ENDANGERED SPECIFS ACT 

BAKERSFIELD, CAUFORNIA 

HEARING 

BEFORE THE 

TASK FORCE ON ENDANGERED SPECIES 

OF THE 

COMMITTEE ON RESOURCES 

HOUSE OF REPRESENTATIVES 

ONE HUNDRED FOURTH CONGRESS 

FIRST SESSION 

ON 

THE IMPACT OF THE ENDANGERED SPECIES ACT ON 

THE AREA OF BAKERSFIELD, CALIFORNIA 

91-053cc 

APRIL 17, 1995-WASHINGTON, DC 

Serial No. 104-13 

Printed for the use of the Committee on Resources 

U.S. GOVERNMENT PRINTING OFFICE 

WASHINGTON : 1995 

For sale hy the U.S. Govemrnenl Printing Office 

Superintendent of Docurnems, Congressiomol Sales Office. Washington. DC 20402 

ISBN 0-16-047427-2 
COMMITTEE ON RESOURCES 

DON YOUNG, Alaska, Chairman 

JAMES V. HANSEN, Utah 

JIM SAXTON, New Jersey 

ELTON GALLEGLY, California 

JOHN J. DUNCAN, JR., Tennessee 

JOEL HEFLEY, Colorado 

JOHN T. DOOLITTLE, California 

WAYNE ALLARD, Colorado 

WAYNE T. GILCHREST, Maryland 

KEN CALVERT, California 

RICHARD W. POMBO, California 

PETER G. TORKILDSEN, Massachusetts 

J.D. HAYWORTH, Arizona 

FRANK A. CREMEANS, Ohio 

BARBARA CUBIN, Wyoming 

WES COOLEY, Oregon 

HELEN CHENOWETH, Idaho 

LINDA SMITH, Washington 

GEORGE P. RADANOVICH, California 

WALTER B. JONES, JR., North Carolina 

WILLIAM M. (MAC) THORNBERRY, Texas 

RICHARD (DOC) HASTINGS, Washington 

JACK METCALF, Washington 

JAMES B. LONGLEY, JR., MAINE 

JOHN B. SHADEGG, Arizona 

JOHN E. ENSIGN, Nevada 

GEORGE MILLER, California 

NICK J. RAHALL II, West Virginia 

BRUCE F. VENTO, Minnesota 

DALE E. KILDEE, Michigan 

PAT WILLIAMS, Montana 

SAM GEJDENSON, Connecticut 

BILL RICHARDSON, New Mexico 

PETER A. DEFAZIO, Oregon 

ENI F.H. FALEOMAVAEGA, American 

Samoa 

TIM JOHNSON, South Dakota 

NEIL ABERCROMBIE, Hawaii 

GERRY E. STUDDS, Massachusetts 

W.J. (BILLY) TAUZIN, Louisiana 

SOLOMON P. ORTIZ, Texas 

OWEN B. PICKETT, Virginia 

FRANK PALLONE, JR., New Jersey 

CALVIN M. DOOLEY, California 

CARLOS A. ROMERO-BARCELO, Puerto 

Rico 

MAURICE D. HINCHEY, New York 

ROBERT A. UNDERWOOD, Guam 

SAM F ARR, California 

DANIEL VAL K!SH, Chief of Staff 

DAVID DYE, Chief Counsel 

CHRISTINE KENNEDY, Chief Clerk/Administrator 

JOHN LAWRENCE, Democratic Staff Director 

TASK FORCE ON ENDANGERED SPECIES 

RICHARD POMBO, California, Chairman 

WAYNE T. GILCHREST, Maryland GERRY E. STUDDS, Massachusetts 

JOHN T. DOOLITTLE, California ENI F.H. FALEOMAVAEGA, Am. Samoa 

J.D. HAYWORTH, Arizona CALVIN M. DOOLEY, California 

BARBARA CUBIN, Wyoming MAURICE D. HINCHEY, New York 

WES COOLEY, Oregon W.J. (BILLY) TAUZIN, Louisiana 

HELEN CHENOWETH, Idaho BRUCE F. VENTO, Minnesota 

LINDA SMITH, Washington SOLOMON P. ORTIZ, Texas 

GEORGE P. RADANOVICH, California 

WILLIAM M. (MACl THORNBERRY, Texas 

RICHARD CDOCJ HASTINGS, Washington 

JACK METCALF, Washington 

(II) 
CONTENTS 

Hearing held April 17, 1995 .................................................................................. . Statement of Members: 

Chenoweth, Hon. Helen, a U.S. Representative from Idaho ....................... .. Dooley, Hon. Calvin M., a U.S. Representative from California ................ .. Pombo, Hon. Richard W., a U.S. Representative from California .............. .. Prepared statement .................................................................................. . Radanovich, Hon. George P., a U.S. Representative from California ......... . Thomas, Hon. William, a U.S. Representative from California ................... . 

Stateme~tWffn:~~~ent .................................................................................. . 

Burrell, Mark, The Westmark Group, Bakersfield, California .................... . 

Clart1h~!~:~~~K~~~ c~~~t';;·w;;t"~; Ag~)·;;~y; :g~k~~·~fi~i'ci .' C'~i-i'f~'~~i~··:::: Prepared statement ........ .................................. ........................ ................ . 

GalliP~p~~· s~~~~~t ~~~ ~~~:.~~~~ .. ~~~-~~-~~ .... ~~~~~~-~~~~:.~~ ~~:.0~~~~ :: :: :::: Iverson, Dennis, Utah Farm Bureau Federation, Washington, Utah ........ .. Prepared statement .................................................................................. . James, Ted, Director, Kern County Planning Department, Bakersfield, 

California ................................................................. ........ ........... ......... ........ .. Prepared statement ............................................................. .............. .. .... .. Lemley, John, Holmes Western Oil Corporation, Taft, California .............. . Prepared statement ................................................................ .................. . Mebane, Mark, Kenneth Mebane Ranches, Bakersfield, California .......... .. Prepared statement .................................................................................. . Peterson, Kenneth W., Chairman, Kern County Board of Supervisors, 

Bakersfield, California ... ............................................................................. .. Prepared statement ................................................................................. .. Reid, Leslie V., Pine Mountain Club, California ..... ................. ... ................ . Prepared statement .................................................... .. .. .......................... . Turnqu1st, Lawrence C., Firebaugh, California .... .. ...................................... . Prepared statement .................................................................................. . 

ucr:liro~~--~--.. --~~~-~~~~~~~--~~-~.:.~~--~~-~-~~--~~~~~--~~~-~ .... ~-~-~~~~~~:~: Prepared statement .................................................................................. . Additional material supplied: 

Condit, Hon. Gary A., a U.S. Representative from California: Time Has 

Come For Endangered Species Reform ................................... .. ................. . Turnquist, Lawrence C.: 

Butchert, Jerald, Westlands Water District: Notice of Violation of 

Endangered Species Act and of Intent to Sue ................................... .. Bancroft, Ann (The Chronicle, Fresno County): !<~ear in the San Joaquin Valley-Growers Struggle With New Water Rules .................. .. Hallissy, Erin (San Francisco Chronicle, Nov. 11, 1993): Re5.neries 

Get More Time to Cut Selenium Pollution ........................................ .. The Fresno Bee, Dec. 14, 1993: Selenium a Threat to Bay Marine 

Life ......................................................... ................................... ............. . Sample of questionnaire on the Endangered Species Act received from 

hundreds of respondents .............................................................. .............. . Sample of hundreds of petitions supporting reforms to the State and 

Federal Endangered Species Acts ............................................................... . Submissions for the record ............................................................................. . 

(IIlJ 

Page 

1 

4 

3 

1 

2 

4 

5 

5 

9 

83 

11 

100 

30 

161 

49 

181 

47 

176 

44 

169 

25 

152 

13 

142 

28 

159 

8 

64 

27 

157 

63 

79 

75 

77 

78 

185 

186 

187 

ENDANGERED SPECIES ACT-BAKERSFIELD, 

CALIFORNIA 

MONDAY, APRIL 17, 1995 

HOUSE OF REPRESENTATIVES, TASK FORCE ON ENDANGERED SPECIES ACT, COMMITTEE ON RESOURCES, · Washington, DC. 

The task force met, pursuant to call, at 3:11 p.m. in the Bakersfield Convention Center, 1001 Truxton Avenue, Bakersfield, California, Hon. Richard W. Pombo [Chairman of the Task Force] presiding. 

STATEMENT OF RICHARD W. POMBO, A U.S. REPRESENTATIVE 

FROM CALIFORNIA, AND CHAIRMAN, TASK FORCE ON ENDANGERED SPECIES 

Mr. POMBO. The Task Force hearing on the Endangered Species 

Act will come to order. The Task Force is meeting today to hear 

testimony on how the Endangered Species Act affects the State of 

California. 

Under Rule 6(f) of the Committee Rules, any oral opening statements at the hearing are limited to the Chairman and the members of the Task Force. This will allow us to hear from our witnesses sooner and help members keep to their schedules. Therefore, if any members have extensive opening statements, I would 

ask that they be included in the opening record. 

I have an opening statement prepared that I will include as part 

of the hearing and I will just give a brief statement saying thank 

you very much for welcoming us to Bakersfield today, for giving us 

the opportunity to come here and hear from members of this area 

of California. 

As many of you know, I am from just north of here in the Stockton area, from a little town called Tracy, California. I am a cattle 

rancher from that area who became extremely frustrated with the 

way that our Federal Government dealt with people, and decided 

to run for Congress. Over the past two years that I have been in Washington, we 

have had good days and bad days, some better than others, and we 

have had the opportunity to make some minor changes. When Don 

Young from Alaska was recently named the Chairman of the Resources Committee, he appointed me Chairman of the Endangered 

Species Task Force with the obligation and the duty to go across 

the country and hear from people whose lives had been affected by 

the Endangered Species Act, and to listen to possible changes that 

were suggested, to listen to ways that we could do a better job in 

(1) 
2 

implementing the Endangered Species Act, and to listen to areas 

of the Act that were important to keep, that were working well. 

We have gone across the country fulfilling that obligation and listening to people and trying to hear out the suggested changes and 

trying to hear out where it has worked and where it has not. As 

we continue on this path in trying to listen to people and trying 

to hear what real people outside the beltway of Washington, DC 

have to say so that when we get back in May, we can throw everything out on the table and hopefully come up with a better Act that 

will protect people's private property rights, that will protect people's jobs and at the same time will protect endangered species. 

That is our goal. 

I look forward very much to hearing the testimony that we will 

have today. Unfortunately we had to limit the number of people 

and the number of panels that will get the opportunity to testify 

orally before us, but the official record of the Task Force and of this 

hearing will remain open so that anyone who wanted the opportunity to testify will have the opportunity to submit their testimony 

in a written form, and it will be treated exactly the same way as 

all testimony that was given orally and will be entered into the official record and will be considered when it comes time to rewrite 

the bill. 

[The prepared statement of Mr. Pombo follows:] 

STATEMENT OF HON. RICHARD W. POMBO, A U.S. REPRESENTATIVE FROM CALIFO&"'IA 

Good morning, ladies and gentlemen. It is good to be in Bakersfield today, and 

especially good to be back in California after the fast-paced first hundred days of 

the 104th Congress. This is the fourth in a series of field hearings on the subject 

of the direction of our national policy on endangered species. I would like to welcome all Members, witnesses and guests to this morning's hearing. I am glad that our Resources chairman, Don Young, has asked that these hearings take place outside Washington, for it is here-and not in our Nation's capitolthat the outcome of this Congress' efforts to reform the Endangered Species Act will 

have lasting consequences on both species and people. 

As you all know, California has the most fertile agricultural land in the world. Under the Endangered Species Act, it is also home to more than 140 species listed as threatened or endangered and over 1,000 "candidate" species. According to the 

law, listed species should be protected at all costs-regardless of economic or social 

impacts. This means there can be no middle ground between protecting these species and providing the Nation with fresh, affordable agriculture products. 

With so much at stake, it is important to remember that any changes to the Endangered Species Act should bear in mind the tremendous impacts that this law has on the farmers and ranchers of our State. 

As a fourth generation rancher from Tracy, I understand the importance of engaging in a new dialogue on how to protect threatened or endangered species. My con- stituents are suffering from the same problems, and share many of the same species, that folks must live with right here in Bakersfield. From the kit fox, to the 

blunt-nosed leopard lizard, and of course the kangaroo rat, the citizens of Bakersfield have paid a heavy price for endangered species protection. 

Many of my constituents are frustrated and angry about a law that allows government bureaucrats to put the protection of a rat, or fairy shrimp, or any other spe· 

cies, above the lives and safety of human beings. They are frustrated because they 

believe that the balance of wildlife protection has swung too far away from the re- ality of meeting the needs of the people of this country for food, clothing, housing, 

fuel, and other vital public goods and services-many of which are produced right 

here. 

They are also angry that they are being forced to give up their private property 

rights without any regards to the Fifth Amendment. I firmly believe that when the 

government places restrictions on a landowner, as it often does in the name of the 

Endangered Species Act, it has the responsibility to ensure that such laws are equi-
3 

table and that the public benefits derived from them are paid for by the entire public, not by a select few whose only crime is that they own private property. As farmers and ranchers, their entire lives have been shaped by the traditions 

and values associated with the proper stewardship of the land. Yet they are considered to be the bad guys by government bureaucrats who think that only they know 

how to best protect endangered species. The people of the 11th congressional district sent me to Congress to bring some sanity back to the way in which we manage our natural resources-to search for a new equilibrium betwP-en conserving the land and meeting the needs and rights 

of people. As we conduct these hearings around the country, we want to look at the 

true impacts and costs involved in endangered species protection. The American 

people are both creative and imaginative, and if given the opfortunity can use their 

knowledge and ability to find ways to conserve our biologica resources without the 

heavy hand of a central bureaucracy. The current law provides no incentives for 

habitat protection. The job of this task force is to bring together the information that will lead us to good pu.blic policy. We hope that the witnesses we will hear from today and over the course of the next two weeks will help us to make the best policy possible for 

achieving both conservation of our resources and compassion for our people. Thank 

you all very much for contributing to this process. 

Mr. POMBO. I would like at this time to turn to Cal Dooley, who 

is the ranking Democrat who is here with us today, who has been 

a valuable member of this Task Force, and continues to include his 

input into what we are trying to do in Washington. Cal. 

STATEMENT OF HON. CALVIN M. DOOLEY, A U.S. 

REPRESENTATIVE FROM CALIFORNIA 

Mr. DOOLEY. Thank you, Richard, and I certainly want to join 

with Congressman Thomas in welcoming you to this area. I think you are well aware, being from Tracy, that there are few 

parts of the country that have been more adversely impacted by 

maybe the imprudent application of the Endangered Species Act 

than the Central Valley, and maybe no portion of that having a 

greater adverse consequence than the Kern County and Bakersfield 

region. 

Today, you are going to hear from a number of people really from 

the Central Valley that are going to give you their personal stories, 

how the Endangered Species Act has impacted them. And I think 

that everyone on the Committee and any of our colleagues in the 

future who review the testimony will understand that there is an 

overwhelming and a compelling need for responsible reform of the 

Endangered Species Act. And certainly in my conversations with 

my constituents, I have become convinced that we have to move 

forward in a manner which is going to ensure that we are utilizing 

the best science possible. This cannot only apply solely to future 

listings, but also those species that have currently been listed as 

threatened or endangered should be subject to some of the reforms 

so that we can enRure that they too are justified for listing by the 

science. And the reason I make this point is, some of the folks in 

the Kern County area did a Freedom of Infor:::nation Act request on 

the kit fox, just to try to gain an idea of what science was in the 

files of Fish and Wildlife that justified its listing. And what they 

found was minimal. In fact, it was lacking almost entirely in the 

science. And that is something that we just cannot justify. 

If we do not ensure that the species which are listed are substantiated by good science, the best science that is available, we are 
4 

going to see a further degeneration in the support for the Endangered Species Act. 

I also think that when I hear from my colleagues and constituents, their frustration with the Endangered Species Act, we have 

to find some way to get more independent review in the science 

and more involvement by people who are stakeholders in the process. And I have a proposal that I am going to be discussing in the 

Task Force that would try to incorporate something that led to the 

Bay-Delta Accord in the Clean Water Act, where outside groups 

can offer an alternative to a recovery plan that might be generated 

by Fish and Wildlife. And if that recovery plan meets a standard 

of equivalency that results in less cost to the economy, less cost to 

working men and women in this country, then Fish and Wildlife 

would be mandated to accept that alternative. 

I know that we are going to hear a lot of interesting ideas and 

a lot of perspectives and I think I am certainly going to be committed to ensuring that I deliver the message to the 430 of our colleagues that are not here, just some of the personal trials and 

tribulations that my constituents have suffered from the Endangered Species Act. 

So once again, I thank you for bringing the Task Force meeting 

to Bakersfield. 

Mr. POMBO. Thank you. Mr. Radanovich, did you have a few 

opening words? 

STATEMENT OF HON. GEORGE P. RADANOVICH, A U.S. 

REPRESENTATIVE FROM CALIFORNIA 

Mr. RADANOVICH. Just a few. My name is George Radanovich, I 

am a Congressman from north of here, in Fresno, in the 19th Congressional District. I represent one of the largest agricultural areas 

in the world and part of the Sierra Nevada where three years ago 

there were three operating sawmills and now there are none. 

I am going to be very brief, I am happy to be a freshman Congressman, as with my friend, Helen Chenoweth from Idahc, and 

more important, it is time to listen to what you have to say and 

I am looking forward to making some changes here in the very 

near future in this Act. 

Thank you. 

Mr. POMBO. I would also like to thank Helen Chenoweth who is 

a new Congressman from Idaho for traveling out here today to 

spend some time with us and to listen to the people of this area 

as to what your concerns are. Helen. 

STATEMENT OF HON. HELEN CHENOWETH, A U.S. 

REPRESENTATIVE FROM IDAHO 

Ms. CHENOWETH. Thank you, Richard. 

I just want to say that the Endangered Species Act has impacted 

our entire nation and that is something that we are finding as we 

hold hearings across the nation. And this is probably an issue that 

has united this nation and united the individual States and communities like no other Act in the recent past has. And so the problems that you have right here are similar to the problems that we 

have in Idaho, and it is my privilege to be here today. 

Thank you. 
5 

Mr. POMBO. Thank you. 

I would also like to recognize Congressman Bill Thomas, who for 

the past several months has been bugging me to hold a hearing in 

this area. 

Bill, we are here. 

STATEMENT OF HON. WILLIAM M. THOMAS, A U.S. 

REPRESENTATIVE FROM CALIFORNIA 

Mr. THoMAS. Mr. Chairman, on behalf of most of the folks in the 

audience, I want to thank you for coming here. You know, I bugged 

previous chairmen who had responsibility in this area and I never 

got a yes out of them, so I want to thank you and I want to thank 

the Chairman of the Natural Resources Committee, Don Young, for 

finally listening. 

It is ironic some of the comments that I have seen recently about 

how outrageous it was to hold hearings where people would actually be able to testify on an actual experience with the Act. Let me 

say that there are a number of people who are here who will not 

be able to testify in front of the Committee, as the Chairman indicated, and I would ask unanimous consent that not only my written testimony be made a part of the record, but the written record 

of those early arrivals to this hearing who had a chance to express 

themselves prior to the hearing be made a part of the record as 

well. 

Mr. POMBO. Without objection. 

[The prepared statement of Mr. Thomas follows:] 

STATEMENT OF HON. WILLIAM M. THOMAS, A U.S. REPRESENTATIVE FROM 

CALIFORNIA 

Mr. Chairman and members of the Endangered Species Act Task Force, I would 

like to welcome you to Bakersfield, and explain how a well-intentioned Act of Congress is harming our economy and wasting public resources in Kern and Tulare 

Counties. 

I'm glad that all of you were able to come here and listen firsthand to the stories 

that I have been hearing for years. Here in Kern and Tulare Counties we have been on the front lines of the Endangered Species Act struggle for years. The local Endangered Species Act horror stories have mounted: 

a farmer who was forbidden to use rodenticide on his own farmland lost $40,000 

worth of melons to hungry rabbits 

individual farms which have seen their water bills increase six-fold due to efforts 

to protect fish 

a recycling plant construction held up indefinitely due to the San Joaquin kit fox, 

after nearly $100,000 in startup costs 

Because of these stories, and many others like them, the Bakersfield Californian 

has labeled Kern County "California's Endangered Species Capital". Kern County embraces more than 8,000 square miles of desert, mountain and valley terrain the size of Massachusetts which provide a bounty of food, flber and minerals for the people of the United States and the world. The county's annual farm 

receipts of almost $2 billion rank third in the country. We ate the number 1 oilproducing county and our total mineral receipts topped $5 billion last year. The 

desert portion of the county contains two important military research, develo~ment, 

test and evaluation facilities, Edwards Air Force Base and the Naval Air Warfare 

Center at China Lake. Tulare County is the number 1 dairy county in the United States. This growth 

industry continues to have an ever-increasing impact on the local farming, processing, and business communities, and in 1993 the county reported another record year 

in agricultural receipts of $2.36 billion. More than 900,000 people live in Kern and Tulare Counties. Because we have 

such widely varying geography, we also have a lot of plant and animal species with 
6 

small populations and limited ranges that exist nowh~re else. Kern and Tulare 

Counties are home to 17 species listed as endangered or threatened under Federal 

law, and another 32 species are candidates for Federal listing. 

The citizens of this district support the preservation of America's rich natural heritage. But the Endangered Species Act is not achieving this aim. 

To environmental groups, the Endangered Species Act is a monumental piece of 

legislation. The Act has been called one of the most ambitious and wide-reaching 

pieces of environmental legislation in the world. To those who own private lands 

they deem critical for their own survival, however, it is a Trojan horse packed with 

arrogant bureaucrats trying to effect national land-use planning. To these land own- ers, the reality is that it allows more for the taking of private property than for the 

"taking" of species. 

As it currently exists, any concerned citizen with a 32-cent stamp can petition the 

Department of Interior's Fish and Wildlife Service (FWS) to list any population of 

plant, animal or microorganism under the Act should it be vulnerable to potential 

harm. If "potential harm" sounds a little bit arbitrary or capricious, that is because 

it is. For example, FWS has determined that a person could be guilty of "taking'' a species simply by walking within a few hundred yards of habitat typically inhabited by protected species. 

Property owners in Kern and Tulare Counties and nationwide have gotten the 

message from the Act, that the government places more value on the existence of 

species like the fairy shrimp and the blunt-nose leopa>."d than on humankind. That 

message is conveyed by environmental groups and bureaucrats who are too far re- moved from the human side of the equation. It is a message made explicit in the 

Act itself, which effectively precludes consideration of all factors other than the supposed "intrinsic value" of a species. Congress has declared in the Act that such species are of "incalculable value", prompting the Supreme Court to rule that the "plain 

intent of Congress was to prevent extinction, whatever the cost". Is it any wonder 

then that constitutional rights of people are relegated to a secondary status behind 

the non-constitutional rights of rats and weeds? 

The fact is that if Congres>; knew in 1974 how the Act would have turned out, it never would have passed the legislation in the first place--at least not in this 

form. 

The Endangered Species Act is broadly and badly defined, and it gives power to 

those who are not subject to democratic accountability. This is what most infuriates us. Bureaucrats are making land use decisions which affect people to whom agri- culture and mineral resources use is key to their livelihood and to their very exist- ence. The foundation of the San Joaquin Valley economy, its farmers, ranchers, loggers, 

oilmen, and entrepreneurs-people who were once encouraged to make a valuable 

product from raw natural resources-are facing a government trying to turn their 

land into virtual wildlife refuges. If society wants to protect species, then society should pay for it, and not lay the 

costs onto the backs of that segment of society who own land on which endangered 

species live. Americans like animals, and they like nature, but something is fundamentally wrong when a person is paying property taxes to local government on property the Federal Government says he cannot use. The Endangered Species Act 

IS making private property owners pay the societal costs of what amounts to an ideologically-driven biodiversity program. 

And each new species listing which disregards proper economic as well as scientific data makes all of us more skeptical of the value of the Act and the integrity 

of its management by U.S. Fish and Wildlife. If species protection benefits all of us, 

then we should be willing to compensate those landowners whose land is effectively 

taken to protect endangered species. Until such steps are taken, the Act will con- tinue to fail to achieve Its goal of Federal wildlife protection which reflects the will 

of the American people. 

Today, you will hear some San Joaquin Valley residents attest to the truly destructive nature of the Endangered Species Act. But for each witness you hear from, 

there are many more with personal experiences with the Act. Many of them are here in the audience today. Hundreds more have submitted testimony for the 

record. 

These accounts show that small property owners are the real victims of the Act's draconian re~ations, but are rarely ever noticed. One reason why is that they 

haven't the time nor the financial resoLII'ces to defend their rights in court. Thus, 

very few taking cases are ever brought to court, which means small property owners are very rarely compensated for their losses. In other words, landowners are faced 

with a dilemma; either give up their property rights or violate the Act outright. 
7 

Given that most small property owners rely on the economic use of their land to 

put food on the table and pay taxes, either option is unbearable. 

Mr. Chairman, Congress is slowly getting the message that the Act is broken and 

needs to be fixed. Last Monday, April 10, the President signed into law legislation 

written by Senator Kay Bailey Hutchison which will disallow the Federal Government from listing any new plants or animals under the ESA through September 30. 

This "time out" should give Congress an opportunity to revisit the ESA; fixing what 

is broken, and leaving in what works. 

It has taken a Republican Congress to bring the ESA back to the drawing board, 

and it has taken a Republican Congress to allow public input into the reform proc- ess. Last year the Merchant Marine and Fisheries Committee, which held jurisdic- tion over the Act, refused to reauthorize or even hold hearings on the ESA. Do you 

know why? Because the liberal Democratic leadership of the 103d Congress realized 

that they could never reauthorize the bill in its current form. Yet they continued 

to appropriate funds for this unpopular law, and USFWS continued to enforce the 

ESA, despite its uncertain status. 

However, the last Congress did get one opportunity to show its feelings for the 

ESA, when it considered the so-called "California Desert Bill". In an overwhelming 

repudiation of the ESA, the House agreed 281 to 148 to an amendment requiring 

that lands purchased under the desert bill be appraised without regard to the pres- ence of species listed as threatened or endangered under the ESA. The desire and 

will to change are clear. 

Mr. Chairman, the Act, as currently '-'Titten, does not adequately address the eco- nomic and societal costs associated with the preservation of species. People and jobs are important and I cannot support laws that Ignore that fact. Mr. Chairman, we are not against bio-diversity or preserving valuable species. 

"What we do oppose is a Federal bureaucracy that doesn't know about how hard 

working people go about making an honest living and taking care of their land. 

Today, we have an historic opportunity and a responsibility to address and correct 

the real problems in the current Endangered Species Act. 

Mr. THOMAS. And theli finally , Mr. Chairman, just briefly, sometimes our colleagues do not fully appreciate the scope and the role 

of California .. And to try to put it into context, you represent the 

11th Congressional District in California, I represent the 21st Congressional District in California. The 10 Congressional Districts between our two Congressional Districts is less than one-fifth of the 

entire California delegation, but those 10 seats represent more 

Representatives than 38 States in the United States have. So when 

you talk about the impact of this legislation and why are we here, 

I guess the question most people have been asking is why did it 

take you so long. 

In 1973, when hearings were held on the original Endangered 

Species Act, the one we currently have, they had three hearings, 

all of them were in the District of Columbia. Prior to its 1992 expiration, there was one hearing in the Senate in 1992 in the District 

of Columbia. In fact, your Task Force, Mr. Chairman, has held 

more field hearings in the first four months of 1995 than in the entire previous history of the Endangered Species Act. That is taking 

government to the people and I commend you. Thank you, Mr. 

Chairman. 

Mr. POMBO. Thank you. 

I would at this time like to invite our first panel of witnesses to 

come up front: Mr. Lawrence Turnquist, Mr. Mark Burrell, Mr. 

Tom Clark, Mr. Ken Peterson and Mr. Art Armendariz. I would 

like to remind our witnesses as they come up and find their place 

of the Committee rules. I would request that you limit your oral 

statements to 5 minutes, but your entire written testimony will be 

included as part of the record. In front of you, there are some little 

lights, they are like traffic lights, sitting there on the table. Green 
8 

means go, yellow means hurry up and red means stop. At least, 

that is what I learned in driving school. If you would kind of pay 

attention to those, then I do not have to cut you off. 

Mr. Turnquist, you may begin. 

STATEMENT OF LAWRENCE C. TURNQUIST, FIREBAUGH, 

CALIFORNIA 

Mr. TuRNQtnST. Thank you, Mr. Chairman. It is indeed a pleasure to welcome you and your Committee to California and a special 

"thank you" to Congressman Young for putting the feather in your 

cap to lead the charge for us. Thank you. 

My name is Lawrence Turnquist. In 1990, my 1600-acre farm 

produced $2.5 million in sales. It had a $500,000 payroll and at 

peak harvest we had 80 employees. In 1993, nothing existed but 

weeds. There were no sales, there were no jobs. Travelers Insurance Company took the ranch, Bank of America took the equipment. This was a direct result of the Endangered Species Act listing of the winter run salmon. 

I am here as an individual who has been on the receiving end 

of congressional legislation and bureaucratic enforcement of the 

Endangered Species Act. 

We do not need to repeal the Endangered Species Act. It does 

need to be amended and we do need to have numerous modifications to lead us into the 21st century. But let us learn to think in 

terms of man in concert with the environment and not man versus 

the environment. 

How much better to be able to control floods, to provide society 

with cheap and clean hydro-electric power, to provide recreation facilities and water for food and fiber production. We can no longer afford the archaic attitude that each and every species of flora and 

fauna must be preserved at any expense. Let us build on the foresight of those visionaries in the 1930's that saw a need to put a 

nation to work in an effort to draw it out of the bottom of economic 

depression and at the same time, they had the vision to build for 

future generations. 

Yes, we have made errors and yes, we have degraded the environment: But that is no reason to destroy the system-let us fix it. 

Believe it or not, man does have a place in today's ecosystem. 

The Endangered Species Act defines the word "taking'' as to 

"harass, harm, pursue, hunt, shoot, wound, kill, trap or collect". 

Why are the only reactions to the listing of the winter run salmon 

to turn off the pumps at Tracy? 

There has been a single target for enforcement of Endangered 

Species Act, when at the same time daily, 360 million gallons of 

treated effiuent are discharged by sewage plants, paper mills and 

oil refineries into the Delta. That is 400,000 acre-feet annually. 

That does have an influence on what goes on in the Delta. 

With your permission, Mr. Chairman, I would like to enter for 

the record, two newspaper articles, one from the "San Francisco 

Chronicle" dated November 11 of 1993 and one from the "Fresno 

Bee" dated December 14, 1993. These articles describe three major 

oil companies in Contra Costa County making a deal-and I do not 

know what else to call it but to call it making a deal-to dump 

6200 pounds of selenium annually into the San Francisco Bay. All 
9 

they had to do was contribute $2 million-<:an you imagine three 

of the largest oil companies in California, what $2 million is to 

them? For that $2 million, they got to dump 6200 pounds of selenium into the Bay for a period of four and a half years. That has 

to have an influence on the salmon. 

Additionally, there are thousands of unscreened water diversions 

from the Delta. Let us look at fishing-foreign, domestic, commercial, sport fishing and poaching remain unchecked while the offspring of one pair of winter run salmon is the total allowable take 

at the pumps. And at the same time, the U.S. Fish and Wildlife 

Service verifies that one-third of the total winter run populationone-third of the total population-is taken by ocean harvest. And 

at the same time, we are also propagating and enhancing striped 

bass populations, a non-native predator of salmon. In conclusion, Mr. Chairman, today's enforcement of the Endangered Species Act has nothing to do with winter run salmon, it has 

nothing to do with Delta smelt, it has nothing to do with bald eagles or grizzly bears. But it is a narrow view of a few hard core 

environmentalists that have a dedicated agenda of absolutely no 

growth and the taking of private property without compensation. 

Thank you. 

Mr. POMBO. Thank you. 

[The prepared statement of Mr. Turnquist can be found at the 

end of the hearing.] 

Mr. POMBO. Mr. Burrell. 

STATEMENT OF MARK BURRELL, PRESIDENT, THE WESTMARK 

GROUP, BAKERSFIELD, CALIFORNIA 

Mr. BURRELL. Mr. Chairman, Honorable Task Force members, ladies and gentlemen, my name is Mark Burrell. I am a fourth generation Californian and I have spent all my life in agriculture and 

agribusiness. My firm is a financial consulting and asset management firm that deals exclusively in agriculture and agribusiness, 

and since 1988, we have assisted our clients in arranging more 

than $250 million in agricultural financing. Agriculture is both large an~ highly capital-intensive. The 1994 

U.S. farm balance sheet reflected assets of approximately $917 billion, total farm debt of $148 billion and total farm equity of $769 

billion. Yet in spite of the size of the industry, agricultural credit 

is highly concentrated. The farm credit system, which is a major 

provider of agricultural credit, is statutorily mandated to serve agriculture. Excluding that institution, approximately 75 percent of 

all short term commercial credit in California is held by only three 

banks-Bank of America, Wells Fargo and Sanwa Bank. The structure of long-term financing is similar. 

In the United States, excluding again the farm credit system and 

real estate debt held by the Farmers Home Administration, more 

than 85 percent of institutional agricultural real estate debt is held 

by only six insurance companies. 

Irrigated farmland in California comprises approximately 8.5 

million acres and the diversity of California agriculture depends 

upon irrigation. 
10 

Much of the Central Valley of California is subject to groundwater overdraft. The financial investment in the Central Valley 

Project and the State Water Project totals nearly $6 billion. Three events have severely limited the supplies of surface water 

delivery south of the Delta in the past 8 years. The first was an 

extended and serious drought from 1987 to 1992, an event that 

those involved with agriculture did not welcome nor appreciate, but 

recognize is an inherent risk that is associated with the industry. 

The second factor was the listing of the winter run Chinook 

salmon and the Delta smelt as endangered species. 

The third factor was the enactment of the Central Valley Project 

Improvement Act in late 1992, which dedicated 800,000 acre-feet of 

water in the Delta for environmental purposes, 400,000 acre-feet of 

which was for the Delta smelt alone. This allocation of water for 

environmental purposes represented 16 percent of the typical CVP 

and State Water Project deliveries between 1980 and 1990. In 1993, a year of above average precipitation, the Westlands 

Water Storage District received only 80 percent of its CVP entitlements, while Wheeler Ridge Maricopa Water Storage District, 

which is a State Water Project contractor, received only 58 percent 

of its entitlement. 

In addition, to reduced supplies of CVP and State Water Project 

surplus water, costs have also escalated sharply. In Arvin Edison 

Water Storage District, a CVP contractor from the Friant system, 

between 1977 and 1993, water costs increased from approximately 

$50 an acre to approximately $300 per acre. Of this increase, the 

district estimates two-thirds was attributable to environmental regulations. The economic impact of these restrictions of water supplies and 

increased costs have been serious. Our firm estimates that in the 

Westlands Water Storage District alone, landowners have surrendered more than $750 million in hard-earned equity between 1988 

and 1993. Those who choose to engage in agriculture do so rec- ognizing that there are unique risks. The loss of equity, which I 

have just described, however, is not attributable to the risks associated with weather or commodity prices. That loss of equity was the 

result of political risks and a substantial part of that political risk 

was associated with administration of the Endangered Species Act. 

The net effect of reduced water supplies, increased costs and the 

atmosphere of uncertainty with respect to natural resource public 

policy has been to substantially increase the level of both real and 

perceived risk in the agricultural credit markets. Alternatives such 

as altering crop patterns to adjust to changing water supply and 

costs is not always possible. Permanent crops which typically have 

development periods of 4 to 6 years and productive lives of 25 to 

35 years, require stable long-term sources of water and stable longterm sources of credit. When water supplies are reduced and costs are increased, there 

is a direct impact on a producer's earnings capacity and overall equity and that effect is negative. 

I would like to conclude by sharing a quote. Speaking to the 

Commonwealth Club of California in San Francisco on March 10, 1995, George Schaller, Director of the Wildlife Conservation Society 

made the following statement, and I quote, "Nobody really ever 
11 

owns the land. We are temporary stewards for future generations 

and we have to view land in that perspective. It is up to society 

to decide how land should be used." In my judgment, positions such 

as those articulated by Mr. Schaller do not reflect the rights of 

American citizens under the United States Constitution, they do 

not reflect reasonable approaches to complex problems, nor do they 

reflect the type of balance required to resolve complex issues which 

confront our society today. 

The ESA is in need of reform. There is a need for cost/benefit 

analysis, for utilization of an ecosystem approach as opposed to a 

single species approach, a need for peer review and sound science 

and a need for greater balance with respect to interpretation of the 

"take" provisions provided for under the Fifth Amendment to the 

U.S. Constitution. 

Thank you very much for the opportunity to testify, and I respectfully would request that you consider my comments. 

Mr. POMBO. Thank you. 

[The prepared statement of Mr. Bu!'rell can be found at the end 

of the hearing.] 

Mr. POMBO. Mr. Clark. 

STATEMENT OF THOMAS N. CLARK, KERN COUNTY WATER 

AGENCY, BAKERSFIELD, CALIFORNIA 

Mr. CLARK. Mr. Chairman, I am Tom Clark, and I have never 

talked about anything for less than five minutes in my life. I cannot see the lights; I do not know where they are. 

But what I would like to do is give you the perspective of a public 

agency. I am the General Manager of the Kern County Water 

Agency, which represents the entire county of Kern. We receive 

water from the State Water Project and provide water to 13 local 

districts. I have some slides I would like to show everybody. If I 

might-! do not know who controls the clock-with permission of 

the Chairman, I would like to first tell you a very brief story, an 

endangered species story, so it is not really direct testimony. 

I think some people may be aware that the Secretary of Resources for the State of California is Douglas Wheeler. Mr. Wheeler, in leading the State Resources Agency comes from a very rich 

background in the Endangered Species Act. He was in Washington 

at the time of the drafting of the 1973 Act; he actually participated 

in the drafting. He is a past President, I believe, of the Sierra Club. 

And over the last several years, as we have been struggling with 

these endangered species issues, he had a number of presentations 

that he made to environmental organizations where he admonished 

them not to kill the goose that laid the golden egg, in that if there 

is over-kill of the Endangered Species Act, there will be a very 

swift rebuttal. 

Well, I am here today to tell you that the goose that laid the 

golden egg, I am petitioning for it to go onto the Endangered Species Act. 

But very quickly here-and I am not controlling the clicker, 

somebody up there in back is-but I am going to very quickly take 

you through these slides. And part of what I would like to do today 

is explain to you the dilemma of the winter run salmon in particular, using that as a case example. 
12 

This is a map of the State of California, showing the State 

Project and the State Project service area. This is something you 

do not hear a lot about in Washington, mainly because it is completely State-financed, State-controlled. But it is a $5 billion 

project, it provides service to two-thirds of the State of California's 

population as well as a very diverse agricultural area. Kern County 

Water Agency is the largest State Water Project contractor that is 

providing agricultural service. We deliver over a million acre-feet 

per year when it is available, from the State Water Project. 

This map shows all the districts here locally within the county, 

not all of which are State Project contractors, but also contractors 

of the Central Valley Project, the Friant-Kern system. 

I thought I would first just cover briefly suggested reforms. 

These are contained in my written testimony, but this covers four 

basic areas-one is that we think that Congress actually should 

embody in the law, the ability to move forward with normal 

projects such as maintaining our canals and spreading areas, that 

type of thing. We do not think we should be subject to the bureaucracy of the Endangered Species Act. Right now today some of our 

horror stories are that canals that have not been filled because of 

the drought now have endangered rats in them and we have Fish 

and Wildlife agencies telling us we cannot put water in our canals 

because they have now got rats. So that does not make ~my sense 

and we need to do something about it. 

The criminalization of the ESA should change. We think that 

somebody that shoots ten condors is different than somebody that 

disks up two rats. 

We believe that there should be sound science and economics--

[Applause]. 

Mr. CLARK. I assume the applause does not take any of my time 

either, does it? 

This is something you are hearing from everybody-sound 

science and economics. But I can tell you from being on the front 

line, I am a water professional, I am the one that is working for 

these people in the audience, and I am here to tell you that the 

science and economics have been abused. 

Lastly as far as the four points, is that we do agree that future 

listings should be reviewed. 

Let us just click through a few of these slides here, I will tell you 

when to stop. Hold it right there-the last one. That very quickly 

is what has happened to us in the period 1992 through 1994. We 

have had millions of dollars of impact here locally, thousands of 

acres lost and people with lost jobs. 

OK, this is a chart that we did for the life cycle of the winter 

run salmon, and very quickly, here we have got two salmon in the 

ocean, they go upstream, up the Sacramento River, they spawn 

near Lake Shasta, they produce fry, there are about 3500 of these 

eggs that are laid by the fish, then the fish out-migrate as smelts 

down and out through San Francisco Bay. This is what Larry 

Turnquist was talking about. Our pumps are located on the southside of the Delta and they have got ridiculous formulas, what they 

call a take limit on our pumping south of the Delta. For each fish 

that we observe at the pump, they count that as 30 fish taken because of predation by striped bass, which the Department of Fish 
13 

and Game feels is important to the Delta. So we are paying for the 

striped bass to eat the salmon. 

Once the fish out-migrate into the ocean, they spend 3 years in 

the ocean as part of their adult life cycle before returning and creating the system again. This is the Delta and these are the pumps and this is where they 

out-migrate to the north end. 

Let me go on to the next slide here, we will make it more quickly. One of the things I want to point out to you, we tagged these 

winter run fish at tremendous expense. Not one tagged fish has 

shown up at the pumps in the Delta-not one-throughout the last 

4 years. All of these fish are tagged fish, winter run salmon that 

were collected outside of the Golden Gate. They are finding that 

these fish stay pretty close to home. There were 18 of them that 

were caught by sport fishermen in 1994 alone. 

Here is an article from last week's "Chronicle" explaining how 

great the fishing is and how many fish people are catching. They 

are catching limits, if you have not heard. 

My last slide is somebody that is familiar to us. This is Secretary 

Babbitt, and I think we have to leave this with the fact that the 

Secretary, while commenting upon the work of Congress, was interviewed following-it is right here, "Babbitt called the recent 

takings law passed by the House diabolically clever during an extended interview on a salmon fishing expedition off the coast of 

San Francisco last Saturday." 

Thank you very much. 

Mr. POMBO. Thank you. I am sure the members of this panel appreciate being called clever by the Secretary. 

[The prepared statement of Mr. Clark can be found at the end 

of the hearing.] 

Mr. POMBO. Mr. Peterson. 

STATEMENT OF KENNETH W. PETERSON, CHAIRMAN, KERN 

COUNTY BOARD OF SUPERVISORS, BAKERSFIELD, CALIFORNIA 

Mr. PETERSON. Mr. Chairman and members of tne Task Force, 

thank you for coming here to listen to our side of the endangered 

species story. My name is Ken Peterson, I am Chairman of the 

Board of Supervisors here in Kern County. I would especially like 

to thank Congressman Bill Thomas on behalf of KE:rn County for 

helping to bring this hearing to our community. Thank you. Here in Kern County, we have had ample and painful experience 

with the Endangered Species Act. We are home to 20 listed species, 

seven more in the process of being listed and 93 candidates for future listing. Kern County is the Jurassic Park of the Endangered 

Species Act-an experiment gone terribly wrong. And like the dinosaurs in the movie, the many creatures protected by this law are 

beginning to run things in Kern County. 

