnesota Valley NWR is somewhat unique in that it is primarily located in an urban setting.

In this area, fish and wildlife populations coexist with over two million Twin Cities

residents.

The mission of Minnesota Valley NWR is two-fold . . . (l) to restore and protect the

important fish, wildlife, and plant communities of the lower Minnesota river valley

and its surrounding watershed . . . and (2) to provide top quality wildlife-dependent

outdoor recreation and environmental education to Twin Cities residents. Since establishment, the refuge has acquired 10,000 of its authorized 14,000 acres, it has

built a state-of-the-art wildlife interpretation and visitor center, and it has developed top-quality public use programs and facilities.

In the establishment legislation, Congress acknowledged of the refuge’s urban setting and the need for the Fish and Wildlife Service to work with industry and transportation. Section 9 of the Act, entitled ‘‘continued public services’’ provides that,

‘‘nothing in this Act shall be construed as prohibiting or preventing the provision

of vital public services, including (1) the continuation of commercial navigation in

the main navigation channel of the Minnesota River . . .; (2) construction, improvement, and replacement of highways or bridges, whether or not the highway is a federal-aid highway; or (3) any other activity which the Secretary determines to be necessary; if the provision of such services is otherwise in accordance with law. Any

activity referred to in this section shall be carried out so as to minimize the disruption of the wildlife and the reduction of recreational and scenic values of the area,

consistent with economic feasibility.’’

Under section 9 of the Act, we interpreted the expansion of the Twin Cities International Airport to be a ‘‘vital public service.’’ Further, under the Wildlife Refuge

System Improvement Act of 1997, the Fish and Wildlife Service has no authority

to regulate airspace above a refuge. However, under section 4(f) of the 1966 Department of Transportation Act (49 U.S.C. 303), the Secretary of Transportation may not

approve a transportation project which requires the use of any publicly-owned land

from a public park, recreation area, or wildlife and waterfowl refuge of national,

state, or local significance unless there are no feasible and prudent alternatives to

the use of such land and unless the project includes all possible planning to minimize harm resulting from the use. This law applies to projects that make ‘‘constructive use’’ of such lands, including through the type of overflights that would occur

over the refuge in this case.

It was under this provision of law that we worked with the Metropolitan Airports

Commission (MAC) and the Federal Aviation Administration (FAA) to ensure that

disturbance to wildlife and wildlife-dependent recreation was minimized. From the

onset, it was the Service’s objective to ensure that this project would not result in

a net loss of wildlife habitats and that the public would not experience a net loss

of opportunity to view wildlife in its natural setting. We believe those objectives

have been achieved.

Let me explain, beginning with some information about the Minneapolis-St. Paul

International Airport expansion project. At the direction of the Minnesota state legislature in 1989, the Metropolitan Airports Commission and the Metropolitan Council began a process to determine the best alternative to meet the region’s commercial

aviation needs for the next 30 years. In 1992, FAA and MAC began the public phase

of this planning process by announcing their intent to prepare an environmental impact statement concerning this project. This process was known as the dual tract

airport planning process and at that time, several alternatives were considered including expanding the existing airport and the construction of a completely new fa45

cility in the outlying areas of the Twin Cities. In December, 1995, FAA and MAC

issued a draft EIS. Comments from the public and affected agencies were then requested and received.

In March 1996, MAC and the Metropolitan Council submitted their report to the

state legislature which contained recommendations on the preferred alternative. In

response to this report, the Minnesota state legislature, in April, 1996, selected the

expansion of the existing airport as the preferred alternative and mandated its implementation.

Among other items, this alternative called for a new 8,000 foot north-south run- way to be constructed on the west side of the existing airport property. I want to

emphasize again that no part of this new runway will be constructed on either existing or future refuge lands. The south end of this new runway will be located approximately 1 1⁄4 miles north of the refuge. Upon completion, however, the new run- way will result in at least 8,000 commercial flights per month either departing or

descending over the refuge at elevations as low as 500 feet. This translates into at

least one flight over the refuge at relatively low elevations every other minute.

Clearly, this project presented a matter of grave concern for the refuge and the

Service.