Kern County is a large and diverse place. We are as big as the 

State of Massachusetts. We are the number one oil producing county in the nation. Our farm cash receipts rank as the third county 

in the nation. 

Because we have so many listed species and because our economy is resource-based, Kern County has become a field laboratory 
14 

for implementation of the Endangered Species Act. I am sorry to 

report that the lab results are not good. We should scrap this experiment and start over. 

Horror stories abound. One local businessman wanted to provide 

a needed service by treating and recycling oilfield waste as a road 

surfacing material. His facility was on land declared to be critical 

habitat for the Tipton kangaroo rat and he was forced to acquire 

and develop 380 acres of habitat in order to offset the impacts of 

his 20-acre operations. It cost him $100,000. Something has got to 

be terribly wrong with an Act that requires a business owner to 

turn over 19 acres of land for every acre of his own property that 

he plans to put into productive use. Is that what Congress intended? 

An equally sorry tale happened to local taxpayers. The county 

needed to expand its Shafter-Wasco solid waste landfill this year, 

but new Federal laws required us to install an expensive liner system to protect water quality near the landfill. We drew up plans, 

got the go-ahead from the State Water Quality Board and hired a 

contractor. Then the State Department of Fish and Game pointed 

out that its endangered species rules prohibited interfering with 

the free use and enjoyment of the property by site occupants. An 

agency ordered survey of the dump found the Tipton kangaroo rat 

thriving on our garbage. Work stopped for 3 weeks and we had to 

start paying standby fees to the contractor. Before we could restart 

the project, we had to pay a biologist to trap and collect rats until 

fewer than five could be found. Then we had to pay $100 per animal to allow the rats to be used for scientific purposes. In other 

words, we could not harm the hair on their little bodies, but it was 

OK for wildlife agencies to authorize dissection of the rats. 

Then the Fish and Game changed its mind about dissecting the 

rats and we had to pay the biologist to board them until we could 

pay to have new burrows made at a local wildlife refuge. It gets 

worse. However, I really think the rats would have preferred the 

dump because wildlife agents have reported that the spring rains 

drowned every one of them. 

This misguided project wasted $40,000 of local taxpayer money. 

That equals the amount of taxes from perhaps 40 to 50 homes. Essentially we paid more than $1000 apiece to drown 33 rats. 

If saving rats is the goal, then I submit that it would be a lot 

cheaper and a lot safer for the rats to simply raise them in cages. 

Mr. Chairman, thousand dollar rat executions are an outrage, especially when the county is trying to keep the streets safe and library doors open for the people of Kern County. We just do not 

have this kind of money to throw away on endangered rats. There 

are a lot of endangered people with very real needs for that money. 

I could go on. The examples are seemingly endless and you will 

hear many more of them today. What they will all underscore is 

that the people are being ignored to protect species. The Endangered Species Act is being used to dictate private land use, extort 

land and money from property owners, threaten longstanding industries from which thousands of people draw their livings and 

halt many public works projects in their tracks. People are an important natural resource too, and their needs and rights should be 

of equal concern to those who protect the species. 
15 

How shall we fix the Act? We must require once and for all that 

preserving endangered species is truly a public responsibility to be 

carried out on public land. If any private land is taken, then the 

owners must be fully compensated. 

We must use good science to decide what needs saving and how. 

We must end the duplication of State and local effort in implementing the Act. Above all, I would encourage balance, the need to preserve plants and animals has got to be balanced with the rights of 

people to live and work in this world. Until this fact is recognized 

in the law, the dinosaurs will continue to run amok here in Jurassic Park and people will be in peril. 

Thank you for giving Kern County an opportunity to be heard. 

[The prepared statement of Mr. Peterson can be found at the end 

of the hearing.] 

Mr. POMBO. Thank you very much. 

Mr. Turnquist, you were a good farmer. I knew of you from years 

past, but one of the things that we have heard bandied about a lot 

in the last couple of years is that if people lose their jobs, if they 

lose their livelihood because of the Endangered Species Act, we are 

going to go in and retrain them. Have people from the Federal Government been in your area looking to retrain the workers who lost 

their jobs on your property? 

Mr. TuRNQUIST. Congressman Pombo, I guess it is a blessing 

that they have not. 

No one came to my door and said, "Larry, I am here from the 

government and I am going to help you." I am a broad shouldered 

young lad and went on about finding myself a job. And I currently 

manage a ranch on the west side. Mr. POMBO. One of the things that I think that people on the 

east coast miss in this whole debate over water and over the Endangered Species Act is a point that was brought up by Mr. Burrell 

in his testimony, in that if you do not have a stable source of 

water, you do not have anything and you are basically broke, because that is what it takes to farm in California. 

I know that you have worked extremely hard to try and bring 

some commor. sense to this Federal regulation, but what changes 

do you think we should make in the Act so that it would have a 

little common sense to the implementation of it at the same time 

that we are trying to protect endangered species? 

Mr. TuRNQUIST. I think it is fairly simple, it is called reason. We 

need to look at cost/benefit ratios of business decisions, we need to 

look at good science. Some of the listings that have been done are 

an absolute disgrace when you go back and look at the science of 

them. I think Congressman Thomas alluded to that earlier. We 

need to have peer review of the science that is provided. There 

needs to be public input prior to a listing. Currently the scenario 

to list some critter or bug or plant is relatively simple. Someone 

who has done some historical work on that puts together a few 

pieces of paper and gets a graduate student to do a little extra leg 

work on it, present it to the U.S. Fish and Wildlife Service or whatever agency seems to be in charge on that day, and bingo, little or 

nothing coming from the public, no consideration of the ~ffects of 

that listing, no economic consideration particularly. As I said in my 
16 

testimony, people are part of the ecosystem and I think they need 

to be weighed into the issue. Mr. POMBO. Mr. Peterson, you are in local government and as 

has been stated in the past, there are probably few areas of this 

country that have had the kind of impact that this area in California has had. Have you seen a declining tax base in your county? 

Mr. PETERSON. Absolutely. 

If I could add one comment to the previous question. Compensation to property owners has got to be fixed. If the government goes 

in to take property, please pay for it like every ~ther agency has 

to. 

I just wanted to add that aspect to that question. But we have 

seen in Kern County a drastic effect to the water supplies to the 

farming. Literally have taken thousc:>nds of acres out of production. Mr. POMBO. What has that done to your tax base? Are you getting less in property taxes today than you were before? 

Mr. PETERSON. Absolutely. I could probably get those figures for 

you, but it has really crippled Kern County. We have two large pillars as our foundation here in Kern County. The agricultural aspect is one pillar and the other pillar is our oil production. I mentioned earlier that we were the largest oil producing county in the 

nation. This Endangered Species Act has crippled both of those industries, and all the support base that goes along with that. 

Mr. POMBO. What has that done to your ability to provide basic 

services that your constituents, your neighbors, demand of local 

government-police, fire , schools, libraries. 

Mr. PETERSON. Libraries, everything. It has cut down our ability 

to provide those services. We are not on the same par as we were 

just 5 years ago. It has crippled us from an economic point of view, 

from a government services provision aspect. So just that alone is 

unbelievable, the effect of all the oil industry, the agriculture leaving and those--

Mr. POMBO. If you would, for the record, provide for me the difference in the income to the county in, say the last half a dozen 

years, as to what impact that has had on your bottom line and your 

ability to provide services. 

Mr. PETERSON. OK, I can provide that for the record. (At time of printing, abovementioned material had not been received.] 

Mr. POMBO. Thank you. My time has expired. Mr. Dooley. Mr. DOOLEY. Thank you, Mr. Chairman. 

Mr. Turnquist, understanding that you were one of the past 

chairmen of the Board of Directors of Westlands Water District and 

in that capacity you were intricately involved in a lot of the issues 

surrounding the Delta, and I appreciated part of your testimony 

where you were talking about some of the other factors that had 

a significant impact on the health or the numbers of listed species, 

be they winter run Chinook salmon or the Delta smelt. I guess in 

your capacity both as a farmer and as chairman of a major water 

district, when you brought up the issues that you had discharges 

that were contributing to a decline in the environment of the Delta, 

when you had non-native species that were predating on the winter 

run Chinook salmon, when you had other issues that were also contributing to the decline in those populations, was there any in 
17 

which you could effectively impact the decisions that Fish and 

Wildlife were making, or in this case National Marine Fisheries 

Service? 

Mr. TuRNQUIST. If I may, Mr. Chairman, for the record, I would 

like to enter a letter from Westlands Water District dated August 

2, 1993, addressed to Secretary of Commerce Brown; Secretary of 

Interior Babbitt; Dr. Nancy Foster, Acting Assistant Administrator 

for Fisheries; Roger Patterson, Regional Director, Mid-Pacific Region, Department of the Interior, Bureau of Reclamation. This is officially a 60-day notice putting Interior, Commerce, National Marine Fisheries on notice that they are in violation of the Endangered Species Act. It quotes case after case after case, and I would 

like to have that part of the record, ifl may. 

Mr. POMBO. Without objection. 

[The material referred to can be found at the end of the hearing.] 

Mr. TuRNQUIST. The point being that, that was almost 2 years 

ago and this administration has absolutely thumbed its nose at the 

issue of dealing with all these peripheral activities, but they still 

choose to focus in on one thing, and that is turn the pumps off. And 

over and over and over again, it is turn the pumps off. All these 

other issues have absolutely nothing to do with it, according to 

them. 

Mr. DOOLEY. So you would then agree with a number of us that 

one of the most responsible reforms to the Endangered Species Act 

would be to ensure some process where you could again challenge 

the decision or a single-minded orientation in terms of the development of a recovery plan in this case that just denied the pumping 

of water south. 

Mr. TuRNQUIST. Absolutely. The process must be in place that 

the public, either as individuals or through water agencies or county governments or State governments, have the opportunity for 

input to the results of a potential listing. And even after it is listed, 

to have the opportunity-and the frustration is not just the oppor- tunity, but somewhere along the line, somebody needs to pull on 

these folks' chain and say damn it, listen to me. 

Mr. DOOLEY. Right. 

Mr. Clark, if you could just briefly tell the story about the Kern 

water bank and some of the problems that your agency in Kern 

County or the southern part of the valley has faced in trying to establish a project which has environmental benefits in terms of 

recharging the aquifer, but perhaps why it has been difficult to 

bring that project on line. 

Mr. CLARK. Kern water bank is contained in my testimony. My 

testimony actually is very well done by our General Counsel, John 

Stovall, I would like to give him credit. But on the water bank, 

20,000 acres was bought by the Department of Water Resources for 

a groundwater banking operation in 1987. Of that 20,000, 17,000 

was actively farmed and 3,000 was in what you would call native 

vegetation. In 1991, all of the agricultural land was idle. Now the 

groundwater banking operation is where we just use wells and 

spreading areas to percolate the water. In the meantime, we have 

tried to develop an HCP with Fish and Wildlife Service and Fish 

and Game. They consider the current water bank as an area for 

kangaroo rats; not for water. In fact, water is considered an impact 
18 

on the species. So as a result of having taken 17,000 acres of land 

out of production, the HCP proposes that 12,000 of the 20,000 acres 

be set aside for endangered species. It is an absurdity. 

Now we have not publicized this because, quite honestly, we are 

trying to work with Fish and Wildlife and Fish and Game, and we 

felt that if we went public with this issue, that we would get their 

retribution. And I am taking a risk in honestly going through this 

here today. But it is an absolutely crazy situation where the whole 

project is self-mitigating. In other words, we are taking land out of 

production, we are creating native habitat, an opportunity for Kern 

County to have areas that are natural, to and including riparian 

areas, but in order to do this, we have got to set aside for the Fish 

and Wildlife agencies 12,000 acres of land and give them hundreds 

of thousands of dollars to manage it. You know, it is absolutely 

crazy. 

Mr. DOOLEY. Just a brief follow-up on that. How much of that 

land-would a good percentage of that, if it was not for the construction of the dam on the Kern River, have naturally been a flood 

plain? 

Mr. CLARK. It sits right on the flood plain of the Kern River, it 

is on the Kern River fan. Historically before man, this area intermittently flooded and that is what the project proposes to do. 

Now I will just make one other particular point because I think 

it is important the Committee knows these things go on. We 

thought that this was a travesty and when we, the Kern County 

Water Agency, would take the issue on, we were told by the biologists, look, we are doing you a favor and we can be tougher on this 

issue. We have a biological base line of 1991 and they are saying 

the endangered species are spreading all over the property and you 

can be required to mitigate even further, so do not push this issue. 

And to me, it is the kind of situation where everybody could have 

won by that project, it was truly a winner. And we are continuing 

to work on it now, but it is an example of abuse. And I have been 

personally threatened by some of these biologists as to what they 

would do to us. So I think we just need to go public and say these 

things. I am sick of it. 

Mr. POMBO. So your problem is that you have endangered species 

all over the place. 

Mr. CLARK. Well it is interesting, you know. This kangaroo rat, 

for being endangered he managed to occupy 20,000 acres of land 

over about 4 years. 

Mr. POMBO. I would like to recognize Mr. Radanovich. 

Mr. RADANOVICH. Thank you, Mr. Chairman. Mr. Burrell, are there areas within the San Joaquin Valley 

where ag lending has been severely restricted due to endangered 

species or uncertainty related to water availability and cost? 

Mr. BURRELL. There are indeed. There are four areas of the State 

Water Project, four districts, that rely exclusively on surface water 

deliveries. Those areas either have little or no reliable groundwater 

supplies, and in those areas, which are generally located in the 

southern part of the San Joaquin Valley and along the western 

side, the availability of long-term mortgage financing is virtually 

non-existent. And in higher priority areas of Federal districts in 
19 

which there is limited or declining groundwater supplies, the same 

situation is true. 

Mr. RADANOVICH. Have there been lenders in this area that have 

just gotten out of ag loans simply because of the uncertainty with 

new regulations like ESA and the non-predictability of water 

sources? 

Mr. BURRELL. This year, one of the three largest insurance company lenders to U.S. agriculture, John Hancock Life Insurance, has 

announced that they are discontinuing their farm lending programs. And while they have not articulated specifically the reasons 

for that decision, it is associated substantially with the disproportionate relationship between risk and reward. 

Mr. RADANOVICH. I would mention too that there was a recent 

accord in the Bay-Delta area called the Delta Accord, which was 

supposed to have addressed some of the problem of water deliveries 

out of the Delta. In your opinion, has that brought any confidence 

back into the lending institutions with regard to ag lending? 

Mr. BURRELL. The Delta Accord is a step in the right direction. 

The Delta Accord is an agreement that was reached in December 

of 1994 between the State Water Resources Control Board and four 

Federal agencies, so-called Club Fed, that establishes flow limits 

for a 3-year term. Those flow limits generally provide that in years 

of normal precipitation, the amount of water that will be restricted 

in terms of deliveries for environmental purposes within the Delta, 

will be approximately 350,000 acre-feet and in drought years of 

below normal precipitation, it will be as much as 950,000 acre-feet. 

The difficulty with that is that it does not help in the area of 

long-term mortgage financing; for developers of permanent crops, 

for those who might purchase real estate in •>rder to establish policy from the institutional side or for farmers and ranchers to borrow that money with terms that extend for 20 to 25 years. The certainty the 3-year agreement provides is simply insufficient. 

Mr. RADANOVICH. OK, thank you. 

So, in your opinion, even with the Bay-Delta agreement, there is 

very little security for agriculture in the San Joaquin Valley due 

to regulations like the Endangered Species Act and some of the 

water policies that we have right now? 

Mr. BURRELL. There is too little certainty in agriculture. 

Mr. RADANOVICH. Yes, with dealing with nature anyway, right? 

Mr. BURRELL. That is right. 

Mr. RADANOVICH. OK, thank you. 

Mr. Peterson, I want to ask you a question and I am not sure 

that I can expect an answer from this, but I was a county supervisor myself in a small county, Mariposa County, for 4 years, and 

the way I see it in Washington, there is quite a bit of review going 

on with every item that the Federal Government is doing right 

now, looking at each item in terms of is this the role of government 

and if not, how can it be privatized. And if it is the role of government, why do we not see what we can push down to the local level. 

And I think my question is what if just all of a sudden the only 

obligation at the Federal level regarding endangered species was to 

make you, the local government official, aware that you may have 

had a problem in your district or in the county that you represent? 

Would you care to comment outside of just telling the Federal Gov-
20 

ernment to get lost how you might try to implement a program like 

this on the local level, because really it is a local issue-if it is a 

local issue, how would you take care of the problem of endangered 

species, notwithstanding the problems of the salmon, the Bay-Delta 

agreement because that is an inter-county thing. Say the kit fox or 

something like that-how would you deal with that? 

Mr. PETERSON. Well, I appreciate the question. I think that we 

could deal with it very effectively because having been a supervisor, you know how you hear from the people. We are very tuned 

in--

Mr. RADANOVICH. Very directly. 

Mr. PETERSON [continuing]. and we hear very directly the impacts. And I think that that is the problem back in Washington, 

is that the good folks that serve often-! am not saying that with 

everybody, but certainly the eastern members, that represent the 

eastern States, do not realize the problems that we are having 

here. 

One of the things that I would like to see and I would propose 

here is if the endangered species is truly identified by scientific 

method as something that we need to protect, then I would like to 

see that protection take place on public lands with public money. 

I do not like to see the burden of proof put on the private landowner without the scientific data, making them do the scientific 

and then with their private funds have to prove that it is not a 

problem. So that would be my first step-public lands, public 

money. 

I think the steps that were outlined could all be done here locally. I think that none of us wants to rape the land and take from 

this great land what we have. We are appreciative of mother nature and what we have. But we have found that there has been a 

great mismanagement from afar over the endangered species. We 

do not feel that some of these species that are listed are endangered in any way. We have probably run over more of the Tipton 

kangaroo rat on our highways in the county than are run over by farmers. So I would be very happy to handle that responsibility 

here locally. 

Mr. RADANOVICH. Thank you. Just one more brief question. Do 

you view then endangered species legislation as Federal land use 

planning that heretofore was a responsibility relegated to the State 

and local governments? 

Mr. PETERSON. Yes. 

Mr. RADANOVICH. Thank you. 

Mr. PETERSON. That is what I would like to see happen too. 

Mr. POMBO. Thank you. Ms. Chenoweth. 

Ms. CHENOWETH. Thank you, Mr. Chairman. 

I can certainly tell you four gentlemen that your testimony is 

very inspirational since we certainly share a lot about what is 

going on in California and Idaho. We also have the listing of the 

salmon in Idaho and it is literally shutting down our entire State. 

We have the salmon, the grizzly bear, the wolves, etcetera. 

But Mr. Turnquist, I was interested, you had 1680 acres you 

were farming, all of that under irrigation, right? 

Mr. TuRNQUIST. That is correct. 

Ms. CHENOWETH. Your water rights were proved up, right? 
21 

Mr. TuRNQUIST. Yes. It is a Federal project under the Central 

Valley Project and I had to meet all the terms and conditions of 

the reclamation law. In fact, almost half of that water was at full 

cost, including interest. 

Ms. CHENOWETH. Who turned the pumps off? I am from Idaho 

and I did not quite understand. Who in the world turned the 

pumps off and at whose direction? 

Mr. TuRNQUIST. The Bureau of Reclamation. The U.S. Fish and 

Wildlife Service said to the Bureau of Reclamation the winter run 

salmon is now listed and if you continue to operate these pumps, 

you, the Bureau of Reclamation, are going to be in violation of the 

Endangered Species Act, period. And they turned the pumps off. 

Ms. CHENOWETH. That is incredible. 

You know, that is one of the reasons that I was one of the first 

and prime cosponsors of Joe Skeen's legislation to allow districts to 

buy out the contracts with the Bureau of Reclamation, so you do 

not have to put up with that any more, and your maintenance and 

operation would probably drop about 66 percent also. And I certainly hope that goes through this time. 

1680 acres is a lot ofland. Was there a NEPA process or an environmental impact study on this, with this taking? 

Mr. TuRNQUIST. Yes, it is called foreclosure. 

Ms. CHENOWETH. That is what I thought. 

Mr. Turnquist, there is a very interesting United States Supreme 

Court case-you see, if we in the western States can get through 

the Ninth Circuit Court of Appeals and get to the Supreme Court, 

we get some pretty interesting decisions. There was a Supreme 

Court decision that came out of California called CALIFORNIA V. 

THE U.S. BUREAU OF RECLAMATION, 1978 Supreme Court 

case. It gave the entire history of western water law and simply 

said California owns the water and the unappropriated water that 

is not appropriated to water users like you, even though it is under 

the control of the Bureau of Reclamation is either your private 

property or the property of California. Now the massive taking has 

been by the United States government of California's water. That 

is the problem. 

I appreciate the fact that you can speak about vision even yet. 

That is part of the American spirit and I thank you very much, in 

spite of everything you have gone through. 

Mr. TuRNQUIST. Thank you. 

Ms. CHENOWETH. Mr. Burrell, I loved your quote ~bout private 

property. Do you remember the quote that Bruce Babbitt said, that 

private property is that antiquated Anglo-Saxon concept that has 

passed its time? That is part of the problem that we are working 

with. 

Mr. BURRELL. I do. 

Ms. CHENOWETH. Mr. Clark, I want to thank you for your courage. First of all, I want to say that that last exhibit is not in your 

book and I would love a copy of it. I want to spread it all over. 

Mr. CLARK. I will be happy to. 

Ms. CHENOWETH. But thank you for your courage in speaking 

out, because we do not call it mitigation in real language, it is 

called extortion when you have to give away so much of your--
22 

We have what we call a Civil Rights Act that is supposed to protect us, if we can get through the Ninth Circuit Court of Appeals. 

And these Federal judges are one of the reasons that I am asking 

for term limits on Federal judges. It mighl; help the Ninth Circuit. 

I would like to talk to you afterwards, because I really do mean 

I would like all of your exhibit. This is an outstanding piece of testimony. 

Mr. CLARK. Yes, I have actually got with me here a copy of the 

article, the entire article that accompanied that last exhibit. 

Ms. CHENOWETH. Well, you and your attorney did an outstanding 

job. Thank you for giving us this kind of information. 

Mr. CLARK. Thank you. 

Ms. CHENOWETH. Mr. Peterson, the listing of the striped bassit is a predator of the salmon, is it not? 

Mr. PETERSON. Yes. Ms. CHENOWETH. Is it listed? 

Mr. PETERSON. You know what, it is not the most popular fish 

in Kern County, but probably Tom could speak better on that. 

Ms. CHENOWETH. Can you tell me, Mr. Clark? 

Mr. CLARK. It is interesting, the striped bass has tremendous 

commercial value in the Sacramento-San Joaquin Delta, and prior 

to ESA becoming governing, it was called the indicator species of 

the Delta. And we were having to mitigate. In other words, operate 

the pumps to help striped bass. And in fact, we are paying millions 

of dollars a year to propagate these bass. Now that endangered 

species have become popular, we have got the Fish and Wildlife 

Service and the Federal Government says we like native fish. Now 

the striped bass is imported, it is non-native. The Department of 

Fish and Game, which is our State agency, loves striped bass. So 

on the one hand, we have the feds saying we want salmon and Fish 

and Game saying we want bass, and the two issues clashing. 

So right now, we are getting it both ways. We have got both sides 

saying protect the salmon, increase the bass and the bass eat the 

salmon. So again, it is kind of a weird situation, but these things 

are clearly at cross purposes. So it is not-if you want salmon in 

the Delta, then it is pretty hard to increase populations of bassit is just common sense. 

Ms. CHENOWETH. That is right, but that is what has been lacking 

lately, right? 

Mr. CLARK. Right. Ms. CHENOWETH. Gentlemen, thank you so very much for your 

courage and your testimony. 

Mr. POMBO. Mr. Thomas. 

Mr. THOMAS. Thank you, Mr. Chairman. 

Not being a member of the Task Force, I do not want to prolong 

my questioning because I have heard these stories over and over 

again. I am just pleased that we are now able to share it with others. 

The one question I wanted to ask though, which will kind of 

bring it in focus and it is to anyone who wants to respond-we 

have a lot of space in this part of California, and there is a lot of 

Federal Government in that space. We have BLM, Forest Service, National Parks. We have water agencies, we have local government, we have a lot of folk who have to work together to make 
23 

things happen, both economics and just simply living in this area. 

Is there something about the Endangered Species Act, or does it attract certain kinds of people in Fish and Wildlife that would, for 

example-and you indicated, Mr. Clark and others, that striped 

bass is not a native species, it clearly is consuming salmon far 

more rapidly than the pumps at Tracy, perhaps even more rapidly 

than Babbitt and the sport fishermen out in the Pacific. 

We will hear a little later testimony about the southwest willow 

flycatcher and the problem not with the brown cowbird that is 

parasitic and laying its eggs in the nest, which is the primary problem with the southwest willow flycatcher, but what is it with these 

biologists and others who enforce the Endangered Species Act that 

seemingly hone in on a solution which winds up fundamentally undermining the economic base rather than looking at other ways of 

working with people who make a living here to mitigate and perhaps even solve the problems? Have you noticed the kinds of people 

that you work with-what is it about these people from all the 

other Federal folk that we tend to work with, that seem to be working at cross purposes with everybody else? 

Mr. CLARK. If I might speak to that very briefly. I identify with 

it because actually educationally my under-graduate and graduate 

degrees are in biology, and as a graduate as a fish biologist. So I 

identify with this, and I do not think they are bad people, you 

know, I really do not. 

Sorry. No, I think these people are trying to do their job. But I 

think where the people in Fish and Wildlife and Fish and Game 

get confused, I think they are paid to be scientists first and advocates are not even on the menu for these people. Now advocacy is 

a process that we all engage in at various levels. But I do not think 

there is any room for advocacy in the Endangered Species Act process. And that is what we see, where we have good scientists in the 

field that draw conclusions without facts, and that is where the 

State Water Project and the Central Valley Project, that are icons 

to the environmental movement, shut those projects down. So it is 

not surprising that that is where the agencies went, rather than 

an even-handed reasonable and prudent alternative. There are reasons for those words. So, honestly, Congressman Thomas, I think 

that people get caught up in the emotionalism of it on both sides 

and that as a result people that are fundamentally good scientists 

and have good training have lost their sense of purpose. They are 

here for Fish and Wildlife, but they are here for people too. It is 

a balancing process. So I think there has just been a basic loss of 

objectivity. 

Mr. TuRNQUIST. Congressman Thomas, if I might, I would echo 

what Tom has said, but I think one of the primary factors that 

comes to light when a scientist, biologist, government employee is 

charged with a particular duty as they perceive it, they do not have 

any economic risk. Their job does not come to play in this. They 

do not have to worry about how you are going to educate the kids, 

how you are going to make the house payments, because they are 

getting a paycheck, and they do not sit down and consider the economic impact of a decision or a mental approach or an attitude that 

they may take to an issue. It is just bury your head in the book 
24 

and paragraph so and so says this, and we have got the law behind 

us and we are going to do it. 

Mr. PETERSON. Congressman Thomas, good question. I think that 

spells out what is inherently wrong with the Endangered Species 

Act, in that it gives tremendous latitude of authority. And when 

you have folks that feel-"protect at all cost" is their motto, and 

when there are no consequences for individual wrong action, there 

is no incentive for them to weigh in the balance, the cause and effect of what they do. Let me give you just a short example. We have a city fire department that goes around and cites lots that are potential fire hazards 

when the weeds grow up and dry out in the summertime, they 

have a potential of burning and causing fires, causing loss of 

human life and property. There is a $10,000 fine for failure to do 

that and the fire department goes out and cites these fields close 

to homes. We have a problem in that some of these fields have endangered species on them and the people that own those fields are 

told "do not touch them, there are endangered species." So people, 

landowners are caught in the balance of do I risk human life or do 

I risk the fine of getting a $30,000 fine for clearing the field. One 

such developer cleared his field, he raked it clean so it would not 

be a fire hazard, and the Endangered Species Act folks came outDepartment of Fish and Game-with dogs to try to find carcasses. 

It made him very nervous. They did not find anything there, but 

it made him extremely nervous that they were so vigilant in trying 

to find something there that they could charge him with. It is out 

of balance. It is protect at all cost, they are the judge, jury and executioner. 

Mr. BuRRELL. Mr. Chairman, may I add a very brief addition to 

my colleagues' responses? I think that there is one additional factor. I think in this country the way that the process is intended to 

work is that with complex issues there may be advocates of a whole 

range of positions and I think that one of the factors that has occurred in the administration of the Endangered Species Act is that 

in certain cases there is a predisposition to an anticipated result. 

I think Secretary Babbitt's actions reflect that. Secretary Babbitt 

is not in a position to be a proponent. Secretary Babbitt is charged 

with administrating a law passed by Congress. It seems to me that 

is wrong and it seems to me that the kinds of comments that I 

quoted from the gentleman from the Wildlife Conservation Society 

reflect an attitude that is associated with a predisposition toward 

an anticipated result that does not serve the interest of balance, 

nor does it serve the interest of resolving an issue that is as complex as this issue. 

Mr. THOMAS. Mr. Chairman, just let me conclude by saying that 

if we are supposed to represent the people and the people indicate 

that there is a problem with this law, I very much support your 

efforts to look at the particulars to amend it, to take people that 

are not necessarily bad people, and obviously they are not, but to 

redirect them, to make sure that they focus on the fundamentals, 

the economic necessities. Because if they were redirected and we 

were working together, we could solve the problems in a way that 

would allow everybody to move forward. 
25 

Once again, I want to underscore my thanks for your holding 

these hearings in preparation for focusing on the Endangered Species Act. 

Mr. POMBO. Thank you. 

I would like to thank this panel very much for your testimony. 

All of your written records will be included in the official record of 

the Committee and thank you very much for spending the time 

with us today. 

I would like to call up the second panel to be seated. This panel 

consists of Mark Mebane who is accompanied by Dr. Ralph Phillips; Art Unger, Les Reid and Greg Gallion. 

Thanks for joining us today, Mr. Mebane, you may begin. 

STATEMENT OF MARK MEBANE, KENNETH MEBANE RANCHES, 

BAKERSFIELD, CALIFORNIA; ACCOMPANIED BY DR. RALPH 

PHILLIPS, UNIVERSITY OF CALIFORNIA COOPERATIVE EXTENSION SERVICE, BAKERSFIELD, CALIFORNIA 

Mr. MEBANE. Thank you, Mr. Chairman. My name is Mark 

Mebane and I represent Kenneth Mebane Ranches. We are a family-owned and operated cattle ranching corporation with headquarters located about 15 miles northeast of Bakersfield. We raise 

cattle on about 27,000 deeded and leased acres, including a U.S. 

Forest Service permit. We have endangered species including a 

wild flower named the Pseudobahia peirsonii located on our private 

property. 

In 1990, we were approached by the Fresno Metropolitan Flood 

Control District, who wanted to buy a 40-acre parcel in the middle 

of our ranch, along with an easement across our property to get to 

the parcel. The District is located 100 miles and two counties north 

of Bakersfield. I understand that the District was receiving Federal 

funds from the Bureau of Reclamation and was required to mitigate any impact on listed species through a mandate in the Bureau 

of Reclamation permit. The District had been blocked from proceed- ing with a dam building project when the Pseudobahia peirsonii 

was located on a construction-site in Fresno. At the time, the flower was listed with the State and was proposed for Federal endangered status. 

I think it is appropriate for you to hear about this incident today 

because there were Federal agencies involved, Federal money and 

the problem would have been the same whether the flower had 

State or Federal designation. 

As mitigation for damage to the flower the District would be inflicting in Fresno County, the District proposed to obtain property 

with similar populations of the flower and then donate that property to the State Department of Fish and Game. The property 

would then be fenced and designated as a wildflower sanctuary. 

The 40-acre parcel on our ranch where the flower is located was 

selected as appropriate habitat to fit with the District's plan. When 

the District approached us with their proposal, we refused to sell. 

The situation would have created a number of logistical problems 

for us that we did not want to have to deal with. 

In 1991, the District filed an eminent domain action against us 

to condemn the parcel. This is the thanks we get from the government for exercising good range management practices and proper 
26 

stewardship of the land-they want to confiscate it. We were being 

penalized for properly protecting our natural resources. 

Two years later, the case was settled when the Department of 

Fish and Game agreed to accept a two-to-one replacement ratio instead of a three-to-one ratio. The District had already condemned 

and obtained enough property to fulfill its obligation, they did not 

need our 40-acre parcel any more. We got to keep our property, but 

it cost us about $150,000. 

AF. larger, established landowners, we had the resources to spend 

on defending ourselves. We were not intimidated by a governmental agency acting under the authority of and in compliance 

with the Endangered Species Act. The District could have easily 

succeeded if they had picked on someone else. Smaller ranchers 

like many of our neighbors who have to supplement their income 

with a job in town just to get by, would not have been able to afford 

the cost of litigation. Also, if a 40-acre flower sanctuary would 

cause logistical problems for us, imagine what it would do to the 

people with a 500-acre parcel, and the person with a small parcel 

entirely occupied by the flower would have no property left at all. 

I have given oral and written comments on U.S. Fish and Wildlife Service proposals to list the Pseudobahia peirsonii and most recently the Fritillaria striata, which is one of the ten Sierra Nevada 

foothill plants that also grows on our ranch. In both cases I have 

obtained and received the data used as basis for these proposals, 

and in both cases, the data used for State listing is the same data 

used for Federal listing. There is no evidence that any unbiased official reviews these proposals for accuracy at either a State or a 

Federal level. And last, the data is incorrect and I can prove it. The 

range, distribution and population sizes are grossly under-reported. 

AF. a representative of the livestock industry, we support preservation of all species, within reason. The rancher who does not properly manage his resources will not survive in business. But we also 

support proper scientific analysis, procedure and review in the listing of species. My experiences lead me to suggest that future legislation should address the issues of validating the claims of those 

proposing a listing and protection of the private property owner 

who has done nothing but own property where endangered species 

exist. 

The livestock industry lives in fear that at some point in the future, regulations that now cover grazing on public land will be extended to private land. AF. more and more species are added to the 

list, the potential for more regulation of our privates businesses 

grows. 

I would like to close out with a quote from the proposed management plan for the Pseudobahia peirsonii, wherein it is stated, 

quote, "Many of the known populations occur on ranches that are 

owned and operated by individuals who are receptive to government interference." And they have got the word "interference" underlined. I find this to be a very profound statement. Trespass on 

our property by a governmental employee and the attempted seizure of our property by a governmental agency, all in the interest 

of complying with the Endangered Species Act cost my family 

about $150,000. You are darn right, we are not too receptive to governmental interference. 
27 

[The prepared statement of Mr. Mebane can be found at the end 

of the hearing.] 

Mr. POMBO. Thank you. Mr. Unger. 

STATEMENT OF ARTHUR D. UNGER, KERN-KAWEAH CHAPTER 

OF THE SIERRA CLUB, BAKERSFIELD, CALIFORNIA 

Mr. UNGER. Chairman Pombo, members of the Committee, I am 

Arthur Unger, I am an endangered species activist for the Kern- Kaweah Chapter of the Sierra Club. Thank you for being here. Ms. Chenoweth, a special thank you to you for the backpack my 

son and I took on the Salmon River in Idaho. We were impressed 

on the efforts of your State to conserve the salmon, although my 

son, who is an ardent fisherman, looked very wistfully at the signs 

of "no fishing". Some day we hope to be able to go up there and 

harmlessly take some of these marvelous fish. Mr. Mebane is a difficult person for me to follow because of the 

several stories told on the Endangered Species Act. This one rings 

true, but I should add that at least during the latter part of his 

ordeal with the Act, the California Fish and Game strongly defended him. So here, we had an incident of bureaucratic oversight 

which came eventually to a happy end. We do not want any species, however, to come to an end. We all realize that we do not in- herit the earth from our parents, we borrow it from our children. I have reasons why each of us is diminished when a species is 

extinguished. First, each species is part of the web of life, each species affects and is affected by an almost unknowable number of 

other species, thus losing one species often puts another in danger. Second, the economic use that each life form may have, every rat, fly and plant-one-fourth of the prescription drugs in the United 

States derive from wild plants and animals. So do many industrial 

chemicals. Wild strains are being constantly cross-bred with domestic plants to maintain resistance to disease. Biological controls lessen our dependence on pesticides. Kern 

County has controlled the silver leaf white fly by introducing 

wasps. 

Tourists are attracted to areas that are managed primarily for 

endangered species. Foreign tourists reduce the trade deficit. These 

areas do not degrade as they produce revenue, like areas devot ed 

to producing other natural resources. Perhaps some of you will 

have time to stop at the Carrizo Plain, about 130 minutes drive 

from Los Angeles. Third, when a species declines, it means the conditions they live 

under are vanishing. When a place becomes too crowded or toxic 

for one kind of life, might it soon not become too crowded or toxic 

for us? Only five or ten percent of each of the original natural habi- tats in this valley remain. Would destroying the last bit of habitat 

bring prosperity that was not secured when the bulk of the habitat 

was destroyed? 

Last, humans cannot create complex spedes. We do not know if 

a sub-species has just the genes needed to help its species survive 

natural evolutionary pressures, as well as any changes humans 

may impose on the planet. We do know that we can extinguish any 

population; but, even those who come centuries after us may not 

be able to create higher life forms. 
28 

These are the reasons why our goal must be to preserve every 

life form. Three ways to do that, categories of ways. And I need 

your help to find other ways. 

First, there are some places that can support endangered species 

and be used commercially. Especially this occurs on public land 

where we need to establish conditions that favor our creatures. 

Here on the valley floor in contrast, commercial use usually means 

covering the ground with houses or row crops with little room for 

wildlife. _ My next two ways to finance recovery of endangered species 

apply to areas like ours. If an individual benefits from taking something that benefits society, that individual, we believe, should pay 

and be regulated, even if the taking occurs on private lands. Filling 

wetlands and taking endangered creatures are examples of taking 

something from society and asserting that you can take because 

the thing is on private land. Habitat conservation plans are an example of paying for taking. This approach is difficult for some of 

us to accept because we think that when something of value is 

found on private land, it is as if the landowner struck gold-that 

is the norm in our society. But here, we have something new. 

Third, perhaps the government should compensate those whose 

property loses almost all its value because it harbors endangered 

species. H.R. 2043, the 1994 legislation to reauthorize the Endangered Species Act, allocates $25 million a year for landowners who 

protect creatures on their land in ways not mandated by Federal 

agencies while commercially using that land. Compare these $25 

million to the 1.8--or I think it is $125 million, I forget--compare 

that anyway to the $1.8 billion a year that the conservation reserve 

program allocates for landowners who protect erodible soil on their 

land. Sierra Club does not think this should be the primary way 

to finance species recovery. In any case, the environmental community's green scissors scorecard shows how $33 billion can become 

available to the Federal Government. 

I hope you will join all of us to find ways to recover all the listed 

and endangered species. 

Mr. POMBO. Thank you. I would just like to remind the members 

of our audience that we are trying to be courteous to all points of 

view and trying to hear out all points of view in our effort to reform 

the Act, so that we produce something that will truly work in the 

real world. Thank you. [The prepared statement of Mr. Unger can be found at the end 

of the hearing.) 

Mr. Reid. 

STATEMENT OF LESLIE V. REID, PINE MOUNTAIN CLUB, 

CALIFORNIA 

Mr. REID. Mr. Chairman, my name is Leslie V. Reid and I live 

in Pine Mountain Club in Kern County. And I want to thank you 

for this opportunity to comment on the reauthorization of the Endangered Species Act. 

Since I have neither academic credentials nor special scientific 

expertise to offer you, you might wonder why this retired tool and 

diemaker and U.S. Navy veteran is and has been seriously concerned with the survival of endangered species. 
29 

My first contact with a serious review of the effect of modern civilization on the natural world was reading "Silent Spring" by Rachel Carson, when it was first published in 1962. Since then, I, like 

many other thousands of others, have tried to repair the damage 

done to the wild inhabitants of our world. May I suggest that everyone, and particularly those who are elected representatives, 

might well re-read this seminal treatise that really changed history. Its message is as pertinent today as when first published. 

Widespread environmental awareness of species extinction resulted in many new laws, including the Endangered Species Act 

signed to law by President Nixon in 1973. This Act provided that 

any endangered or threatened species or sub-species be listed with 

the Secretary of the Interior or if a marine species with the Secretary of Commerce. The Fish and Wildlife Service and the National Marine Fisheries Service were then to develop regulations to 

protect the species listed. The Act also prohibited the killing, . capturing, importing, exporting or selling any of the species listed as 

endangered or threatened. 

The Endangered Species Act has been especially important for 

our State. The vast ranges of elevation, climate and flora have produced a diversity of creatures and plants unequaled in any other 

State in the union. California has the largest number of listed endangered and threatened species in our country. We need to be especially concerned that it remain in full force. 

We, the citizens of California, have benefited from the Endangered Species Act in many ways. The brown pelican almost reached 

total extinction because of the DDT manufactured near Santa 

Monica Bay. Does every person not get a real thrill when they see 

these magnificent birds that have recovered now in the thousands? 

I think that is a real gain for California. The Federal and private 

agencies have worked together to save the California condor. I have 

personally been involved in the condor recovery program and protection of its habitat since it was first conceived in the middle sixties. The migratory wildlife suffering painful deaths in the 

Kestersen Wildlife Refuge from selenium runoff from subsidized 

west side farming are slowly recovering-damned slowly. The local 

Kern and Los Angeles County residents in the Gorman area near 

where I live, were able to preserve the ancient migratory song bird 

flyway through the Tejon Pass from becoming simply a "cuisinart" 

for birds trying to negotiate through the proposed wind farm. 

Yes, the charming little kit fox and the much maligned kangaroo 

rat are doing very well. But also, the desert bighorn sheep, desert 

tortoise, sea otter are enjoying a new lease on life because of the 

Endangered Species Act. Let us talk about the good things the Endangered Species Act did. Now our contact with the natural world is becoming more and 

more confined. We drive swiftly and see and smell little of other 

living species. Still it is apparent that most, if not all, people strive 

to remain some connection with what I will call "the others". Those 

who would require a costJbenefit analysis of our every act are at 

loss to explain, for example, the millions of house plants in the 

high rise buildings in the cities of our country or the millions and 

millions of dollars we spend on our own private pets. The thousands of years the human species was in daily contact with other 

91-053 0 - 95 - 2 
30 

inhabitants of our planet cannot be erased by a hundred years of 

modern life. 

We need a strengthening of the Endangered Species Act. In particular, and despite the budget cutting syndrome, we need more 

funding for the Act. Acquisition of critical habitat, access corridors, 

more and better knowledge of how not only to protect the fur and 

feather creatures, but also the plants. Nobody talks about the 

plants that are becoming more and more useful and knowledgeable 

of medicines in this modern life. We need these kinds of things and 

I hope the Committee will try to do it. Ever. more important than 

the funds is the political will to carry out the law. 

And finally, I want to tell you something, as a master mechanic, 

let me remind you that the first law in fixing anything is to throw 

nothing away. The smallest part, gear, little screw or whatever you 

have may be the one that is required to put it back together. In 

the life of our planet that took millions of years to evolve, every 

small bit of life plays an important part. 

Thank you. 

Mr. POMBO. Thank you. 

[The prepared statement of Mr. Reid can be found at the end of 

the hearing.] 

Mr. POMBO. Mr. Gallion. 

STATEMENT OF GREG GALLION, COALITION FOR PROPERTY 

RIGHTS, BAKERSFIELD, CALIFORNIA 

Mr. GALLION. I would like to thank the members of the Task 

Force on Endangered Species on the Committee on Resources for 

allowing me to speak today. My name is Greg Gallion, President 

of the Coalition for Property Rights, and I am speaking on behalf 

of the Coalition, the Kern County Farm Bureau. Our Coalition consists of members of the Farm Bureau itself, Association of Realtors, 

Building Industry Association, Independent Oil Producers Association, Cattlemen's and Cattlewomen's Association, private enterprise, local political officials and very, very concerned Kern County 

citizens. As you have heard, our organization is a very broadly 

based group. But let me give you a few examples of the way the 

Endangered Species Act is being misapplied in the area to cause 

serious hardship both to individuals and their communities. 

First example-Howie and Karen Wass are friends and neighbors. They grew up here, Karen taught school, Howie had a sporting goods store. With a few partners, they started up a very clever 

business, combining tournament water skiing and aquaculture, 

later selling land close to their ponds to serious skiers, creating 

both a profitable sports/agricultural operation and a very pleasant 

rural neighborhood. Karen and Howie managed the aquaculture 

end of the business growing channel catfish. They had what they 

called a moderate success, and decided they could make a go of 

pure aquaculture. 

In December of 1991, they and a partner bought 150 acres on 

Edison Road just south of Arvin, near their existing ski/fish facility. 

The property was zoned agriculture, was bordered by farmlands 

planted in crops, but was also close to the Arvin landfill. For years, 

people who could not get to the landfill had dumped hazardous materials and large amounts of trash on that particular piece of prop-
31 

erty. The Health Department had demanded that the property be 

cleaned up of all the trash. The seller at that point agreed to clean 

up the hazardous materials as a condition of the close of escrow, 

while Karen and Howie hired a contractor to clear the non-hazardous trash. The trash cleanup job had been pretty much completed 

when escrow closed. Karen and Howie decided to fence the property 

immediately to stop the illegal dumping. This is when their nightmare with the U.S. Fish and Wildlife began. 

A friend agreed to disc the fence line for them. Law enforcement 

officials of the Fish and Wildlife Service stopped the discing, claiming it was killing endangered Tipton kangaroo rats. This was January 10 of 1992. Karen and Howie did nothing more on the property, 

but unknown to them, on January 14, the trash cleanup contractor 

returned to complete the job. The Fish and Wildlife Service threatened jail, fines, hell. and damnation. They did not ask any questions beforehand and would not take any explanations at that 

point, just said it could take a week or a year to decide whether 

or not criminal charges would be filed. 

'l.'o make a long story short, in 1995, Karen and Howie have no 

fish farm on their property. They have spent about $10,000 in pen- alties to settle with the Fish and Wildlife Service and about 

$40,000 in attorney's fees, and have a property they pay taxes on, 

but cannot sell, they cannot farm and they cannot fence. Although 

criminal charges have never been tiled, they have lived under the 

threat of jail for 3 years. Trash has continued to be dumped illegally. The property has become nothing but a liability to them and 

a health hazard to the community. 

Now the problem here is not just what happened to Karen and 

Howie. It has happened to others and could happen to anyone. We 

have at least two other similar cases in this small area alone. Of 

course, I am sure everybody has heard of the Wang Lin Farm case 

and more particularly the Valley Communities case which does involve an area that is receiving City of Bakersfield treated 

wastewater, which is being threatened with stopping the receipt of 

that water. People just do not know that their property is claimed 

for habitat by the Fish and Wildlife Service. It does not appear in 

the chain of title, there is no notice by mail or in the newspapers. 

Mind you, none of these cases involve designated critical habitat, 

no hearings are held and no public input is accepted. This is a direct regulation of land use by the Fish and Wildlife Service through 

and by intimidation. There is and has been no due process. 

Second example, one that I am particularly close with and feel 

very strong about. Bruce Hafenfeld was not able to testify today 

but asked me to tell about his story and his neighbors' problems 

with the Endangered Species Act. 

For a year and a half, the people of the community of Lake Isabella have been living under the threat that the lake, which is the 

town's economic underpinnings, will be declared critical habitat for 

the southwestern willow flycatcher, causing profound interference 

with productive uses of the lake and the lakeshore. The lake is also 

critically important for flood control and water storage for Bakersfield and the surrounding agricultural areas. The needs of flood 

control and water storage require seasonally impounding water 

above the level the Service wants dry for habitat. The residents of 
32 

the little community of Lake Isabella banded together, spent more 

than $20,000 for biological consultants in order to prove to the Fish 

and Wildlife Service that the lakeshore is absolutely unsuitable as 

critical habitat. The Kern River Water District spent $23,000 commissioning a study which came to the same conclusion. The U.S. 

Forest Service, which owns the lakeshore, did its own report. None 

support the designation. Moreover, the data submitted make it 

clear that there is plentiful habitat elsewhere in the Kern River 

Valley under the stewardship of the Nature Conservancy and private landowners, making designation of the lakeshore not only inappropriate but totally unnecessary. This information has fallen 

into a black hole. A year and a half later, the Fish and Wildlife 

Service has still not responded to their comments. And I know because I was at that particular hearing. Economic development in 

the community of Lake Isabella is nearly at a standstill while they 

wait for the Service to respond. Bakersfield residents live in fear 

of a return of the historic flooding and permanent regulatory 

drought. 

Third example-south fork of the Kern River, flows into Lake 

Isabella, when it flows. For 3 years, California Fish and Game Department's 1601 permit for routine clearing and grubbing a narrow 

20-foot wide, 14-mile stretch has been held up by Fish and Wildlife 

Service's endangered species objections. This is work that the Natural Resources Conservation Service and local soil conservationist 

in a written report, say needs to be done to allow the channel to 

clear itself through high water. They also say the impacts on habitat will be minuscule, affecting a very small amount of acreage. 

The river frequently floods, but as long as it can return to its main 

channel, the damage to surrounding properties is not extensive. 

However, if there is no longer a clear main channel, it will not return to within its established banks but will gouge a new channel 

across somebody's property. Everyone involved in management of 

the channel work was finally tentatively approved by the Fish and 

Game Department just before the recent deluge, but it still had to 

go through Fish and Wildlife consultation. That process is another 

black hole. Three months have passed, no decision has come out of 

the Service. This winter the river did indeed leave its banks and 

flood surrounding properties. The extent of the damage cannot be 

assessed at this time because the spring melt is now arriving on 

top of the January and the March flood. Even if the folks along the 

river are lucky this year, they may not be so lucky next year. They 

need to have assurances that there will be regular channel clearing 

on the south fork. It should not take an act of Congress to get some 

reason into the Endangered Species Act so that these people's property is protected. But if that is what it takes, we want you to get 

it done. 

There is a common thread through all these problems. The Endangered Species Act was never meant to abolish due process of 

law or make the Fish and Wildlife Service the Federal super land 

management agency, dictating how or even if private property can 

be used or protected. These should be local decisions by our community government, which knows local conditions and has to live 

with the results of its decision. There is no due process when the 

Service can make communities spend $20,000 to protect their econ-
33 

omy and then not even respond for over a year. There is no due 

process when the Service can hold up flood control work for years 

until the proporty washes away. There is surely no due process 

when the Service can prosecute property owners for criminal takes 

on private property which is not designated critical habitat. 

This Act has to be changed to allow for property protection, provide incentives instead of penalties, preserve endangered species 

habitat on private land, and to give authority back to local government over local affairs. Thank you. 

[The pr~pared statement of Mr. Gallion can be found at the end 

of the hearing.] 

Mr. POMBO. Thank you. I thank the panel for their testimony. 

Mark, how did they know that they had this endangered plant 

on your property? 

Mr. MEBANE. I get asked that a lot and I am glad you asked. We 

always allowed scientists, students and faculty of any university or 

college or school or anyone else with any scientific interest in 

studying the plants and wildlife and geology and history of our 

ranch onto the property, all they had to do was ask. We even allowed the Smithsonian Institute to excavate a prehistoric sea lion 

that was found on our ranch at one time. Apparently as a result 

of this rare find, reports and native plant society field survey forms 

were directed to the Natural Diversity Data base and it was reported that the flower existed on our property. I can assure you 

that we do not maintain this open door policy any more. 

Mr. POMBO. Do you feel that it was your management of the 

ranch that preserved this particular species on your property? Are 

you aware of it on any of the neighboring ranches, are you aware 

of it anywhere else in your area? 

Mr. MEBANE. That is kind of a loaded question because my 

neighbors have sworn me to secrecy. Nobody wants to admit that 

they have it. 

Mr. POMBO. Well, let us talk about that for a second. Nobody 

wants to admit that they have it. It is an endangered plant and 

yet you and your neighbors are terrified that somebody is going to 

find out that you have it there. Mr. MEBANE. That is correct. 

Mr. POMBO. Do you think that maybe the incentives that are 

there under the Endangered Species Act today are working to the 

detriment of endangered plants and animals versus maybe what direction we ought to go? 

Mr. MEBANE. In simple language, instead of being persecuted for 

doing such a good job of taking care of these plants on our ranch, 

we ought to be rewarded for it. 

At this time, none of my neighbors would get up here and admit 

that they have this species on their property. I have to because it 

is a known fact. But I also would not get into a great deal of detail 

as far as relating where I know other populations of this plant 

exist. 

Mr. POMBO. I can fully understand that. 

Mr. Unger, you know, as we have gone across the country to talk 

about the Endangered Species Act and where it has worked and 

what some of the problems have been, one of the things that con-
34 

tinually comes up is the perverse incentives that exist under the 

implementation of the Act today. In fact, one of the lead attorneys 

for one of the major environmental groups in this country recently 

gave a speech to a group of Fish and Wildlife agents, and one of 

the topics in his speech was about the perverse incentives that 

exist. And it was his suggestion that there needed to be changes 

made to the Act so that people were rewarded for becoming endangered species habitat versus being punished. What would your response to that be? 

Mr. UNGER. Pretty much what it was in my remarks, that, quote, 

"H.R. 2043, the 1994 legislation to reauthorize the Endangered 

Species Act, allocates $25 million"--only here under the lights I am 

thinking maybe it is 125, I mean, it is peanuts-for landowners 

who protect creatures on their land. 

Mr. POMBO. One of the problems with that particular piece of 

legislation is that it does very little to address some of the other 

very real problems. And I noticed in one of the local papers here 

a quote from you, and maybe you were misquoted, but it said that 

you felt that there may be instances where private property owners 

should be compensated if their land is taken for habitat. Was that 

correct, that statement that was printed in one of the local papers? 

Mr. UNGER. Again, from the statement I just read, certainly perhaps the government should compensate those whose property 

loses almost all its value because it harbors endangered species. 

Mr. POMBO. So you would not disagree with that statement? 

Mr. UNGER. The statement is as I read it. 

Mr. POMBO. One of the problems with the particular bill that you 

pointed out is it does nothing about the protection of private property rights or compensation, and that is one of the things that I 

personally and I know a number of members of Congress today are 

very concerned about the direction that we have headed in just 

completely ignoring people's private property rights. 

Unfortunately my time is expired. Mr. Dooley. Mr. DOOLEY. Thank you, Mr. Pombo. 

I guess, Mr. Unger, basically I would like to have your response 

to a comment that Mr. Mebane mentioned when he said you have 

to have a process, or he feels you have a process in place which allows for the validation of claims. And that gets at the issue that 

a lot of us have been looking for in reforming the Endangered Species Act, that there is not a process that allows for the validation 

of the science and the biological analysis that goes into the listing 

of a species, and there is no way for those claims to be challenged. 

Do you feel it is an appropriate reform in the ESA to try to put 

in place such a process? 

Mr. UNGER. I am a retired physician, so I certainly favor the scientific method. Are you commenting, Congressman Dooley, on 

things like was said earlier, that the Freedom of Information Act 

did not reveal evidence to list the fox in the first place? Is that 

what is concerning you in this question? 

Mr. DOOLEY. No, there are a lot of concerns and it can even go 

back to the comments of Mr. Turnquist that in the development of 

a recovery plan, which most of us would subscribe should be predicated on the best science, yet did not take into account other alternatives that could contribute to the improvement of that environ-
35 

ment but also could result in a less cost to the economy and in this 

case could have allowed more water to be pumped south. Should 

there be in place a process that would allow for the validation of 

that recovery plan based on the science? 

Mr. UNGER. Yes. 

Mr. DOOLEY. And so you would then support the peer review and 

then the independent science evaluation in the listing of a species 

on that biological information, as well as the science that went into 

the development of a recovery plan. 

Mr. UNGER. When you say it, I support it; on the other hand, I 

know that the 104th Congress is the Congress that took apart protection of our forests with the Gorton amendment, and yet says 

this is forest management rather than forest destruction. So I 

think it would take bunches of lawyers to look over an act that this 

Congress might pass, so that it really would provide for science 

rather than make peer review an excuse for endless discussion 

while species became extinct. 

Mr. DOOLEY. Dr. Phillips, with your position as a scientist, I 

would be interested in where would be the appropriate roles for the 

independent evaluation or validation of the science in the endangered species proposed reforms? 

Dr. PHILLIPS. Well, I think this is very critical, particularly from 

the standpoint after reading volumes of the information that is 

used or has been used to list or propose listing, and going through 

that, I see very little science in terms of validation and I think it 

is very appropriate that we look at, outside of the different agencies a broader scope as far as validation of this information. 

As a scientist looking at this, to be quite frank with you, I was 

horrified that they were putting this forward as science. 

Mr. DOOLEY. Mr. Reid, you made some comments basically in 

general support of the Endangered Species Act and I think most 

members of the Task Force are not advocating an outright repeal, 

but certainly I think we have got to restore a little more common 

sense to it. I guess though when you look at the fact that we have 

limited resources in this country, and that that in effect translates 

to limited resources that we can expend on the preservation of 

some species, does that not then also logically argue that we have 

to put in place a prioritization where we can try to identify those 

species that are most critical to the environment and thus expend 

those funds in a way that is going to get the greatest return, because effectively as ESA is currently drafted, it requires the expenditure of resources and contributions by the economy, regardless of the importance of that particular species or sub-species to 

the entire environment. Should there not be in place a system of 

prioritization? 

Mr. REID. I think you are proposing, if I hear you properly-and 

you will excuse me because of my hearing problem-that you are 

proposing some kind of a triage way of treating endangered species, 

is that correct? 

Mr. DOOLEY. [Shrugs.] 

Mr. REID. I think given limited resources, we obviously have to 

devote it to those that are most endangered and most threatened. 

I have no problem with that at all. 
36 

Mr. DooLEY. You know, that is encouraging. You would basically 

then obviously subscribe to the line that it would be intellectually 

dishonest if we maintain an Endangered Species Act that subscribes to protect every species that could be threatened or endangered. 

Mr. REID. I am not sure-would you remind repeating the question? 

Mr. DOOLEY. The statement was just to the effect that you would 

subscribe to the belief then that we would be intellectually dishonest if we promoted an Endangered Species Act that had as its 

premise to protect and preserve every species that perhaps could 

be threatened or endangered. 

Mr. REID. Well, I think that the Endangered Species Act, as it 

was originally conceived, was primarily as a result of tremendous 

problems that had been created by modern industry. That is what 

is really the problem. 

Mr. DooLEY. Thank you, Mr. Reid, I appreciate your comments. 

Mr. UNGER. Could I respond to that question? 

Mr. DooLEY. Yes, Mr. Unger, go ahead. 

Mr. UNGER. Thank you, Congressman Dooley. 

I fear that if we had to triage, we might get a guy like me there 

who would preserve the mighty Sequoias as grow in your district 

and throw away the trash trees like the Pacific yew, and deprive 

people of a cur~f a treatment for certain kinds of cancer. Triage 

is not possible, we have not the knowledge, we have not the wisdom. 

Mr. DooLEY. I guess the only response from a person who is 

charged with developing policy though, we have to understand that 

we have limited resources and that if we try to expend those over 

the multitude of species that could be threatened or endangered, 

we might in effect accomplish nothing. And if we look at the 17 or 

so species that have come off the list, the vast majority of those 

have not come off the list because they have been recovered. They 

have come off the list because they have gone extinct. So one, from 

a policy perspective, has to question how many resources can we 

expend on a particular species that is endangered if there is not 

the prospect nor the benefit to our economy or society to expend 

those funds. And I guess that is the balance we are trying to 

achieve. 

Mr. UNGER. I feel the same frustration you do, Congressman 

Dooley. We give the U.S. Fish and Wildlife Service about enough 

money per year to write recovery plans and designate critical habitat as it takes to build one mile of freeway. That is insufficient. 

Mr. POMBO. Mr. Radanovich. 

Mr. R.ADANOVICH. Thank you, Mr. Chairman. 

This question is for Dr. Phillips. With regard to Mr. Mebane's 

property, what kind of methodology was used when they went on 

the property in order to gather the information to determine the 

need to restrict that plant? 

Dr. PHILLIPS. What we have done, we have just completed a series this spring, and I personally went to the university and consulted with several specialists in this area to come up with an accepted scientific procedure and we ended up with what we call a 

belt transect, where we went into each one of the populations, and 
37 

this year we were working the striped bilbey lily, which is one of 

the proposed federally listed plants, and through that we established a sample size that would adequately represent that population. And with that kind of information, it would stand up to the 

rigors of any kind of scientific peer review. And one of the things 

that we did find that was very interesting, by doing this, is we 

were very shocked that the literature listed something like 16,000 

plants and we came up with 7.5 million plants. And also through 

this process, we expanded the territory or the number of listed 

sites or known sites, from 12 to 44. 

And I think that one of the things that we have talked about 

here is tr1st and from the university, I have got 15 years of trust 

developed through the landowners and I am like Mark here, I 

would not dare tell you where those sites are that we have looked 

at. I have to do that to maintain my trust with the landowners. 

But one of the things I will point out, that we do not have all of 

the trust, because there are a number of landowners that we were 

not able to get on their land to survey this. And I did not do this 

by myself, there were landowners involved with it. 

Mr. RADANOVICH. So your conclusion is that the methodology 

used was not accurate, at least in that instance? 

Dr. PHILLIPS. Particularly in the numbers. We were not able to, 

going through all of that, find any kind of methodology used to determine numbers. We could not find it anywhere. 

Mr. RADANOVICH. OK, thank you. 

Mr. Unger, recently in the Bakersfield "Californian", you were 

quoted, and I believe it is saying that "It is possible that we may 

have to compensate people whose property harbors endangered species." Was that a correct quote, and would you kind of expand on 

that please? 

Mr. UNGER. The quote was correct. How would you like me to expand on it? I do not know how much of our resources should be devoted to such compensation. In our way, what you have belongs to 

you, not to the general public. We all call ourselves patriotic Americans, but if you find gold on your property, you do not come to your 

Congressman and say how are things with the gold standard, how 

is America's gold standard? Can I contribute to my nation by giving 

this gold to America? Instead, you say whoopee, I am rich. 

When you have endangered species on your property, it is also 

a public good. Should you say whoopee, I am rich, compensate me? 

Mr. RADANOVICH. Well excuse me, sir, this is my witness. 

Mr. Unger, then would you say that it is better to be a preservationist or a conservationist? 

Mr. UNGER. Sir? 

Mr. RADANOVICH. Would you say that it is better with regard to 

the environment to be a preservationist or a conservationist? 

Mr. UNGER. It is better to be a good guy like me. I do not accept 

any kind of labels. So whichever you would call yourself and you 

are a good guy, I am that too. 

Mr. RADANOVICH. So you would not want to call yourself either 

a conservationist or a preservationist? 

Mr. UNGER. Do you still beat your wife? 

Mr. RADANOVICH. No. 
38 

OK, let me ask this question one more time. Do you think that 

care for the environment should be left to those who use the environment directly for a living? And if so, why not? 

Mr. UNGER. Yes, it should. And all of us use the environment directly for a living. 

Mr. RADANOVICH. Directly for a living; i.e., farmers, loggers, 

those kinds of people. 

Mr. UNGER. No, I do not think farmers or lawyers are the elite 

of the earth. 

Mr. RADANOVICH. Loggers. 

Mr. UNGER. I do not think urban people are the elite of the 

earth. I think we all breathe, we all drink clean water when we can 

get it, and all of us use the environment directly. Mr. RADANOVICH. Fair enough. 

Mr. Reid, it has been commented that the return in populations 

of the bald eagle and the California brown pelican were not due to 

the Endangered Species Act but rather to the elimination of DDT 

in their environment. Would you care to comment on that please? 

Mr. REID. If I am misinformed, then I apologize. I am under the 

impression that the actions taken to support the recovery of the 

brown pelican were undertaken by the Fish and Wildlife Service 

and by the Fish and Game and they made certain provisions and 

took certain actions to improve that. 

Mr. RADA.."'"OVICH. OK. Thank you, sir. If I might have one more 

quick question to Mr. Gallion. 

I want to ask you the same question, sir, do you think that care 

for the environment should be given to those who use the environment directly and if so, why? 

Mr. GALLION. Yes, I think they are the best stewards of the land. 

Mr. R.ADANOVICH. Thank you. Mr. POMBO. Thank you. Congressman Chenoweth. Ms. CHENOW'ETH. Thank you, Mr. Chairman. 

Dr. Unger, I am very pleased that you enjoyed fishing for salmon 

in my State. 

Mr. UNGER. Thank you. 

Ms. CHENOWETH. I thought the Act said that one should not 

harm, harass, injure or kill an endangered species. 

Let me assure you, sir, that my State now, anyway for its residents, for a price of $75, you can get a fishing and hunting tag 

package and in that package comes an anadromous fishing permit. 

So I guess, as always, it is not the Act that is in question, it is the 

price. 

Mr. UNGER. Your Department of Fish and Game did an excellent 

job of informing my son and me about non-purebred fish, hybrid 

fish, and exactly which ones we could take and exactly how much. 

I got none of them, but he caught four this big, maybe this big if 

you ask him. 

Ms. CHENOWETH. Do you know what the Dolly Varden is, are you 

familiar with the Dolly Varden? 

Mr. UNGER. I could not identify one if I saw it, it was on that 

chart that we studied, I think. 

Ms. CHENOWETH. That is the bull trout and they are planning on 

listing the bull trout, which is a predator of the salmon. I certainly 

hope that we can have the support of those people who like to fish 
39 

for salmon in our State with regards to not listing a predator that 

directly impacts the salmon. 

By the way, I am interested, you are a physician, right? 

Mr. UNGER. I am retired, but yes. Ms. CHENOWETH. Were you licensed to practice here in California? 

Mr. UNGER. Yes. 

Ms. CHENOWETH. And what was your discipline? 

Mr. UNGER. Primary care, internal medicine, family practice. 

Ms. CHENOWETH. I see. And you are aware now though that 

taxol is now produced in the laboratories, are you not? 

Mr. UNGER. But where was it found first? 

Ms. CHENOWETH. Pardon me? 

Mr. UNGER. Where was it first found? 

Ms. CHENOWETH. It was found in the yew trees, but it is now 

produced in the labs. 

Mr. UNGER. That is the pattern for most drugs, yes. 

Ms. CHENOWETH. I wanted to ask you, in yesterday's Bakersfield 

"Californian", you were quoted as saying, "It ii:: possible we may 

have to compensate people whose prupe1ty harbor'" endangered species." Were you quoted correctly? 

Mr. UNGER. Yes. 

Ms. CHENOWETH. Well, I would like your comments on the following statement by the Texas State Director of the U.S. Fish and 

Wildlife Service regarding the Endangered Species Act, and it goes 

as follows: ''The incentives are wrong here. If I have a rare metal 

on my property, its value goes up. But if a rare bird occupies the 

land, its value disappears. We have got to turn it around to make 

the landowner want to have the bird on his property." Do you agree 

with that? 

Mr. UNGER. I thought about that and I took the same simile as 

you do, about if you struck gold. I do not know if I agree with that. 

Am I liable-i.e., must I compensate someone who has the good fortune to have inherited land with a southwest willow flycatcher on 

it, or should that person conduct their business in such a way as 

to preserve for his fellow humans that bird as well as conduct his 

business? At one time, I invested in a radiology laboratory and 

your colleague Pete Stark decided that that was not too good, that 

I was probably sending people to the laboratory beca use 8.ny dollar 

they spent there, two cents went to me. And my in vestment turned 

out poorly. Shall I ask you and the others to pay me because I lost 

money because after I put my money down, Congress decided to 

pass a law about my investment? 

Mr. POMBO. If the gentlewoman would yield. 

Ms. CHENOWETH. Yes. Mr. POMBO. On that point, yes. That is my perception. 

Mr. UNGER. Why? 

Mr. THOMAS. If the gentlewoman would yield briefly. Pete Stark 

is the former Chairman of the Health Subcommittee of the Ways 

and Means Committee, I now occupy that position. I am working 

on changing that law. 

Ms. CHENOWETH. Mr. Reid, a noted ornithologist, Rick Blum, has 

stated that the California condor is a relic of the Pleistocene era 

and during that era, it had an abundant supply of food source, car-
40 

rion, in the form of mastodons and other large mammals, but as 

the glaciers receded, so too did the carrion sources and the condor 

with it. Do you have a response to this statement? 

Mr. REID. I am sorry that my hearing is not as good to detect 

exactly what you said. I gather what you are saying-! will have 

to paraphrase it-that since their original food supply consisted of 

things that have become extinct, that we should not have bothered 

saving them? Is that what you said? 

Ms. CHENOWETH. Let me read the question again. A noted ornithologist, Rick Blum, has stated that the California condor is a 

relic of the Pleistocene era and during that era, it had an abundant 

supply of its food source, which was carrion, in the form of mastodons and other large mammals, but as the glaciers receded, so 

did the carrion sources and the condor with it. 

Mr. REID. No, I do not think so. I think actually the condor lived 

on a lot of other things besides those animals which have been extinct. One of them, and one of the major sources of it, were mammals, sea mammals that washed up on the beach-major source of 

food. 

Ms. CHENOWETH. That is right. 

Mr. REID. Second, I might point out that they are scavengers, 

they do not kill things, they eat the dead ones. They perform a very 

valuable service to the community at large. 

Ms. CHENOWETH. Thank you. 

Mr. REID. And in order to protect these rather spectacular 

birds-if you have not ever seen one, I hope you will sometimewith a nine foot wingspread, they are quite a sight. We have seen 

them near where I live. The problem is that their demise did not 

occur because of lack of food supply, it was because of two major 

problems. One is people shooting them and the second problem was 

the wide use of pesticides and rodenticides. 

Ms. CHENOWETH. Thank you, sir. 

Mr. Chairman, I ask for unanimous consent to extend my remarks for two minutes, or my questions for two minutes. 

Mr. POMBO. Is there any objection? 

[No response.) 

Mr. POMBO. Seeing none. 

Ms. CHENOWETH. Mr. Gallion, I appreciate your testimony. Did 

your coalition support Public Law 102-575, which was the MillerBradley Act which allowed for the Fish and Wildlife Service to gain 

control of the CVP? 

Mr. GALLION. Not that I am aware of. 

Ms. CHENOWETH. OK. It is absolutely amazing what is happening down here in California as far as water rights are concerned, 

and I think it bodes not so well for Idaho too, if it starts down here. 

I was interested in your Lake Isabella story. In California, does not 

the State own the beds and banks of standing bodies of water from 

high water mark to high water mark? 

Mr. GALLION. Yes. 

Ms. CHENOWETH. So why is it that the Forest Service is involving 

itself in the lakeshore activities? 

Mr. GALLION. That, ma'am, I could not tell you. 

Ms. CHENOWETH. I think we need to ask that question. 

Mr. GALLION. Right. 
41 

Ms. CHENOWETH. I think it is worth investigating. 

Mr. GALLION. Right. I think one of the difficulties is, you know, 

I do not think it has been yet determined that that species really 

is endangered in that area versus the adverse impact it will have 

on the property owners. The other difficulty is trying to get a response from any agency to justify the listing of that bird in that 

area, so that those questions can be posed and asked. The problem 

is the burden rests upon the farmers and the ranchers and yet the 

answer never follows, the answer never comes. And that in part is 

the problem. But thank you, we will do that. 

Ms. CHENOWETH. And finally, Mr. Chairman, I do want to assure 

Mr. Reid that I did read Rachel Carson's "Silent Spring'', but there 

is a book that I would like for you to read, if you would, sir, it is 

called "Noah's Choice" by Charles Mann. I would love to have you 

read it and some day discuss it with you. "Noah's Choice". 

Mr. REID. I was not hearing her. 

Ms. CHENOWETH. I will talk to you after the meeting. The book 

is called "Noah's Choice". 

Mr. REID. "Noah's Choice". 

Ms. CHENOWETH. Thank you. 

Mr. REID. "Noah's Choice", is that what you are talking about? 

Ms. CHENOWETH. Yes. 

Mr. REID. Well, it is a rather interesting question, this whole 

question of deciding who is to live and who is not to live. We had 

it in the service, we had to make those decisions. As a matter of 

fact, the Endangered Species Act was amended, as most of you 

should know. There is what is known as a God squad-anybody 

know about that? God squad was given the authority to decide if 

there are to be exemptions to the enforcement of the Endangered 

Species Act. So there is a mitigation, if you wish, for the kinds of 

things that I hear about today. 

I want to take this moment also to say I hold no particular point 

that all things done by the bureaucracies are correct. We had our 

own problems even with the condor. Whereas on the one hand, we 

are spending a lot of money to save the condor and so on and so 

forth; on the other hand, the Fish and Wildlife Service was distributing cyanide cartridges to kill coyotes, which of course were scavenged by the condors and some of them died. So we have some 

problems of enforcement, some sillier than others. And I make no 

effort to say that everyone was right and everyone was good. But 

I do not think we should throw the Endangered Species Act away 

and substitute some kind of a moratorium for action just to please 

some people who had some unfortunate experiences with enforcement officers. 

Mr. POMBO. I thank the gentleman. Mr. Thomas. 

Mr. THOMAS. Thank you, Mr. Chairman. 

I want to underscore a couple of points made by my colleagues 

and I guess the use of the condor is the best example. Mr. Dooley 

indicated that maybe we need to do some prioritizing in where our 

money is spent and focus on those areas that give us the greatest 

return. I think one of our major problems with the condor began 

the day man decided to live in the San Joaquin Valley. We have 

had valiant efforts of trying to rescue eggs and hatch them out and 

all of us know the recent news story of two young condors hanging 
42 

out at a trash bin behind a fast food place in Nukuyama. The birds 

are not dumb, they are going to where the food is. The problem is 

the manner of their territorial requirements and the location of 

food has changed-underscore that. In my opinion, the condor was 

doomed the day man decided to stay in the southern San Joaquin. 

I am very pleased to hear, Art, you and Leslie indicate that you 

do not believe that we should make no amendments whatsoever to 

the Endangered Species Act, that perhaps there are areas that we 

can focus on-the compensation one is I think nailed down now 

pretty good. 

The other one that I wanted to ask you about which occurs to 

us often in the eastern part of the county, for example, and it really 

comes home to us in Inyo County which is 93 percent publicly 

owned. There is only seven percent of private land in the entire 

second largest geographic county in the United States, Inyo County. But in the east portion of the county, we have very large military reservations. Do you have any reaction to the idea that perhaps on the question of mitigation, since the Federal Government 

is there, it pays no taxes, gives us no real support and is constantly 

threatening to pull out the impact aid to help finance the students 

that are there because the Federal Government is there in the first 

place, do you think that perhaps for mitigation purposes, we ought 

to be able to utilize public lands rather than always requiring that 

mitigation come from private lands? Would that be an OK amendment for you? 

Mr. REID. I understand what you are saying, Congressman, and 

I do not know that there is any strong rule or practice that places 

all the onus on private property, I do not think that is true. Most 

of the endangered species actions that citizens have taken, according to the law, have usually been demanding that the Federal 

agencies themselves obey the law. You are well aware of that. 

Mr. THOMAS. Mr. Reid, I understand that. But my point is mitigation, that when there is a desire to use land and there are endangered species, the mitigation, the compensation in terms of 

land, always has to be private. Why can we not recognize the location of endangered species on public land and utilize that societal 

resource for mitigation? 

Let me tell you why it is a very real problem for me. Most of the 

impact of the Endangered Species Act has been on the west, and 

that is largely because the east had it their own way prior to Rachel Carson's book or anybody else. And in my opinion, to a very 

great extent, the conscience of urban livers and easterners is being 

mitigated on the backs of many, many people in the west who have 

preserved areas. 

Mr. Mebane's story is not an unusual one. The one in the Kern 

River Valley with the southwest willow flycatcher is not an unusual one. The ranchers and the other private owners are the ones 

who have preserved the land . That is why they have the southwest 

willow flycatcher there. There were locations in Arizona around 

Phoenix and other areas, those habitats have been destroyed. The 

government looks for those that are left. The reason they are here 

is because we have preserved them for more than 100 years. 

What concerns me is that if this is such an important result for 

society, why does society not want to pay for it? Why is it required 
43 

to be borne on the backs of private landowners? Mr. Unger, I have 

heard your argument about discovering gold on your land several 

times. I am sorry, but that analogy does not work. The point is the 

endangered species have been preserved by these people who own 

the land. Once it is discovered that the endangered species are 

there, these people are punished, they cannot use their land, they 

are not compensated for their land. 

At the very least, could we not have mitigation on public lands 

as the societal response? You keep talking about money in the 

budget to pay people. How about using a public resource that is already there? Mitigate on public lands instead of requiring private 

lands. Would that be an acceptable amendment to you and the Sierra Club, Mr. Unger? 

Mr. REID. I--

Mr. THOMAS. I was kind of directing it to Mr. Unger. 

Mr. UNGER. I think we can use our public lands more efficiently 

to protect endangered species. We need less logging in the Sequoia 

National Forest so that the fisher never needs to be listed. We do 

not want to follow Michigan's example, the Wolverine State, with 

no wolverines. So I agree with you, sir. We need less grazing in our 

national forests and we need less grazing in the BLM lands that 

are habitat for the Mojave ground squirrel. 

Excuse me, please. Did you hear me, Congressman Thomas, or 

shall I repeat? 

Mr. THOMAS. No, I have heard you. I do not know that it was 

responsive to my question, but I heard you. 

Mr. UNGER. Well, your question was shall we use the public land 

to recover species. Mr. THOMAS. No, to mitigate for human economic activity on private lands. Why must it always be out of the pocket of the private 

person, both in tenns of inability to use the land and in fact pay 

government to use it? Both of those are currently present in the 

law. Society is not paying, it is preserving species on the back of 

the private landholder, the individual himself. They are always out 

here in the west, they are not in the east. 

My time has expired, but to a certain extent I keep coming back 

to that little poem by Ogden Nash that I learned when I was very, 

very young, "God, in his wisdom, created the fly; and then forgot 

to tell us why." There is a reason and we do need to preserve species, but if society wants to preserve it, then society ought to share 

in the cost of preserving it, it ought not to be totally on the back 

of private property holders. Mr. POMBO. Mr. Reid, the time has expired, but I will allow you, 

if you will answer a short speech, I will allow you to respond to 

that. 

Mr. REID. I will abide by your ruling, Congressman. 

Mr. POMBO. OK. 

Mr. GALLION. Mr. Chairman, if I could just make a point or possibly two points. First of all, I would like to submit into the public 

records on behalf of the Coalition about 3,000 to 4,000 petitions 

signed by individuals that are citizens of the United States supporting reauthorization of the Endangered Species Act and are private property owners, support peer review being required before 

the listing, economic impacts, and to determine the effects of the 
44 

listings on the community. The Endangered Species Act must take 

into account the taxpaying Americans as afforded by the Constitution and the Bill of Rights. I have those here to submit to the official record, which are very, very concerned Kern County citizens. 

Second, there is a delineation between governmental taking as to 

Constitution and what appears to be Department of Fish and 

Game, Fish and Wildlife regulating. There is no compensation for 

regulating but yet those departments have been allowed to acquire 

land and money as a result of the term regulating. It is unconstitutional to take without compensation but it is clearly justifiable and 

acceptable in those departments to regulate property out of the 

hands of private property owners as well as their money. 

Mr. POMBO. I just want to remind you that as part of a series 

of bills that the 104th Congress brought up in the first 100 days, 

we passed out of the house with 277 votes, a bill which would compensate landowners whose property was unfairly taken by regulation away from them, and that was an effort that was put together 

by a very broad range of members of Congress. And I was very 

happy to play a major role in that. 

Mr. GALLION. The last statement is that again on behalf of the 

members of the Coalition, our position is clearly one of balance. We 

all genuinely believe that the farmers, ranchers and private property owners are clearly the best stewards of the land anC. we wish 

to create a balance in a sensible Endangered Species Act that clearly protects all species, including those of us who pay the taxes, because if we allow for one minute, one slight brief minute, the risk 

of our private property ownership, the basis and foundation of our 

country is clearly at stake. 

Mr. POMBO. Thank you. 

I would like to thank this panel very much for your testimony, 

for the answers to our questions. I appreciate all of you taking the 

time away from your jobs and your businesses to spend the time 

with us and to share your stories and your suggestions with us. 

Thank you very much for your testimony. 

I would like to call up our third and final panel to be seated. This 

panel consists of John Lemley, Ted James and Dennis Iverson. Will 

you please come forward? 

Ms. CHENOWETH. Gentlemen, thank you very much for being 

with us today. Mr. Lemley, we would like to start with your testimony. 

STATEMENT OF JOHN LEMLEY, HOLMES WESTERN OIL 

CORPORATION, TAFT, CALIFORNIA 

Mr. LEMLEY. Thank you, members of the panel, ladies and gentlemen. My name is John Lemley, I am representing the Holmes 

Western Oil Corporation. We are oil producers who also operates 

a well servicing and drilling business. Western Oil is a family 

owned and operated business with 50 years doing business there, 

with 70 years in the oil industry. We employ 100 people, operate 

14 leases and have a total of 150 wells. 

As an oil producer, we primarily operate leases managed by the 

Bureau of Land Management, which the Federal Government receives up to 12.5 percent royalties. 
45 

To get right to the point, 15 years ago we could obtain a permit 

in 2 days. Now, it takes a year or longer and in some cases is impossible to obtain. Also, the cost of mitigation, mitigation by 

biosurveys has increased. We have gone from paying for a 12 cent 

stamp to recent attempts to obtain permits on four wells costing $17,500. That is before a shovel full of dirt can be turned and this 

figure does not take into account ali in-house expenses. Due to the 

ESA, we can only drill one well per project per year. And we have 

approximately 10 projects we could put into effect today. 

If the ESA was administered properly, fairly as written and both 

direct and indirect social, economic and e.nvironmental costs were 

considered, we could keep a drilling rig busy year round, employ 

an additional 30 people and would spend $9 million in the community with about $3 million of that spent on payroll for our employees and employees of service companies alike. 

We are well aware that the list we are presenting is certainly not 

inclusive of all the roadblocks presented in the oil industry. I could 

give several examples of how the ESA has had an adverse effect 

on our industry; however, specific to Holmes Western's operations, 

the examples below stand out and have current impact on our dayto-day operations and scheduling. Because of the ESA, our 1-year 

project has become a 20-year project. Needless to say, it has had 

an adverse impact on both production and employment opportunities. 

Some examples of adversities met in trying to comply with ESA 

as currently interpreted are time delays. Our last well for which 

permitting was applied took 4 days short of a year to obtain this 

from the Fish and Wildlife Service and this was with Congress 

intervention. Finally, after a year of delays, economics dictated that 

we did not drill the well. 

We have currently gone through the same ESA permit processes 

in four wells in the immediate vicinity, five on the same 80-acre 

parcel, and are in compliance with the regulations on all nine 

wells. Knowing the past requirements, we committed to comply to 

the regulations at the outset of the permitting process. But even 

with this upfront agreement, the process still took a year and additional costs-hiring a botanist/biologist who had already surveyed 

the immediate area, which did not change the original mitigation. 

Time delays resulted in a $600,000 loss of employment and production. Another upfront cost is compensation for tempnrary and permanent habitat loss, which we were charged one acre developed, 

three acres must be purchased or three acres of our own property 

donated. 

In addition to time delays and money lost, some of the things we 

had to commit to in order to obtain a permit: 

Verification of surveys on-site for the San Joaquin kit fox conducted by a qualified biologist within 60 days. We committed to 

this survey in areas that have been surveyed many times before. 

In fact, within a mile area, we have had 17 surveys for those nine 

wells. 

Perform pre-performance meetings prior to construction to our 

employees and subcontractors. We were the people that were responsible for the animals. We have trained our people over and 

over again, we had to train them again. 
46 

Implement an employee education program for the endangered 

species, which required showing them pictures, telling them do not 

bother if it flies or does not move-if it flies or moves, do not disturb it. 

We were told to use dust control measures with the welL We do 

that normally for the people, not for the animals. 

No grading could be performed for the flowlines. Those basically 

are cross country. In times when we could not run the flowlines 

down the roadway, we had to carry them in by hand. 

Off-road driving was prohibited. Speed was not to be in excess 

of 15 miles an hour. When we have our trucks going down a dirt 

road, we cannot run 15 miles an hour. We did not try it. 

Proper containment and disposal of solid waste. We always do 

that, that is a proper procedure. 

Inspection immediately before use and sealing of all pipes to 

keep the endangered species out of them. In our drilling business, 

we must have all of our drill pipe clean because if you pump an 

animal down the hole, or a rag, you certainly pull it right back out 

because it plugs the jets. 

They required that we have no firearms, knives, alcohol or pets 

to be allowed on the location. We do that anyhow, that is just a 

normal situation. 

We were to take off-road use to the well pad and have it fenced 

in with T-posts, small wire and other positions at the well pad and 

around the perimeter. We do not know whether it was to keep the 

people out, to keep the people in. We knew that the animals could 

go under it. 

The area that was developed was supposed to be the minimum 

necessary for the pad. The flowline right-of-way should avoid all Hoover's wooly-star. 

We had to go out through the inspection with the biologist and 

mark off every Hoover's wooly-star that we could find, flag it and 

stay away from it. 

The main thing that hurt us the most was the unsafe conditions 

on the locations. When we need a 150 by 125 area to set our drilling rig on, we had to in some cases make it smaller because of 

these species, which in turn made it very difficult to operate that 

rig safely. 

In conclusion, the ESA has delayed many projects, c.:>st the industry millions of dollars. Western Well, who in 1990 employed 290 

people, has a decreased wo!:'k force to 100 employees. Of 34 operable rigs, only six are currently operating. Holmes Western considers its employees a family and feels an obligation to provide continuity of work and a paycheck every week. Due to the delays and 

the rest of the problems that we have, we cannot guarantee or even 

tell our people that we can give them another paycheck. 

From my own observation-this is strictly me, not anything to do 

with the company-and in hearing from the farmers, it appears 

that the Fish and Wildlife Service does not know a drilling rig or 

an oil well from a bale of hay. We all have the same problems. 

Thank you. 

Mr. POMBO. Thank you. 

[The prepared statement of Mr. Lemley can be found at the end 

of the hearing.] 
47 

Mr. POMBO. Mr. James. 

STATEMENI' OF TED JA.\1ES, DIRECTOR, KERN COUNTY 

PLANNING DEPARTMENI', BAKERSFIELD, CALIFORNIA 

Mr. JAMES. Thank you, Chairman Pombo and Committee members, for the opportunity to testify before you today about the effect 

of the Endangered Species Act on the residents of Kern County. My name is Ted James, I am the Director of the Kern County 

Planning Department. I am in a unique position to comment on the 

Endangered Species Act because I deal on a daily basis with applicants, members of the public, and the U.S. Fish and Wildlife Service staff in trying to work with this law on a daily basis. And I 

come before you today with a lot of frustration. 