As we stated earlier, this particular project will not be built upon refuge lands, so fish and wildlife habitats will not be directly used or harmed from the construction activities. Upon a search of the literature, we were unable to determine that

commercial overflights of wildlife areas would have significant detrimental impacts

upon fish and wildlife populations common to Minnesota Valley NWR. Some information is available suggesting disturbance to some species, but the literature is inconclusive about whether commercial airport operations have any long term effects

upon wildlife species common to this area.

What is clear, however, is that the overflights will significantly impact ‘‘noise-sen- sitive’’ public use activities of the refuge. At Minnesota Valley NWR, the intense aircraft noise at frequent intervals will, among other things, significantly impede normal conversation of refuge visitors. Neither our long-standing and traditional outdoor activities, such environmental education with inner city youth, nor birding activities, which require listening to bird songs to verify visible sightings, will be able

to be continued in their current location due to the aircraft overflights. This includes

our youth waterfowl hunting, where we practice and demonstrate hunting ethics

and proper hunting techniques. Finally, our visiting public’s ability to view wildlife

in its natural setting without significant intrusions will also be compromised. In light of these noise impacts, FAA and MAC correctly determined that the con- struction and operation of the runway will result in a ‘‘constructive use’’ of refuge

lands by the airport. This constructive use is harmful to refuge programs and activities and is therefore subject to Section 4(f) of the 1966 Department of Transportation Act.

As mentioned earlier, the Service position was to ensure that this project would

not result in a net loss of wildlife habitats or a reduction in the public’s opportunity

to view wildlife in its natural setting. Towards these ends, we sent a letter to the

FAA during the public comment period on their draft EIS expressing our concerns

that there was not a sufficient effort to mitigate these effects of the project on the

refuge. Consequently, discussions among the parties led us to the agreement we now

have entered into with the Metropolitan Airports Commission and concurred in by

FAA. We provided MAC and FAA an assessment of what it believed to be acceptable

compensation for the impacts of the new runway. The five major components of this

mitigation package included (1) the replacement of approximately 4,000 acres of refuge lands adversely impacted by noise; (2) the construction of a visitor contact and

environmental education facility located upstream from existing facilities and away

from the aircraft noise, (3) replacement of other environmental education and interpretive facilities; (4) an operations trust fund to underwrite the costs of operating

two facilities rather than just one; and (5) costs associated with the planning and

administration of this project. Based on our best estimates, we valued the total cost

of this mitigation package to be approximately $26.9 million.

Two points should be noted here. First of all, the refuge will continue to maintain

ownership of the lands to be directly impacted by the overflights—these lands will

be managed for their residual wildlife values. Secondly, the Service agreed to a cash

settlement with the realization that mitigation for this project was quite complex

and could not be easily achieved with traditional forms of mitigation. We felt that

to ensure quality, mitigation needed to be accomplished over a period of several

years and should be accomplished under the direct supervision of refuge managers

and/or biologists. Through the Memorandum of Agreement subsequently signed by

the Service and MAC, and concurred with by FAA, the Service received assurance

that the refuge would not experience a net loss of wildlife habitat and that the pub46

lic will not experience a net loss of opportunity to view wildlife in its natural setting. Nearly 60 percent of the mitigation package will be directed towards land acquisi- tion. At this time, the Service has not identified specific lands for acquisition nor

scheduled the construction of replacement facilities. To the degree possible, all of

these mitigation projects will be determined through the comprehensive conservation plan for Minnesota Valley NWR. Through this process, which is scheduled for

completion early in the year 2000, the Service will engage the public and request

their assistance in identifying additional lands and facilities which will offset the

impacts of the airport expansion project upon Minnesota Valley NWR.

We should also mention that the staff at Minnesota Valley NWR has engaged the

public in both the negotiations and subsequent discussions concerning the airport

expansion project. The original citizens group, the Friends of Minnesota Valley, has

been actively involved and has strongly supported the service in these efforts. In addition, several private conservation organizations including the Minnesota River

Valley National Audubon Society chapter, are in support of the mitigation and associated memorandum of agreement.

In closing, we view the impacts of the airport expansion project as a regrettable

but unavoidable loss to refuge programs and activities resulting from actions outside

our jurisdiction and control. At the same time, we are very pleased with the agreement reached between MAC and FAA and we look forward to working with these

two agencies in the future as we address natural resource issues of Minnesota Valley National Wildlife Refuge.