The Planning Department has also been actively involved in the 

development of two significant habitat conservation plans; one for 

the metropolitan Bakersfield area and we are developing one for a 

3,000 square mile valley floor area of Kern County, and also we 

have been actively involved in addressing proposed species listings 

and also in the successful delisting of a ground squirrel under the 

State Endangered Species Act. Although it was successful, our frustration is that the listing has become hung up in litigation, and 

that is typically the case when you are dealing in the endangered 

species arena. 

Kern County is unique from other regions in the Nation in that 

it contains one of the highest concentrations of different plant and 

animal species protected by the ESA within the continental United 

States. The listed species include plants, fish, birds, mammals, reptiles, and we even have a beetle, a moth and two species of shrimp. In addition to these plant and animal species, there is another 

evolving endangered species that the ESA is ignoring-and that is 

the people of Kern County. The conservation of America's natural heritage is an important 

goal. You have heard a lot of the speakP.rs emphasize that point today. However, the translation of this goal into law fails to acknowledge coexistence with people, and that is its significant flaw. 

Many Kern County residents exhibit outrage and frustration at the 

manner in which the Federal Government is using this law to obtain land and create an environment of distrust and scientific suspicion. 

I have personally witnessed the following negative situations in 

dealing with the U.S. Fish and Wildlife Service and the Endangered Species Act: 

1. U.S. Fish and Wildlife Service staff defensively promote species conservation to such a degree that there is little emphasis on 

the economic pursuits of private property owners. This is very apparent in dealing with them. 2. Individual personalities at the U.S. Fish and Wildlife Service 

seem to dictate a project's success or failure in complying with the 

Endangered Species law. 3. There exists a redundant endangered species regulatory process in California where you have both the U.S. Fish and Wildlife 

Service and the California Department of Fish and Game imposing 

similar requirements on the public. The public views thie- as overregulation, and it is. 
48 

It is no wonder why this type of regulatory environment causes 

Kern County property owners to exhibit frustration with their Federal Government. If you are going into business in Kern County, whether it involves farming, oil or urban development, the ESA can 

make life very complicated and expensive. 

For example, throughout much of Kern County, it is typical for 

the U.S. Fish and Wildlife Service to require the replacement of 

three acres of suitable habitat for each one acre that is developed. This is typical mitigation that is required. From earlier testimony, you heard about the situation where there was a requirement for 

a 19-to-1 compensation ratio. The reasoning provided by the Federal Government for requiring this compensation is the lost carrying capacity for endangered species that results from taking their 

habitat. When you ask them for the scientific rationale for that, you get a one-page piece of paper that talks about this. And I 

would challenge them for the scientific basis for that. 

Applicants must also provide maintenance and endowment 

funds. Usually they run in the neighborhood of $400 per acre, and 

there is a requirement to prepare expensive biological reports. 

As another example, we have tried to proactively work with the 

Endangered Species Act. Kern County and the city of Bakersfield 

undertook the preparation of one of the largest multi-species habitat conservation plans in the nation. The Metropolitan Bakersfield 

Habitat Conservation Plan was approved last year. With e.ll of the 

biological benefits of this program, it is unfortunate that it had to 

endure an arduous 7 -year process from program initiation to final 

approval. Both the U.S. Fish and Wildlife Service and State Fish 

and Game put up successive roadblocks to its approval. And what 

was the reason? It was this philosophy to protect the species at all 

cost, and that philosophy is permeated throughout the agencies, 

and that is where that flaw is. Unless the Fish and Wildlife Service 

can demonstrate their commitment to facilitate the development of 

locally acceptable programs, local governments and landowners are 

going to be very reluctant to become involved in these programs. As you can see from these examples, ESA and the Fish and Wildlife Servic;e make life very difficult. 

Just briefly, I would like to highlight some recommendations for 

change. In my testimony I have provided 19 suggested revisions. 

First, I think the important thing is we need to acknowledge in 

the law a legislative preference for conservation and management 

of species on existing public lands rather than private property. Second, the ESA needs to be revised to encourage the use of Fed- eral/State agreements to delegate implementation to States in 

order to avoid duplication of regulations. Government is more effective if it is closer to the people that are regulated. An independent peer review panel needs to be formed that will 

evaluate relevant scientific information based on clearly defined 

standards. It is also important that there be a process incorporated 

with the endangered species law that acknowledges that a listing 

may not be in the national interest due to countervailing economic 

or social impacts. There are many more and I will not spend any more time dealing 

with those now, but I think it is important that there be significant 

changes to the law. It is important that the best scientific prin-
49 

ciples be used, it is important to recognize that the concepts of conservation and the furtherance of economic pursuits do not have to 

be mutually exclusive goals, they can work together. Incentives, flexibility, reasonableness and emphasis on the utilization of existing public lands should be the guiding principles in 

the reauthorization effort. 

I thank you for the opportunity to comment. 

Mr. POMBO. Thank you. [The prepared statement of Mr. James can be found at the end 

of the hearing.] 

Mr. POMBO. Our next witness is Mr. Dennis Iverson, from Utah, and at this point I would just like to make a comment, in that because of budget restrictions we were not able to hold hearings at 

every place that someone requested that we hold that hearing. It 

was so important to Mr. Hansen, who is a representative from 

Utah to have this witness have the opportunity to testify before 

Congress, that we allowed him to testify at this hearing because it 

was so important to another member of this task force, another 

member of this Committee. Having said that, Mr. Iverson, thank 

you very much for joining us here. 

STATEMENT OF DENNIS IVERSON, UTAH FARM BUREAU 

FEDERATION, WASHINGTON, UTAH 

Mr. IVERSON. Thank you. I appreciate the opportunity of being 

here. Mrs. Iverson and myself took the opportunity of driving down 

today. And while you may have made some mistakes, as the rest 

of us have, I want you to know you have a beautiful State here in 

California. 

Mr. POMBO. Thank you. 

Mr. IVERSON. I have had the opportunity a couple ~f times of testifying or addressing the Utah delegation, and while I am very 

proud of our Utah delegation, I want you to know that this delegation is a lot younger and better looking. 

As indicated, my name is Dennis Iverson and I come here representing the Utah Farm Bureau Federation and over 23,000 Farm 

Bureau members throughout the State of Utah. I am a cattle 

rancher and I live in the small community of Washington in Washington County, which is located in the extreme southwest corner of 

the State of Utah. 

My ranching operation is based in Utah. The Utah/Nevada line 

splits my winter range, so I actually ranch in Lincoln County, Nevada as well as Utah. My family has been farming and ranching 

in the area for well over 100 years and currently we maintain a 

herd of about 400 mother cows. My ranch is dependent upon the 

ability to use the public lands. My permits are attached to and 

based on my private rroperty, similar to the way water rights are 

attached to a piece o land. I have worked with public land agencies for many years and have been able to develop good range management practices, which benefit wildlife, livestock and other land 

resources. Then along came the Endangered Species Act and the threatened 

listing of the desert tortoise. Bear in mind, the listing is "threatened", not endangered. The animal is not endangered and I question that it is even threatened, as there are thousands of them 
50 

scattered over millions of acres that reach clear into Mexico. The 

reason for the threatened listing is due to the loss of habitat 

around some cities such as Las Vegas and an upper respiratory infection that was discovered in the species, a disease which most 

likely existed in the tortoise historically. There is no evidence to 

the contrary. The Bureau of Land Management has the responsibility to implement the recovery plan as set forth by the U.S. Fish 

and Wildlife Service. Most of my winter range is tortoise habitat 

and would become a part of a desert wildlife management area. Domestic livestock grazing would be eliminated under the plan. The 

only way that we have been able to keep our livestock on the range 

has been to challenge the process in court. 

My livestock depend on this range 7 months during the yearNovember through May, at which time I move onto national forest 

range. Without a winter range for my livestock, the summer range 

has little value. With the elimination of grazing on tortoise habitat, 

my ranching operation would virtually be eliminated. As we were 

called into meetings to review the biological opinion and the proposed grazing decision on the allotment, the BLM representative 

asked the U.S. Fish and Wildlife representative if they were prepared to defend the decision in court should we as ranchers decide 

to challenge it. At that point, it was indicated that the BLM would 

be responsible for that. The official from the BLM indicated that 

they had no documentation which would indicate that livestock 

grazing was detrimental to the tortoise. 

The decision to eliminate livestock grazing is based on the assumption that grazing may have a damaging impact on the tortoise. There are several practices which could be implemented to 

promulgate the tortoise, such as predator control and the elimination of collecting by people. It would seem to me reasonable that 

the first tortoise preservation practices implemented should not 

eliminate the livelihoods of American producers. Certainly, sound 

science should be in place before taking away the grazing rights of 

southwestern ranchers. History indicates that the presence of ranching activities has actually been beneficial to desert tortoise. When the first settlers ar- rived in southwestern Utah, northwestern Arizona and eastern Nevada, they found the native Piute Indians existing on anything 

they could gather for food. These included lizards and rats. No 

mention is made of the tortoise being available. Predators were so 

numerous that early sheepherders had to build fires around their 

flocks at night to protect them from bobcats and coyotes. An outbreak of rabies and extensive predator control program helped to 

eliminate the predator problem. After that, the tortoise began to be 

more abundant. The forage plants preferred by tortoise were introduced as a result of livestock grazing. It is my strong opinion that 

the presence of ranching has increased tortoise populations in the 

northeastern portion of the Mojave Desert. 

Another challenge with management of endangered species 

under the current Act is the threatened loss of water rights in 

order to guarantee in-stream flows to protect certain obscure fish 

in the Virgin River. Three species are involved-the Virgin River 

chub, the woundfin minnow and the Virgin River spinedace. 
51 

As currently written, the Endangered Species Act provides that 

these fish be preserved at all cost. Remember, these are not game 

fish with economic value, but rather until recently have simply 

been regarded as trash fish. Prior to the Endangered Species Act, 

there was never any organized effort to preserve them and yet the 

fish have survived. 

Water is a most precious commodity in the southwest. The Virgin 

River provides the lifeblood for our communities and crops. Please 

recognize that the people who depend on this river are eager to assure that its waters continue to flow. But because of heavy demands on the river during the summer irrigation season, it is absolutely necessary that additional storage reservoirs be constructed to 

conserve excess flows during winter and early spring, so there will 

be enough water to support the growing populations of Washington 

County communities, as well as in-stream flows for the endangered 

species. It is ironic that those who seem to be most concerned about 

saving these little fish are also opposed to additional reservoir development. 

In closing, I want to thank the Committee for holding this hearing. Conserving the plant and animal species of the earth and providing adequate habitat is a noble intent worthy of pursuit. The 

Endangered Species Act, however, must be reformed and modified 

to address the concerns of private property owners. Human and 

economic concerns must be addressed during all phases of any recovery effort and I believe we, the American people, expect and deserve a common sense approach in revising the Endangered Species 

Act. 

Thank you. 

[The prepared statement of Mr. Iverson can be found at the end 

of the hearing.] 

Mr. POMBO. Mr. Iverson, you talked a little bit about BLM not 

being able to say what damage cattle did to the tortoise. I have not 

heard any argument as to what exactly the cattle do to a tortoise. 

What harm do they do? 

Mr. IVERSON. Well, the claim i.:; that they compete with the tortoise for forage, as well as trample tortoise. 

Mr. POMBO. Step on them? 

Mr. IVERSON. What? 

Mr. PoMBO. They step on them? 

Mr. IVERSON. Well that is the claim, yes. I would indicate that 

they have one instance in all history on all the range where they 

claim that a tortoise was actually stepped on by a cow. I do not 

know if they can prove that or not, but that is the only instance 

they have, one time. 

Mr. POMBO. And they compete with them for food, for grass? 

Mr. IVERSON. OK, there are two plants that the tortoise prefer. 

There is what we call filleree and red braum. Both plants were introduced as a result of livestock grazing. They did not even exist 

here before livestock raising came here. 

Mr. POMBO. And so the proper management of your pasture by 

planting non-native grasses that the cattle did better on contributes to the betterment of the tortoise because that is what they 

eat? 
52 

Mr. IVERSON. Now, we did not plant these non-native species, 

they just evolved with livestock grazing, a..TJ.d they are here now. 

Mr. POMBO. But they are there. 

Mr. James, your HCP, you are the Planning Director in Kern 

County and you have worked extensively on the HCP in the past 

several years, am I correct in that? 

Mr. JAMES. That is correct, Congressman Pombo. 

Mr. POMBO. OK. How much of Kern County is currently developed, what percentage of Kern County is developed with houses 

and businesses and roads? 

Mr. JAMES. Congressman, I do not have that specific figure, but 

I can tell you it is a very small percentage of the overall county. 

I would venture to say it is within the one percent range and we 

are talking about an 8,000 square mile area that we are dealing 

with. 

Mr. POMBO. So, very little of it has actually been developed. The 

rest of it is either in a semi-natural state, a natural state or is 

being farmed in the partially developed State? 

Mr. JAMES. That is correct, or 25 percent of it is under public 

management by State and Federal Government. 

Mr. POMBO. And 25 percent of it is under public management. 

How much of your county do they want to set aside in an HCP? 

Mr. JAMES. From the standpoint of looking at acreage, the intent 

is to apply a compensation ratio that is basically based on the 

three-to-one concept. And that would be dependent on how much 

take occurs over the life oi the program. But there are vast areas 

in western Kern County in the northern portion that the agencies 

are looking for to set aside as preserve areas, and certainly these 

areas number in the hundreds of thousands of acres. 

Mr. POMBO. In the hundreds of thousands of acres. Do you have 

a general plan in Kern County? 

Mr. JAMES. Yes, we do. 

Mr. POMBO. And in your general plan, obviously you had to do 

all the proper environmental documents as to what your impact 

was and all of that had to be part of your general plan when you 

adopted it. 

Mr. JAMES. That is correct. 

Mr. POMBO. And to the best of your knowledge, you are not allowing rampant, uncontrolled growth at this time in Kern County. 

Mr. JAMES. Congressman, a vast majority of our general plan 

designates the property for resource and open space types of uses, 

and our land use policies encourage development to happen so as 

not to create leapfrog patterns of development. 

Mr. POMBO. The reason I am asking is because I was on the City 

Council in Tracy for a couple of years at the time that we did our 

general plan. And we went through all the documents, the planning documents for the entire county, in fact the entire region, the 

neighboring counties as well, as to what their plan was for development. And the best guess that the experts could come up with was 

that there was enough land in the general plan expansions in the 

county and the cities in the region to accommodate the growth for 

50 years on the outskirts. And at that point about 20 percent of 

San Joaquin County would be developed and 80 percent of it would 

not be developed. In my county, they are proposing a mitigation fee 
53 

of $3,000 per house that is being built, new houses, to go to pay 

for mitigation of impact on endangered species, because like Kern 

County, San Joaquin County, no matter where you go, you are on 

somebody's endangered species habitat. So they just want to adopt 

an overall plan. 

Is that similar to how you would finance your HCP? How would 

you finance it, how would you pay someone for being stuck inside 

this habitat conservation plan? 

Mr. JAMES. Mr. Chairman, under our Metropolitan Bakersfield 

Program, it is a mitigation fee, it is $1240 per gross acre. That 

works out to about $300 for a typical single family house. The frustration of the building industry is that they do not like to see more 

fees, additional fees are cumulative with the air quality, the transportation and other costs that they face. But they found that it was 

better to have certainty in the endangered species process and they 

were not getting that before. And it was kind of a bitter pill that 

they decided it would be appropriate to swallow, and at least they 

would know what their mitigation requirement is. 

Under our valley floor program, just briefly, it is in the development stage and we are trying to do what Congressman Thomas alluded to, bring incentives into the process. And I am a firm believer 

in we have got to move in the direction of not having punitive regulations. We have got to create incentives. That could be tax incentives, that could be again shifting that burden to the public lands, 

because right now property owners feel that the burden is being 

placed all on their backs. And the other concept is those agencies 

need to get out there and actively recover the species and they 

have not been doing that in the past. 

Mr. POMBO. Just one final statement. Do you know how much of 

California is currently owned by the four largest landowning agencies of the Federal Government? It is 43 percent. 

Mr. JAMES. Right. 

Mr. POMBO. It is 43 percent right now. And of that 43 percent, 

currently 77 percent of that is set aside with a permanent conservation easement on it. So you have a very, very large portion of 

California right now that is set aside with a permanent conservation easement on it, just with the Federal land, and that does not 

include the number of HCPs that either have been adopted or are 

in the stages of being adopted. I would agree with you that one of 

the jobs that this task force and this Congress has to accomplish 

is that we have to reverse the incentives that are currently in the 

way the Act is being implemented, because it is doing more harm 

than good currently. 

Mr. Dooley. 

Mr. DOOLEY. Thank you, Mr. Pombo. 

Mr. James, going back to the HCP, when you were developing 

that and you were getting the buy-in, what is in effect the real certainty that that is providing? Are you getting an indefinite standard of sufficiency for future ESA listings? 

Mr. JAl'\fES. What needs to happen in the reauthorization process 

is there needs to be an acknowledgement of not only listed species 

under habitat conservation plans but unlisted species as well. If we 

are going to spend 7 years going through tedious negotiations to 

develop these programs, there needs to be the certainty that the 
54 

next time a new species is listed, we do not have to go back 

through the whole process again. 

Mr. DOOLEY. That, I guess, is precisely my point. Right now, you 

are able to create the interest within Kern County and the metropolitan area of Bakersfield; people are willing to participate and 

sign off on this HCP approach without really any guarantee from 

Fish and Wildlife or the State Fish and Game that this is the 

amount of critical habitat that we will set aside and that is going 

to be sufficient for all species currently listed or in the future. 

Mr. JAMES. To answer your question, number one, we enter into 

these programs to provide for long-term certainty in the process, 

and it is our hope when we enter a contract with the agencies that 

we will have protection and they will not come back with more onerous requirements. The no-surprises concept that the administration came out with unfortunately is just a policy, and it needs to 

be instituted as part of the law, and that is to specifically say if 

you enter into these programs or if you do any type of addressing 

of compliance with the endangered species laws, there should not 

be any surprises down the road, you should not have to come 

through with some additional mitigation requirements. 

Mr. DooLEY. So at this point, none of the regulatory agencies are 

giving Kern County or the stakeholders in this process any guarantees in terms of this plan being sufficient. 

Mr. JAMES. Part of our problem, Congressman, is dealing with 

the U.S. Fish and Wildlife service in that they do not delegate responsibility for saying yes to the person sitting at the negotiating 

table. You go through Sacramento, you go through Portland, you go 

through Washington, DC. And that is one of the problems with the 

process. 

Mr. DooLEY. I have heard that repeated, that one of the problems even with the development of these HCPs throughout the 

Central Valley has been the lack of interest or the inability of Fish 

and Wildlife to articulate a set of criteria or terms which an HCP 

should be developed around. Has that been your experience too? 

Mr. JAMES. That has been my experience. And again, what permeates the service is this protection-at-all-cost philosophy, and that 

is the problem. They should be facilitators, not regulators. And 

they are insulated from the public and I think that is maybe getting back-! think, Congressman Thomas, you brought up this 

issue-what is wrong with the Service, I think that is it. They are 

too insulated, they do not conduct their activities in a public forum 

like many of us would. 

Mr. DOOLEY. You know, in California--and this is too often the 

case-we oftentimes have State regulations that accompany the 

Federal regulations. In this case, say that in a best-case environment, we are successful in making the responsible reforms to the 

Federal Endangered Species Act, if we achieve that and the State 

is n0t successful in making their reforms, how will that affect some 

of the property owners that we have heard from today and also 

Kern County, will they still be facing some of the same challenges 

because of the State ESA, or are there significant differences? 

Mr. JAMES. I think certainly you bring up an obvious problem in 

that if there are significant changes in the Federal ESA and the 

State does not make those changes, that is going to send a very 
55 

confusing signal to the public. Right now, when there is a review 

of a project, they get two letters, one from Fish and Wildlife Service 

and one from the Department of Fish and Game. They do not understand why they get two letters. Why cannot one agency address 

this particular issue? And it is a major problem, and just as aggressively as we are going to be working on reauthorization of the Federal ESA, we need to be working on the State law as well. 

Mr. DOOLEY. Thank you very much. 

Mr. POMBO. Thank you. Mr. Radanovich. Mr. RADANOVICH. Thank you, Mr. Chairman. Mr. Lemley, I understand that you drill oil wells on both State 

and Federal lands. Can you give me an idea, how long does it take 

to get a permit approved to drill on State lands as opposed to Federal lands? 

Mr. LEMLEY. That is basically through the DOG, and we do not 

have any problems gaining permits from them. It is within a normal time period, and probably within 45 days. 

Mr. RADANOVICH. OK, and with the fed, it took how long, if at 

all? 

Mr. LEMLEY. The permit basically is 45 days with the BLM; 

should they decide to go to Fish and Wildlife Service, it is an additional 135 days if they can get to it. If they cannot, tough luck. 

Mr. R.ADANOVICH. How long have you waited-what is the longest 

amount of time that you have waited for a permit on Federal land? 

Mr. LEMLEY. Four days short of a year, 11 months, 8 months, 8 

months, 5 months. 

Mr. RADANOVICH. And to get permitted at the State takes about 

45 days? 

Mr. LEMLEY. If we do it directly straight through with the Bureau of Land Management. 

Mr. RADANOVICH. OK, thank you. 

Mr. James, last month, Secretary Babbitt developed a 10-point 

program that is intended to improve the implementation of the 

ESA. Would that proposal have any effect on your job, would it 

make things a little bit easier, would it have an impact on the residents of Kern County? 

Mr. JA.l\1ES. That proposal, interestingly, is talking about a lot of 

the things that you have heard these panelists talk about today. 

And to be very frank, I think what is being proposed is a bunch 

of smoke and mirrors because what they are saying is---Secretary 

Babbitt is saying we are going to wave this magic wa.Tid over the 

Fish and Wildlife Service and everything will be fine, and everything will go away. There will be no problems. And I can tell you 

from working with the Service, that is not going to .happen. The 

only way we can institute changes in that organization are through 

changes in the law. And that is unfortunate that we have to do 

that, but it is very clear to me that is what has to be done. 

Mr. RADANOVICH. Thank you. I want to know something, you are 

not an elected official, you answer to a five-member county board, 

correct? 

Mr. JAMES. That is correct. Mr. RADANOVICH. OK, if there was no Federal implementation of 

ESA, that was in your hands, in the hands of your board, would 

you have arrested that rat-killing farmer in the area here? 
56 

Mr. JAMES. No, I would not have. And I thought that was the 

biggest public relations faux pas on their part in terms of not being 

sensitive to a situation such as the agricultural livelihood within 

the Central Valley. Mr. RADANOVICH. If you had control at the local level, your county Board of Supervisors and yourself working with your county 

sheriff, how would you have dealt with that problem once it arose? 

Mr. JAMES. I would not have used the enforcement mentality 

that I think was used there. I would look for and find ways to 

make people understand what the goals of the particular law is 

and work toward finding positive incentives to get people to work 

with you. And that has not happened with the implementation of 

the Federal Endangered Species Act, again it is a regulatory mentality whereas I think what the Service staff needs to do is be a 

facilitator and say look, we can work on achieving this national 

goal if we all work together, and here are some incentives that can 

provide an opportunity for you to help us meet that goal. But that 

is not happening. 

Mr. RADANOVICH. Do you think that if protection of the species 

was incorporated into your general plan-and again, this is secondguessing your board probably, but do you think that your board of 

supervisors would have found a need to protect the kangaroo rat? 

Mr. JAMES. I think right now my Board of Supervisors is very 

frustrated with both State and Federal endangered species acts, 

and they feel that the law is out of control, and as a result they 

would not see a need to address that species. And I think they are 

taking the right posture in terms of seeking changes to the law, as 

we all are. 

Mr. RADANOVICH. Knowing that one of your members of the 

board is in the audience, do you feel that your board and yourself, 

your staff, Kern County as it is, is capable of handling some of the 

issues in the Endangered Species Act? If control was brought down 

to the local level, could you guys handle it? 

Mr. JAMES. I think very much we could. In developing these 

habitat conservation plans, we are basically functioning as a local 

representative for these State and Federal agencies in trying to develop them. I will be the first one to tell you when I have to get 

up in front of a group of people and defend the law in the way it 

is presently implemented, I cannot do that, and it is not reasonable. And if I am going to develop a workable program, it has to 

have workable goals and it has to provide those incentives. 

Mr. RADANOVICH. Would you or Mr. Lemley care to comment on 

how much more applicable the law would be, how much more rational this process would be if you had to deal with somebody who 

was in Bakersfield at your county seat of government, as opposed 

to dealing with somebody who was in Washington, roughly 3,000 

miles away? 

Mr. LEMLEY. Over the last 50 years we basically dealt with the 

people in Kern County and we have had good rapport with them. 

But over the last 10 years, when we have been involved with the 

BLM and basically the Fish and Wildlife Service, we can never get 

an answer, we do not know where they are. We can go downtown 

and get something done, and we have to get something done in 

order to survive. 
57 

Mr. JAMES. Congressman, just a brief follow-up. Local control is 

a much better way of addressing things. As I said, government 

closer to the people, that is what is important. 

The problem is that the Federal bureaucracy is too big, it is a 

very hard thing to manage and I think we are seeing that all 

across the country. We are very much concerned about Federal 

laws usurping local control of land use, and that is our foremost 

concern. And I think when you look at Kern County and the nature 

of, the extent of natural resources that we have, we are doing a 

pretty good job of being stewards of the land. 

Mr. RADANOVICH. Thank you very much. 

Mr. POMBO. Thank you. Ms. Chenoweth. 

Ms. CHENOWETH. Thank you, Mr. Chairman. 

Mr. Lemley, I was really taken with your testimony. You used 

to employ 290 people and now you are down to 100 and you used 

to have 34 rigs operating and now you have six? 

Mr. LEMLEY. Yes, ma'am. 

Ms. CHENOWETH. And is all of that downsizing, as the government calls it? The resource is still there, is it not? Is all of this due 

to the environmental constraints? 

Mr. LEMLEY. No, ma'am, it is not due strictly to that. What it 

has come down to is the price of oil is very bad, it has been bad 

for many days, many months, many years. It is on the rise right 

now, we would like to see it stay there for awhile. The bigger oil 

companies have all gone into alliances, they have gone into 

partnering situations, and a company of a very small size-and we 

are not really small-but if you cannot afford to provide all the 

services for an oil company, you are going to lose people, and that 

is what has happened. 

Ms. CHENOWETH. And $17,500 per rig is what you attributed the 

environmental paperwork? 

Mr. LEMLEY. No, ma'am, that was $17,500 for four wells. 

Ms. CHENOWETH. For four wells. Mr. LEMLEY. Yes, ma'am. 

Ms. CHENOWETH. Well, we certainly still need you in the industry and I wish you luck in the future. 

Mr. LEMLEY. Thank you. 

Ms. CHENOWETH. Mr. James, your testimony was very interesting too, but there was one thing that you did not read that I would 

like to put into the record, "In 1993, the Fish and Wildlife Service 

issued a biological opinion at the request of EPA regarding the continued agricultural use of several common fumigants and 

rodenticides." You are familiar with the Endangered Species Act, 

are you not? 

Mr. JAMES. That is correct. 

Ms. CHENOWETH. Can you tell me if the word "biological opinion" 

is contained in the Endangered Species Act itself? 

Mr. JAMES. The biological opinion that you are referencing relates to the Section 7, consultation process, which deals with any 

Federal permit or Federal agency involvement where there has to 

be a consultation to determine whether or not there is any jeopardy 

to listed species. 

Ms. CHENOWETH. Section 7 requires a consultation and an opinion by the Secretary, but I think that one thing that the agencies 
58 

overlook is the fact that in the Endangered Species Act, the National Environmental Policy Act is made a part of the law, by reference, and a biological opinion was against the requirements of 

NEPA, which require open public hearings, which requires the 

agencies do all of their work in the open, which was against the 

consultation process, which is in secret. Biological opinion, the 

phrase does not appear in the Act, and it is something the agencies 

have gotten by with by writing themselves out of the requirements 

of NEPA. It is so interesting, I know you are aware, but NEPA 

states in its congressional purpose that its purpose was to measure 

the impact of any major Federal action on man and his environment. That phrase is contained there and made a part of the law 

by reference of the ESA, but ignored by the agencies. It is man and 

his environment, not the kit fox and his environment. 

Ms. CHENOWETH. Not the rat and his environment. Now Mr. 

James, we need your help and we need the help of people across 

this nation to realize that our agencies have gone outside the scope 

of the law they exist under. 

Mr. ,JAMES. Congresswoman, that is a very astute observation, 

and I would point out to your committee that every time there is 

a new species listing, I get frustrated having to respond in writing 

and verbally and asking how the agency is complying with !'II'"EPA, 

and they refer to an outdated 1983 FEDERAL REGISTER opinion 

where they think they do not have to comply with the national environmental laws. And I think that is a travesty that they take 

that approach and they are not looking at the effects, especially the 

socio-economic effects of a new species listing. 

Ms. CHENOWETH. That is an important element in making this 

work, and I hope together we can all work together on that. 

Mr. Iverson, I appreciate your coming from Utah. We have very 

much the same issues in Idaho as you do in Utah. You know, you 

made a statement that water is the most precious commodity in 

the southwest, and we certainly do understand that. You do say 

that most of your winter range is tortoise habitat and would become a part of the desert wildlife management area. But you have 

a permit on that area, do you not, a grazing permit? 

Mr. IVERSON. That is correct. 

Ms. CHENOWETH. And is that grazing permit not protected under 

the Taylor Grazing Act, which says your permit is a private property right? It is not something that can be given and taken away 

at will. 

Mr. IVERSON. Apparently the U.S. Fish and Wildlife Service is 

taking authority over the BLM and mandating the BLM to eliminate grazing there. 

Ms. CHENOWETH. You know, I do want to say that your representative from Utah is just a very fine man. He does have in his 

bottom drawer a bill that would eliminate the BLM. 

Mr. IVERSON. Thank you. 

Ms. CHENOWETH. I know Mr. Lemley would agree, but I wish 

Congressman Hansen could be here with us, he is a fine Chairman 

for me to operate under. I also want to say that being fron Idaho, 

you being from Utah, we could not have Endangered Species Act 

hearings everywhere, so thank you for coming to us. And I know 

that Chairman Pombo made the decision that we be here in Kern 
59 

County because of the importance and diversity of the county, because of our great respect for Representative Bill Thomas and for 

the good work that Representative Cal Dooley is also doing on the 

Committee. 

Thank you. 

Mr. POMBO. Mr. Lemley. Mr. LEMLEY. I would like to make a comment to that NEPA report. In doing business with the Department of Energy, we had to 

comply with a full NEPA report, which my understanding is the 

same as an atomic plant or an oil well. 

Mr. POMBO. Mr. Thomas. 

Mr. THOMAS. Thank you very much, Mr. Chairman. 

Mr. Iverson, in terms of the predators on the desert tortoise, do 

you folks have any problem in your areas with crows? 

Mr. IVERSON. Crows? Yes, but not nearly to the extent you have 

here in California. 

Mr. THOMAS. It seems as the population continues to encroach on 

the desert, perhaps the number one predator on our desert tortoise 

is the crow. And once again, it is an example, just like the striped 

bass and the salmon, the brow cow bird and the southwest willow 

flycatcher, if we were focusing on other introduced or non-native 

wildlife and their impact on the native wildlife, we could go a long 

way toward preserving it. 

I only have one story on the BLM and some of our sheep ranchers in the desert that have run for more than 1.00 years, I believe 

to the mutual benetit of both the desert tortoise and sheep raising. 

BLM proposed that they place styrofoam tortoises out in the desert 

to see how they would react, and I was pleased to have our local 

sheep men propose that they would then place styrofoam sheep in 

the desert. And we would have one of those classic government 

studies. 

But I too want to thank you for traveling here, especially if you 

were required to travel by car across some very beautiful country, 

but it nevertheless is a long trip. And I guess I am the primary 

one to apologize for not having a hearing in Utah and that we have 

it here. 

I too want to underscore my frit:md from Idaho's admiration specifically for Jim Hansen, although it was very, very difficult for me 

to work with him on the Utah Central Project because I knew he 

wanted it for his State very much. Unfortunately, the way in which 

the previous majority packaged water projects, the California 

project was included. I wish they would have allowed projects to 

stand on their merits and be voted. Yours would have passed, I believe ours probably would have been voted down. 

Mr. Lemley, you are in the oil business and people have heard 

a lot about agriculture and gambling with the weather and the rest 

in agriculture. Of those wells you want to drill, how many of them 

prove out for production on average, for example? 

Mr. LEMLEY. We have got a pretty good geologist, and I think we 

are hitting about 80 percent. 

Mr. THOMAS. Industry usually is the reverse of that, about eight 

of ten are missing. So if you know that you are hitting eight out 

of ten and oil goes from $9 a barrel to $14 a barrel like it is right 
60 

now, would you not like to drill some a little quicker to take advantage of a market? 

Mr. LEMLEY. You bet. Give us a permit and we will go tomorrow. 

Mr. THOMAS. I think, Mr. Chairman, this underscores the fact 

that decisions being made, which may or may not be correct, are 

made not in an environment taking into consideration the economic 

impact of that decision. Mr. Lemley's testimony indicated that he 

was 4 days short of a year in getting a permit through. He waited 

11 months, called our office and it was simply sitting on someone's 

desk. We were able to locate that bureaucrat, over the telephone 

in essence build a figurative fire under them and to get the piece 

of paper out of that bureaucracy. That is the kind of bureaucratic 

decisionmaking we currently face under the law. 

Mr. Lemley, you are to be commended for sticking with it, because it sounds to me that the Endangered Species Act was not 

making it better, it was just making it more expensive or too expensive for you to do the job. 

Mr. LEMLEY. Yes, sir. 

Mr. THOMAS. Your testimony indicates that you have not really 

been doing much different except not reasonable business practices 

in locating your drilling rigs on the space they give you. 

Mr. LEMLEY. That is correct. Sir, I would like to also remind you 

that when we were doing business with the Department of Energy, 

we were told to leave the people in Congress alone because it would 

not speed up the paperwork any at all. 

Mr. THOMAS. I will tell you, Mr. Lemley, that I have made calls 

to Fish and Wildlife simply inquiring of the timetable under which 

they were making a decision and I have had people challenge me 

that they were going to expose me as someone who was trying to 

influence the process. I said yes, I am trying to influence the process, I am trying to get an answer out of you, what is the timeframe 

that you are operating under. 

So we believe that there is going to be a change in the system. 

Ted, I just want to thank you for the work that you have done in 

trying to coordinate in one of the hot spots in the United States a 

State law and a Federal law to bring about the changes that you 

have. You folks have worked under very difficult conditions. 

Mr. Chairman, politics in my opinion is a process of who gets 

what, when and how, and under the current Endangered Species 

Act, in my opinion, there was a very clever way placed in the law 

to allow the goals of some extremists to be carried out without public dollars expended. And what we need to do is amend that law 

so that the goals are reasonable and if society wants it, society will 

pay for it. 

I am very pleased that you were willing to come here and listen 

to this testimony, which underscores the fact that all of these people are environmentalists in the larger sense of the word. They 

have been preserving species, both plant and wildlife, for hundreds 

of years and if folks want to help preserve it, we in this county are 

more than willing to have them help us preserve it, but not on our 

backs and at our economic detriment. I want to thank you for 

bringing the hearing here. 

Mr. POMBO. Thank you very much. 
61 

In closing, I would just like to say a couple of things. One, Mr. 

Lemley, I wrote a letter to the Department of the Interior several 

months ago requesting information on the scientific data that was 

used to list the fairy shrimp. For 8 months, I did not get a response, as a member of Congress, to the listing of the scientific 

data that was used in listing the fairy shrimp. 

About a week after I was named Chairman of this Task Force, 

I got my letter. 

I think that a lot of mistakes have been made in the past in the 

implementation of the Endangered Species Act. I think that if you 

take the time and go back and look at what the words are in the 

original Act, what they actually sat down and wrote, and what the 

debate consisted of when they actually sat down 20 years ago and 

wrote the Act, there is very little wrong with it. But somehow we 

got from protecting bald eagles and grizzly bears to protecting fairy 

shrimp and beetles. And we went from telling people you cannot 

shoot an eagle to telling someone they cannot farm their farm. And 

I think that any time that you allow the bureaucracy to run unchallenged, you allow the bureaucracy to run without proper congressional oversight, without accountability for their actions, we 

run into the problems that we have heard about not only today but 

across the country as we have held these hearings. 

In a previous statement that was made today, someone said that 

this Task Force wants to throw away the Endangered Species Act 

and enact a moratorium. And I do not think that anything could 

be further from the truth. The truth is we want an Endangered 

Species Act which will work in the real world and not just something that will keep a bunch of biologists and Federal employees 

employed. 

Our goal as a task force and our goal as set forth by the Resources Committee and Chairman Don Young has been to go out 

and listen to people and to hear from them what the Act has done, 

where we have gone wrong, what changes need to be made and try 

to gather that information from as many parts of the country as 

we could and bring that back and sit down and try to draft a bill. 

We did not invite Washington lobbyists to come out here and testify, we did not invite university professors to come out here and 

testify, because we wanted to hear from real people. And when we 

sit down in Washington and we have our hearings there and get 

the opportunity to hear from the inside-the-beltway types, they will 

get their chance to talk, they will get their chance to submit their 

testimony for the record. But we first wanted to go out and listen 

to real people and come up with some ideas so that when we sit 

down with the university professor in Washington, we can say 

what about the guy in Kern County with the plants on his property 

that you tried to set aside, the 40 acres, how do you justify that? 

His biological data says that there is a lot more than what Fish 

and Wildlife says, were you using good science when you did it? 

Those are the kinds of questions that we are going to be able to 

ask when we get back to Washington. 

I am very proud of the fact that these members of Congress have 

given up their time and their effort to go out and listen to people 

for the first time in years, listen to people about what their concerns are. I am not ashamed of anything this Committee has done, 

91-053 0 - 95 - 3 
62 

of any of the actions we have taken and we are going to continue 

doing exactly what we have been doing. As far as I am concerned, 

this is the job we were elected to do, we are going to do it regardless of what the liberal media has to say. 

This meeting is adjourned. 

Whereupon, at 7:00p.m., the Task Force was adjourned, and the 

following was submitted for the record:] 
63 

News from the office of 

Congressman Gary A. Condit CALIFORNIA ··· 18TH DISTRICT 

2444 RAYBURN HOUSE OFFICE BUILDING 

WASHINGTON. D.C . 20515 

(2021 225-6131 

FOR IMMEDIATE RELEASE: 

April 17, 1995 

Contact: DeeDee Moosekian 

(209) 527-1914 

TIME HAS COME FOR ENDANGERED SPECIES REFORM 

The U.S. House of Representatives' Endangered Species Act Task Force begins work today 

in California on the long awaited task of rewriting the Endangered Species Act. 

Congressman Gary A. Condit (D-Ceres), author of an amendment which places a two year 

moratorium on any further listings under ESA, called for major revisions of the Act. "This 

Act desperately needs to be changed. I have witnessed first hand the far-reaching scope 

of the law and the nonsensical implementation of the Act by the U.S. Fish and Wildlife 

Service," stated Condit. 

"The recent floods in California illustrate the need to put some common sense into the 

process, " stated Condit. The flood in the City of Newman was caused by the nearby rainswollen, debris filled Orestimba Creek. Similar circumstances along the Pajaro and Salinas 

Rivers caused extensive damage to Monterey and Santa Cruz Counties. 

"For years, officials in these communities have been consutting with officials from the 

Army Corps of Engineers and the U.S. Fish and Wildlife Service to receive authorization to 

remove the brush and debris from these waterways. It took over a year to receive permits 

for two portions of the Orestimba Creek, because of the cumbersome consultation process 

related lor protection of the Elderberry bush, habitat lor the Valley Elderberry Longhorn 

Beetle. It is expected to take as long to clear the debris-filled section of Oresllmba Creek 

that is responsible for the Newman flood, regardless of the need to avert future disasters 

of this kind," stated Condit. 

Pajaro and Salinas River Flood Control District officials never reached agreement with the 

Fish and Wildlife Service regarding protection of an ivy plant. 

"Without regard to human life, property, economic and social consequences, the protection 

of endangered species habitat prevented reasonable attempts at preventing a disaster," 

stated Condit. 

Another case in point involves an application before the Bureau of Reclamation to allow for 

the delivery of water to a site currently being developed for a factory outlet center in Santa 

Nella. This application is required to satisfy a technical requirement under the law, and is 

fully supported by the Bureau of Reclamation, the County of Merced and other involved 

·water districts. 

"Nonetheless", stated Condit, "the entire project in Santa Nella is being held up because 

the U.S. Fish and Wildlife Service has determined that development in the area, although 

outside the area of the endangered kit fox habitat, ~ ~ result in additional 

development. which in turn ~ ~ have an impact upon kit fox habitat! 

"I understand and appreciate the value of protecting Sp.:Jt.:ies tl tdt ore tiuly ir. danger ot 

becoming extinct. However, these decisions need to be based upon sound scientific data 

and with consideration of the economic impact they will have on local communities, " 

stated Condit. 

"I am confident that today's hearings, and the task force's remaining hearings in California 

and throughout the nation, will help to provide the essential information that is needed for 

the task force to come up with solutions which will ensure that sound science, 

constderation of econom1c impact and private property rights are all part of the process," 

stated Condit. 

920 16th Street. Ste. C 

Modesto, CA 95354 

12091 527-1914 

Federal Building 

415 West 18th Street 

Merced, CA 95340 

12091 383-4455 
64 

Testimony of 

l.aurP.ncP. C. 11Urnquist 

r. 0. Box 579 

Firebaugh, en 92622 

(~09) 392-·2426 

rresented to the 

Task ror~e on Endangered Species 

Committe~ on H~sources 

April 17, J'l95 

Bakersfield, California 

lly nilm<> i~ Laurene., C. Turnqist. I appreciate the opportunity 

to testify before this Task Force and to describe for you the 

devastation that o~cur~d to m~ as R result of the federal 

Endangered Species Act. 

lly family moved to Southern California at the end of World 

War II and I obtained my elementary and secondary education in the 

Los AngeleR City School system. I then came to the San Joaquin 

VC~lley and ~ttenr.led Fresno State University obtaining a Bachelor of 

Science Uegree in Animal Husbandry. I served in the United States 

Navy and received an Honorable Discharge in the middle of my 

college education. 

Folloui.ng graduation I 11as an agricultural credit officer and 

branch manager for a commercial bank and went on to manage a large 

farming operation in western Fresno County. 
65 

T"!stimony of 

Laurence C. Turnquist 

As I did not come from a farm family and my family was of 

modeRt mean~ there uas not a material bridge to step into the 

farming business, houever in 1973 I began farming on my own largely 

as a result of th~ 1902 Reclamation law providing an opportunity to 

purchase excess land. I vas very involved in Reclamation Law 

reform which aft.Pr passag~ in 1982 allowed my wife and I to expand 

our farm operation from 320 acres to 960 acres by paying full 

operation and maintenanc~ costs and ultimately to attain a farm 

size of 1680 acres thru leaseholds and payment of full water costs 

including interest. 

The farm prospered thru the 1980's even in the early years of 

the drought as it became necessary to resurrect old wells at a cost 

of $75,000 to S90,000 each. We continued to respond to the drought 

imposed 25t water supplies by implementing extensive water 

application techniques at great operational costs. We even survived 

the devnst.~t.ing freeze that delivered temperatures as lot1 as 10 

degrees fahrenheit td the broccoli crop. 

W~ could not survive however, the listing of the winter-run 

Chinook salmon that set in concrete an onerous limit on the water 

supply that no technology or management expertise could overcome. 

Without question the best that could be anticipated in normal water 

years would be a 50% to 601 supply. As soon as this message was 

digested by the financial community the price of land (a farmers 

single greatest asset) fell like a stone from the sky. 
66 

Testimony of 

Lawrence C. Turnquist 

The demise of. ·the land values is evidenced by the attached 

article from the San Francisco Chronicle dated Uay 31, 1993 in 

which they describe "nearly 8,000 acres of foreclosed farmland was 

auctioned off" and ·~old for as little as $370 an acre, about a 

tenth of its price just five years ago". 

So there is no misunderstanding of the effect this listing had 

on my farm - all of my farmland was a part of that auction. 

The surface water supply to my farm came from Westlands Water 

District. They have a contract to furnish 2.6 acre feet per acre. 

To understand the magnitude of the deficiency the following was the 

surface water supply in the 1990's: 

1990 50 t 111-90 winter-run salmon listed as threatened) 

1991 ~5'): 

1992 25 ~ 

1993 50~ (there was a 150\ snowpack) 

1994 3H 

~ reliable water supply was the whole purpose of building the 

project in the 19~0's. Those that farmed the land and the 1940's 

and 1950's quickly realized that well water was a limited resource 

and rain fall typically only amounted to 6 inches in November to 

!larch. 

\"later l.s th~> dynamo for the economies of the San Joaquin 

Valley . Farmers have been long recognized as gamblers by nature 

and fully understand variables of the market place, droughts, 
67 

Testimony of 

Lawrence C. Turnquist 

floods, but to havll in place a lalf that commands that the only 

concern is a fish that cannot even be distinguished by DNA tests of 

it's diff~rence from like species is impossible to understand. 

In addition to the ESA listings to which was added the Delta 

Smelt came PL 10~-575 flliller-Bradl~y) CVPIA which changed the 

Central Valley Project to make fish and wildlife restoration 

its primary purpose. That legislation also took 800,00 acre feet 

of uat~r annually and d~dicated it to fish and wildlife which the 

U. S. Bur~au of ne~lamatton yet. l1as to account for as it was not 

rl•!livererl to t.h~ i.rrigettion projects. In addition to taking water, 

CVPIA imposed an nnnual fee of S.H million upon \·later and po~rer 

uslln< uit.h minimetl input. as to ho\'1 the money will be used and no 

assuranc~ that it 1rill not be devoured by the giant black hole in 

Washington D. C. The uater and money uas taken without any plan or 

scienc~ to shou huu th~y should be used. 

An enormous question arises as to the decline of the state's 

fishery - ~IHY HAS THE ONLY EtiFORCEIIENT OF THE ENDANGERED SPECIES 

ACT BEEN TO CONTROL THE EXPOR'f PU!IPS? 

THE "TAKING" DEFINITION. The purpose of the federal 

Endangered Species Act of 1973 is to provide a means to conser•e 

ecosystems in uhich threatened or endangered species live, and to 

provide a conservation program for these species. For a species to 

be listed. scientific evidence must shou it is a "threatened" or 
68 

Testimony of 

Lawrence c. Turnquist 

"endangered " ; once listed, it then becomes illegal to "take" that 

species. 

According to the lav, the term ""take" means " . . . to harass, 

pursue, hunt, shoot , uound, kill, tri'lp, capture, or collect, or to 

attempt to engage in any such conduct ... • Certainly there is a 

case t.IHit suppnrt.s th" takings claim of endangered species, 

particularly winter-run Chinook salmon and the Delta smelt, at the 

export. l"lmpfl .i.n the D~lta. Houever, if this definition is correct 

and applied in a conaistent fashion, aren't numerous other causes 

fnr a take claim being ignored? 

SELECTIVE ENFORCEIIEtiT OF THE ENDANGERED SPECIES ACT. To date, 

the ti'lking provU:l.on of th~ Endangered Species 1\ct has not been 

applied uniformly or fairly in California. llany other causes and 

factors that contribute to the decline of fisheries in this State 

are either being overlooked or simply ignored, possibly for 

political motivea . How else can you explain why the only method of 

enforcement has been to restrict Delta pumping uhile other 

activities that are equally, 

unchecked? 

if no more harmful, continue 

Currently, the focus of federal protection for the winter-run 

chinook sRlmon j~ aimed at the operations of the Central Valley 

Project and the State Hater Project. ~he biological opinion issued 

by the National llarine Fisheries Service in February 1993 said that 
69 

Testimony of 

Lawrence C. Turnquist 

the proje~t~d operations of these facilities would further 

jP.opardize the existence of the winter-run. Because the operations 

of the pro jects have been changed to conform with the opinion, and 

be c ause the National !Iarine Fisheries service set forth additional 

mP. asures a s ··r,.asonable and prudent alternatives," water deliveries 

south o f thP. Delta 11ill be harshly curtailed. 

This l~ oc~urring despite overwhelming information that 

suggests that there are other practices and/or actions that equally 

je parcli~e thP. 11inter- run. Significant activities, some of which 

are supported through governme nt studies, include. the protection 

and enhancement o f non-nativ e predator fish populations in the 

Delta; commercial, sports and illegal fishing off of the Pacific 

Oce an; municip."! l <HHl indu s trial pollutants discharged into the 

Sacramento River and the Delta; and unscreened diversions of water 

from the Deltil. 

PROTECTION OF NON - NATIVE SPECIES IN THE DELTA. For some time, 

the U.S. .'\nd California have been involved in activities that 

protect and enhance striped bass populations in the Delta. A 

popular sp ort fi s h, the striped bass is an introduced species in 

Cal ifor nia a nd a kn own pr~dat or of winter-run s~olts. Don· t the 

act ions taken by the U.S. Fis h and Wildlife Service, to enhance 

l ivi ng conditions f o r th~ striped bass constitute a taking under 

the Endang~red Sp~cies Act? Likewise, the whole issue of the 
70 

Testimony of 

Lawrence C. Turnquist 

impact~ af non-native, introduced and exotic species on endangered 

or threatened species has never been thoroughly examined. Not only 

would sueh a thorough review likely determine additional predators, 

but could provide additional information as to those species' 

impacts on the P.cosystem environment of the Delta and its existing 

food chain. 

EFFECTS OF FISHING. The annual ocean harvest of salmon off of 

the Pacific Coar,t t.ak<~s bet>~een 34 and 36 percent of the adult 

>~inter-run salmon population. This estimate, from the National 

!Iarine FishP.r:ies Service and the state Department of Fish and Game, 

includes both foreign and domestic commercial and sports fishing, 

and illegal fishing, or poaching. 

Ho~1 is it given the fact the \·tinter-run are endanc;rered, the 

fisherman can catch one-third of the outmigration. It is not 

logical to impose such restrictions on export pumping when fishing, 

commercial, sport and illegal, also are activities that constitute 

a taking under the law. 

It seems reasonable that the U.S. has an obligation to enforce 

the "take" provision of the Endangered Species Act with respect to 

the fishing activities that contribute to the species' decline. 

Why hasn't a closure of the commercial and sport fishing 

industries, during times that adult salmon migrate upstream, been 
71 

Testimony of 

Lawrence C. Turnquist 

considered as an enforcement provision of the Endangered Species 

Act? 

RIVER AtiD DELT/1 POI,LUTANTS. The "take" definition of the 

Endangered Sp~cies /let ia broad and encompasses many things. Why, 

then, is wastewater discharged into the Sacramento River at 

Freeport, also not considered a taking under the law? More than 56 

agencies are dumping treated sewage into the Delta. l'lhy are 

municipal and industrial polluters overlooked ~lith respect to 

enforcement of the Endangered Species Act? 

UNSCREEHED DIVERSIONS IN THE DELTA. For years, water users 

throughout the Delta have enjoyed the ability to take water 

straight from the Delta itself, using numerous diversions along the 

river banks and ~hannels. In the biological opinion on the winterrun Chinook salmon, the National !Iarine Fisheries Services says 

that unscre~ned diversions are suspected of having a significant 

cumulative impact on the winter-run. Yet again, no actions have 

been taken to regulate these unscreened diversions, thus allowing 

a take of an endangered species. At other state and federal 

facilities throughout California, millions of dollars have been 

spent to develop fish screens and technologies to prevent fish from 

passing through diversions and pumps. Yet what could be a 

significant factor in the winter-run decline, unscreened diversions 

in the Delta, continue to be overlooked or ignored by agencies with 

enforcement power for the Endangered Species Act. 
72 

Testimony of 

Lawrence C. Turnquist 

RECOIIIIEIIDATIOIIS FOR ENDANGERED SPECIES ACT REFORII 

Numerous pr oblems can be c ited with the manner in which the 

c urrent End a ng e re d Spe c ies Ac t i s administer e d . It's not flexible. 

It's too spe c ie s-specific . It doesn ' t consider economic impacts. 

no public input by tho s e affected . The Endangered Species Act can 

be v aluable le g i s lation. As a policy, we should provide 

op po rtunitie s t o pr o tect and enh a nce the n a tural kingdom that makes 

up these United States. 

However, the Act should be amended to include flexibility as 

opposed to rigi~ it y and a l ac k of s en s itivity t o human impacts and 

social c o sts n o l-l must be i ncluded . The following 

re commendation s t hat I believe 1-1 o uld greatly enhance the End a ngered 

Species Act , by c o ntinuing to provide protection for species, plus 

consideration of e c onomi c and human impacts that can result. 

1 . SCIENTIFIC DATA - Require the Secretary o f Interior to conduct 

review field - tested data to support listing decis ion, as 

opposed to only using such data that is available. 

2. PEER .REVIEW Outside experts should be engaged for peer 

review of lis ting decision s and critical habitat designations . 

3. PRIORITIZATION - Currently , there is no prioritization in the 

ESA . That is ~thy we encounter situations that often times 

contradict each other. For example, the efforts currently 

underway to protect the winter-run salmon are now found to be 

detrimental to the spring-run. While genetically, the winter 
73 

Testimony of 

Lawrence C. Turnquist 

and spring-run salmon are the same fish, under the ESA they 

must be treated as separate species. Instead, the Secretary 

should be authorized to give priority listings in the 

following order: 1) single species genes, 2) species, 3) 

subspecies, 4) distinct population segments. 

4. CRITICAL HABITAT- gconomic impacts should be considered when 

clesignatincJ nnd specifying certain areas as criticnl habitat. 

Regulations for proposed habitat,; should include a description 

of the economic impacts of the proposed designation and 

re<JUire that those impacts be submitted to the Department of 

5. 

And, if the Secretary determines that the costs 

outweigh the benefits, the Secretary should be able to exclude 

portions of habitat, unless it is determined that extinction 

uill occur without it. 

PUBLIC HEARING Currently, the ESA merely has a public 

~omment period uhen written comments are submitted. This is 

not sufficient given the far-reaching impacts of the Act. 

nather. public.: hearings prior to the Final Recovery Plan 

should be required and held in the affected county or parish, 

such that those most affected by the plan can have input into 

the process. 

6. PUBLIC INPUT - Those agencies and/or individuals that may be 

affectPd should have the opportunity for public input prior to 

the licting of any species. 
74 

Testimony of 

Laurence C. Turnquist 

CONC!.UDING COIIIIENTS 

I support improvement of fish and wildlife habitat . The 

Endangered Species 1\c t can be valuable legislation . Farmers 

recognize that both the dollars and the water for such improvements 

wi J.l •:•JmP from them and they accept that. Ho11ever, they are 

op poBed t o b~aring th~ entire brunt of a problem that has numerous 

causP.~ . 

If Central Valley Froject farmers south of the Delta are to 

survl.V'l fini'ln•,iall.y, liP. must be treated in an equitable and fair 

manner. OvP.rlooking other actions that constitute a "taking" under 

the Endangered Sp nc ies 1\ct, and instead turning to only one aspect 

of the problP.m--Delta pumps--is not fair, nor is it reasonable. I 

ask you again• Why have we been singled out as the sole method of 

resolving End a ng er ed Species Act problems? 

Thank you for the opportunity to present this testimony. I 

applaud your efforts to hold these many field hearings to hear 

firsthand from those who are being deluged with the impacts of the 

Endangered Spe c ies Act. 
75 

MUNUAY,MAY 31, IYY3 

Fear in the San Joaquin Valley 

trMICI'MIM.AIONf'rt rHlCIWOMf:lt 

The 7,877 -acre Tellea Ranch in rhe San JDaquln Valley ia up for tale; earlier thia n1onth, nearly 8,000 acrea were audio ned off 

Growers Struggle With New Water Rules Ru Arm Rancroft 

rhrY>ft{d .. r:nTn'•pondt'nl 

n(l~ll3. Fresnfl r.nunty 

The drou~ht I~ over everywhere but In 

the western San Joaquin Valley, whf're thou-

~nnd ~ of At'tes of Callfornl11.'s rlrhr~t farm -

lt~nd He fallow and de5peratlon grip! whole 

cornmun!Ues. 

In srnall towns,'lke Mendota, Firebaugh and 

Tuuqullllly, whe ~t he economy Is ;!most entirrl y detu~ rulP. nt upon agriculture, unemployment has topped 40 percent for most of this 

}"P(I t 

Afte1 generations of reliance on plentiful 

der;~ l water supplies, We!l Side fa rms mu!lt 

get hy with half of the water originally promised In government contraciJ as more Is being 

wlthhelct to preserve fisheries and the Sacramento-Sa n Joaquin River Delta. 

Like cities for ced to rebuild their economic 

und erpinnings after mllttary base! have 

SPECIAL REPORT 

closed. West Sltle towns are searching for ways 

to cope with a crltlc:tl blow. There Is !ear that 

life will soon tl!sembie the Dust Bowl days of 

th e 1930s. 

IIIRh ~easona l unemployment \!1 r.ommon In 

a~ri ultural areRs, but this year and for the 

or ~eeable future. workers fare longer 

stretches of Unt!mployment and lower wage! 

when they do work. 

Beyond the \\'f'efl-choked fields, family 

larms are being foreclosed, lonR Jln(>!J have 

1

formed at emergency food Iocken and unemployment ofrtce~ . et :~~IIN ! are glum. and a pervasive air o! uncertainty hangs over the future. 

"We used to pray each Sunday for rain," 

salrl the Rev . John Schmoll, the prle~t at Our 

Lady of Guadelupe Church In Mendota. "Now 

we pray for just decisions to be mRde by government." 

!Hdal~ In Firebaugh and Mendota talk 

~am ely about Juring food processing and other 

Industries to their tiny, service-poor cities, 

where the economic pinch on farming has 

squeezed everyone from car dealers to grocers. But at the Mendota Unified School District, of-

(!clals worry that the area's population of agricultural workers will dwindle and devastate 

their huct~~;el , even as they phm to open the 

town·, tint high school this !all. 

Farm workers, whose meager earnlng!'i 

barely provide for ~lmple housing and living 

expenses. saw their wages cutin half last year. 

when water deliveries wer~ reduced hy three 

quart en. This year, as 127,000acres lie tallo w~ 

amounting to 14 percent oft he h.rmland on the 

w~t side or the San Joaquin Valley -the outlook Is not much btlli:hter. 

Earlier this month, nearly 8,000 acres of 

WATER: Page A6Col. l 
fr11ru race I 

foreclosed farmland wa!l aucthmN.l oH at • Fresno hol£'1. The 

priJI)(!rty, Including parcels with 

empty hom~ and hom;lng for 

farmhands, sold !or as little as '370 

an acre, about a tenth ot Its price 

just five years ago. 

"The value or 1.5 million to 2 

111ltlion acres on the west side of 

the Soan Joaquin Valley has permanef'Uy ~en altered, and that's 

ch:mgPd the social fabric and the 

Infrastructure or a good chunk or 

t;:difornla reAl estate," said Chris 

!turd, wh~e h.mlly has grown al- monds. onions, cotton, beans and 

tomatoes on 1,500 acres for the 

past II years. This year, a quarter 

oC his land I! out of producUon, 

:tnd he has trimmed his workforce 

to half or what It -was bel ore the 

dwu~ht 

")low do we conlinue {or the 

fUitlre to live here without some 

!Hh.llt\onal yield?" llurd asks bit· 

terly. ''No one has the foresight or 

JlOIItical ability to address that. 

Pf!ople In the cities have got to understand, unless ~omethlng Is 

dom•, agriculture will go by the 

wayside." ' 

Bailie ltalnsl Polfllts 

Growers, laborers and business 

owuers in the valley repeatedly 

.o:ay that lhPy fear for the future. It 

was one thing to !UUer the 1990 

freeze, the last two years of the 

drou"ht and the 1991 salmonella 

sure that wiped out sales of the 

~r t' 's cant~loupe crop. Now, they 

say, the vlclssltudes of polltla 

ruw~t be dealt with, along with the 

whims of nature. 

New regulations ls.o;ued this 

11l!lnth li)' tlu~ U.S. Bureau of Reclamalion threaten growers with 

even greater cutbacks unless strict 

c:onsNvatlon measures are put In 

place. 

Mention the Endangered Spe· 

cles Act here, and it elicits snarls 

not only from farmers, but from 

76 

shnpkerper~. trurk drivE>r.o: , mini~ · 

ten and schoolteacheu. The wo· 

tected della smelt Is particularly 

reviled. 

"You're taking ou r water to 

protect a one-Inch, tr~n5parent 

fish that smell!! like a cucumber?" 

snaps retired Mendota contractor 

Ed Petrie. And a hantJ.ttcnwled 

tmster at Emma Glllo's Cantua 

Creek convenience store ~arcastl· 

cally :~uggest~. "Attention All 

farmers! Let's give all the wAter to 

the environmentalists, sn they can 

give It to the (Ish and stan•e the 

people!" 

Gillo'!! wn once a thrlvlnf! !!:pot 

where truck lowds of hrrnh:1.11d~ 

stOJlped to huy sandwiches and sodas on their way to work In the 

rlelds. Today, with huslnP.:U at a 

virtual stantbtlll, 70-year-old Glllo 

says she k~ps the store opPn to 

serve n a j!Atherlng: place, whPre 

fanners ami labore-rs while away 

houn Joking and complaining. 

In communities from Los Banos to Coalinga, farm workers once 

certain of nine months employment now compete for sporadic 

piecework :t··. bs, sometimes driving: 

an hour or m!lre to 1 job for earnIngs that amount to n little as S3 an hour, lahor contractors say. 

Earlier this month, more llum 1,-

000 lfnt:>d up for 200 mlnimumwal!:e Joh!> 1t a produce packing 

house neu Mendota. 

AcfOrdlng to the state Econom· 

lc Development Department, unemployment lu Mendota was 4-1.1 

percent tn Much, compared with 

9.4 percent statewide. Althoojlh 

more people will be employed 

through the planttng and harved· 

In~ season, said Tomas RlmO!J, u- sistant manager or the Mendota 

EDD office, unemployment for 

1993 In the area Is not e1pected to 

drop much helow last year's rate of 

40.7 percent. 

Marla Alanis, 00, typifies the 

~:~\~:~~~r:!!~~~~!~~~~,~~,;~~~~n~ ~~~ P. ttil• ~ 300 to go to work tomor 

hor to save for a house and a hetter row, evf'n If It's pil!'('ework," shr. 

life for her children. She has bef'n S<'id . "lt'5 p11thP.tlc. 'nu~y tell u" In 

thlnnin~. hoeing and harvesting ~~~a~~j:: t~ :~~':~~~~~where arP. 

tomatoe!'l and other crops In the 

~~nr;~:~~~~~~~~e:t s~~~e ;;_e.~{~'; . &ro&try Vouchers 

almost a dthen," she says proudly. Frank Rodriguez, mana~cr nt 

Mortgage paymenls 00 !he Mendota's only superm~rket, 

rour-hedroom home Alanis ha!'l f!auges-the area's economy by slugowned for seven yean are only gl~h sale~ and the number or cn!'l-

$179 a month, but she now mu~t tomers who show up ,..lth coupon~ 

rf!nt rooms to Uve other farm for free food. The $100 grocery 

workt>rs to supplement her wid· vouchers are dl!!lributed by the Inow'! benents and p11.y the bills. ca l charily, Proteus, to people who 

Any thought or spendln~ for have ~n out or work more thnn 

clothe! or repairs must walt for two months and have no uvln~s. 

work to bE'~In. she ~~ys, and hy "A couple of yt>:.n l'l~n. Y<'U.,I 

mid-April, she had worked only sb: see one or two roupona a year," nc ..days of the year. driJtUet said. "This year, wP.'ve l1~d 

" Now, e•erythlng b uncu· Xt \u 40customers use them." Ot>N 

lain," sl1!! says, worry clouding her SRI~ are down, he atd, and hul1t 

hroad, lined face. "I pRy for my r~at~ of potatoe!l, heanr~ and fh>ur 

hou~P. llr!!:t, fm>t.l la~t. and I'm he· are up. 

hind on property tues for the rtrsl hnpuvprlo:hcd f1mn workrr~ 

time ever. Many of my friend! are "will !!ell their YPhlr\P., for twn 

talking about movlnf!:. The way months' rent, or w11.lt until they are 

things look, tlu~y will have to. 1lr.~perAte and have no gM to r,f>t 

Without work, there's no house into town to tall us for :t~~lstance," 

payment." !1311! Lure Flore!!, 1 sociRI workrr 

Al:lnis' dauf!hter, labor con- for the!ltale Employment Develo11· 

tractor Marla Angel, once found rnent Department In MendolA. 

regular work tor up to 300 farm "I've uken food to lhf'~e penpiP, 

workers, nine months a year. Now stml whPn I get there, they want to 

she hAs R crew or just 15 laborers. show me their empty cupboanls 

'There are so mRny people de!!per· Anti refrlgeratou, so I'll know 

ale here, It would be no problem they're not lying." 

nomic future, 10ri1e worken 11111 of ~nh11 thftr home~ and k>oklnl · lot' work oubllde the valley. 

Umber to Fernandez. 25, hkl ha 

would ·work 10 1tour1 a day, 11lr 

daya 1 week, U he could, to 1upport hll unemployed farm worker wife 

1nd th~ two dauabten. But wa- ter cutbacka hue led to fewer 

houri In hll job 11 a traCtOf' operator, and he e1pect1 to earn jult$8.· 

oro thl~ year. 

Fr.rnandez uld he likes life In 

At the employment tlt>vPinpment otnce, dozem of f;~~rm workron fill out f01 mll: each day, !IP.f'khu~ 

to e1tend th~lr uneml'loymt>nt 

benefits. VIrtually all are lll!!panlc. 

and many 11.re In thP.amnP.!:ty prl)-

~ram waltlnf! for cltllen~hlp and 

therefor~ lnPII(Ihle for other 

forms Of U!l."itance. 

""'" Cwlln Hall Next door to the l'mployment 

nUice, Mendot.aaccountant Anthony Martinez prepued tax returns 

for more than 1,000 farm workerl'l 

this yeu and saw wages cut In 

hAir, from an avera.ge of $8,000 In 

1991 to $4,<m thl5 year. 

"It's scary," he said. "People 

Ul'led to working 10 months a yeAr 

are now worklnJI (our. Even with 

more water, 1 lot or (armland bas 

been put out of production, so It's 

a:olnR to get worse." 

With little hope for their ecohb mohUe home on -I ltfeet of modert dwe.lllnp and ca.uf••lly kept c•rcleftl, wbue h .. brothO!r' 

ptrenta 1Dd .unt and uncle at.o 11u. Bllt he II now romldering 

lHYint hb home or 12 Jl!lrl In ld~h ot work and • mor• certain fuhne. Pethlpl, he uld, he (OUid find work In Hanford, where he 

hn heen told there are Jobl lh1t 

pay t8 an hour. 

"I *nt toatay," hf! s11ld. "But 

thlnRS are Jf!Uial( too hard." 
77 

Refineries Get More Time To Cut Selenium 

Pollution 

By Erin Hallissy, November 11, 1993 

San Francisco Chronicle-East Bay Bureau 

Six East Bay refineries will get a 4-and-a-half year extension to comply with 

stricter standards for releasing selenium into San Francisco Bay, according to a legal settlement announced yesterday by the Regional Water Quality Control Board. 

Three refineries that release the highest levels of selenium-Shell, Exxon and 

Unocal-also agreed to pay $2 million over the next 2 years to a mitigation fund 

and cleanup account to try to deal with the dangerous amounts of selenium that 

have already fouled the bay. 

The settlement was a compromise between the oil industry and the water officials, 

who have sparred for years on reducing hazardous emissions into the bay. The 

water board had originally ordered the refineries to comply with stricter selenium 

standards by this December, but the industry sued in 1991 to derail the order. 

Selenium, a naturally occurring element, 1s present in high levels in the crude oil 

that is pumped out of the San Joaquin Valley and refined in Contra Costa and Solano County refineries. The selenium is ingested by marine life, and has reached 

such high levels in ducks that health officials have warned people to limit consumption of bay waterfowl. 

The refineries-Chevron, Tosco, Pacific, Exxon, Shell and Unocal-dump thousands of pounds of selenium a year into the bay. In 1992, they reported dumping a total of 6,200 pounds into the bay, an increase of 2,300 pounds over 1989 levels. 

To comply with new Federal standards for clean water, the water agency ordered 

the refineries 3 years ago to reduce the amount of selenium discharged to about 50 

parts per billion, less than half of the previous amount. 

The petroleum industry says despite extensive research, it has not figured out 

how to reduce selenium emissions to comply with the stricter standards. 

"It is impossible", said Margaret Rosegay, an attorney for the refineries and the 

Western States Petroleum Association. "There currently are no known technologies 

that can remove selenium from refinery wastewater without creating a whole other 

realm of environmental risk." 

As part of the settlement agreement, the association agreed to conduct a $1.3 million research study to find an answer to the puzzle by 1998. 

Steve Ritchie, the executive director for the Regional Water Quality Control 

Board, said that water officials have no reason to doubt the industry's predicament. 

(1) 
78 

lite Fresno Bee • luesday, December H. 1993 A3 

C/\LirOnNI/\ NEWS, 84, 85, 88 

Seleilirnn a tln~eat 

to Bay tnarine lite 

R Oil tefirtery waste t<1ises 

lnvels of poison in 

sturgeon and seals, 

reports say. 

AMor.IAierl J'reqg 

SJ\t i Fl! i\NCISCO 

\1111 pollution in Uu• San Frnncis-

•·n llnv JJIIIV IH' worf;l' than I" Pviowdy thought, thrPalr~ninr: fnur 

SfH'f'iP,; of n1111 ill I' I iff', II ITO I rfing 

t 0 SI'VI'I al lli'W f;tllrfif'S 

flrT<HrlillJ( to RI'Jiflllltl' Ht.lltf', 

(PriPIIII nnd lo('ld AttuliPs, wnstf' 

11 '"" oil rl'fiiH'riros hns rniRI'rl lf'vPis of R<·l•·nilllll in whit<~ Htllr· 

~f'IHI, fuu-hnr- m~ahi, AIIOW.V Pgn'fS 

1111rl 1.1:11'1{ f'lllWilf'd night hi' I OilS. 

Locnl ollicinls. llll'llllWhilro, 

WI' I" Rf'l I" dl'cidl' WerlnPsrlnv 

wiH•IIu•r I o IIITPJlt II lnws11it m•it IPmf'nl f.haf would mnint.nin 

r·ttnf'lll durnping I!'StridionH fill 

oil n•finf'r iPs !for 4 ~~ venrR in f'X· 

chnnge lor $2 millior; l.o hplp r!'-

Rf'nl ,.j, clennup f.!'chnology 

f)PRJlifl' l'nvironlllf'llf.nliRIR' 

r·oncr•mR Umt. Hl'ienitmJ mny hP 

!IIIP ol tlw worst. toxic problemA 

in tllf' llny, oil iruluRl.ry ollidniA 

All\' ii'A lr~ll diflicnft ni.HJ f'XJlPil· 

si~P f.o chnnge t.he refining prol'f'SS. 

"lt.'R not. like drnnging from 

FolgPrB to Mnxwell llous11 in 

your colh~e pot," 1mid Dinne Knlns, n Shell Oil Co. spokeswnmnrL "You'd hnve t.o retrofit everyI hing in t.h11 relinf'l y It would 

cost hundrPds of millionR lo 

mnkP the chnngP." 

S!'IPnium occurR nnt.urnllv in 

RhnlP nwk nwl pPiroiPIIIII. lt.'R n 

vnlunhiP nutriPnl in mimrfp 

flll!OIIllf.A buf. poiROllflliB in high 

IPVPIA. 

~Gov. Wif 

SOil And tfm 

Jnd01nl gov 

ellllllfllll nqrfHl 

on All environ· 

menlnl piAn 

lor the SAn 

rrnncisr.o 8ny 

Allrl IliA SACTR 

rmmlo San 

Joilquin lleiiR. 

Pnge 82 

1\ Rlnle llPpnrfll!f'nl of Fish nnd 

( ;nrnP rPporl. !'0111-

piPtPd in J!)!J() P~­

timniPrl tlwl in (i() 

JH'ICI'nl of whiff' 

Rluq~Pnn cnught 

in lllf' Rncrnnlf'nf.o-Snn .Jonquin 

lli~IIJJ nnd in RuiRIIII nnd Hnn l'nhlo hnyA, RPh~nilllll f'XC!'Oflpr( <1 

pnrts pPr millinn 

in WPI. wPight of tiARIIe. Thnl iA 

twice the cmwPnf.rnlion tlml t.ypicnlly woulrl trigger n Al~ll.fl toxicology evnlunlion for henllh riskR 

in li1od. 

In nnotlwr ntudy, !.here wns "n 

AIJJt.iRtk.nl link hPtWP!1n Uw occurrpnr:n of red conts in llny hnrhor ReniR nnrl elevnh•d Relenium 

lnVI~IA in those sen Is" between 

1989 nncl 1 !J!J2. 

A third study found lhnt 

Rnowy egret and block-crowned 

night heron eggs found near the 

San FmnciRco Bay were contaminated with selenium, mercury, 

I'CBs, or polychlorinAted biphenyle, and a byproduct of DUT. 
79 

Westlands Water District 3130 North Fresno Street, P.O. Box 6056, Fresno, California 93703-6056, (209) 224-1523, FAX: (209) 224-1560 

Honorable Ronald Brown 

Secretary of Commerce 

Herbert C. Hoover Building 

August 2, 1993 

14th Street between Constitution Ave. 

and E Street N. W. 

Washington, 0 . C. 20230 

The Honorable Bruce Babbitt 

Secretary of Interior 

Interior Building 

18th and C Streets, N. W. 

Washington, 0 . C. 20240 

Dr. Nancy Foster 

Acting Assistant Administrator for Fisheries 

National Marine Fisheries Service 

1335 East-West Highway, Room No. 9334 

Silver Springs, MD 20910 

Mr. Roger K. Patterson 

Regional Director, Mid-Pacific Region 

Department of the Interior 

U.S. Bureau of Reclamation 

2800 Cottage Way, Rom W-1105 

Sacramento, CA 95825 

Gentlemen and Dr. Foster: 

VIA FAX AND ORIGINAL MAILED 

Subject: Notice of Violation of Endangered Species Act and of Intent to Sue 

Pursuant to Section ll(g)(2) of the Endangered Species Act (Act) (16 U.S. C. 

Section 1531, et seq.), Westlands Water District (Westlands) hereby notifies you of 

its intent to sue for your violation of Sections 4(d) and ll(e) of the Act by failing 

to adopt regulations necessary to provide for the conservation of the winter-run 

Chinook salmon and for failing to enforce the prohibition against the "take" of this 

threatened species. 

Currently, the primary focus of federal protection of winter-run Chinook 

salmon is aimed at Central Valley Project ( CVP) and the State Water Project 

operations. The "Biological Opinion for the Operation of the Federal CVP and the 

Board of Directors: lawrence C. Turnquist President • Price Giffen Vice President • Ross Borba, Jr. • Frank Coelho, Jr. • C.A. Dingle 

Kendall W. Gardner • Thomas R. Hurlbutt • James F. Schmiederer • Louis B. Souza • General Manager: Jerald A. Butchen 
80 

The Honorables Brown and Babbitt, Dr. Foster, and 

Mr. Patterson 

Page 2 

August 2, 1993 

California State Water Project" {Opinion), issued by the National Marine Fisheries 

Service (NMFS) on February 12, 1993, concluded that the projected operation of the 

state and federal water projects would jeopardize the existence of the winter-run 

Chinook. Due to actions taken as a result of the Opinion and its proposed 

"reasonable and prudent alternatives," water deliveries south of the Sacramento-San 

Joaquin River Delta (Delta) have been severely curtailed in 1993. It is expected that 

such curtailment will continue in future years. 

A large body of information, including state and federal government studies, 

indicates that other practices and actions jeopardize the existence of this species. 

Among these practices and actions are: 

1. The protection and enhancement of the striped bass and other non-native 

predator fish populations in the Delta; 

2 . Legal (both comme?cial and sports) and illegal fishing of Chinook salmon, 

including winter-run, off the Pacific Coast; 

3. The introduction of municipal and industrial pollutants and other toxic 

or hazardous discharges of waste into the Sacramento River and the Delta; and 

4. Unscreened diversions of water from the Sacramento River and the Delta. 

However, little or no action has been taken to prevent or reduce the 

deleterious effect these practices and actions have on the listed species. 

Effect of Striped Bass and 

Other Non-Native Predator Fish 

Measures are currently being taken by the U.S. Bureau of Reclamation 

(Bureau) to protect and enhance striped bass populations in the Delta. Among these 

measures are those presented by the U.S. Fish and Wildlife Service in its 

memorandum of May 27, 1993, regarding Fish and Wildlife Service management of 

800,000 acre-feet of CVP yield for fish and wildlife under the CVP Improvement Act 

(P.L. 102-575). It is understood that striped bass are predators of winter-run 

Chinook salmon smolts and young of the year. Therefore, any action taken by the 

Bureau to optimize conditions for the striped bass so that its population is enhanced, 

constitutes a "take" of the winter-run Chinook salmon in violation of Section 9 of the 

Endangered Species Act, 16 U. S. C. Section 15 38 ( 1) (B) . See also Palila v. Hawaii 

Dept. of Land & Natural Resources, 639 F. 2d 495 (9th Cir. 1981) and Palila v . Hawaii 

Dept. of Land & Natural Resources, 852 F . 2d 1106 (9th Cir. 1988). 

As part of the formal consultation process, NMFS should prohibit actions to 

enhance populations of the striped bass or other predator species. 
81 

The Honorables Brown and Babbitt, Dr. Foster, and 

Mr. Patterson 

Page 3 

August 2, 1993 

Effect of Legal and Illegal Fishing 

Both NMFS and the Califorrtia Department of Fish and Game estimate that the 

annual ocean harvest of salmon off the Califorrtia Coast "takes" between 34 and 

36 percent of adult winter-run Chinook salmon population as a result of foreign and 

domestic commercial and sports fishing. This does not include illegal poaching. 

A recent NMFS study indicates that illegal fishing alone results in the capture 

of "at least 10,000 metric tons (5.5 million salmon)" per year. Incidental and Illegal 

Catches of Salmortids in North Pacific Driftnet Fisheries, J. Pella, R. Rumbaugh, L. 

Simon, M. Dahlberg, S. Pennoyer, and M. Ross, at p. 2. The report notes that the 

number could be as high as 40,000 metric tons per year. Incidental and Illegal 

Catches of Salmonids in North Pacific Driftnet Fisheries, at p . 31. The report 

expresses a "concern that illegal catches of salmortids in the North Pacific could 

potentially affect endangered or threatened stocks." Incidental and Illegal Catches 

of Salmortids in North Pacific Driftnet Fisheries, at p. 2. The report also notes that 

"even nominal illegal catches from threatened or endangered stocks could impair 

their survival." Incidental and Illegal Catches of Salmortids in North Pacific Driftnet 

Fisheries, at p. 31. 

This study suggests that the incidental take of winter-run Chinook salmon 

previously authorized by the incidental take statement contained in the 

March 1, 1991, Biological Opirtion for commercial ocean salmon fishing should be 

reexamined. If illegal catches of salmon could affect endangered stocks, it may be 

necessary to reduce the impact of incidental takes; and it may be necessary to close 

the salmon fishing season off the Califorrtia coast and sport fishing in the Sacramento 

River when adult winter-run Chinook salmon are migrating upstream to spawn. 

Effects of Murticipal and Industrial Pollution 

It is known that the winter-run Chinook salmon are exposed to a number of 

harmful chemicals, heavy metals, and treated and untreated wastewater in the 

Sacramento River and Delta. Letter and Attachment, dated May 7, 1993, from Gary 

Matlock, Regional Director of the NMFS to California Assemblyman Bill Jones . NMFS 

has expressed its "concern about the potential threat of the cumulative effect of all 

contaminant sources on the winter-run Chinook salmon." Letter and Attachment, 

dated May 7, 1993, from Gary Matlock to Bill Jones. Action must be taken to protect 

the species from these pollutants. 

Unscreened Diversions 

It is recogrtized in the Opinion that unscreened diversions in the Delta are 

"suspected to be a significant cumulative impact" on the winter-run. Opirtion at 

p. 71. However, in violation of Sections 4(d) and ll(e), no action has been taken 

to regulate these diversions or prevent the "take" of specimens of the species 

through these diversions. 
82 

The Honorables Brown and Babbitt, Dr. Foster, and 

Mr. Patterson 

Page 4 

August 2, 1993 

Action taken to date by NMFS may result in the recovery of the species. 

However, little doubt exists that recovery would be accelerated by your compliance 

with the obligations imposed by the Act to adopt regulations to provide for the 

species' conservation and to prevent the "take" of the species. If your failure to 

comply with the Act has not been corrected within sixty (60) days of receipt of this 

letter, by the adoption of appropriate regulations and appropriate action to enforce 

the Act's provisions against the take of the species, Westlands will bring appropriate 

legal action in United States District Court for the Eastern District of California. 

General Manager 

REGISTERED MAIL, RETURN RECEIPT REQUESTED 

bee: Board of Directors 

Dennis Falaschi 

Brian Ketelhut 

Jason Peltier 

Bill Rupert 

Jess Telles 
:he VM. 

West Mark 

group 

5555 Colifornio Ave 

Suite 302 

Bakersfield. COiifornio 

9330Q 

BOf>-327 .a.346 

FAX 80f>-32l-Ql21 

83 

CONGRESSIONAL TASK FORCE on ENDANGERED SPECIES 

FIELD HEARING 

APRIL 17, 1995 

BAKERSFIELD, CALIFORNIA 

TESTIMONY OF 

MARK W. BURRELL 

PRESIDENT 

THE WESTMARK GROUP 
84 

Mr. Chairman, Honorable Task Force Members, Ladies, and Gentlemen: 

My name is Mark Burrell. I am a fourth generation Californian and I have spent 

all my life in agriculture and agribusiness. I have a B. S. in finance with a specialty in 

real estate law from the University of Nevada, Reno. My firm, the WestMark Group, is a 

financial consulting and asset management firm. We specialize in agriculture and our 

clients include farmers, ranchers, and major agricultural lending institutions. From 1974 

through 1987 I was employed in various capacities in the Farm Credit System, the 

nation's largest agricultural lender. For eleven years of that period I was a Chief 

Executive Officer responsible for crop, livestock, equipment, and real estate loans. 

In 1988 I formed the WestMark Group. Our clients range from farming and 

ranching operations with sales of less than $1 million to vertically integrated 

agribusinesses with sales well in excess of $100 million. Our clients have agricultural 

interests throughout the Western U.S., Mexico, and Latin America. Since 1988 we 

have arranged more than $250 million in agricultural financing for our clients. 

The Endangered Species Act (ESA) has impacted California agriculture in terms 

of private property use, habitat for endangered or threatened species, reduced 

quantities of surface water for urban and agricultural use, increased cost of surface 

water supplies, and has created serious limitations with respect to development of any 
85 

additional supplies of water in California. 

My testimony will primarily focus on three (3) major impacts that the ESA has 

had on the agricultural finance environment in California. First, administration of the 

ESA has had a substantial adverse effect on available supplies of surface water for 

urban and agricultural users in California. Second, the ESA has been a major factor in 

increasing the cost of agricultural water supplies in the Central Valley. Third, these 

factors as well as an uncertain future had dramatically increased the risk associated 

with financing in California that includes but is not limited to agricultural financing . 

Background 

By way of background, there are a number of characteristics concerning 

agriculture in general and California agriculture specifically which are important and 

noteworthy. 

• Agriculture is highly capital intensive. U. S. agriculture's balance sheet as of 

December 31, 1994 reflects assets of $917 billion, total debt of $148 billion, and 

total farm equity of $769 billion.' California's agriculture's balance sheet as of 

December 31 , 1990 reflected assets of $71 billion, total debt of $13 billion, and 

total farm equity of $58 billion-' 

'Source: Economic Research Service, U.S.D.A., January, 1995 

2

Source: Economic Research Service, U.S.D.A.; September, 1991 

2 
86 

+ Despite its size, the number of major institutions which provide agricultural 

financing is relatively concentrated. The Farm Credit System, a major lender to 

California agriculture, is statutorily mandated to serve agriculture. Excluding 

debt held by the Farm Credit System, approximately 75% of all commercial credit 

(short term loans for crops, livestock, etc.) is held by only three (3) banks- Bank 

of America, Wells Fargo, and Sanwa Bank. 

+ Approximately 30% of the land in California is devoted to agricultural use; an 

area of more than 30 million acres. Irrigated farmland represents a major part of 

California agriculture (approximately 8.5 million acres) and the diversity of 

California agriculture is dependent upon irrigation. 

+ Much of the Central Valley of California is subject to groundwater overdraft. A 

major factor which contributed to the development of the surface water storage 

and conveyance systems in California was a recognition and action to mitigate 

this problem. 

+ There are two major conveyance systems through which surface water is 

transported within the Central Valley of California. 

The Central Valley Project (CVP) is operated by the Bureau of 

Reclamation and is subject to federal law. The CVP serves four million people 

in 35 of California's 58 counties. The total investment in the CVP is slightly Jess 

than $4 billion. CVP water is provided to more than 250 contractors (water 

districts) and approximately 80% of the water delivered by the CVP is devoted to 

agricultural use. 

3 
87 

The State Water Project (SWP) was approved for construction in 1960 

and is administered by the State's Department of Water Resources (DWR). The 

SWP was principally developed to serve the Metropolitan Water District of 

Southern California and those agricultural areas in the southern San Joaquin 

Valley which were not served by the CVP. The SWP serves 19 million people 

and approximately 900,000 acres of farmland. Total investment in the SWP is 

approximately $1 .75 billion. 

As of November, 1993 the estimated combined CVP and SWP demand 

for surface water exports south of the Delta was approximately 7 million acre 

feet. Exports given normal supplies totaled approximately 5 million acre feet (2.6 

MAF- CVP; 2.4 MAF- SWP).3 

• There is an ongoing major public policy debate betwe-en urban, industrial, 

agricultural, and environmental concerning the allocation of natural resources in 

California. The scope of this debate includes air quality, land use, and the use of 

water. The focus on water has been in terms of quality (in the Delta), cost, and 

allocation. 