This concludes my prepared remarks and I will be happy to respond to any questions you and the members of the Committee may have.

STATEMENT OF LYNNE S. PICKARD, MANAGER, COMMUNITY AND ENVIRONMENTAL

NEEDS DIVISION, OFFICE OF AIRPORT PLANNING AND PROGRAMMING, FEDERAL

AVIATION ADMINISTRATION

Mr. Chairman and Members of the Committee:

Good morning. I am Lynne Pickard. the Manager of the Community and Environmental Needs Division in the Office of Airport Planning and Programming at the

Federal Aviation Administration (‘‘FAA’’). I appreciate the opportunity to appear before you this morning to discuss the impact of the expansion of the MinneapolisSt. Paul International Airport (‘‘MSP Airport’’) on the Minnesota Valley National

Wildlife Refuge (‘‘Refuge’’). I am pleased to appear on behalf of the FAA Associate

Administrator for Airports, Susan Kurland, who is speaking at our Southwest Region Partnership Conference in Fort Worth. Texas. today.

I know that this Committee is very interested in exploring how the MSP Airport

project will affect the Refuge, and what steps the FAA has taken to mitigate any

adverse environmental impacts on the Refuge. My colleagues from the MinneapolisSt. Paul Metropolitan Airports Commission (‘‘MAC’’) and the United States Fish and

Wildlife Service (‘‘USFWS’’) will discuss other perspectives of these impacts, and the

work that we have done jointly to address these issues.

In order to discuss fully the FAA’s determination of the effect of the expansion

of the MSP Airport on the Refuge and the mitigation for the Refuge, I would first

like to explain how the Department of Transportation (‘‘DOT’’) and the FAA interpret and implement Section 4(f) of the DOT Act of 1966. codified at 49 U.S.C. § 303.

This statute applies to decisions by the DOT to approve transportation projects, including FAA approval of airport development projects. It provides special protection

to publicly owned parks, recreation areas, and wildlife and waterfowl refuges of national, state, or local significance, as well as to land of a historic site (whether publicly owned or private) of national, state or local significance. Section 4(f) permits

the DOT to approve the use of these protected resources for a transportation project

only when the Secretary of Transportation (or his or her delegee) has determined

(1) that there is no feasible and prudent alternative to the use of such land, and

(2) the transportation project includes all possible planning to minimize harm resulting from the use. Section 4(f) is an environmental requirement exclusively applicable to transportation projects that are subject to approval by the DOT. The FAA

is strongly committed to ensuring that airport development projects that we approve

and fund fully meet environmental protection requirements.

As the DOT has implemented Section 4(f), our interpretation of the provision is

that it applies not only to the acquisition of an interest in land but also to situations

where serious impacts result in ‘‘constructive use’’ of land. ‘‘Constructive’’ use may

occur when a transportation project is constructed near, but not actually on, Section

4(f) lands. Constructive use of the land occurs where the proximity of the project
47

may impact the land sufficiently to constitute a substantial impairment of the activities, features, or attributes of the resource. The same protection standards apply

whether the use of the land is physical or constructive. When a transportation

project makes constructive use of land, the DOT and FAA adhere to the requirements of Section 4(f) to find that there is no feasible and prudent alternative and

to include all possible planning to minimize harm. With respect to the MSP Airport project, the MAC proposed a new air carrier run- way and associated airport development for FAA approval. The proposal was mandated by the Minnesota State Legislature after nearly seven years of planning studies, and includes a new 8,000-foot air carrier runway on the west side of the MSP

Airport, new taxiways, and associated facilities. The purpose of these airport improvements is to improve airport capacity, operations, and safety, and reduce airline

delays. The cost of this project is estimated at $1.8 billion through the year 2010. Consistent with its duties under the National Environmental Policy Act of 1969, the FAA prepared an Environmental Impact Statement (‘‘EIS’’) and, in conjunction

with the EIS, made a determination with respect to Section 4(f). The FAA actively

sought public involvement and input throughout the preparation of the EIS, and coordinated with Federal, state, and local agencies with environmental jurisdiction

and expertise. Ultimately, the FAA determined that the MSP Airport expansion

would require the physical use of one historic site and the constructive use of another historic site and of publicly owned lands of the Refuge. In making the determination of substantial impairment, the FAA considered the potential noise impact of the project. The FAA determined that noise increases

would substantially impair the value of some of the publicly owned portions of the