• The ESA is a major driving factor within the public policy debate concerning 

allocation of California's natural resources but it is by no means the only issue. 

3

Source: Kern County Water Agency, November 1993. 

4 
88 

ESA's Impact on Water Supplies 

With respect to agricultural finance, one of the most significant impacts of the 

ESA has been reduced supplies of surface water. 

While availability of agricultural water supplies have historically been subject to 

significant fluctuation, two events in the past eight (8) years severely restricted 

agricultural water supplies in the Central Valley of California. The first was weather 

related; a prolonged and serious drought which generally prevailed from 1987- 1992. 

The second event was the listing of the winter-run Chinook salmon and the Delta smelt 

as endangered species under the ESA. 

The listing of the Delta smelt and winter-run salmon as endangered species 

focused increased environmental attention on the Delta through which 45% of 

California's surface water drains. The listings of the winter-run salmon and Delta smelt 

were in large part attributable to insufficient flows through the Delta. In 1992, the 

federal government enacted the Central Valley Improvement Act (CVPIA) . Among 

other things, the CVPIA dedicated 800,000 acre feet of water in the Delta for 

environmental purposes including 400,000 acre feet for the Delta smelt alone. 

After a number of years of intense debate and litigation, in December of 1994 an 

interim agreement was reached between four federal agencies (the U. S. Environmental 

Protection Agency, the U. S. Fish and Wildlife Service. National Marine Fi.sheries 

Service, and the U. S Bureau of Reclamation) and the California State Water 

Resources Control Board. The so-called "Delta Accord" provides standards for water 

5 
89 

quality and flow for a three year period. The "Delta Accord" is an effort to provide 

greater certainty with respect to water supplies and also provide reasonable standards 

with respect to protection of the Delta's fragile ecosystem. In years of normal rainfall (in 

which the preciptation is equal to the 71 year average), 350,000 acre feet of water that 

previously went to farms and cities will be devoted to environmental protection in the 

Delta. In drought years, this amount could increase to 950,000 acre feet of water. The 

"Delta Accord" also requires water users to pay $10 million per year for the three term 

of the agreement to be utilized for habitat improvements. 

To illustrate the impact of the ESA on water supplies, it is worthwhile to examine 

the historic deliveries of a CVP contractor and a SWP contractor. The Westlands Water 

District is the largest water district in the Western United States. Situated in western 

Fresno and Kings Counties, the District comprises approximately 600,000 acres of 

which 570,000 acres has been farmed (an area of approximately 890 square miles). 

The Westlands contract with the CVP provides for delivery of 1,150,000 acre feet of 

water. 

6 
90 

The CVP supplies to Westlands Water District for the five (5) year period 

commencing 1989 may be viewed as follows:• 

YEAR CVP DELIVERIES (A. F.) %OF TOTALCONTRACT 

1989 1,158,000 93% 

1990 664,000 53% 

1991 399,000 32% 

1992 468,000 37% 

1993 1,004,000 80% 

Westlands Water District CVP W- Suppl .. (A. F.) 

! 0 -I _,_ 

There are approximately 700 wells in Westlands Water District of which 

approximately 130 were installed between 1990 and 1993. The restricted water 

supplies between 1989 and 1992 were attributed to severe drought conditions which 

•source: Westlands Water District 

7 
91 

prevailed in California. In 1993, an above average year, due to ESA flow restrictions in 

the Delta, there was a loss of 600,000 acre feet of water to CVP and SWP contractors. 

Despite above normal precipitation and run off, the CVP deliveries to Westlands Water 

District was only 80% of contracted supplies in 1993. 

The Wheeler Ridge Maricopa Water Storage District (Wheeler Ridge) is an SWP 

contractor. Wheeler Ridge is situated in southwestern Kern County and the District is 

comprised of approximately 146,000 acres. Of the total acreage within Wheeler Ridge, 

approximately 88,000 acres is entitled to receive SWP surface supplies of water and 

the balance of approximately 58,000 acres relies exclusively on ground water supplies. 

The SWP contract provides Wheeler Ridge with entitlement of 252,924 acre feet per 

year. Water deliveries to Wheeler Ridge for the five (5) year period commencing in 

1989 may be viewed as follows: 5 

YEAR SWP DELIVERIES (A. F.) % OF TOTALCONTRACT 

1989 207,375 

1990 187,432 

1991 66,610 

1992 125,934 

1993 146,514 

5

Source: Wheeler Ridge-Maricopa Water Storage District 

8 

82% 

74% 

26% 

50% 

58% 
92 

As is the case with Westlands Water District, the reduced supplies from 1989 

through 1992 was attributable to severe drought conditions. In 1993, an above average 

year in tenns of precipitation, due to ESA flow restrictions in the Delta SWP deliveries to 

Wheeler Ridge - Maricopa Water Storage District were only 58% of contract 

entitlements. 

Wheeler Ridge Water Storage District SWP Water Deliveries (A. F.) 

1100 1100 1101 1102 1003 

The effect of reduced water supplies has resulted in significant reductions in total 

acres farmed. Between 1984 and 1992 cotton acreage in the Westlands declined from 

approximately 300,000 acres to approximately 224,000 acres (a reduction of 

approximately 25%) 6 

•source: Westlands Water District 

9 
93 

In Wheeler Ridge, net farmed acreage declined from approximately 102,000 acres in 

1984 to 75,800 acres in 1992 (a reduction of approximately 26%).

7 

ESA's Impact on Water Cost 

Three major events since 1982 have contributed to major increases in CVP 

surface water costs. The first was the Reclamation Reform Act enacted in 1982. The 

second was the listing of the winter run Chinook salmon and the Delta smelt as 

endangered species. The third was the enactment of the Central Valley Improvement 

Act (CVPIA) in late 1992. The impact of the listing of the winter run Chinook salmon 

and the Delta smelt also had the effect of reducing SWP surface water supplies as a 

result pumping restrictions from the Delta. 

To illustrate the impact trend with respect to water cost, it is appropriate to review 

the costs per acre in Westlands Water District (a CVP contractor) and Wheeler Ridge (a 

SWP contractor). For purposes of this illustration it is assumed the water required for 

typical crops is three acre feet. 

Westlands is segregated within two priorities areas. Priority 1 comprises 

337,000 acres which was the original area served under the District's 1963 contract. 

The Priority 2 area comprises 187,000 acres which is served pursuant to a 1965 merger 

7

Source: Wheeler Ridge - Maricopa Water Storage District 

10 

91-053 0 - 95 - 4 
94 

with Westplains. The entitlement in Priority 1 is 2.6 acre feet per acre while in Priority 2 

the entitlement is 1.3 acre feet per acre. 

The cost per acre of CVP water deliveries within Westlands between 1989 and 

1993 is shown below:• 

Westlands CVP Water Costs/Acre 

Year Priority 1 CVP Cost/Acre Priority 2 CVP Cost/Acre 

1989 $78/acre $96/acre 

1990 98/acre 91/acre 

1991 82/acre 103/acre 

1992 119/acre 141/acre 

1993 101/acre 124/acre 

Wheeler Ridge SWP delivery charges vary dependent upon lift charges and 

range from no charge to $150/acre foot ($450/acre based on 3 acre feet per acre for 

most crops). The average cost per acre of SWP water deliveries within Wheeler Ridge 

for the five year period commencing in 1989 may be viewed as follows:

9 

•source: Westlands Water District 

9Source: Wheeler Ridge- Maricopa Water Storage District and WestMark Group 

11 
95 

Wheeler Ridge SWP Water Costs/Acre 

Year Average SWP Cost/Acre 

1989 $308/acre 

1990 332/acre 

1991 863/acre 

1992 383/acre 

1993 431/acre 

As previously stated, reductions in surface water supplies have resulted in 

reduced acreage in both of the districts used for illustration purposes. In addition, the 

increases in water costs have created changes in crop patterns. In Wheeler Ridge 

between 1985 and 1992 cotton acreage declined 42% while citrus acreage more than 

doubled. These crop patterns in Wheeler Ridge occurred during a period that total net 

farmed acreage was declining 26%. 

The combined effects of reduced surface water supplies and sharply increased 

costs have had a material adverse impact on land values. In Westlands between 1987 

and 1992 the WestMark Group estimates land owners lost more than $750 million in 

equity due to uncertainty with respect to the long term cost and reliability of CVP water 

supplies. This loss of equity was unrelated to weather and commodity price risk that is 

characteristic of agriculture; the loss of equity was attributable to political risk and a 

significant part of that political risk was associated with the ESA. 

12 
96 

Credit Risk 

Agriculture is characteristically viewed by providers of commercial and mortgage 

credit as having higher risks than many other sectors of the general economy due to 

weather and commodity prices that are not controllable. Providers of commercial credit 

typically extend financing for one year periods that coincide with an annual crop cycle. 

The major sources of this short term debt are commercial banks and Production Credit 

Associations (a unit of the Farm Credit System). 

Long term mortgage financing for real estate and permanent crops (trees and 

vines) is generally provided for periods ranging from 15 to 25 years. The major sources 

of this type of financing are major insurance companies and the Federal Land Banks (a 

unit of the Farm Credit System). Water districts and other public entities typically utilize 

bond financing as their primary source of debt. 

The level of agricultural credit risk in a given situation is dependent upon (1) the 

type and term of financing being extended, (2) the availability of ground and surface 

water supplies, (3) the depth of ground water, (4) the priority of surface water rights, (5) 

the types of crops being produced, and (6) the level of equity and earnings capacity of 

the borrower. 

The lowest risk areas in the Central Valley are those served by riparian rights 

from major rivers, the CVP districts who have priority rights commonly known as 

13 
97 

"exchange districts", and the SWP contractors with low lifts. The highest risk areas are 

those with declining ground water or no ground water, the areas in which overdraft is 

the most serious, the "service" contractors of the CVP which are generally situated 

along the west side of the San Joaquin Valley, and the SWP contractors in the southern 

end of the San Joaquin Valley who rely exclusively on surface water supplies. 

The types of crops being produced are relevant due to the fact that as water 

conditions vary field and row crops can be adjusted to the amount of water that is 

available. Tree crops and vineyards are "permanent" crops since most have preproductive development periods of 4 - 6 years and productive lives of 25 - 35 years. 

These high value crops include table and wine grapes, apples, almonds, pistachios, 

walnuts and deciduous fruit tree crops. Six of California's twenty leading crops in terms 

of revenue between 1988 and 1990 were permanent crops . Typical development costs 

for permanent crops range from $6,000 - 8,000 per acre excluding the cost of the land. 

Permanent crop developments therefore require long planning periods, major 

commitments of capital, and relatively stable credit conditions. 

Conclusion 

The impact of the ESA on agricultural credit conditions has been negative. 

Reduced supplies of water and increased water costs have resulted in substantial 

losses of equity which is borrowing power. The increased risk also extends to users of 

bond financing. Moody's, a major bond rating service, issued a report in September of 

14 
98 

1994 which cited the diminishing supply of water in California as a negative credit risk 

factor. While the "Delta Accord" is a positive development, for producers of permanent 

crops and providers of long term mortgage financing the three year term of the 

agreement does not provide a framework in which to make long term decisions can be 

made with any degree of certainty nor does it resolve the may risk related questions 

associated with supplies of surface water in California. 

The uncertainty created by administration of the ESA and the associated 

increase in credit risk is not limited to agriculture. Reductions in agricultural/and values 

reduce property tax bases for counties, reductions in water supplies reduce farm 

income and employment on both farms and in rural communities. 

The cost of securing additional supplies of water are impractical and water 

transfers are an uncertain source of mitigating the economic impacts of loss of CVP and 

SWP water supplies. The ESA should be re-authorized but there is a great need for 

improved balance between protecting our environment, preserving private property 

rights, and recognition that a heathy environment requires a strong economy. 

Speaking to at the Commonwealth Club of California on March 10, 1995, George 

Schaller, Director, Wildlife Conservation Society stated "Nobody really ever owns the 

land. We're temporary stewards for future generations, and we have to view land in 

15 
99 

that perspective. It is up to society to decide how land should be used. '" 0 Positions 

such as those articulated by Mr. Schaller do not reflect the rights of U S. citizens under 

the Constitution, they do not reflect reasonable approaches to complex problems, nor 

do they reflect the type of balance required to resolve complex issues that face our 

society There is a need for (1) cost/benefit analysis with respect to administration of 

the ESA, (2) a need to utilize an ecosystem approach as opposed to a single species 

approach, (3) a need for peer review, and (4) a need for greater balance with respect to 

the "take" provisions provided for under the Fifth Amendment to the U S. Constitution. 

I respectfully request that this testimony be made a part of the record and is 

considered by the Congress with respect to re-authorization of the Endangered Species 

Act. 

Mark W. Burrell 

President 

The WestMark Group 

5555 California Avenue, Suite 302 

Bakersfield, California 93309 

Telephone 805-327-8346 

Facsimile 805-327-0121 

'

0

Source: Proceedings of the Commonwealth Club of California, April10, 1995 

16 
100 

TESTIMONY OF THOMAS N. CLARK 

OF THE 

KERN COUNTY WATER AGENCY 

BEFORE THE 

TASK FORCE ON ENDANGERED SPECIES 

OF THE CO:tv1MITTEE ON RESOURCES 

OF THE 

UNITED STATES HOUSE OF REPRESENTATIVES 

--APRIL 17, 1995--

BAKERSFIELD, CALIFORNIA 

Kern County Wa1er Agency 

P.O. Box 58 

Bakersfield, CA 93302-0058 
101 

TESTIMONY OF THOMAS N. CLARK 

OF THE KERN COUNTY WATER AGENCY 

BEFORE THE TASK FORCE ON ENDANGERED SPECIES 

OF THE UNITED STATES HOUSE OF REPRESENTATIVES 

-APRIL 17, 1995-

BAKERSFIELD, CALIFORNIA 

INTRODUCTION 

I am Thomas N. Clark, the General Manager of the Kern County Water Agency 

(the "Agency"). The Agency is a public entity responsible for water supply, and flood control, for 

over 600,000 persons, over 600,000 acres of agriculture, and a wide array of other businesses. 

Much of the nation's supply of table grapes, carrots, almonds, pistachios, cotton and potatoes is 

grown in Kern County. The county is also home to the production of more oil than any other 

county in the nation. Simply stated, all of these activities require water, and the mission of the 

Agency is to supply and control water. 

The Kern County Water Agency has contracted with the State of California for a 

long term water supply from the State Water Project. The Agency is the second largest 

contractor with entitlements totaling over 1.1 million acre-feet, over 25% of the project's total 

entitlements. The Agency and over 30 other contractors pay the full cost of water from the State 

Water Project. Water delivered to the Agency and other contractors south of the Sacramento/San 

Joaquin delta is moved from the delta by the California Aqueduct to serve more than 20 million 

Californians directly, and support an economy serving over 30 million Californians and the nation. 

Additionally, Kern County is blessed with one of the best ground water basins in 

the nation. It provides natural storage, and also provides the opportunity for innovative 

conjunctive use and water-banking programs. 

I am here today to convey in the strongest possible terms how seriously distorted 

the federal Endangered Species Act ("ESA") has become. A well-intentioned statute has come to 

be administered in a very punitive way. The ESA of 1995 would not be recognizable to its 

creators. 

In order to carry out its responsibility to provide adequate and reliable supplies of 

water to Kern County residents and businesses, The Agency has pursued a number of water 
102 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 - Bakersfield, California Hearing 

Pa e 2 

supply and storage projects in recent years. Many of these projects have been stymied in the 

name ofsaving endangered species. We at the Agency are not opposed to the underlying concept 

of the ESA. However, we are strongly opposed to the unfettered barrier to development .that the 

Act has become. 

The difficulties encountered by the Agency have been many and varied, but they 

can be categorized into two basic areas: (1) problems related to aquatic species, and (2) problems 

related to terrestrial species. I will first address each of these categories, turn to the overall 

economic impact of these problems, and close with some specific suggestions for reform. 

PROBLEMS RELATED TO AQUATIC SPECIES 

As mentioned, the Kern County Water Agency relies on water from the 

Sacramento/San Joaquin delta for its water supplies. Due largely to unreasonable implementation 

of the Endangered Species Act our water supplies became extremely unreliable in 1992 and, 

although some measure of certainty was restored by the Bay-Delta agreement of December 15, 

1994, the prospect for future reliability after the expiration of the three year term of the agreement 

is highly uncertain due to the Endangered Species Act. The past source of the uncertainty has 

been unreasonable restrictions related to the Delta Smelt and so-called "Winter-run" Salmon. 

Although some federal officials cite the Bay-Delta experience as an example of 

how the ESA can work, I am here to tell you that the ESA actions that have taken place in the 

Sacramento-San Joaquin River Delta and San Francisco Bay really demonstrate how badly 

statutory ESA reform is needed. 

On December 15, 1994 a landmark agreement -- the "Principles for Agreement 

on Bay-Delta Standards Between the State of California and the Federal Government" -- was 

reached among California and federal agencies, California water user groups, and 

environmental organizations. The Principles established a set of water quality and flow, 

operational standards for the Bay-Delta system to protect fish and wildlife resources for the 

next three years. The Kern County Water Agency supported the negotiated settlement of 

contentious issues underlying the December 15 Agreement, but not without great concern . 

This settlement carries an additional cost of nearly one million acre-feet of badly needed water 

for California's farms and cities, in addition to previous environmental dedications of 4.6 

million acre-feet. We support the Agreement, however, because it gives us a measure of 

certainty for three years by establishing a limit on the amount of flows from the CVP and 
103 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House ofRepresentatives Task Force on Endangered Species 

April 17, 1995 -Bakersfield, California Hearing 

Pa e 3 

SWP that will be required for fishery purposes. In addition, we intend to use the three-year 

period to work on ultimate resolution of Bay-Delta problems. 

The extraordinary struggles that preceded the December 15, 1994, accord were 

directly related to the fact that two listed species - the Winter-run salmon and the Delta smelt -

use the Bay-Delta system. 

By virtue of these listings, low-level U.S. Fish and Wildlife Service and NMFS 

staffers fought many of the proposals to solve Bay-Delta problems, which are now embodied 

in the Bay-Delta agreement, and tried to exercise inordinate power over the process with 

absolutely no corresponding obligation to support their views with credible scientific evidence. 

I can give you specific examples. 

1. The evidence was clear that most of the problems facing the listed 

Winter-run salmon are related to overfishing of the fishery, and temperature problems and 

diversions upstream on the Sacramento River, more than a hundred miles from the Bay-Delta 

estuary. Nonetheless, NMFS used the Section 7 process to impose restrictions on CVP and 

SWP water supply operations in the Delta that were devastating to agricultural water supplies 

in the Central Valley. 

(a) NMFS imposed what had come to be known as the "Q-West" standard, 

which is a theoretical calculation of how much fresh water ("Quantity" or "Q") reaching the 

mouth of the Delta over the course of time will flow west out of the Delta to San Francisco 

Bay, compared to how much will flow east or south towards the CVP and SWP pumps. The 

unsubstantiated theory underlying the Q-West standard is that downstream migrating wWinterrunsmolts, in spite of their goal to reach saline waters in the ocean, and the huge twice-daily 

influence of tides, may follow a residual negative "Q" upstream, away from the ocean, and 

become trapped at the CVP and SWP pumps. Thus, NMFS mandated maintenance of a 

positive (downstream) Q-West, which severely impacted SWP and CVP water supply 

operations. This was done without ll1lJ1 credible scientific evidence that salmon smolts 

responded to Q-West as hypothesized by NMFS. NMFS used its nearly absolute power under 

the ESA to impost Q-West for three years, until the eleventh hour of the negotiatioPs leading 

to the December 15 agreement. This is not right. No governmental agency should be able to 

use untested, discredited and un-peer reviewed bases for decisions that have far-reaching social 

and economic consequences. 
104 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 -Bakersfield, California Hearing 

P e4 

(b) NMFS also imposed an incidental "take limit" for Winter-run smolts at 

the SWP and CVP pumps. In the past, if more than one percent of a calculated estimate of 

smolts reaching the head of the Delta were entrained at the pumps, pumping would have to be 

curtailed. Such a curtailment occurred in 1994, at a cost of thousands of acre-feet of water. 

NMFS has imposed this take restriction with not the slightest idea as to whether a salmon 

smolt found at the pumps is actually a Winter-run or some other, unlisted, race of salmon. 

Even though it is well-known that other races of salmon, such as fall-run salmon, may be of 

comparable size to Winter-run salmon smolts, NMFS has in effect declared that all salmon 

smolts in a certain size range will be conclusively presumed to be Winter-run salmon. 

2. The listing and recovery processes followed in the Delta were also procedurally 

flawed. We have two major areas of concern over the listing and recovery processes: secrecy 

and bias. 

(a) During the listing of the Winter-run salmon, water users tried to learn 

the identities of the scientists chosen by NMFS to evaluate the listing petitions. We wanted 

assurance that they had the expertise, experience, and independence to carry out this important 

task. Even this most rudimentary information, sought by those who would be most directly 

affected by a listing decision, was refused by NMFS. In fact, until a listing decision was 

made, the federal agencies refused to provide developed materials to potentially affected 

parties. The listing process allows comments from the public on the issue of whether the 

species should be listed; however the federal ESA agencies would not provide any information 

to the public so that those public comments could be pertinent to the information and data that 

the federal ESA agencies were actually using. Thus, public comments had to be made in the 

dark without knowing what other data the federal agencies were relying on, and, therefore, 

without the ability to respond or rebut that other data. Listing decisions constitute a significant 

and often severe impact on the public. The public deserves free access to, and ability to 

meaningfully review and comment on, the information and analyses available to the federal 

agencies throughout all phases of the listing process. 

(b) The bias issue arises out of our experience with Delta smelt. We know 

that the investigators that decided whether the species should be listed were closely associated 

with the University professor who prepared the listing petition. After the species was listed, 

the person put in charge of the recovery team was the very same professor who submitted the 

listing petition. The justification for listing Delta smelt at all was a highly controversial issue, 

in our view a very close question. Using allies of the listing proponent to judge his petition 
105 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House ofRepresentatives Task Force on Endangered Species 

April 17, 1995 -Bakersfield, California Hearing 

Pa e 5 

and using that same person as the leader of the team that decides under what circumstances the 

species should be delisted, placed a dark cloud of seriously questionable ethics over ESA 

administration. Allowing such biased review virtually guaranteed that the listing petition was 

not scrutinized but instead was supported by the evaluation and review process. Such blatant 

bias in any other arena, particularly the judicial system, is not tolerated, and should not be 

tolerated here, either. 

What is one to make of the biased, poorly-conducted scientific reviews and 

heavy-handedness practiced by federal ESA agencies? My conclusion is that the ESA is not 

being used to save fish, it's really being used by radical environmental groups and their 

supporters in NMFS and USFWS who want to put farmers out of business. I am not the only 

one making this conclusion. I'd like to call your attention to a quote from an ESA supporter: 

Some of the hard feelings [about the way the ESA is enforced] 

stem from the fact that a few environmentalists use the ESA just 

to fend off developments they don't like. Got a problem with the 

mall proposed next door? Go out and find a rare species there. 

That statement can be found in the March, 1995, issue of National Geographic, 

at page 22, and it is attributed to Brian Loew, who is the director of the Riverside County 

Habitat Conservation Agency. (Chadwick, DEAD OR ALIVE: The Endangered Species Act, 

National Geographic (March 1995).) 

I cannot emphasize enough how critically your help is needed to stop this abuse 

of the Endangered Species Act and resolve the continuing problems resulting from the virtually 

unlimited authority of ESA agencies to impose requirements based on the flimsiest of scientific 

justification, and without any protection against unethical, biased advocation. Congress should 

change the law so that federal ESA agencies are required to justify their actions with good 

science and to conduct their review and decision process openly, ethically, and with adequate 

public access and comment. The public dese:ves to know the true costs of the Endangered 

Species Act. 

During the period 1992 through 1994, these unreasonable restrictions resulted in 

159,250 acre-feet of water loss to four Kern County Water Districts with no groundwater 

supplies causing 53,000 acres ofland lost to production. The land was there, farmers were 

willing to farm the land, but the water was not there. Additionally, due to the uncertainty, another 
106 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 -Bakersfield, California Hearing 

Pa e6 

65,000 acre-feet of water was not usable for production since its availability was not known until 

after financing was secured and crops planted, causing 20,000 more acres oflost production. 

The direct "on farm" losses to the Kern County economy ofWmter-run and smelt 

restrictions were astounding, but as I discuss in greater detail later, the ripple effect through other 

segments of the Kern County economy resulted in even greater losses. 

PROBLEMS WITH TERRESTRIAL SPECIES 

But the provision of a water supply to the people of California is impaired by 

unreasonable provisions relating to terrestrial species as well as aquatic species. Unreasonable 

restrictions on water banking and overdraft correction programs, and even maintenance of 

existing public projects have seriously impaired the Agency's pursuit of its mission. Additionally, 

these restrictions have impaired maintenance of flood control projects in our area. 

At the Agency, one of our main problems has been the Tipton Kangaroo Rat 

("Tipton K-rat"). It has been such a major source of frustration, that we decided to dig into the 

record on this species a bit. 

What we have learned about this listing points out some of the very troubling 

aspects of the federal ESA program, aspects that need to be corrected: 

First, the Tipton K-Rat was listed as endangered back in 1988, but to date, no 

recovery plan has been written for the Rat. When the Rat was listed, no critical habitat was 

identified, and none has been identified since the listing. Since no recovery plan exists, there is no 

target recovery level established for this species, at least not one that is publicly available. We 

have no idea how many members of the species, or how much acreage, the Fish and Wildlife 

Service believes are necessary to ensure survival of this species. 

Most puzzling is the fact that the reason for listing this species was that by 1988 

potential habitat for the K-Rat in the Central Valley had declined as compared to what it was in 

the ~! It is hard to imagine that the habitat for ~ species has IIQ1 declined since the 1850s. 

We strongly submit that it should IIQ1 be federal policy to hold hostage needed 

water projects for the industry and people of the 1990s, to the imagined habitat of the Central 

Valley in the 1850s. Yet, this is exactly what has happened to almost every project the Agency 

has looked at over the last five years. 
107 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House ofRepresentatives Task Force on Endangered Species 

April 17, 199 5 - Bakersfield, California Hearing 

Pa e 7 

Finally, the Tipton K-Rat has a close cousin, the short-nosed kangaroo rat, that is 

not listed as either endangered or threatened. We are told the skull size of the short-nosed rat is 

slightly smaller, but it requires DNA testing (or its equivalent) to tell the two animals apart (if, 

indeed, it is possible to do it at all). For The Agency, this certainly raises the question of whether 

we have a distinct species or not in the Tipton Rat. 

The files on two other species give us considerable problems here in the Central 

Valley: the San Joaquin Kit Fox and the Blunt-Nosed Lizard. We have found information that is 

very troubling. These two species were listed back in 1967 -- almost 30 years ago --but the 

efforts at recovery appear to be minimal. 

Let me describe for you very briefly some of the situations with which the Agency 

has had to struggle in recent years in which the Tipton K-rat and the Blunt-Nosed Leopard Lizard 

have played major roles. A more specific recitation of these and other problems is set forth in 

attached Exhibits A through G. 

Example I- 1991 Droyght ReliefProject 

In the California drought of 1991, emergency supplies of water were essential to 

save permanent crops -- such as citrus and almond trees, and grapevines. Before we could drill 

wells, or even use existing wells, to recover much-needed groundwater, the Agency was required 

to complete surveys for endangered species. 

As required, these surveys were done, but ironically not a single endangered 

species was ever identified. However, much valuable time was lost and considerable public funds 

were spent on unneeded studies. Worse, approximately $3,000,000 were lost purchasing 

extremely expensive water from Northern California when water owned by our districts was 

directly below our feet. 

Example 2 - the Kern Water Bank 

We have been working on the development of what we call a "water banking" 

project since 1988. Fish and Wildlife has required the completion of a Habitat Conservation Plan 

(HCP) before the project can go forward. 

In this project, the Agency would have recharged groundwater storage with 

surface water, at the times when excess surface water is available. The Agency planned to allow 
108 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 -Bakersfield, California Hearing 

P11 e8 

considerable acreage to return to a natural state, which would have provided habitat for a number 

of species. However, throughout negotiations on the HCP, the Agency has been told that a very 

high proportion of the total acreage involved had to be~ set aside as habitat. 

The total size of the project is approximately 20,000 acres ofland, and as of the 

latest negotiations we were told 12,000 acres had to be set aside as habitat. 

We believe such a high requirement of total set-aside is unreasonable and 

unnecessary. From an economic point of view, it makes the project impossible to pursue. 

Example 3 - Public Project Maintenance· 

The madness has extended even to simple maintenance activities. The Agency 

and DWR have been kept from cleaning areas adjacent to the canals which carry water 

throughout the county and even maintenance of the California Aqueduct has been impaiied. 

The discing has been prohibited because it would disturb potential habitat for the 

Tipton K-Rat. However, without discing, tumbleweeds so common to Kern County pile up and is 

blown into the canals. This then obstructs the flow of water. Emergency and very costly efforts 

are then needed to clear the aqueducts of the tumbleweeds. 

The maintenance of the right-of-way of the California Aqueduct itself has been 

impaired. Wildlife agencies assert that any impact on land which could support species, due to 

previously delayed maintenance, is a prohibited taking. Demands for compensation have been 

made for the simple maintenance of the California Aqueduct even though it has been in existence 

for a quarter of a century. A more detailed description of this incredible scenario is included in 

the exhibits. 

These are just some of the examples of the situations we have had to confront in 

order to perform the responsibilities given us by the legislature of California. More detailed 

descriptions of these and other problems are included in the attached exhibits. 

OVERALLECONOMIC~ACT 

The overall impact of the unreasonable restrictions imposed under the Endangered 

Species Act has been an insidious, unseen, and yet substantial regulatory tax on the economy of 
109 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 -Bakersfield, California Hearing 

Pa e 9 

Kern County and California. The direct costs attributable to the specific examples mentioned are 

but a tip of the iceberg. These direct costs spawn a huge indire::t impact on the entire economy of 

Kern County and California. 

Our economists, Northwest Economic Associates, have studied the impacts of 

these losses and using traditional economic analyses concluded that the total impact to the Kern 

and California economies has been horrendous - in excess of $200 million. 

Not the least of these losses are the drop in market value of land in Kern County. 

The availability of water for agriculture can add up to $6,000 to $7,000 per acre, turning 

rangeland into productive orchards. 

As you will see from testimony provided at this hearing and others, the incidents 

are legion of economic harm from unreasonable implementation of the Endangered Species Act. 

We cannot track each of these impacts. The total cost may well be incalculable, but it is clear in 

our minds that they must constitute a significant proportion of the estimated $600 billion 

regulatory costs to our national economy each year. 

The "bottom-line" in our view is jobs -jobs for people -jobs for the people of 

Kern County. Translation of these impacts into dollars truly results in a loss. Dollars do not 

measure the true impact to a California worker who must still support a family. Dollars do not 

measure the true impact to a California family farmer who must deal with the pain this act causes 

his or her family and farmhands. Dollars cannot measure the pain of one who has lost livelihood, 

and home for the sake of a rat. Of all our laws this is the only one I am aware of that doesn't 

consider in a meaningful way the needs of people. All of the proposed reforms I've seen are really 

just different ways of saying one thing: people count too! Their needs should be considered right 

along with those of other species at every stage of decision-making. In closing, I'll provide you 

with some specific suggestions based on our experience which would bring reason to the 

Endangered Species Act. 

SUGGESTIONS FOR REFORM 

Numerous suggestions for reform of the Endangered Species Act have been made. 

We do not discount any of them. We support many of the ideas which have been put forward 

over the last two years -- such as requireing scientific peer review of listings, economic analysis of 

listings, and a statutory change to make clear that "takings" do not encompass use of habitat. 
110 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 -Bakersfield, California Hearing 

Page 10 

We would also like to submit the following specific ideas for serious consideration: 

1. The process to obtain an incidental take permit is costly, burdensome, and 

generally unworkable. This approach should be replaced with one that assumes that the majority 

of American citizens will take reasonable care not to harm a truly endangered species. Thus, a 

permit should not be required to engage in routine and otherwise permitted activities, if 

reasonable care is exercised, such as "emergency actions taken by local governmental entities; 

operation or repair of existing facilities; actions to protect humans or property from injury or 

damage; and use ofland for agricultural production. This approach would recognize that 

incidental or de minimis takes in the course of these lawful activities can occur, and that such 

takings should not be subject to civil or criminal penalties. 

2. The economic cost of recovering a species should be analyzed at the time a 

recovery plan (or similar conservation plan or strategy) is developed, and a realistic balancing of 

the costs and benefits should guide decisions regarding the level of society's commitment to the 

species. Further, we believe this economic analysis should be carried out, or at least, reviewed by, 

recognized economists. We simply do not think it is realistic that the Fish and Wildlife Service 

will be able to hire sufficient economic expertise to carry out the new and detailed economic 

analyses which is so sorely needed in this program. Additionally, the costs considered should 

specifically include the costs created by the listing itself 

3. A timely review of any species listed over the last 28 years, if requested. 

This review should be done according to the new criteria adopted, such as scientific peer review 

and economic analysis. We believe this requirement would force the Fish and Wildlife Service to 

focus its attention on those species that are most deserving of protection under the program. The 

Agency strongly questions whether it makes sense to leave species on a list for 30 years )ili!s, 

tying up acreage and development At some time, national policy should be to either invest the 

funds necessary to bring a species to recovery, or take the species off the list In addition, the 

scientific work done on some of these species is questionable. 

4. The Agency believes that Congress must make a candid recognition that, 

with respect to endangered species, we cannot afford to do everything everyone would like to do 

in this country. Given this basic fact, priorities must be established. Such an approach to 

endangered species would be entirely consistent with the provisions in the Contract with America. 

5. The economic consequences for real people and real jobs must occupy a 

major area of consideration as each step in the implementation of an ESA program is taken. 
111 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 - Bakersfield, California Hearing 

P e II 

6. The ESA should be amended to require that review of listing petitions is 

conducted by unbiased, qualified experts who are not associated with the petition or the 

petitioner. Listing petitions should be subject to the same sort of peer review and scientific 

scrutiny required for publication of scientific papers in professional journals. 

We have given considerable thought to these points, and developed suggestions of 

specific language regarding most of them. This suggested language is contained in the attached 

document entitled "Problems and Solutions- Reform of the Endangered Species Act- A Local 

Government Perspective". 

CONCLUSION 

In conclusion, let me thank you for your attention to my comments and more 

specifically, thank you for coming to the Central Valley of California to hear from us. I will be 

more than happy to answer any questions you may have on our experiences at the Kern County 

Water Agency in trying to pursue our mission while dealing with the requirements of the federal 

Endangered Species Act. 
112 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995- Bakersfield, California Hearing 

Pa e 12 

EXHIBIT A. The 1991 Emen:ency Ground Water Recoyecy Proa:ram 

1. Construction of New Wells 

IDSIORY 

In 1991, due to the prolonged drought in California, the Department of Water 

Resources (DWR) allocated a 30% supply of municipal and industrial water and imposed a 100% 

deficiency on agricultural water deliveries. In response to this crisis, the Agency initiated the 

"1991 Emergency Ground Water Recovery Program" (Emergency Program), for the purpose of 

developing a water supply by recovering previously "banked" water. This water was to be 

delivered to the west side water districts, who do not have an alternate supply of water and 

depend entirely on surface water for irrigation. Because these districts have a high percentage of 

land devoted to permanent crops such as pistachios, almonds and grapes, an alternate source of 

water was required to prevent devastation to these crops. I o recover water under the Emergency 

Program, the Agency proposed to construct 19 new weUs and also use various existing wells 

located on private and public lands. 

PROBLEM 

Prior to constructing new wells, the Agency was required by Department ofFish 

and Game (DFG) to conduct wildlife surveys for threatened and endangered species and prepare 

a Biological Assessment. Because Kangaroo rat burrows were found in the vicinity of some of 

the construction site areas, a live trapping program was initiated in order to determine whether 

the burrows were occupied by Tipton Kangaroo rats (an endangered species) or by Heermann 

Kangaroo rats (a non-endangered species). Kangaroo rat trapping can only be conducted by a 

qualified biologist and who has a valid permit. During the course ofFESA compliance, the 

Agency encountered the following problems which resulted in significant delays in the 

construction of the new wells: 

I . Delays due to unavailability of qualified biologist. At the time, there were few biologists 

with a permit for trapping Kangaroo rats. 

2. When we located a biologist, he was busy with another job. 

3. Trapping permits are site specific, and written permission is required from Fish and 

Wildlife Service (FWS) to trap in a location not specified by the biologist's current permit. 

4. Delays occurred because trapping cannot occur during a waxing and fuU moon. 
113 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 - Bakersfield, California Hearing 

Pa e 13 

5. The biologist's trapping permit expired because FWS failed to process the renewal in a 

timely manner. 

6. Trapping was delayed because the area was night-lighted by a nearby drilling rig. 

7. Trapping was delayed due to rain. 

8. Once the trapping was completed, additional delays occurred because the Biological 

Assessment must be approved by FWS and we had a difficult time arranging an 

appointment with them. 

COSTS OF COMPLIANCE 

The above eight problems directly contributed to a delay of three months in getting 

the final wells constructed and on-line. Because of this delay, we were unable to recover an 

estimated 15,000 acre-feet of critically needed ground water. This water could have been used to 

irrigate over 4,000 acres of permanent crops. Water purchased from northern California may have 

irrigated some of these crops, but the total cost to do so would have been over $3,000,000. The 

compliance also resulted in costs totaling $24,000 for the Biological Assessment, and $3,700 in 

mitigation fees. 

CONCLUSION 

The irony of this example is that through all the compliance efforts by the Agency, 

not one single threatened or endangered species was trapped or encountered. The Agency 

believes the delays caused by compliance requirements for this project were excessive and 

unbalanced for the following reasons: 

1. This was an unprecedented emergency situation, the program was essential for averting 

significant economic harm within the County. 

2. The Agency was not attempting to make a land use change, it was simply constructing 

wells where numerous other wells already existed. 

3. The ground disturbance activities were temporary, except for the 100 sq ft well pad. 

4. The disturbed areas for well construction were small and some wells were constructed on 

lands previously used for agriculture. 
114 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 - Bakersfield, California Hearing 

Pa e 14 

2. Use of Existin& Wells 

IDS TORY 

As was indicated in the introduction under "Construction of New Wells" above, 

part of the Emergency Program proposed using existing wells located on the Department of 

Water Resources Kern Fan Element Property. The Agency proposed local use of 11 wells not 

needed by DWR for their 1991 Hacienda Extraction Project. During this same time period, 

DWR had initiated consultation with the FWS under Section 7 ofFESA for the purpose of 

obtaining a Section 7 Incidental Take Permit for the Hacienda Project. A Biological Assessment 

and Draft Biological Opinion was issued by DFG in March of 1991 for the Project. All wells for 

proposed use by DWR and the Agency were included in the Permit application. Run Rempel, 

biologist with DFG, inspected the Agency's proposed 11 wells for preparation of the Hacienda 

Biological Opinion. ln addition, after learning of the Agency's project, Mr. Rempel revisited each 

of the 11 wells the Agency proposed to use and determined the potential effect from connecting 

these wells to the Cross Valley Canal and Alejandro Canal on T &E species was minimal, provided 

the Agency adhere to the mitigation plan developed in the Biological Assessment for the 

Emergency Program. 

PROBLEM 

The Agency made a proposal for use of the wells prior to issuance of the Section 7 

Permit in order to provide an emergency supply of irrigation water. However, the DFG intended 

to hold DWR responsible for any Agency "take" violations (criminal or civil), associated with use 

of the DWR wells, therefore, DWR was reluctant to allow the Agency to proceed. Use of the 

wells became a moot point since, I) unreasonable delay by the FWS in processing the Section 7 

Permit pushed us into the following year and, 2) the unwillingness ofDWR to allow for Agency 

use because of DFG intimidation. 

COSTS OF COMPLIANCE 

Even though the Agency had in place in March of 1991, a FWS approved Biological 

Assessment and Mitigation Plan for construction and operation of 19 new wells, the Agency was 

unable to obtain permission from FWS to use the 11 existing wells on the KFE property. 

Denying use of the DWR KFE wells prevented the Agency from developing an emergency supply 

of 40,000 acre-feet of water, if pumping had begun in March. ln addition, as opposed to "delay" 

problems encountered with construction of new wells, this was a problem where access to the 

wells was simply denied. ln addition, DWR was prevented from operating its own wells which 
115 

KERN COUNTY WATER AGENCY 

(APolitical Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House ofRepresentatives Task Force on Endangered Species 

April 17, 1995 -Bakersfield, California Hearing 

Pa e 15 

were all on land previously in agricultural production. These wells would have been capable of 

adding 50,000 acre-feet to the State Water Project supply in this critically dry year. The problems 

encountered in FESA compliance, and which appear to be in need of serious reform, are as 

follows: 

I. Initial work on the Section 7 Permit began in December of 1990. The FWS failed to issue 

a Permit until January 1992. By that time it was too late to use the KFE wells for the 

Emergency Program. Reform in expediting the Permitting process must be addressed. 

2. A Biological Assessment and Draft Biological Opinion was issued by DFG in March of 

1991. Administrative difficulties in implementation resulted in delay. Again, reform is 

needed to place reasonable time limits for FWS to act once a document is released. This 

is especially important in an emergency situation such as we had in 1991. 

3. Reform to avoid duplication of effort also needs to be addressed. The Agency had already 

obtained a FWS-approved Biological Assessment and Mitigation Plan for construction and 

operation of 19 wells. The Agency's proposed use of the DWR KFE wells would result in 

far less impact, and hence, the Agency mitigation plan should have been more than 

adequate for operation of these wells. However, FWS would not approve this approach. 

CONCWSION 

As noted above under the "New Well Construction" conclusion, the Agency believes a 

more cooperative approach could have been taken by the DFG ant' FWS in this emergency 

situation. After all, a DFG biologist had stated that, provided the Agency followed the approved 

mitigation plan providing for construction and operation of new wells, there should be no "take" 

ofT &E species in operating existing wells, which in most instances was simply a matter of 

turning on the well located on farmed land. 
116 

KERN COUNTY WATER AGENCY 

(A Political Subdivision oCthe State oCCalifomia) 

Testimony of Thomas N. Clark Before The 

House ofRepresentatives Task Force on Endangered Species 

April17, 1995- Bakersfield, California Hearing 

P e 16 

EXHIBIT B. Tbe Kern Fan Element Habitat Copuryatioo Plap 

WSTORX 

In August 1988, the Department of Water Resources purchased approximately 19,900 

acres ofland, commonly referred to as the Kern Fan Element, from Tenneco West Inc., for 

approximately $31.3 million. The land is located on the lower portion of the Kern River alluvial 

fan west of Bakersfield. The purpose for the purchase of the Kern Fan Element (KFE) is to bank 

State Water Project water underground in wet years for recovery in dry years to augment State 

Water Project water supplies. The KFE would also be used locally by the Agency for recharge 

and recovery ofKem River, Agency Entitlement, Friant-Kern and other water made available to 

the Agency in wet years. The project is a critical component of our effort to increase the 

reliability of our water supply to preserve jobs in our area. 

As part ofDWR's environmental documentation under the California Environmental 

Quality Act (CEQA), wildlife surveys determined that threatened and/or endangered species 

existed on and around the KFE property. Subsequent to these findings, DWR, the Agency, and 

ARCO Oil and Gas (who holds the mineral rights to the property) and collectively referred to as 

the project proponents, were notified in late 1990 by DFG that a Section 10(a) Permit, pursuant 

to FESA, would be required prior to any use of the property for construction, operation and 

maintenance by any of the three project proponents. By early June 1991, the project proponents 

hired a consulting firm to prepare the KFE Habitat Conservation Plan required for a Section 1 O(a) 

Permit application. 

PROBLEM 

At the time DWR purchased the property, approximately 16,000 acres of the 20,000 acres 

were in active agriculture or in a agricultural set-aside program. It is widely accepted that 

agriculture offers no habitat value to threatened or endangered species. It was DWR's intention 

to permanently fallow all the agricultural lands over a five year period from the date of purchase. 

Idling agricultural lands provided two benefits: I) it would reduce ground water overdraft within 

the basin by eliminating ground water pumping for irrigation, and 2) it would allow substantial 

amounts ofland to revert back to native conditions, thus providing habitat for the T &E species. 

Proposed project facilities by the project proponents occupy 6,1 00 acres and occur almost entirely 

on former agricu1turalland. The remaining 9,900 acres of former agricultural land would be 

allowed to revert back to native habitat. 

The Agency believed that the single act ofDWR permanently fallowing 16,000 acres of 

agricultural land provided approximately 10,000 acre of potential habitat that would not have 
117 

KERN COUNTY WATER AGENCY 

(APolitical Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 - Bakersfield, California Hearing 

Pa e 17 

been there otherwise, and therefore, should qualifY the project as self mitigating. Instead, the 

project proponents are being asked by the wildlife agencies to provide 7,300 acres as T&E 

management lands, reserve another 800 acres as mitigation banked land, and the remaining 5,800 

acres would be dedicated to (I) transitory and upland habitat, (2) re-regulation ponds for 

waterfowl habitat, (3) problem areas, and (4) minor amounts for roads, canals and utilities. 

COST OF COMPUANCE 

The Agency has spent over a $120,000 on the HCP. The other project proponents have 

spent similar amounts with no benefit to T &E species realized to date. The project proponents 

have been working on this HCP for almost four years now, with no real end in sight. 

CONCLUSION 

A more balanced and practical approach would be to recognize the wildlife benefits the 

proposed project offers as a whole, rather then focusing on benefits offered only to a small, select 

population of Tipton Kangaroo rats. As a side note, the HCP has been tied-up for the last year 

with interrelated and cumulative impacts associated with Sacramento/San Joaquin Delta. There is 

no projected time frame for resolution of the issue, and hence, no date can be anticipated for 

completion of the KFE HCP. 
118 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House ofRepresentatives Task Force on Endangered Species 

Apri117, 1995- Bakersfield, California Hearing 

Pa e 18 

EXHIBIT C. The Agency Pioneer Ground Water Recharge and Recovery Project 

IDSTORY 

In July 1992, the Agency purchased approximately 2,280 acres ofland west of Bakersfield 

and adjacent to the City of Bakersfield 2800 Acres Spreading Grounds, referred to as Pioneer 

North and South property. The Agency purchased the property for the purpose of recharging 

water in wet years and augmenting deficient surface supplies in dry years by recovering water 

through ground water pumping. Unlike DWR's Kern Fan Element property, the Pioneer property 

is completely farmed. Wildlife surveys indicated only the presence of Tipton Kangaroo rats 

located at three isolated areas on the perimeter of the property. In an effort to discourage T &E 

species from encroaching upon the property, the Agency intends to continue farming when the 

property is not being used for ground water recharge operations. The farming operations will 

require that ground water be pumped to irrigate the crops. This results in adding about 9,000 

acre-feet per year to the overdraft problem, which is the problem the Pioneer Project was 

intended to address. The property has historically been used for ground water recharge during 

high flows on the Kern River. In addition, the Agency is currently in the process of completing an 

EIR for the long-term use of the property. 

PROBLEM 

Preliminary discussions with the wildlife agencies have indicated that the Agency has two 

options in addressing long term T &E management goals on the Pioneer property: ( 1) Apply for 

a Section lO(a) Permit, or, (2) possibly obtain a federal tie-in, and apply for a Section 7 

consultation. The Agency believes the isolated occurrence of Tipton Kangaroo rats on the 

perimeter of the property does not warrant a formal consultation with the wildlife agencies and 

that an approved mitigation and avoidance plan is appropriate for this project. 

COSTS OF COMPLIANCE 

The Agency spent $10 million for the Pioneer property. As has been historically and as 

now managed, it offers little or no value for T &E species. It is too early to tell what the wildlife 

agencies may require should we decide to pursue a Incidental Take Permit. However, if the 

experiences of the City ofBakersfield, County ofKern and the DWR are any indication of what 

we can expect in issuance of a Permit, then the Agency will pursue all other legal avenues prior to 

entering into formal consultation. If the Agency is forced to engage in the same protracted 

negotiations encountered for other projects, it would consider killing the project and selling the 

land because the viability of the project would be seriously compromised. 
119 

KERN COUNTY WATER AGENCY 

(APolitical Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 -Bakersfield, California Hearing 

Pa e 19 

CONCUJSIQN 

Until the wildlife agencies take a broader approach to habitat management practices, the 

Agency Pioneer property will remain intensively farmed. However, should credit be given to the 

Agency for allowing the property to revert back to somewhat native conditions allowing for 

martagement on a broader multi-species and habitat approach, the Agency would reconsider its 

decision to use the Avoidance Plan to address T&E species on the property. 
120 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

Aprill7, 1995- Bakersfield, California Hearing 

Pa e 20 

EXHIBIT D. Use of the City of Bakenfield 2800 Acres Spread in.: Grounds 

HISTORY 

In December of 1976, the City ofBakersfield (City) acquired from Tenneco West, Inc, 

certain properties and Kern River rights. Included in this acquisition was a parcel of2,760 acres, 

referred to as the 2800 Acres, located in and adjacent to the Kern River fan and Kern River 

channel, just west of the City of Bakersfield. Historically, this land was used as a ground water 

replenishment area whereby Kern River water would be used to recharge the ground water basin. 

In August 1983, the City completed an EIR for the 2800-Acre Ground Water Recharge Facility. 

Since the completion of the EIR, the Facility has been used periodically for banking and ground 

water overdraft correction purposes by the City, the Agency and others, thereby benefiting the 

entire ground water basin within the southern San Joaquin Valley. 

PROBLEM 

During construction of the 2800 Acre Facility, plans called for development of 

approximately 1,300 acres of spreading basins. The remaining property would generally be ieft 

alone and allowed to remain in a somewhat natural state. 

The 2800 Acre Facility is included as part of the KFE HCP. As mentioned above 

however, completion of the HCP cannot be predicted at this time. The wildlife agencies have 

indicated that they will object to use of the 2800 Acre Facility, prior to completion of the HCP. 

The Agency disagrees with this position and believes it to be totally unreasonable for the 

following reasons: 

I. This area has been used historically for the above stated purpose. 

2. The facility is an existing project that planned to leave some areas undeveloped. 

3. Past T &E surveys for the area have not trapped any Tipton Kangaroo rats trapped. 

4. No recognition of multi-species and habitats by the wildlife agencies have been given to 

this project. 

CQNCLUSIQN 

Unlike the Agency Pioneer Project and the DWR KFE, the 2800 Acre Facility has an EIR 

and has been operating for many years. No consideration of the benefits the Facility provides, i.e., 

waterfowl habitat, overdraft correction, is taken into account by the wildlife agencies in their 

proposed decision to stop use of the Facilities. 
121 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995- Bakersfield, California Hearing 

Pa e 21 

EXHIBIT E. Bcrrenda Mesa Ground Water Rcchar&e - Recoveey Prozram 

HISTORY 

In 1980, the Berrenda Mesa Water District purchased 547 acres of land located east of the 

2800 Acre Facility, west of the City of Bakersfield and adjacent to the Kern River channel. The 

purpose of the purchase was the development of a ground water recharge and recovery project, 

similar to the City's 2800 Acre Facility. An EIR was completed on the project in March, 1984. 

Subsequent to the EIR, the District sold off the portion of land located north of the Cross Valley 

Canal consisting of 160 acres. The project has been used historically for the intended purpose of 

ground water recharge and recovery. In years when the property is not being used for its 

intended purpose, the entire area is farmed to discourage encroachment ofT &E species. In early 

1991, the Agency, in cooperation with the District, applied for a loan with DWR under the 1986 

Water Conservation and Water Quality Bond Law, for the purpose of constructing a number of 

new wells and water conveyance facilities, and also to rehabilitate existing spreading basins. 

PROBLEM 

Prior to DWR granting the loan, the Agency had to address T &E species issues on the 

property. The Agency believed it had addressed the issue during construction of new wells and 

pipelines for the 1991 Emergency Program when the Agency conducted a number of surveys and 

trapping on the Berrenda Mesa Property prior to initiating well construction under that program. 

The results of trapping were negative. DFG asked for surveys as a condition of the loan. The 

Agency explained that surveys and trapping had already been completed on the property with 

negative results. However, at the request ofDFG, DWR was reluctant to grant the loan until 

DFG was satisfied that the Agency was going to address the T &E issue to DFG satisfaction. It 

was ultimately agreed to grant the loan to the Agency provided additional T &E species surveys 

were conducted prior to any construction activities. Again, the Agency believed that the DFG was 

being unreasonable in their demands. They were attempting to hold up DWR from granting the 

loan in order to force the Agency to conduct expensive additional and unnecessary surveys prior 

to even obtaining the loan, and at such a time whereas the surveys would have been outdated 

(according to DFG surveys, are only good for 60 days) and additional surveys would have been 

required prior to the time of actual ground disturbing construction activities. 

CONCLUSION 

Again, here is an existing ground water and recovery project developed to augment 

surface water supplies in a dry year, for a district dependent entirely on surface supplies. To be 

asked to conduct additional surveys after prior surveys turned up negative appears unreasonable. 

Especially in light of the fact that a cooperative attempt to comply with FESA was made by the 

Agency and the District during the loan application process. 
122 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 -Bakersfield, California Hearing 

Pa e22 

EXHIBIT F. 1993 Ground Water Recha~e Proeram. Kern Fan Element Property 

IDSTORY 

During the three year period from 1990 to 1992, SWP agricultural contractors suffered 

deficiencies of 50%, 100%, 55% respectively. Due to these surface water shortages, much of the 

water supply difference was made up by increased ground water pumping. This placed a heavy 

burden on the Southern San Joaquin ground water basin. and as a result ground water overdraft 

amounted to approximately 800,000 acre-feet annually. When 1993 turned out to be a wet year 

and both M&I and agricultural SWP contractors were allocated I 00% of their entitlement, it not 

only provided relief for an overdrafted ground water basin, but provided an opportunity to reverse 

the trend through ground water recharge activities. Because 1993 was such a wet year, water for 

recharge was also available off the Federal Friant-Kern system and the local Kern River. In order 

to maximize overdraft correction and in-lieu recharge during 1993, Agency staff has proposed use 

of the existing James and Pioneer canal systems (canals). Portions of these canals are located on 

the Department ofWater Resources (DWR) Kern Fan Element (KFE) property. 

PROBLEM 

These are canals that have been historically used to deliver surface water to farmers in-lieu 

of pumping ground water during wet years such as 1993. In addition these are unlined and offer 

an opportunity for large quantities of natural recharge to occur along the length of the canals. We 

proposed to DWR a plan that would allow the Agency to use portions of the canals for ground 

water and in-lieu recharge. We proposed canal use in the least sensitive locations in respect to 

T&E species impacts. The Department ofFish and Game (DFG) required that in order for for the 

Agency to use the canals, we must first have hired a qualified biologist to go out along the canals 

proposed for use and conduct a scientific wildlife survey. if Kangaroo rat (k-rat) burrows were 

identified during the survey, a more intensive and costlier k-rat trapping program would be 

required in order to tell whether the not the heermanni k-rat is present which is not endangered or 

whether the Tipton k-rat is present which is endangered. A trapping program can require up to 

four days before conclusive results are obtained and is very expensive. 

CQNCWSIQN 

Upon completion and submission of the requested wildlife survey, DFG requested that we 

conduct additional mitigation measures to protect rabbits, even though our project was not 

impacting T &E species. We also needed approval from the FWS to use the canals on the KFE 

property, however with their closest office 300 miles away in Sacramento communications 

became a factor and it took them another week before they were able to grant approval. 
123 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 - Bakersfield, California Hearing 

Pa e 23 

EXHIBIT G. California Aqueduct Maintenance San Joaquin Field Division HCP 

IDS TORY 

As a result of pressure from the Department ofFish and Game, the California Aqueduct 

Maintenance HCP steering committee was formed in August 1991 to develop an HCP that would 

address potential T &E species issues along a 13 5 mile stretch of the California Aqueduct that 

extends from Kettleman City in the north to the Edmonston Pumping plant at the base of the 

Tehachapi mountains to the south. The area encompasses 11,815 acres. Even though T&E 

species and other sensitive species have co-existed with operations and maintenance activities for 

more than 25 years along the RIW, DWR was required to apply for a Section 2091 and Section 

10(a) Permits pursuant to State and Federal Endangered Species Act. 

PROBLEM 

The following serves to document problems that would be encountered by Kern County 

Local interests' (local interests) if the July 1994 Draft California Aqueduct San Joaquin Field 

Division Habitat Conservation Plan (HCP) is adopted and implemented. Among identifYing 

impacts to Local interests, two other related general concerns exist in the draft HCP. They are as 

follows: 

0 The basic and long standing premise used in this report provides that the California 

Aqueduct and RIW were constructed over 25 years ago for the sole purpose of operation 

and maintenance of the Aqueduct, and were paid for by the State Water Contract's 

(SWC). Any recommendation that the approximately 12,000 acres of RfW should 

suddenly be treated as a T &E species management area is not only poor science but 

creates unreasonable and burdensome management costs for both DWR civil maintenance 

and environmental services divisions. 

0 The draft HCP was not only developed without input from Local interests, but was also 

developed without consideration of other local land use planning efforts currently being 

carried out by City and County planning staff This conclusion is supported by the fact 

that the draft HCP developers ignored one of their own goals. A draft paper entitled 

"Biological Framework for Natural Lands and Endangered Species in the Southern San 

Joaquin Valley", dated May 1993, developed by the San Joaquin Valley Biological 

Technical Committee's stated goal was to; Provide a framework for interagency, public1 Local interests are general.ly defined as laodowners adjacent to the Aqueduct HCP area, Water Districts 

where the Aqueduct HCP area nms through there District, and the Kern CoWlty Water Agency. They are collectively 

referred to as the 'stakeholders'. 
124 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House ofRepresentatives Task Force on Endangered Species 

April 17, 1995 - Bakersfield, California Hearing 

P e24 

private conservation and mitigation programs that can be implemented to conserve T &E 

species and expected to be consistent with San Joaquin Valley T&E species recovery plan 

(emphasis added). It appears this goal and others were ignored by the HCP steering 

committee. 

The entities which may be impacted by implementing the HCP are the Kern County Water 

Agency, Encroachment and Easement Holders, Local Water Districts and Adjacent Landowners 

IMPACTS TO TilE KERN CQUNTY WATER AGENCY 

The draft HCP covers only limited surface disturbing activities described in the HCP that 

are associated with the continued operation and maintenance of the Aqueduct RJW. All other 

activities are prohibited. This creates special concerns for the Agency. The Agency owns a 

partially constructed turnout referred to as the Rosedale stub located just south of the Agency 

Cross Valley Canal (CVC) turnout. The Agency has easements with DWR for both of them. The 

Agency has future plans to complete construction on the Rosedale turnout and thus, would be 

subject to the restrictive provisions included in the draft HCP. Additionally, as has occurred in 

the past, the Agency has constructed temporary facilities on the RJW to facilitate efficient water 

management practices, e.g., the CVC pumpback station. HCP requirements could have 

significant impact to the Agency in terms of costs and time requirements. 

ENCROACHMENT AND EASEMENT HOLDERS 

The wildlife agencies wrote the HCP in such a manner as to exclude the activities of 

Aqueduct RJW easement owners and encroachment permit holders (E&E Holders). Also, the 

HCP required that the DWR act as the ESA enforcer by requiring proof ofESA compliance 

before allowing E&E Holders on the Aqueduct RJW. This aspect of the conservation plan creates 

significant adverse third party impacts because: 

a. It places burdens on easement owners that are in excess of those required in easement 

documents. 

b. Most uses by E&E Holders are ordinary and customary uses of the RJW that have been in 

place for years, and could have been included in the HCP. 

c. It places DWR in the role of being the ESA enforcer for the FWS and DFG. This is not 

DWR's mission, and by increasing the reach that FWS and DFG would otherwise have, it 

increases compliance burdens on E&E Holders, particularly those who are adjacent 

landowners not engaging in a major utility projects. 

d. By requiring affirmative documentation from FWS and DFG to be produced, the HCP 

requires an unnecessarily burdensome method of ensuring compliance, and one not 
125 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 - Bakersfield, California Hearing 

P e25 

required by law in all cases. To require E&E Holders to get such signoffs to exercise their 

previously existing rights (particularly so for easement holders, who have property rights) 

is unacceptable. To require separate documentation for permit holders upon issuance of 

permits is excessive, when consultant reports and/or biologists signoffs could be adequate. 

ADJACENT WATER DISTRICTS 

The draft conservation plan will cause significant adverse impacts on district activities, 

facilities and easements within the RJW. District personnel must operate, maintain, repair and 

replace district facilities (canals, pump plants, pipelines, turnouts, turnins, wells) within the RJW 

on a periodic basis. The district's right to access and perform such activities is established by 

easements, encroachment permits and operating agreements between the districts and DWR. The 

draft HCP proposes that these activities not be included as part of the project covered by permit. 

The omission of the district activities within the RJW exposes the districts to a host of significant 

financial and regulatory impacts: 1) A separate compliance process in addition to the Aqueduct 

HCP; 2) increased time and cost to maintain existing and install new facilities resulting from a 

biological survey and minimization and mitigation measures, possible requirements for 

compensation land purchases, lead time to negotiate appropriate compliance with wildlife 

agencies, restricted time frames to perform work due to having to complete pre-activity surveys 

and T&E compliance activities; 3) increased risk of causing an incidental take of species by 

conducting foreseeable O&M activities within reoccupied areas; 4) restrictions on district work 

within its facility areas, e.g., herbicide applications, erosion damage repair, yard releveling; and 5) 

steadily increasing restrictions over the 100 year term of the permit as T &E species reoccupy the 

RJW. The activities impacted include, but are not limited to, the following: 

a. repair and replacement of existing buried and above-ground facilities 

including turnin and turnout pipelines, over the 100 year permit term; and 

b. installation of new facilities within RJW including turnouts, tumins, 

aboveground and underground pipelines, power lines, communication wiring, cathodic protection 

facilities; 

c. access to these facilities by District personnel and contractors, both on and 

off paved and graveled road surfaces; 

d. pest control at and adjacent to these facilities; and 

e. canal maintenance and water treatment activities. 

In summary, the draft HCP as it now is written, contains language that if adopted and 

implemented would create conditions for Local interests that would adversely impacts them. The 

areas of concern are summarized as follows: 

91-053 0 - 95 - 5 
126 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 -Bakersfield, California Hearing 

Pa e 26 

0 Restricted use of herbicides, insecticides and rodeilticides within the RIW by DWR 

impacts adjacent landowners. 

0 Management of the 135 miles of Aqueduct RIW for the benefit ofT&E species 

creates impacts to adjacent landowners by increasing populations ofT &E species 

which then migrate onto adjacent farm lands. 

0 The HCP requires DWR to act as the ESA enforcement agent for the CDFG and 

the USFWS. This results in added costs and time delays to Local water districts. 

0 Similar to the above, DWR as the ESA enforcement Agent for the CDFG and the 

USFWS creates impacts to other local easement and encroaclunent permit holders. 

0 The draft HCP covers only limited activities. This prohibits all future activities 

that may occur on the Aqueduct RJW. 

0 Requires a separate compliance process in addition to the Aqueduct HCP. 

0 Increased time and cost to maintain existing and install new facilities resulting from 

a biological survey and minimization and mitigation measures, possible 

requirements for compensation land purchases, lead time to negotiate appropriate 

compliance with wildlife agencies, restricted time frames to perform work due to 

having to complete pre-activity biological surveys and TIE compliance activities; 

0 Increased risk of causing an incidental take of species by conducting foreseeable 

O&M activities within reoccupied areas; 

0 Restrictions on district work within its facility areas, e.g., herbicide applications, 

erosion damage repair, yard releveling; and 

0 Steadily increasing restrictions over the I 00 year term of the permit as TIE species 

reoccupy the RIW. The activities impacted include, but are not limited to, the 

following: 

2. The HCP proposes, as an alternative to conventional compensation ratios of three acres 

for each acre of permanent disturbance, that DWR dedicate and obligate itself to manage for T &E 

Management Areas the RIW so as to minimize impacts to sensitive species. Similarly, this same 

compensation ratio is adopted with regard to permanent disturbances in the subsidence area. The 

methodology assumes an inflated compensation rate and thereby imposes increased financial and 

regulatory burdens on the State Water Contractors and their landowners in several ways: 

a. The premise that fixed ratios would require a ratio of three offsite replacement 

acres for each acre of R!W permanently disturbed is not substantiated as legally or 

scientifically required. The referenced conventional ratio is apparently premised on 

other species and projects and has no relation to the take of individuals and 

appears to be independent of whether the habitat is occupied by T &E species; 
127 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 - Bakersfield, California Hearing 

Pa e27 

b. In this instance use ofRIW acreage as on-site mitigation does not appear to 

attempt to establish the existence and extent of the biological value of the habitat potentially 

disturbed nor that proposed to be used as compensation habitat. Furthermore, on-site surveys are 

likely to establish that a significant portion of the RIW has relatively low habitat value while 

segregated and off-site compensation lands located proximate to wildlife reserves would have 

relatively higher habitat value to protected species. This is particularly true when RIW acreage is 

assessed witho;~t consideration for wildlife corridors which have not been documented by 

scientific study and research to be valid; 

c. Even if negotiated mitigation ratios are adopted in the conservation plan, in 

other approved plans lower ratios have been negotiated for large private projects. Further, it is not 

clear that any compensation is required in this instance, given that no jeopardy is likely to result, 

and a state permit under California Fish and Game Code Section 2091 is being sought; 

d. The premise of the fixed mitigation ratio is faulty in that no credit is given 

for the biological value of setting aside and securing compensation land from future development. 

The proposed ratio gives credit only for the enhanced carrying capacity that compensation land 

achieves after new habitat investments are made. This presupposes either that the government 

already has a conservation easement for the compensation land or that no net loss of total habitat 

values will occur from intervening actions causing jeopardy or material and permanent impacts to 

habitat. Neither of these propositions appear to have support in fact or law. 

e. No consideration is apparently given to the benefits that have and will 

accrue to TIE species from O&M practices modified to allow preservation of habitat suitable for 

TIE species. 

3. The HCP describes a paper called "A Biological Framework for Natural Lands and 

Endangered Species in the Southern San Joaquin Valley", which apparently was produced by a 

collection of state or federal agency staff, allied biologists and environmental advocacy groups, 

but without input from local government or the private sector. This report was vigorously 

rejected by the San Joaquin Valley County Supervisors Association as an attempt to impose land 

use planning constraints on their counties without proceeding through established public policy 

approval processes or legal requirements. As such, all references to it and reliance upon it should 

be eliminated. 

4. The HCP among others things, contain references which assume that the RIW has 

biological value as a wildlife corridor. However, the current draft Aqueduct HCP provides no 

scientific basis for this conclusion. VerY few expert corridor studies have been conducted and this 

area ofland use planning is in its infancy. Much of the literature on the design of wildlife 

underpasses, corridors and linkages is based on theoretical consideration with little if any 
128 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 -Bakersfield, California Hearing 

Pa e 28 

empirical supporting evidence. Specific features that likely make the RJW unsuitable as a wildlife 

corridor, such as width, vegetation and operational activities and adjacent land uses, do not 

appear to have been carefully analyzed or considered. A determination that the RJW has value as a 

wildlife corridor poses a risk to RJW uses and adjacent landowners, because it may eliminate or 

significantly restrict lawful uses ofthe RJW and/or adjacent lands, thereby creating an exposure to 

actions for damages necessitating condemnation (direct or inverse) or other similar claims. 

5. The proposed conservation plan provides that, in the event offacility failure, no repairs to 

restore water service are allowed until a cleanup plan is developed consistent with the Aqueduct 

HCP. The resulting delay in restoration of water deliveries to district landowners would increase 

damages to crops resulting from water service interruptions. 

E. ADJACENT LANDOWNERS 

I. Generally, the scope of the HCP is a problem. To the extent that all reasonably foreseeable 

non-O&M water delivery activities are not included in the HCP, and offsite impacts are 

considered in evaluating non-O&M activities on an individual basis, this works to the detriment of 

landowners in the area who intend to use the water. 

2. The HCP proposes restricting use of herbicides and pesticides along the RJW. These 

materials are important in controlling certain pests that may otherwise cause economic harm. This 

restricted use will create impacts on adjacent landowners, especially agricultural users. This 

reduced use will create additional vegetation which in turn creates a haven for a variety of pests, 

among them, insects, rodents, weeds, and plant diseases that threaten agricultural development. 

These pests invade agricultural lands and cause damage to various crops. Collectively these 

restrictions result in economic harm by reducing the economic production of adjacent lands and 

thereby lowering their long-term value as assets. Consequently, the ability of adjacent landowners 

to meet their financial obligations to districts, DWR, and their respective bondholders is 

diminished. As the land serves as collateral for local bonds, and the value of this collateral is 

reduced to the extent the land values are reduced. This, in tum, increases the collateral burden on 

non-adjacent landowners. 

3. The HCP recommends that local government should be encouraged to regulate adjacent 

land in a way that most benefits the T &E Management Area. There should be no recommendation 

or official decision to adopt as DWR policy a predisposed opposition to lawful developments 

adjacent to the RJW. Similarly, the conservation plan should not attempt to encourage local land 

use agencies, delegated by statute the responsibility for reviewing future developments, to obtain 
129 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 1995 -Bakersfield, California Hearing 

Pa e29 

exactions as a condition of approving the proposed development. If the wildlife agencies are not 

able or willing to purchase conservation easements to promote conservation goals, they should 

not by indirection seek the same result by placing obligations on DWR to secure restrictions on 

adjacent lands through local land use authorities. 

4. The brief reference to the draft Valley Floor HCP fails to evaluate whether the 

conservation measures presented in that plan will have impacts with regard to the proposed 

project, its likelihood to result in incidental take of species and any necessary minimization and 

mitigation efforts to address impacts of take. It is essential that these two (2) plans be coordinated 

and made consistent so as to avoid imposing duplicate regulator:y burdens and/or additional 

financial obligations on the same party. 

5. The HCP acknowledges that a conflict is likely to arise between farming and grazing uses 

and the use of the RIW as a T&E Management Area. However, this segment of the plan makes no 

assessment of the extent of the conflict nor does it attempt to avoid or mitigate adverse impacts 

caused to adjacent landowners. If a specific land use conflict arises then it must be clear that either 

the conflict is eliminated by automatically contracting the T &E Management Area or by 

compensating the farmer for loss of crops due to his inability to practice generally acceptable and 

otherwise lawful cultivation practices. For example, if a Jaw or regulation is passed prohibited use 

of pesticides within 1000 feet of a T &E Management Area or habitat believed to be occupied by 

protected species then the protected species will have to be relocated or otherwise removed from 

this segment of the RIW to accommodate the adjacent land use. Otherwise the landowner will 

have to be fully compensated for being prohibited from exercising his right to full beneficial use 

and enjoyment of his property. 

A related issue, not addressed at all in the draft HCP, is the degree to which farmers 

should be compensated for the greater amount of infestation, crop damage and compliance costs 

caused by the placement adjacent to their lands of an area where pests cannot be properly 

controlled. These conditions will result in increased populations of TIE species, and as their 

populations grow, they will tend to expand their range by moving off the R1W and onto adjacent 

property. This creates impacts to the adjacent landowners by increasing the likelihood of TIE 

species occupying these lands. Through normal agricultural activities, increased risks of a "take" 

and consequent violations of the endangered species acts occur. This will cause adjacent 

landowners and E&E Holders increased costs for compensation and mitigation requirements. 
130 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House ofRepresentatives Task Force on Endangered Species 

Aprill7, 1995- Bakersfield, California Hearing 

Pa e30 

6. The current conservation plan is predicated on an unjustified assumption that adjacent 

landowners will have to adjust their otherwise lawful land uses to accommodate the needs of 

maintaining a T&E Management Area proximate to their property. For example, this section 

suggests that future development activities that may negatively impact the R/W as a T &E 

Management Area should be limited, conditioned, redesigned or set back so that such negative 

impacts are eliminated or minimized. To the extent that such restrictions are placed on land 

adjacent to the R/W, the plan proposes to shift the cost and burdens of the HCP from DWR to 

adjacent landowners without compensation. This is unacceptable, particularly since cost savings 

was the express reason for not adopting a more conventional offsite compensation scheme. The 

full cost of obtaining the IO(a) pennit must be borne by the applicant. Assuming some form of 

on-site mitigation scheme is retained, the conservation plan must be amended to provide that 

DWR must provide either: 

(a) up front acquisition of conservation easements at the time a conflict arises 

or by payment of just compensation in an action for eminent domain. In this 

instance, liability is admitted with the only issue remaining being a 

determination of just compensation; or 

(b) the T&E Management Area must be automatically modified and contracted 

when the conflicting use arises, which contraction can be compensated for 

elsewhere on a prenegotiated pay-as-you-go basis. 

7. Use of the R/W for the benefit of species is an additional and more burdensome use 

beyond those expressly granted in the easement areas. Furthermore, it is unquestioned that the 

proposed adaptation of the R/W to a TIE Management Area was never contemplated or 

authorized in the prior grants of fee and easement title to the State. 

8. The conservation plan needs to be modified to strike a fair and reasonable balance with 

regard to amending the conservation plan in light of changed conditions. If subsequent laws or 

regulatory actions establish that certain species, habitat, or methods of mitigation assumed in the 

conservation plan are not lawful or legally required or appropriate and less burdensome and/or 

less costly measures are available, then at the applicants request, the plan should be modified to 

reflect the new requirements. Modifications to address newly listed species should be made only 

upon a showing by the wildlife agencies that the actions permitted cause an incidental take of such 

species which can not otherwise be avoided and that the impacts of the take require mitigation. 

Any additional mitigation measures for newly listed species or additional activities not otherwise 
131 

KERN COUNTY WATER AGENCY 

(A Political Subdivision of the State of California) 

Testimony of Thomas N. Clark Before The 

House of Representatives Task Force on Endangered Species 

April 17, 199 5 - Bakersfield, California Hearing 

P e 31 

permitted should be calculated according to the conservation plan or a mutually agreeable 

alternative which is less burdensome and costly. 

CONCLUSION 

Here is an example where DWR operations and maintenance activities along the California 

Aqueduct R!W have benefited T&E and other sensitive species. Now, to maintain these types of 

activities that have occurred over the last 25 years, the wildlife agencies are requiring expensive 

monitoring, reporting and wildlife studies. Holding up certain critical maintenance activities, and 

asking that the entire R!W be managed for T &E species. The wildlife agencies, rather than 

offering additional incentives to maintain and improve habitat value along the Aqueduct R!W 

instead, are penalizing DWR. The R!W managed for the benefit ofT &E species exposes the 

adjacent districts to a host of significant financial and regulatory impacts. 
132 

Photographic Slides for ESA Hearing, 4/17/95 

1 KCWA logo 

2 Kern County Water Agency map 

3 Harvesting grapes 

4 Com 

5 Cotton harvesting 

6 Melon harvesting 

7 Pistachios 

8 Oil well 

9 SWP Major Project Facilities 

1 0 Spreading grounds 

11 Spreading grounds 
1.8 

1.6 

1.4 

1.2 

1.0 

0.8 

0.6 

0.4 

0.2 

0 

133 

Water Supply Impacts 

Worst-Case* Scenario vs. Bay-Delta Agreement 

---- I Worst-Case* Scenario 

____ I Bay-Delta Agreement 

Drought Year Average 

Combined impacts of biological opinions for Winter Run Salmon, Delta Smelt plus 

12/15/93 EPA Standards. Does not include impacts from '1ake limits." 

Clil,I"KERN COUNTI 

.llltl WATER AGENCY 

4/17/95 
900,000 AF 

800,000 

700,000 

600,000 

500,000 

400,000 

300,000 

200,000 

100,000 

0 

134 

Lost Pumping Opportunities 

Due to the Endangered Species Act 

I DWR 

I KCWA 

1992 199 3 1994 

KERN COUKTY 

.ltltl WATER AGENCY 

4/17/95 
0 

135 

Fallowed Acreage in Kern County 

Due to the Endangered Species Act 

1992 

7,600 Acres Not Irrigated 

$2 0 Million & 400 Jobs Lost 

1993 

20,000 Acres 

$65 Million & 1 .000 jobs 

£ii1I KERJ' COUNTY 

.1111 WATER AGENCY 

4/17/95 
136 

Winter Run Chinook Salmon 

Ocean fisheries "take" 25% of adult population. 

Recreational fishing "takes" 3% of adult population. 

Delta export projects had "take limit" of one percent of juvenile population 

imposed, or 0.02% of the adult population. 

Wildlife agencies use a complex "formula" to compute "take." 

Their "formula" allegedly accounts for striped bass feeding in Clifton Court 

forebay and other factors. 

The water projects are held responsible for fish eating fish! 

In 1994, of smolts charged as "takes," none were proven to be Winter Run 

Salmon. 

Jllll" KERN COUNTI 

.11.111 WATERAGENCY 

4/17/95 
137 

Delta Smelt 

Populations are estimated using midwater trawl net surveys. 

In 1994 a pilot study compared conventional trawl net efficiency with Kodiak net 

efficiency. 

Date 

09/22/94 

09/29/94 

10/20/94 

Conventional Trawl Gear 

Average 

Catch/Tow 

2.6 

0.6 

0.0 

Average 

Catch/1 000 m3 

0.2 

0.06 

0.0 

Kodiak Trawl Gear 

Average 

Catch/Tow 

415 

131 

8.4 

Average 

Catch/1 000 m3 

54.1 

20.1 

1.4 

Wildlife agencies concluded that Kodiak trawl gear was not suitable for population 

surveys because all past data is based on conventional trawl gear. 

IlSll KERN COUNTY 

Iiiii WATER AGENCY 

4/17/95 
Si8,000 

7,000 

6,000 

5,000 

4,000 

3,000 

2,000 

1,000 

0 

-1 ,000 

138 

Land Value/Acre in Kern County 

Ground Water Districts 

Raw land 

w/Water 

Mature 

Orchard 

Surface Water Districts 

(West Side) 

Raw land 

w/ Water 

Raw land 

w/oWater 

Mature 

Orchard 

~KER.N COUNTY 

.IIIII WATER AGENCY 

4/17/95 
139 

California Aqueduct Habitat Conservation Plan 

O&M of the California Aqueduct has been ongoing for 25 years. 

At the request of wildlife agencies, and to reduce costs, DWR staff reduced its 

O&M. 

Subsequently, T&E species invaded the right-of-way. 

DWR was prevented from performing any land-altering O&M (weed control, 

grading of non-road surfaces) pending development of HCP. 

A draft HCP was developed without local participation. The draft HCP would: 

Severely restrict activities within right-of-way. 

Restrict use of herbicides, insecticides, rodenticides. 

Require DWR to act as an ESA enforcement agency. 

Change the authorized use of California Aqueduct by turning the entire 

right-of-way into a T&E management area. 

In addition, the draft HCP would have a negative, ripple effect upon adjacent 

landowners. 

flC1I KERN COUNTI 

Iiili WATER AGENCY 

4/17/95 
140 

1991 Emergency Ground Water Program 

KCWA faced an emergency water supply situation. 

A plan was devised to extract "banked" water by constructing 19 new wells and 

using other existing wells. 

A CDFG biologist determined that the 1991 emergency program posed minimal 

risk to T&E species. 

KCWA spent $28,000 for wildlife surveys and such, and NOT ONE THREATENED 

OR ENDANGERED SPECIES WAS FOUND. 

KCWA obtained an approved Biological Assessment & Mitigation Plan for 

construction of 19 new wells. 

In spite of this, 

Wildlife agencies' ESA requirements and bureaucracy resulted in a threemonth defay in construction of new wells. 

USF&WS refused to allow use of existing wells, even though an approved 

plan had already been obtained for construction of the 19 new wells. 

KCWA and DWR were prevented from recovering 100,000 AF, at a cost to KCWA 

of $3 million. 

~ KERN COUNTY 

.ltlll WATERAGENCY 

4/17/95 
141 

Kern County Economy and Employment 

$Billion 

16 

14 

12 

10 

8 

6 

4 

2 

0 

Total Economic Output 

Jobs 

250,000 

200,000 

150,000 

100,000 

50,000 

0 

Employment 

flC1I KERJ' COUNT>' 

.ltlil WATER AGENCY 

4117/95 
142 

UNITED STATES HOUSE OF REPRESENTATIVES 

COMMTITEE ON RESOURCES 

ENDANGERED SPECIES TASK FORCE 

Statement of Kenneth W. Peterson 

Chairman, Kern County Board of Supervisors 

April17, 1995 

Reauthorization of the Endangered Species Act 

Mr. Chairman and members of the task force, thank you for the opportunity to testify. As Chairman 

of the Kern County Board of Supervisors, I would like to express the County's appreciation to you for 

coming here to listen to our side of the endangered species issue. I would like to tell you about how 

a well-intended Act of Congress is harming our local economy and wasting public resources, and 

why the County of Kern supports a complete overhaul of this law. 

Kern County embraces more than 8,000 square miles of desert, mountain and valley terrain the size 

of Massachusetts which provides a bounty of food, fiber and minerals for the people of the United 

States and the world. The county's annual farm receipts of nearly $2 billion rank third in the country, 

we are the number one oil-producing county and our total mineral receipts topped $3.8 billion last 

year. The desert portion of the county contains two important military research, development, test 

and evaluation facilities, Edwards Air Force Base and the Naval Air Warfare Center at China Lake. 

1 
143 

More than 600,000 people live in Kern County. Because we have such widely varying geography, we 

also have a lot of plant and animal species with small populations and limited ranges that exist 

nowhere else. Kern County is home to 20 species listed as endangered or threatened under federal 

law, another 7 species proposed for listing and 93 species are candidates for federal listing. 

Our proximity to all of these listed species has made Kern County a laboratory for implementation 

of the Act. In our view, the Endangered Species Act is one government experiment that has gone 

completely out of control. 

Instead of preserving America's rich natural heritage, the state and federal governments are using 

the Act to dictate private land use, to extort land and money from property owners and to drive the 

cost of many local public works to prohibitive extremes. The agencies which apply and enforce the 

Act have almost become a law unto themselves, assuming powers never intended by the Act and, in 

my view, never granted by the Constitution. In very few cases are any endangered species 

recovering. Humans, however, are reeling from the impact. 

I would like briefly to list some of the assaults on private lands, local rights and local livelihoods that 

have occurred in the name of the Act. 

The U.S. Fish and Wildlife Service recently listed the Southwestern willow flycatcher as endangered. 

One of the ranges for this bird is a riparian area created by the storage of Kern River water behind 

Isabella Dam, which was built by the Corps of Engineers in 1954. The lake rises and falls seasonally 

as water is stored and released for flood control, irrigation and municipal use in the valley below. 

2 
144 

The dam has saved many millions of dollars in flood damage and has been a valuable tool in timing 

the delivery of water when people need it. But armed with the flycatcher listing, the Fish and 

Wildlife Service can force the Corps to release water to avoid flooding nesting areas behind the dam 

that humans created in the first place. 

California has been blessed with above average snowfall in the southern Sierra, which will show up 

as floodwaters later this spring. Isabella Dam was designed to catch these waters and deliver them 

later in the year, when they are most needed. U the water level can't rise, however, the dam's 

purpose and its cost will have been wasted. 

A recent study estimated the economic cost of protecting the flycatcher at $26 million per year and 

$617 million over the long term from lower groundwater levels, higher water and electric costs and 

resulting farm and business unemployment. 

The costs of a more widely known recent ESA listing, the fairy shrimp, are still being reckoned. 1his 

tiny and hardy animal exists throughout the Central Valley, Coast Range and Tehachapi Mountains 

of California and on four other continents. It is so adaptive because it can survive long droughts, then 

spring to reproductive life virtually any time and anywhere there is standing water. 

In effect, the fairy shrimp is a "freeze-dried" species that is not in danger of extinction, but a paper 

published by a university graduate student more than 15 years ago claimed that humans have 

destroyed most of the so-<:alled "vernal pools" or mud puddles that the shrimp calls home. So the 

shrimp was listed. An environmental study firm recently found one million acres of mud puddles in 

3 
145 

California that contain fairy shrimp. Even so, last September the Service put three kinds of fairy 

shrimp on the endangered species list. It could cost citizens in the Sacramento area an estimated $500 

million in lowered property value over the next ten years. The fairy shrimp could also cost farmers 

and ranchers up and down the Central Valley millions more if the Fish and Wildlife Service forces 

them to have their land biologically surveyed to try and prove that no fairy shrimp Jive there before 

they can farm it. Given the fairy shrimp's wide range and the stealth of its reproductive cycle, 

property owners may be forced to spend a lot of time and money to try and prove the unprovable. 

At the Fish and Wildlife Service's request, the Environmental Protection Agency recently issued a 

biological opinion preventing valley farmers from controlling rodents such as mice, rabbits, ground 

squirrels and gophers with chemicals since these rodenticides could also affect the San Joaquin kit fox 

and the Tipton kangaroo rat. If the EPA decides to put a ban on these chemicals into effect, it could 

cover more than 400,000 acres of cropland in Kern County alone. Farmers who may never have seen 

evidence of an endangered kit fox or a rat on their land would be forced to stand by and watch as 

more common pests ravage their crops. One farmer lost $40,000 of melons last spring to rabbits after 

that decision. The California Department of Food and Agriculture estimates crop losses in Kern 

County alone will total $13 million each year. As a county supervisor charged by state law with 

safeguarding public health, I am also concerned that foregoing commonly used, low-risk rodenticides 

would also increase the public health risk of rodent-transmitted diseases. 

The Semi-Tropic Water District near Wasco was recently ordered to construct a $200,000 "lizard 

fence" to keep the endangered bluntnosed leopard lizard out of its canal. Biologists cannot tell you 

whether a single lizard was saved from a watery death by this extravagance, but the farmers who use 

4 
146 

the water must tack that cost onto their operating expenses, which will eventually show up in food 

prices. Compared to other U.S. farmers, or their overseas competitors, California growers do not 

have a level playing field. Why penalize California agriculture? 

A local entrepreneur had a plan to treat and recycle oilfield wastes as a road surfacing material. His 

operation uses 20 acres of private land that the State Department of Fish and Game has determined 

is critical habitat for the kangaroo rat. After years of meetings and letters, the Department required 

this resident to acquire 380 acres of suitable habitat and to transfer the land to a management 

organization along with enhancement and endowment funds. That is 19 acres of habitat for every 

acre of usable land. This agreement ended up costing the resident $100,000 in retum for a permit to 

construct and operate his facilities. This kind of extortion has been repeated up and down the state. 