Refuge near the airport by adversely affecting their use for outdoor educational and

environmental interpretive activities such as school field trips and scouting visits,

as well as wildlife recreational activities such as nature walks, bird-watching and

fishing. In summary, the noise impact of the new runway was determined to substantially impair the use of portions of the Refuge for certain human activities that

currently take place within those areas. According to FAA’s analysis, a little over

a thousand acres of Refuge under USFWS ownership would be adversely affected

by an increase in noise levels. In total, the Refuge comprises over 9,000 acres, interspersed with an additional 6,900 acres of state and locally owned recreation areas,

in seven discontinuous management units that extend 34 miles and are part of the

80-mile long Minnesota Valley National Wildlife Refuge, Recreation Area, and State

Trail.

The substantial impairment determination and resulting constructive use deter- mination were based on the public use impacts resulting from increased noise levels,

and not on impacts to the Refuge’s ecological integrity or wildlife resources. The Department of the Interior was consulted on the potential jeopardy to endangered or

threatened species and critical habitat and they determined that there would be no

adverse effects. Based on studies of wildlife compatibility with aircraft noise, the

FAA believes that aircraft noise would not substantially diminish wildlife habitat

or resources in the Refuge, although the FAA recognizes in its evaluation that it

is difficult to quantify noise impacts to wildlife in absolute terms. The FAA’s determination in this case is reinforced by the high degree of waterfowl habituation observed at areas adjacent to existing runways at the MSP Airport. It should also be

noted that the portion of the Refuge in close proximity to the airport is located near

the urban core of the Twin Cities region and is adjacent to significant rail and road

transportation corridors. These transportation facilities existed at the time of the establishment of the Refuge and have always affected the noise environment. Monitored ambient noise levels in the Refuge in the general vicinity of the airport are

comparable to levels typically encountered in suburban residential to noisy urban

residential areas.

Having made a Section 4(f) constructive use determination, the FAA determined

through its review of the airport development proposal in the EIS and Section 4(f)

documentation that there was no feasible and prudent alternative to the use of the

resource. Alternatives that were examined and rejected include new sites for an airport, alternative expansion concepts for the MSP Airport, high-speed intercity rail,

a remote runway concept linked to the MSP Airport by high-speed transit, the shifting of some aviation users to supplemental airports in the region, alternative flight

procedures to avoid the Refuge, and the alternative of taking no action at all. As

I have mentioned, none of these alternatives were feasible and prudent.

The final Section 4(f) requirement is to include all possible planning to minimize

harm resulting from the use of the Section 4(f) resource. As is our practice, the FAA

coordinated with and gave deference to the USFWS, the agency with jurisdiction

over the Section 4(f) resource when determining appropriate measures to minimize

harm. The resulting mitigation plan reflected in the agreement between the USFWS
48

and MAC, with FAA as a concurring party, was developed during detailed consultations among the three parties over a period of two years.

The agreement, referred to as a Memorandum of Agreement (‘‘MOA’’), provides a

specific program to satisfy all possible planning to minimize harm to the Refuge

from the airport development project. It provides for monetary compensation to be

paid by the MAC to the USFWS to offset the unavoidable adverse airport project

impacts to the Refuge. No FAA Airport Improvement Program dollars will be used

to compensate the Refuge. The MOA provides that the compensation will be used

to provide the Refuge with replacement land of habitat quality equal to that impacted by the airport project and to provide for the construction of ponds, hiking

trails, and other improvements to replace comparable Refuge components adversely

impacted as a result of the airport project. The MOA recognizes that, in exchange

for compensation, heights of structures on Refuge property near the airport will be

limited to be compatible with aircraft operations, and that aircraft shall have the

right of flight and to make noise over the Refuge property that is the subject of compensation. Finally, the MOA acknowledges that USFWS will continue to appropriately manage Refuge lands that are the subject of the agreement—that is, the

Refuge lands subject to constructive use because of aircraft noise will still continue

to function as a diminished value Refuge area under USFWS management.

The MOA recognizes that the amount of monetary compensation will be based on

appraised values in conformance with applicable appraisal standards and regulations. The appraisal process had not been completed at the time of signature of the

MOA, and accordingly, there is flexible language in the MOA regarding the $20 million appraised value as of that time. The $20 million figure is regarded as the ‘‘floor’’

of a final appraisal amount, with amounts to be determined for realignment compensation and increased operational costs. The appraisal has recently been completed, and FAA’s review of the appraisal is being finalized.

Monetary compensation mitigation plans are not unprecedented in Section 4(f)

analyses. The provision of funds by an airport proprietor, such as the MAC, needing

to use a Section 4(f) resource to the agency owning the resource, in this case, the

USFWS, so that a comparable replacement resource can be provided is one of several accepted means of minimizing harm under Section 4(f). In the past, compensation has been used to mitigate adverse environmental impacts where replacement

of land and facilities and/or design measures are warranted. These mitigation measures are recognized in published FAA environmental guidance. The FAA has long

recognized that environmental mitigation associated with an airport capital development project qualifies as a capital cost of the airport. The association between environmental mitigation and the airport capital development project is particularly

strong when the mitigation relates to Section 4(f) because the statutory requirement

is for the project to include all possible planning to minimize harm.

The need for Section 4(f) mitigation plans is not a frequent occurrence. Indeed,

this is consistent with the purpose of the statute: to protect and preserve Section

4(f) resources and to set a high standard for using such resources for transportation

projects. Simply put, the FAA has no need to make many Section 4(f) determinations because the agency tries not to use Section 4(f) resources. Furthermore, most

FAA Section 4(f) determinations and mitigations are for uses of urban parks. e.g.,

local parks, ball fields, and publicly used school playgrounds, because these tend to

be the types of Section 4(f) resources in close proximity to airports.

However, there are examples of other Section 4(f) situations involving airport development projects. The Toledo Express Airport, in a Memorandum of Understanding with a local park district, agreed to provide land on which to relocate a

campground that was used by an airport project. Near Cincinnati, a County-owned

recreational field was relocated as a result of a runway extension: the airport proprietor agreed to replace the field. Lambert St. Louis Airport will fund the replacement

of several urban parks impacted by a recently approved new runway. There are also

instances of the replacement of softball fields affected by airport development, and

effects on historic property that have been mitigated with the assistance of funds

from the airport proprietor.

At this point, it is worthwhile to note that the Refuge compensation plan does not

stand alone as a solution to address adverse environmental impacts of the airport

development. Rather, it is only a portion of an overall plan. The scope of the MSP

Airport expansion project is enormous, with the Refuge accounting for only a portion

of potentially affected lands. To address the entire expansion project, the FAA and

the MAC developed an extensive mitigation plan that needed to account for a variety of factors. Community noise mitigation and acquisition will cost many times the

amount needed to mitigate the Refuge. The MSP airport project as a whole encompasses a range of concerns, from the environmental to the economic, from the sig49

nificance of private use and enjoyment of park lands to the importance of the public

benefits of a safe and modern airport.

In this case, the MAC, the USFWS, and the FAA all agreed that this compensation plan and the other terms in the MOA would be the best response to the adverse

effects of the MSP Airport project. The monetary component of the overall plan will

provide the Refuge with replacement land of habitat quality equal to that which will

be affected by the project. Moreover, it will provide for the construction of ponds,

hiking trails and trail markers, and other necessary site improvements or replacements.

Mr. Chairman and Members of the Committee, the FAA takes its responsibility

to the environment and the public very seriously. In formulating the Section 4(f)

mitigation plan for this project, the relevant agencies considered other alternatives

that might avoid affecting the Refuge. Each alternative considered involved evaluations of potential Section 4(f) affected lands. These other alternatives are not considered feasible and prudent under Section 4(f) standards.

Mr. Chairman, I appreciate the opportunity to appear before you this morning to

discuss an issue that I know is of great importance to this Committee. Improvements to airport capacity and safety can be achieved in an environmentally responsible manner. We at the FAA believe the compensation plan and mitigation steps

for the MSP Airport are an example of how this balance can be achieved.

Thank you for the opportunity to testify this morning. On behalf of Administrator

Jane Garvey and Associate Administrator Susan Kurland, I would like to say that

we appreciate your interest in the MSP Airport expansion project, and look forward

to any dialogue with you and the Members of the Committee that may help us improve our work on environmental issues. I would be pleased to answer any questions that you may have.

STATEMENT OF NELSON T. FRENCH, EXECUTIVE DIRECTOR, FRIENDS OF THE

MINNESOTA VALLEY

Mr. Chairman and members of the Committee, I am Nelson French, Executive Director of the Friends of the Minnesota Valley. It is indeed an honor to be invited

to appear before you today to speak with you about the Minnesota Valley National

Wildlife Refuge and the recently concluded discussions between the USFWS, Federal Aviation Administration and Metropolitan Airports Commission regarding the

mitigation of impacts associated with the expansion of Minneapolis-St. Paul International Airport.

The Friends of the Minnesota Valley was incorporated June 21, 1982 as a nonprofit organization and is one of many similar organizations cooperating with the

USFWS in local communities across the country. Many of you who have refuges in

your districts are likely familiar with your Friends organizations.

The Friends envision a healthy Lower Minnesota River Watershed where an informed citizenry takes personal and group responsibility to ensure that natural ecological systems and human economic and social systems coexist in a fashion sustainable into the future. The mission of the Friends is supporting conservation and management of the natural and cultural resources of the Lower Minnesota River Watershed, and promoting environmental awareness.

Before we get to today’s topic, I would like to share with you a bit about our history and the way in which we have chosen to work within our community as I believe it is relevant to the issue being discussed today.

History

The dream of having a national wildlife refuge in the Minnesota Valley was developed in the early 1970’s by a group of citizens called the Burnsville Environmental

Council. Frustrated with their failure to stop the expansion of land fill operations

in the Burnsville portion of the Minnesota River floodplain they decided that a more

comprehensive approach was necessary to protect the river bottoms in their community. As a result, in 1974, the Burnsville group produced a 24 page booklet that proposed a Minnesota River National Wildlife and Recreation Area. The Council sent

the booklet to everyone from local city councils to the President of the United

States. Fortunately, then Congressman Bill Frenzel responded by asking the Department of Interior to investigate the feasibility of establishing a national wildlife

refuge in the valley. The result was the development, in 1975, of a proposal for the

Minnesota Valley National Wildlife Refuge.

The Burnsville Environmental Council reached out across the river and asked the

Bloomington Natural Resources Commission for help. Together they formed the
50

Lower Minnesota River Valley Citizen’s Committee—now known as Friends of the

Minnesota Valley. The Lower Minnesota River Valley Citizen’s Committee kept up the contacts be- tween the volunteers and invited people to share in the vision of the refuge proposal

along a 34 mile long stretch of the Minnesota River. Countless presentations were

made to communities and community groups up and down the river for the purpose

of educating people about the project and seeking endorsements and working out

consensus on issues of concern within the community. After this engaging process,

the citizens committee was able to get support and resources from more than 40 private groups including: local and national conservation organizations; chambers of

commerce; corporations; the Jaycees; State agencies; the Minnesota Legislature; and

local units of government. Through this process many issues were worked out between stakeholders who had differing views on the refuge proposal—and consensus

was reached.

On July 11, 1975, then Senator Walter Mondale and Hubert Humphrey intro- duced a bill to establish the Minnesota Valley National Wildlife Refuge. Congressman Oberstar, along with former Congressmen Frenzel and Hagedorn, followed by

introducing a companion bill in the House of Representatives. By late September,

1976, both houses of Congress had passed the authorizing legislation and President

Ford signed the bill creating the Minnesota Valley National Wildlife Refuge on October 9, 1976.

The Minnesota Valley National Wildlife Refuge is a magnificent urban wildlife

refuge that owes it’s existence to the Friends of the Minnesota Valley and its precursor citizen committee and a community with the willingness to work together to

achieve common goals.

The Friends of the Minnesota Valley did not stop supporting conservation efforts

in the Lower Minnesota River Watershed with the establishment of the refuge, however. We knew that our work had only just begun. Since establishment we have successfully worked to obtain funds to acquire refuge lands, construct the Visitor and

Education Center, and provide an excellent environmental educational resource for

the twin cities’ public.

While continuing to work on the basic non-profit organizational survival needs of

fund raising and membership, the Friends have helped enlist volunteers, enroll Refuge neighbors in the private landowner registry program, coordinate efforts for

water quality monitoring, communicate with residents of the watershed and the

Twin Cities, and foster partnerships to improve the Lower Minnesota River Watershed and ecosystem.

The Current Situation

In February, 1998, the Friends of the Minnesota Valley began working with the

Metropolitan Airports Commission and staff to see if we could develop an agreed

upon solution to the potentially contentious issue of expansion of the MSP airport

and its impacts on the public uses of the Minnesota Valley National Wildlife Refuge.

We knew the 1996 decision by the Minnesota Legislature to expand the MSP International Airport and route air traffic over the Minnesota Valley National Wildlife

Refuge had to be implemented. After extensive review of the situation, our organization, in concert with 16 local and national conservation and community organizations, supported the concept of mitigating the impacts associated with the expansion

of Minneapolis/St. Paul International Airport.

In late May, 1998, the Friends of the Minnesota Valley, Friends of the Mississippi

River, Fort Snelling State Park Association, Izaak Walton League-MN Division,

Minnesota River Valley Audubon Chapter and Minnesota Audubon Council co-sponsored a public open house and invited representatives from the Federal Aviation Administration, Metropolitan Airports Commission, and U.S. Fish & Wildlife Service

to brief the public on the impacts to the Refuge from the airport expansion. This

was the first time that these three agencies were together in front of the public addressing the issues associated with the airport expansion and the Minnesota Valley

National Wildlife Refuge. This event was well attended and a lot of good information was shared between the agencies and between the agencies and interested citizens. An outcome of this meeting was significant progress towards the necessary development of community consensus on this issue.

The Friends of the Minnesota Valley regrets the loss to the public of a significant

nationally recognized natural resource due to the expansion of MSP International

Airport—the Black Dog Lake and Long Meadow Lake Units of the Refuge will experience significant noise intrusion and will no longer be available for certain environmental education and natural resource observation activities.

The Friends of the Minnesota Valley recognizes that MSP International Airport

must expand to meet the needs of the flying public and has contended that the ex51

pansion of the airport at its present location will likely result in less overall environmental and natural resource damage in Minnesota than would construction of a new

airport.

The Friends of the Minnesota Valley has stressed that the loss of natural resource

value to in the Minnesota Valley National Wildlife Refuge resulting from the new

runway construction and use must be compensated—thereby placing these values

on the balance sheet. The proposed agreement of not less than $20,000,000 with the

likelihood that total compensation will be greater as actual replacement costs and

operational costs are factored in is acceptable compensation for this loss to the community.

The Friends of the Minnesota Valley applauds the Metropolitan Airports Commission, Federal Aviation Administration and USFWS for recognizing the serious nature of the impacts to the Minnesota Valley National Wildlife Refuge and deciding

to compensate for the losses.

The Friends of the Minnesota Valley views this as a step in engaging the Metropolitan Airports Commission as a partner in conservation in the Lower Minnesota

River Watershed, recognizing that they too are a resident of the watershed and

must take personal group responsibility to insure that the principles of sustainable

development are achieved.

We look forward to working with the USFWS and the community to develop the

National Wildlife Refuge Enhancement Act of 1997 required Comprehensive Conservation Plan for the Minnesota Valley National Wildlife Refuge and mitigate the

impacts through related actions in this plan.

Response to Question From Committee

In your letter to us you had asked the Friends to comment on this question: ‘‘The

Committee would appreciate your addressing the issue of how the Fish and Wildlife

Service agreement for compensation will impact the rights of private property owners to receive compensation for the constructive use of their land in connection with

the protection of wildlife.’’

It is our understanding that private wildlife lands are not eligible for review

under the constructive use provisions of Section 4(f) of the 1966 Department of

Transportation Act (49 U.S.C. 303). It is our understanding that the agreement between the USFWS and the Metropolitan Airports Commission will have no impact

on the rights of private property landowners to receive compensation for their land

through a fee title acquisition transaction in connection with the protection of wildlife.

This concludes my prepared remarks. Thank you for the opportunity to be with

you today. Mr. Chairman, I will be happy to respond to any questions you and the

members of the Committee may have.
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