In other cases, decision~ to list species hundreds of miles away cause economic havoc to local 

property 0\.\'Tlers. Kern County farmers who irrigate their crops with water purchased from the State 

of California have seen their deliveries slashed-not by drought, but by pumping restrictions due to 

the endangered listing of the winter run Chinook salmon and the Delta smelt. As a result, farml'rS 

have had to idle much of their land, which has plummeted in value. But they still must continue 

paying the State's costs to build the delivery system they can no longer fully utilize. One farmer has 

taken 1,300 acres out of production while paying $130,000 for water he will never receive. His land 

is now worth about 20% of its value before the listings. 

In 1986, the State spent $32 million to buy 20,000 acres of fannland west of Bakersfield to develop a 

water bank-an underground storage system that would augment the State Water Project's capacity 

5 
147 

in wet years. Much of the land was allowed to return to nature, and state and federal wildlife 

agencies now claim that the land is home to several listed species including the kit fox and the 

kangaroo rat. They are demanding that the project set aside some 7,000 acres for a wildlife preserve, 

along with other burdensome requirements. Because of the huge added cost this represents, the State 

has all but abandoned any further development of the water bank, and local farmers must repay 

every dollar of the initial cost. 

The Act is adding immensely to the cost of public projects. Before the County of Kern could 

construct a liner and leachate collection system required by state and federal law to protect water 

quality at a county-owned landfill between Shafter and Wasco, the State Fish and Game department 

recently required the County to trap a satisfactory number of Tipton kangaroo rats from the property 

and to prepare new burrows at a wildlife refuge for relocation of the rats. These maneuvers also 

caused costly construction delays and payment of standby fees to the contractor. By the time the rat 

resettlement project was finished, it cost the County nearly $40,000. That money was paid by local 

taxpayers so that the County would not collide with one environmental law while trying to comply 

with another. 

Two years ago, building on a major state highway interchange in Bakersfield was delayed for several 

months at great cost because a kit fox, thought to be pregnant with pups, had set up housekeeping 

in a concrete pipe during a rain delay in construction. It took two months for biologists to conclude 

that this wasn't an active den. By the time the project was cleared to resume construction, the delays 

had cost taxpayers $100,000. 

6 
148 

Up and down the slate, when counties need to close a landfill, replace a bridge, or widen a road, they 

are being hogtied by delays, resbictions, and added costs under the Endangered Species Act. I 

believe that a number of your members have already received a copy of a survey conducted by 

California counties which outlines further examples. I would be glad to provide a copy to anyone 

who requests it. 

It is widely agreed that the Act is broken and needs to be fixed. I would like to offer some 

suggestions that many local residents believe will restore some balance to the Act and a measure of 

legal regard for the rights of people- by and for whom our government was founded. 

First, the Act should require the use of public lands and public money as a first recourse in the 

conservation and management of listed species. If preserving endangered species is to remain a goal 

of the federal government, the federal government, not the private landowner, ought to be willing to 

devote its landholdings and funds to species protection. When resbictions on private land are 

necessary, the federal government should compensate owners of private property for any action that 

impairs the property's value, or transfers it to public use for the purposes of the Act. Government 

must pay property owners when their land is condemned for other public purposes such as 

highways or military bases. Why should the Endangered Species Act be an exception? 

Second, the Act should promote agreements between federal and state agendes to end the costly and 

confusing duplication of regulatory efforts that now occurs in implementing the Act. This is 

particularly needed in California. 

7 
149 

Congress must also incorporate clear and objective standards for listing and delisting species. The 

lack of definitive standards has left the way open for listing decisions that are driven by court cases 

rather than ocience. Such legal constraints have forced the Service to push through listings without 

adequate scientific evidence or sound recovery plans. The result will be hundreds of millions more 

doUars in economic losses and unemployment with no guarantee that any listed species will recover. 

In fact, rushing into these listings without valid evidence and with no clear idea of how to recover a 

species virtually guarantees the opposite outcome. Is that what Congress intended when it passed 

the Endangered Species Act' 

Another badly needed change is to require an assessment of a listing's socio-economic impact. 

Currently, the Service is under no legal obligation to weigh the impact of its endangered species 

decisions on people's lives and jobs. For a resource-based economy such as Kern County's, there 

ought to be a guarantee that our needs will at least be counted when a decision is made in 

Washington. 

Another issue that reauthorization should clarify is what actually constitutes a "species taking" 

under the Act. Right now, property owners face potentially severe repercussions simply for 

modifying habitat, which many legal experts believe Congress never intended to include among 

actions constituting a "take" of a species. Until this problem is remedied, many public and private 

uses of land will be under a continuing legal cloud. 

Many of my constituents have also complained about the lack of closure on developing and 

implementing species recovery plans. In a remote area of my supervisorial district, badly needed 

8 
150 

local housing has been delayed for nearly 5 years because the Service will not issue a recovery plan 

to the property owner for an endangered weed, the San Joaquin woolly thread, which has been 

found on the land. 

By setting deadlines for developing recovery plans and for completing them, Congress could bring 

a degree of certainty to the Act that is now absent. And by requiring such plans to consider direct 

and indirect social and economic costs, Congress could also bring a degree of realism to recovery 

plans. 

Finally, Congress should emphasize multi-species conservation plans in order to steer regulatory 

efforts away from the tunnel vision that has resulted in costly single-species micro-management. 

Again, I would like to emphasize that any transfers of private land to enhance a multi-species habitat 

must be fairly compensated. 

To conclude, the citizens of Kern County support the goal of keeping sufficient portions of our 

country's natural resources intact. But the law which underpins this effort is greatly in need of 

repair. Huge amounts of time and money are being wasted, constitutional rights are being trampled, 

and only minimal progress has been made on conserving species. 

Endangered species are important, but people are important, too. Until that fact is recognized in the 

law, the conflict and coercion will continue. Economics can live in concert with environmental 

protection, but a balance must be struck between the preservation of plant and animal species and 

9 
151 

the rights of people. I sincerely hope that Congress will keep the need for balance uppermost when 

it rewrites the Endangered Species Act. 

Thank you very much for allowing me to testify today. 

10 
152 

______ • K_e_n_n_P . ..:..~-~h-x s-oo~-s-. e_sab_ke;..:..~-.?-. ~-.~~-o~-i.-~-~-o C_h_e_S_._ 

TESTIMONY OF MARK MESANE 

U.S. HOUS E OF REPRESENTATIVES 

COMMITTEE ON RESOURCES 

TASK FORCE ON ENDANGERED SPECIES HEARING 

APRIL 17, 1995 
153 

My name is Mark Mebane. I represent Kenneth Mebane Ranches. Kenneth 

Mebane Ranches is a family owned and ~perated cattle ranching corporation 

with headquarters located about 15 miles north/east of Bakersfield. We 

raise cattle on 18,600 deeded acres and about 8,000 leased acres including 

a U.S . Forrest Service Grazing Permit. 

I have been asked to briefly summarize an incident that we were involved 

in which occurred because we have endan~ered species, including a plant known 

as the PSEUDOBAHIA nEI RSONII, located on our private property. It will be 

difficult to be brief in describin~ a three year legal battle that cost us 

well over $100,000 in legal fees alone, but I will try . 

The PSEUDOBAHIA PEIRSON!! is an annual herb in the sunflower family 

which oc curs primarily in the foothills and grasslands of the eastern and 

southeastern portions of the San Joaquin Valley. 

Durin ~ the late 1980's, the Fresno Metropolitan Flood Control District 

(loca t ed in Fresno County which is 100 miles and 2 counties north of 

Bakersfie ld) was engaged in a project of constructing a series of dams. 

Scientists allege that once every 200 years, a storm will occur that will 

flood portions of the City of Fresno and the District was taking steps to 

prevent such a disaster. I am t old that the District was receiving some 

Federal funding thr h the Bureau of Reclamation. The District was blocked 

from proceeding with the project when the PSUEDOBAHIA PEIRSON!! was located 

on a construction site in Fresno County . As you know, anyone impacting a 

listed species is required to negotiate a mitigation plan. The California 

Department of Fish and Game, The U.S. Fish and Wildlife Service, and The 

Bureau of Reclamation joined in imposing a mitigation mandate through a 

Bureau of Reclamation permit. Apparently, because the plant was on the 

state list of endangered species, and was only proposed for federal listing, 

the California Department of Fish and Game became the lead agency in the 

enforcement of the collective man'date. Please note that although there. was. 

no federal designation of the plant at that time, the collective mandate 

was in place and would have been imposed whether the plant was state listed 

or federally designated and the result would be_ the same problem. 

The District contracted with a local botanical expert; Mr. John C. 

Stebbins, Herbarium Curator at California State University, Fresno, to assist 

and help construct a mitigation plan. Incidentally, Mr. Stebbins is the 

individual whose information and data was used as the basis for the state 

listing and proposal for federal listing of the plant. This I was able to 

learn through the freedom of information act. 

Stebbins visited the known places where the ,p1_a1lt : exists to study 

similarity and equality of habitat to the location which would be destroyed. 

The mitigation plan was to obtain property on a three to one replacement 

ratio and designate it as a sanctuary for the wildflower. The property would 

then be turned over to the Department of Fish and Game . Stebbins recoliUilended 

for mitigation the remaining portions of the Fresno County populations, and a 

40 acre parcel in the middle of the Mebane Ranch outside of Bakersfield 

together with an easement across !Iehane's property to get to the site. 

Because of time, I won ' t go into the reasons why Stebbins selected the Mebane 

Ranch site from the other 16 locations known to exist. The plan was submitted 

to the Department of Fish and Game where it was approved. The problem was, 

nobody asked the }Iehane family if they wanted a fenced 40 acre state flower 

preserve in the middle of a 25,000 acre cattle ranch . Not only was our opinion 

not asked , but our permission for Mr. Stebbins to study the plants on our 

property was not asked either. Had Stebbins sought our permission, it probably 

1 
1M 

would have been granted. We must have allowed someone in at some past point 

to study the plants as Stebbins only visited known occurrences. We have 

always honored requests from scientistS, students, members of the local 

university, or anyone else who was interested in studying the plants, wildlife, 

geology, and history of our ranch. \~e are proud of it. The Smithsonian 

Institute once excavated a prehistoric sea lion on our property. I can assure 

you that after what happened later, we changed that open door policy and we now allow entry to no one. 

The first we learned of this situation was in July of 1990, when my son 

located a man trespassing on the ranch and brought him to headquarters to 

speak to me. He said he was a surveyor hired by the District and was there 

to survey the land we were gain~ to sell. I laughed at him and told him that 

obviously he had the wrong ranch. We have no intentions of selling any of 

our property. Even if we did, it wouldn't be a 40 acre parcel in the middle. 

Without going into further detail, just let me say that this 40 acre hole in 

the middle of the ranch would create a number of logistical problems that we 

didn't want to deal with. I didn't even know about the eventual sanctuary 

and easement plans at that point. I sent the man back to Fresno with instructions to have his employer write me a letter stating who they were and exactly 

what they wanted. 

Then there began a series of letters, telephone conversations and meetings 

that eventually led to our obtaining the services of an attorney. ¥y father 

had spent many years and a great deal of money to obtain the showcase cattle 

ranch we now have. In some instances, he paid more than market prices for 

parcels inside the borders of our ranch so that we would have one contiguous 

piece of property; a desirable quality of a good cattle ranch. He refused to 

sell. That 40 acre parcel is part of our home as well as our business. 

In the fall of 1991, the district filed an eminent domain action against 

us as they had threatened to do fr6m my very first telephone conversation with 

the project engineer. I remember commer.ting to my father at the time that 

this is the thanks we get from the government for exercising good range 

management practices and stewardship of the land; they want to confiscate it. 

We were being penalized for doing such a good job of preserving the wildflowers. 

We countered the action with a request for the Court to rule on the issue 

of the District's authority to exercise eminant domain outside its area of 

jurisdic tion for mitigation purposes. The local Court ruled in favor of the 

District. We appealed to the State Court of Appeals, 5th District, which 

overturned the local decision. The District then appealed that decision to 

the California Supreme Court. The Supreme Court denied the request for a 

hearing therefore upholding the Appeals Court decision. 

In the Appeals Court decision, the Court granted permission to the District 

to amend their original complaint and attempt to prove their case in court (if 

they so desired) with regard to issues of legal necessity and feasibility under 

CEQA. Again, in the interest of time, I won't get further into details, but in 

January, 1993, the District ammended and refiled its suit. We were back to 

square one, so to speak. 

By now, the case had received much notariety and had even gained national 

attention. We were supported by many organizations. Amicus Curiae briefs 

were filed by the California Cattlemen's Association, the California Woolgrower's 

Association, the California Farm Bureau Federation, and the County of Kern to 

name a few. This was a precedent setting case which, if the District was 

successful, would allow urban areas to obliterate endangered species within 

2 
155 

their border and condemn property in rural areas for preserves to comply with 

the Endan~ered Species Act (state and federal). Pressure was mounting. 

For whatever reason, on April 1, 1993, at a settlement conference, a 

representative of the Department of Fish and Game announced to the Court 

that the Department had changed its position and was now willing to accept a 

two to one replacement ratio. Since the District had already condemned and 

acquired habitat in Fresno County to meet that requirement, no legal basis 

for the acquisition of our 40 acre parcel existed. 

The Court later ordered the District to reimburse our attorney fees. 

This apparently is standard under California Law in an eminent domain action 

when the property owner prevails. We were not reimbursed for disbursements 

and expenses which probably total around $25,000.00 or possibly more. 

As larger established landowners, we had the resources to spend $150,000 

in litigation costs. We were not intimidated by a governmental agency acting 

under the authority of and in compliance with the Endangered Species Act. We 

were minding our own business, violating no law, made no request of government 

to develop or otherwise change the use of our land, and were simply doing what 

has been done on this property since the 1860's; grazing cattle. We were 

attacked and had to defend our home just because, a~ain, we are so good at 

stewardship of the land that plants flourish there. 

Smaller landowners like most of our neighbors would not have been able to 

afford the costs of litigation. Many small ranchers have to supplement their 

income with work off the ranch just to get by. That 40 acre parcel could 

easily have been condemned had the district picked on someone else. Also, if 

a fenced 40 acre flower sanctuary would cause logistical problems for me, 

imagine what it would do to the guy with a 500 acre ranch. A person owning 

just a small parcel entirely occupied by the plant would have no property left 

at all. 

On April 21, 1993, I gave oral and written comments at a public hearing 

held by the U.S. Fish and Wildlife Service with regard to a proposal to list 

the PSEUDOBAHIA PEIRSON!! as endangered species under the Federal Endangered 

Species Act. Because of my 3 year battle over this plant, I have become somewhat of an expert on it myself. I am accompanied this evening by Ralph Phillips 

who is the Farm Advisor from the Kern County Branch of University of California 

Cooperative Extension. Ralph and I had several meetings wherein he taught me 

principles of field investigation, proper scientific method, and procedures. 

Utilizing this knowledge, I conducted field surveys of my own. I found much of 

the scientific data supporting the proposal to be inaccurate. I won't go into 

detail but let me cite just one example: In 1988 there were only 17 populations 

of this plant in existance spread out over a 200 mile stretch of foothills 

located in the southeastern portion of the San Joaquin Valley. The majority 

of these populations are next to public roads. It is truly a unique plant that 

tends to only grow close to a public road. Getting off the public road, I 

discovered 4 previously unrecorded populations within a 10 mile radius of my 

home . I can assure you, the range, distribution, and population size of the 

species is much larger than reported. 

On January 31, 1995, I gave oral and written comments at a public hearing 

held by the U.S. Fish and Wildlife Service with regard to the proposal to list 

10 new plants growin~ in the Sierra Nevada foothills. These include the 

FRITILLARIA STRIATA, proposed for threatened status, which exists on our property. Under the Freedom of Information Act, I was able to obtain the data 

supporting the proposal. Again, the scientific data is full of inaccuracies. 

3 
156 

As examples, without even going into the field I observed that: 

1) Natural Diversity Data Base FRITILLARIA STRIATA Occurrence #10. This 

site is identified by map coordi'rlates and the data states, "Probably 

extirpated, area all in citrus." This is not true. The location ia 

either on our property or >rithin 1,; mile. The citrus orchards are more 

that 2 miles to the south. 

2) In the management plan it is stated that only 16,000 of these plants 

exist as of 1988. Yet, a native species field survey form included in 

the data states 100,000 plants were counted at NDDB Occurrence #4. 

As a representative of the livestock industry, we support preservation of 

all species within reason. The rancher who does not properly manage his 

resources will not survive in business. But, we also support proper scientific 

analysis, procedure, and review in the listing of species. The data used as 

basis for state listing is exactly the same data used for federal listing. My 

experiences lead me to suggest that future legislation should address the 

issues of validating the claims of those proposing a listing, and protection 

of the private property owner who has done nothing but own property where 

endangered species exist. The livestock industry lives in fear that at some 

point in the future, regulations that now cover grazing on public land will be 

extended to private land. As more and more species are added to the list, the 

potential for more regulation of our private businesses grows. 

I would like to close my testimony with the same paragraph I wrote to end 

my comments at the public hearing for the proposal to Federally list the 

PSEUDOBAHIA PEIRSON!! in 1993. Quoting from Mr. Stebbins' Management Plan 

included in the supporting data (page 27): "Many of the known populations 

occur on ranches that are owned and operated by individuals who are not receptive to government interference." (underlined) I find this to be a very profound 

statement. Trespass on our property by a governmental employee (Mr. Stebbins) 

and attempted seizure of our property by a governmental agency (The Fresno 

Metropolitan Flood Control District) all in the interest of complying with the 

Endangered Species Act, cost my family about $150,000.00. You are darn right 

I'm not too receptive to "government interference." 

4 
Arthur D. Unger 

2815 La Cresta Drive 

Bakersfield, CA 93305-1719 

(805) 323-5569 

Representative Richard W. Pombo 

Ch. Endangered Species Task Force 

1519 Longworth Building 

Washington, DC 20515 

April 13, 1995 

Dear Chairman Pombo: 

157 

My April 17 testimony 

E.O. Wilson has said that history will not forgive us for depriving them of the life forms 

now on earth. No one wants any part of such an event to occur on their watch. That 

includes the 104th Congress. 

I think of five ways each of us is diminished each time we extinguish any species. 

These are the reasons our goal must be to preserve every kind of weed and fly the 

earth is now blessed with, except a very few that present a known health threat. 

First there is the thrill many of us get upon beholding the "mega-fauna" that the late 

President Richard Nixon had in mind when he signed the original ESA. 

Environmentalists think of the ESA as protecting not only eagles, but all life, including 

human beings. That is why the next five ideas are by far the most important ones. 

Second: Each species is part of the web of life; each species depends on, and is 

effected by, an almost unknowable number of other species. For example, burrowing 

animals, like Tipton's Kangaroo Rat, loosen up the soil; without them pastures, and 

eventually other lands would become so compacted plants would be unable to grow. 

This rat is the natural prey base for several local predators. Some, if not most, of the 

relationships between species are unknown; therefore we must accept Aldo Leopold's 

advice: "To keep every cog and wheel is the first precaution of intelligent tinkering." 

Third is the economic use any life form may have. More than one third of the 

prescription drugs in the United States derive from wild plants and animals, so do many 

industrial chemicals. Wild strains are constantly being cross bred with domestic plants 

to maintain resistance to disease. Soon, we will extract genes from the wild and insert 

them into our animals and plants. 

Biological controls lessen our dependence on pesticides. Bats, birds and other insects 

have always reduced the number of insect pests. Kern County has controlled the ash 

white fly by introducing wasps. 

Tourists are attracted to areas that are managed primarily for endangered species. 

Foreign tourists reduce the trade deficit. These areas do not degrade as they produce 

revenue, as areas devoted to producing natural resources do. The Carrizo Plain, 130 

minutes drive from Los Angeles, is one such area. 

91-053 0 - 95 - 6 
158 

Fourth is the warning that the disappearance of a species gives us. Just as canaries 

on the hats of old-time miners suffered from harmful gases found in the mines, before 

the miners did, some creatures alert us to environmental toxins. For example, when 

birds at the top of the food chain declined, we found that DDT became concentrated in 

their eggs. This showed what DDT might do to us. Another example is the crowding 

out of land dwelling k-rats and kit foxes in this valley. A place too crowded or toxic for 

them, might be too crowded or toxic for us. Only 5 or 10% of each of the original natural 

habitats in this valley remain. Would destroying the last bit of habitat bring prosperity 

that was not secured when the bulk of the habitat was destroyed? 

Lastly, humans can not create complex species. We do not know if a sub-species, like 

Tipton's kangaroo rat, has just the genes needed to help it's species survive natural 

evolutionary pressures, as well as any changes humans may impose on the planet. We 

do know that we can extinguish any population; but, even those who come centuries 

after us may not be able to create higher life forms. 

Here are three ways to finance this goal. 

First, there are some places that can support endangered species and be used 

commercially. This often works with birds. For example, keeping cattle away from the 

South Fork of the Kern River may help the Southwest Willow Flycatcher. 

In contrast, commercial use of the floor of this valley usually means covering the 

ground with houses or row crops. 

Second, if an individual benefits from taking something that benefits society, that 

individual should pay and be regulated, even if taking occurs on private land. Filling 

wetlands and taking endangered creatures are examples of taking something from 

society because it is on private land. Sometimes the finding of endangered species on 

one's land, or having one's land designated as critical habitat, lowers the value of one's 

property. These are two of the many risks a business is subject to in our society. 

Habitat Conservation Plans are an example of paying for taking. This approach is 

difficult for us because we think that when something of value is found on private land, 

it is as if the landowner struck gold. 

Thirdly, perhaps the government should compensate those whose property looses 

value because it harbors endangered species. HR 2043, the 1994 legislation to 

reauthorize the ESA, allocates $25 million a year for landowners who protect creatures 

on their land, in ways not mandated by federal agencies, while commercially using that 

land. Compare these $25 million a year to the $1.8 billion a year that the Conservation 

Reserve Program allocates for landowners who protect erodable soil on their land. 

Please join us to add to these ways and find a way to recover all the listed species. 

Thank you, 

~~- Arthur D. Unger/ ~ 
159 

TESTIMONY OF LESJJF Y REID 

before 

THE TASK FORCE ON ENDANGERED SPECIES 

of 

Tl IT~ COMMITTEE ON RESOURCES 

April 17,1995 

BAKERSFIFID, CAJJFORNIA 

Mr. Chaitman. my name i,; Leslie V Reicl and my home is in Pine 1\loul!lain Clul'. Kem 

County. I want to thanl you l(JI !Ius opportunit~· to -:ommt:nt on th~ reauthotization of 

the l·,ndangercd Species Act. 

Sint,e I have ne;ther at,ademic credentials nor special scientili.: expetti~e 10 otli:r. vou 

might \Vonder why this rctir<·d tool&dicmakcr and I'S .':avy veteran is and has been 

sctiouslv conccmcd with the sun ivai of endang~red spcctes. 

i\!Y first col!lact \\ith a serious revie\\ of the dlcct of modem ci\ilitahon on th..: natural 

world was reading "Siknt Spring" h\ Rachel Carson when it was lirst published Ill I %2. 

Since then I have tried to do what I could to repair the damage we have done to the wild 

inhabitants of our \Vorl d. !\,lay I suggest that e\ ·cryone--and particularly those who are our 

elected rcprcsentatives--nlight well reread tms s..:nlinal tn:atise that really chang~;;d histor~·. 

Dc:spitc its ag~. older than man~· here todav. its message: is a> p<:rtin~nt tOllay as when 

tir>t publishtd. 

The Endangered Species .\ct was enacted in 1973 to protect animal and plant sp.o..:ies 

threatened by extinction. Amended in 1978.1982 and 1988. this act provided that any 

endangered or threatened ( likely to become endangered) species or subspecies be listed 

with the Secretary of the Interior, or if a marine species with the Secretary of Commerce. 

The Fish and Wildlife Service and the National Marine Fisheries Service were then to 

develop regulations to protect those species listed. 

The act required that all federal agencies assure that their actions do not jeopardize the 

continued existence of an endangered or threatened species or result in the destruction or 

modification of the critical habitat of such species. The Secretary of the Interior. in 

.:onsultation with the affected state. was to detennine \Vhich habitat was ctitic:al to a species' 

existence. The act also prohibited the killing. capturing. importing, expot1ing. or selling 

any of the speci<:s listt:d as endangered or threatened . 

. '\ major stipulation wmch contributed to the stn:ngth of the act was its pro\ision tor 

enforcement on the public level. Citizen lawsuits could be tiled to enjoin a tederal project 

if th;rt pn~icct did not prmidc lor the protection of ::ndang::red or thn:akn~:d species. This 

prmision lor .;ititcn suits wa' a pm,c::rlul w..:apon for the deknse ol C:ll( an~erul and 

threakn;;d sp~~ies since so many cmironmcntaiiY-alt~Jing activities sudt as rc..:reational 

development. dam buildi.tw .. logg.ing and mining either !al-e piau; on kd~r~l lands or <•re 
160 

-ub ~-:~ tn •<:.d<Till :;nan.:ing "I l<:ckraln:glib!ion. n-.,. ;un<.:n(ltncnts .,f 197~.J'}R2 :md 

I 'i~R matk som<: impm1;m: but no ba<.i.: ~hang-e~ in :h~ . \d .. -\ commillt:<: l,.nown "' th<· 

"( roJ Squat!" I\ as gih·n some aulltnritl· 10 grant "'cmptions. c;;nnPmic impad statcmc:nts 

11 ~rc quir~d. and em.:rgcn~y listings prol·i,leJ lor hut Ilk· .·\ct 11' llnginall~ · "mc~t\·cd 

r~mains 111 dfc~;t .. 

We . the .:itizcns of Califomia have lxnctit..:d fi·om the Endangered Snccics Ad in many 

\\·ays: the brown pdican aimosi rcarhcd total n:tin~til>n due ro the eftect ol DDT. Dm to 

fcd;.;ral a;;tion it i~ now" hc<~lthy populatiPn numb~:ring in the thc.>usamb .. Docs not l'Very 

person ht:r~ get ;1 re2lthrill to s.:e those m;tgnili.:cllt hints "h.:n '':;: we frequent our cnotslal 

area;;',> Tho: t~deral Jnd pri·.-:ue :tgen.:i.:s h,11 ~ 1\.ori;<:J togeth.:r to ,a,·e th.: Calitomia 

Condor. I have personn;;IJy been involved in the: Condc'r l:{.;~ovet~· hogram and the 

prl'tcction of its habitat sin..:c: it was lin.t con~ein:d in the middle sixties. The migratory 

wildlik suth:ling pai.nhd do:;llhs in the f.:estctwn ',\-ildli!C Rdugc !rom s..:lcnium run•'" 

~~'•''" the kdcrath· suh~tJizc:d \\e't ~id.;: bnning de\el<)pment are ''""·h rccm c:ting. 

The locJI kem and Lo~ Angdcs ('(,Unty rcsidcllls in the ~lunnan ar~a wert: ablc to 

prt:\.:1' e the ancicotmigr:llc>r\ song hird ll~w:;y tlm•ugh th~ 1\ion P.tss ti·om bt·,otning :1 

'\uisin:l11" lor th~ birds I!Ying. 10 n~gOIIJk through tiH: proposed 1\ind fann . The 

channing lillk kit lox and yes. th~ mu;:h maligned kangaroo rat. are still :!live anti well. 

Our contact with th.: natural \\orld is t>ccoming more cnntincd. \\·:.: dliv~: S\lifll~ and sec 

or smelllinlc of th~ other living species: still it is appan:nt lhatmost if nc•t aU pcopk strh c 

to maintain ,ome wnn<·ction with the "others". Those who would put a dollar sign on our 

eVer)· act are at loss to explain the million.~ of houseplan~ in high lise apartments or the 

lavish affection we h~vc:: for our man~ · difkr~nt pet species. The thousands of ye<~rs the 

human spedes was in daily wnta~:t with the otht:r inhabitants of our planet cannot bt: 

era~ed hy a cnuple of hundred , ·ears of modc::m lif..:. 

\\'e need a strength.:ning of the EndangeJ't:J Species Act. In pat1icular. and despite the 

budget cuning S}lldrome, we need more funding for the A.:t. Acquisition of critical 

habitat access .:onidors, more and bener knowledge of how not onlY to protect the"fur 

and feather creatures" but also the plants that are the source of hundreds of new medicines 

should be the concern of this corrunittce, as well as for us ordinary ~:itizens who would liKe 

to leave the natural world a little hetter than we lound it. 
161 

COALITION TO PROTECT & PRESERVE 

PRIVATE PROPERTY RIGHTS 

PRESENTATION TO 

TASK FORCE ON 

ENDANGERED SPECIES OF 

THE COMMITTEE ON RESOURCE 

BY: GREG GALLION 

PRESIDENT 

COALITION FOR PROPERTY 

RIGHTS 

P. 0 . BOX 822 

BAKERSFIELD, CALIF. 93302 

800-308-3733 

COAliTION MISSION STATEMENT: 

P.O. Box 822 

Bakersfield, CA 93302 

18051 323-3859 

1800) 308-FREE 

FAX 18051 323-4138 

T hf' 1::•c;s ron of the Coalition To Protect & Preserve Private Property Rights is to educate and assist 

prr ;J tf; property awners in t he protection and preservation of their right to own and use private property 

<i~· i1 fforrlerl bv the United States Constitution, The Bill of Rights, and as an American Ideal. 
162 

PAGE I 

I WOULD LIKE TO THANK THE MEMBERS OF THE TASK FORCE ON ENDANGERED 

SPECIES OF THE COMMITTEE ON RESOURCES FOR ALLOWING ME TO SPEAK 

TODAY . MY NAME IS GREG GALLION, PRESIDENT OF THE "COALITION FOR 

PROPERTY RIGHTS." I'M SPEAKING ON BEHALF OF THE COALITION AND THE 

KERN COUNTY FARM BUREAU. OUR COALITION CONSISTS OF MEMBERS FROM 

THE KERN COUNTY FARM BUREAU, ASSOCIATION OF REALTORS, BUILDING 

INDUSTRY ASSOCIATION, INDEPENDENT OIL PRODUCERS ASSOCIATION, 

CATTLEMEN'S AND CATTLEWOMEN'S ASSOCIATION PRIVATE, ENTERPRISE, 

LOCAL POLITICAL OFFICIALS AND VERY CONCERNED KERN COUNTY CITIZENS. 

AS YOU HAVE HEARD. OUR ORGANIZATION IS A VERY BROADLY BASED GROUP. 

LET ME GIVE YOU A FEW EXAMPLES OF THE WAY THE ENDANGERED SPECIES 

ACT IS BEING MISAPPLIED IN THE AREA TO CAUSE SERIOUS HARDSHIP BOTH TO 

INDIVIDUALS AND THEIR COMMUNITIES. 

FIRST EXAMPLE 

HOWIE AND KAREN WASS ARE FRIENDS AND NEIGHBORS. THEY GREW UP HERE. 

KAREN USED TO TEACH SCHOOL, HOWIE HAD A SPORTING GOODS STORE. WITH 

A FEW PARTNERS, THEY STARTED UP A VERY CLEVER BUSINESS, COMBINING 

TOURNAMENT WATER SKIING AND AQUACULTURE, LATER SELLING LAND CLOSE 

TO THEIR PONDS TO SERIOUS SKIERS, CREATING BOTH A PROFITABLE 

SPORTS/AGRICULTURAL OPERATION AND A VERY PLEASANT RURAL 

NEIGHBORHOOD. KAREN AND HOWIE MANAGED THE AQUACULTURE END OF 
163 

PAGE 2 

THE BUSINESS, GROWING CHANNEL CATFISH. THEY HAD WHAT THEY CALL 

"MODERATE SUCCESS," AND DECIDED THEY COULD MAKE A "GO" OF PURE 

AQUACULTURE. IN DECEMBER 1991, THEY AND A PARTNER BOUGHT 150 ACRES 

ON EDISON ROAD JUST SOUTH OF ARVIN, NEAR THEIR EXISTING SKI/FISH 

FACILITY. THIS PROPERTY WAS ZONED FOR AGRICULTURE, WAS BORDERED BY 

FARMLANDS PLANTED IN CROPS, BUT WAS ALSO CLOSE TO THE ARVIN 

LANDFILL. FOR YEARS, PEOPLE WHO COULD NOT GET INTO THE LANDFILL HAD 

DUMPED HAZARDOUS MATERIALS AND LARGE AMOUNTS OF TRASH ON IT. THE 

HEALTH DEPARTMENT HAD DEMANDED THAT THE PROPERTY BE CLEANED OF 

TRASH , AND THE SELLER AGREED TO CLEAN UP THE HAZARDOUS MATERIALS 

AS A CONDITION OF CLOSING ESCROW, WHILE KAREN AND HOWIE HIRED A 

CONTRACTOR TO CLEAR THE NON-HAZARDOUS TRASH. THE TRASH CLEAN-UP 

JOB HAD PRETTY MUCH BEEN COMPLETED WHEN ESCROW CLOSED. KAREN AND 

HOWIE DECIDED TO FENCE THE PROPERTY IMMEDIATELY TO STOP THE ILLEGAL 

DUMPING. THIS IS WHEN THEIR NIGHTMARE WITH THE US FISH AND WILDLIFE 

SERVICE BEGAN. 

A FRIEND AGREED TO DISC THE FENCELINE FOR THEM. LAW ENFORCEMENT 

OFFICERS OF THE FISH AND WILDLIFE SERVICE STOPPED THE DISCING, 

CLAIMING IT WAS KILLING ENDANGERED TIPTON KANGAROO RATS. THIS WAS 

JANUARY 10, 1992. KAREN AND HOWIE DID NOTHING MORE ON THE PROPERTY, 

BUT UNKNOWN TO THEM, ON JANUARY 14 THE TRASH CLEAN-UP CONTRACTOR 
164 

PAGE 3 

RETURNED TO COMPLETE THE JOB. THE FISH AND WILDLIFE SERVICE 

THREATENED JAIL, FINES, HELL AND DAMNATION. THEY DID NOT ASK ANY 

QUESTIONS BEFOREHAND AND WOULD NOT TAKE ANDY EXPLANATIONS: JUST 

SAID IT COULD TAKE A WEEK OR A YEAR TO DECIDE WHETHER TO FILE 

CRIMINAL CHARGES. 

TO MAKE A LONG STORY SHORT, NOW IN 1995, KAREN AND HOWIE HAVE NO 

FISH FARM ON THE PROPERTY: HAVE SPENT ABOUT $10,000 IN PENALTIES TO 

SETTLE WITH THE FISH AND WILDLIFE SERVICE, AND ABOUT $40,00 IN 

ATTORNEY FEES: AND HAVE A PROPERTY THEY PAY TAXES ON BUT CANNOT 

SELL, CANNOT FARM, AND CANNOT FENCE. ALTHOUGH CRIMINAL CHARGES 

WERE NEVER FILED, THEY LIVED UNDER THREAT OF JAIL FOR THREE YEARS. 

TRASH HAS CONTINUED TO BE DUMPED ILLEGALLY. THE PROPERTY HAS 

BECOME NOTHING BUT A LIABILITY TO THEM AND A HEALTH HAZARD TO THE 

COMMUNITY. 

NOW, THE PROBLEM HERE IS NOT JUST WHAT HAPPENED TO KAREN AND 

HOWIE. THIS HAS HAPPENED TO OTHERS AND COULD HAPPEN TO ANYONE. 

WE HAVE AT LEAST TWO OTHER SIMILAR CASES IN THIS SMALL AREA ALONE: 

THE WANG LIN FARMS CASE; AND THE VALLEY COMMUNITIES INC. CASE. 

PEOPLE JUST DO NOT KNOW THAT THEIR PROPERTY IS CLAIMED FOR HABITAT 

BY THE FISH AND WILDLIFE SERVICE. IT DOES NOT APPEAR IN THE CHAIN OF 

TITLE. THERE IS NO NOTICE BY MAIL OR IN THE NEWSPAPERS. MIND YOU, 
165 

PAGE 4 

NONE OF THESE CASES INVOLVES DESIGNATED CRITICAL HABITAT--NO 

HEARINGS ARE HELD, AND NO PUBLIC INPUT IS ACCEPTED. THIS IS DIRECT 

REGULATION OF LAND USE BY THE FISH AND WILDLIFE SERVICE BY 

INTIMIDATION. THERE IS NO DUE PROCESS OF LAW. 

SECOND EXAMPLE 

BRUCE HAFENFELD IS NOT ABLE TO TESTIFY TODAY. BUT HE ASKED ME TO 

TELL YOU ABOUT HIS AND HIS NEIGHBORS' PROBLEMS WITH THE ENDANGERED 

SPECIES ACT. 

FOR A YEAR AND A HALF. THE PEOPLE OF THE COMMUNITY OF LAKE ISABELLA 

HAVE BEEN LIVING UNDER THE THREAT THAT THE LAKE, WHICH IS THE TOWN'S 

ECONOMIC UNDERPINNINGS. WILL BE DECLARED CRITICAL HABITAT FOR THE 

SOUTHWESTERN WILLOW FLYCATCHER, CAUSING PROFOUND INTERFERENCE 

WITH PRODUCTIVE USES OF THE LAKE AND LAKE SHORE. THE LAKE IS ALSO 

CRITJCALL Y IMPORTANT FOR FLOOD CONTROL AND WATER STORAGE FOR 

BAKERSFIELD AND THE SURROUNDING AGRICULTURAL AREAS. THE NEEDS OF 

FLOOD CONTROL AND WATER STORAGE REQUIRE SEASONALLY IMPOUNDING 

WATER ABOVE THE LEVEL THE SERVICE WANTS DRY FOR HABITAT. THE 

RESIDENTS OF THE LITTLE COMMUNITY OF LAKE ISABELLA BANDED TOGETHER 

AND SPENT MORE THAN $20,000 FOR BIOLOGICAL CONSULTANTS IN ORDER TO 

PROVE TO THE FISH AND WILDLIFE SERVICE THAT THE LAKE SHORE IS 
166 

PAGE 5 

ABSOLUTELY UNSUITABLE AS CRITICAL HABITAT. THE KERN FIVER WATER 

DISTRICTS SPENT OVER $23,000 COMMISSIONING A STUDY WHICH CAME TO 

THE SAME CONCLUSION. THE U.S. FOREST SERVICE, WHICH OWNS THE LAKE 

SHORE, DID ITS OWN REPORTS. NONE SUPPORT THE DESIGNATION. MOREOVER, 

THE DATA SUBMITTED MAKE IT CLEAR THAT THERE IS PLENTIFUL HABITAT 

ELSEWHERE IN THE KERN RIVER VALLEY UNDER THE STEWARDSHIP OF NATURE 

CONSERVANCY AND PRIVATE LANDOWNERS, MAKING DESIGNATION OF THE 

LAKE SHORE NOT ONLY INAPPROPRIATE BUT UNNECESSARY. THIS 

INFORMATION HAS FALLEN INTO A BLACK HOLE. A YEAR AND A HALF LATER. 

THE FISH AND WILDLIFE SERVICE HAS STILL NOT RESPONDED TO THEIR 

COMMENTS. ECONOMIC DEVELOPMENT IN THE COMMUNITY OF LAKE ISABELLA 

IS NEARLY AT A STANDSTILL WHILE THEY WAIT FOR THE SERVICE TO RESPOND. 

BAKERSFIELD RESIDENTS LIVE IN FEAR OF A RETURN TO HISTORIC FLOODING 

AND A PERMANENT REGULATORY DROUGHT. 

THIRD EXAMPLE 

MEANWHILE, ON THE SOUTH FORK OF THE KERN RIVER, WHICH FLOWS INTO 

LAKE ISABELLA WHEN IT FLOWS, FOR THREE YEARS THE CALIFORNIA FISH AND 

GAME DEPARTMENT'S 1601 PERMIT FOR ROUTINE CLEARING AND GRUBBING A 

NARROW 20-FOOT WIDE, 14 MILE LONG STRETCH HAS BEEN HELD UP BY FISH 

AND WILDLIFE SERVICE ENDANGERED SPECIES OBJECTIONS. THIS IS WORK 

THAT THE NATURAL RESOURCES CONSERVATION SERVICE AND LOCAL SOIL 
167 

PAGE 6 

CONSERVATIONIST, IN A WRITTEN REPORT, SAY NEEDS TO BE DONE TO ALLOW 

THE CHANNEL TO CLEAR ITSELF IN HIGH WATER. THEY ALSO SAY THE IMPACTS 

ON HABITAT WILL BE MINUSCULE: 1.2 ACRES AFFECTED IN 14 MILES OF 

STREAM. THE RIVER FREQUEI'o'TLY FLOODS, BUT AS LONG AS IT CAN RETURN 

TO ITS MAIN CHANNEL. THE DAMAGE TO SURROUNDING PROPERTIES IS NOT 

EXTENSIVE. HOWEVER, IF THERE IS NO LONGER A CLEAR MAIN CHANNEL, IT 

WILL NOT RETURN TO WITHIN ITS ESTABLISHED BANKS BUT WILL GOUGE A NEW 

CHANNEL ACROSS SOMEBODY'S PROPERTY. EVERYONE INVOLVED IN 

MANAGEMENT ON THE CHANNEL WORK WAS FINALLY TENTATIVELY APPROVED 

BY THE FISH AND GAME DEPARTMENT JUST BEFORE THE RECENT DELUGE, BUT 

IT STILL HAD TO GO THROUGH FISH AND WILDLIFE SERVICE CONSULTATION. 

AND THAT PROCESS IS ANOTHER BLACK HOLE. THREE MONTHS HAVE PASSED 

AND NO DECISION HAS COME OUT OF THE SERVICE YET. THIS WINTER THE 

RIVER DID INDEED LEAVE ITS BANKS AND FLOOD SURROUNDING PROPERTIES. 

THE EXTENT OF THE DAMAGE CANNOT BE ASSESSED AT THIS TIME, BECAUSE 

THE SPRING MELT IS NOW ARRIVING ON TOP OF THE JANUARY AND MARCH 

FLOOD. EVEN IT THE FOLKS ALONG THE RIVER ARE LUCKY THIS YEAR, THEY 

MAY BE NEXT YEAR. THEY NEED TO HAVE ASSURANCES THAT THERE WILL BE 

REGULAR CHANNEL CLEANING ON THE SOUTH FORK. IT SHOULD NOT TAKE AN 

ACT OF CONGRESS TO GET SOME REASON INTO THE ENDANGERED SPECIES ACT 

SO THE THESE PEOPLE'S PROPERTY IS PROTECTED. IF THAT IS WHAT IT TAKES, 
168 

PAGE 7 

THOUGH, WE WANT YOU TO GET IT DOWN. 

THERE IS A COMMON THREAD THROUGH ALL THESE PROBLEMS. THE 

ENDANGERED SPECIES ACT WAS NEVER MEANT TO ABOLISH DUE PROCESS OF 

LAW OR TO MAKE THE FISH AND WILDLIFE SERVICE THE FEDERAL SUPER LANDMANAGEMENT AGENCY, DICTATING HOW OR EVEN IF PRIVATE PROPERTY CAN 

BE USED OR PROTECTED THESE SHOULD BE LOCAL DECISIONS BY OUR OWN 

COMMUNITY GOVERNMENT, WHICH KNOWS LOCAL CONDITIONS AND HAS TO 

LIVE WITH THE RESULTS OF ITS DECISIONS. THERE IS NO DUE PROCESS WHEN 

THE SERVICE CAN MAKE COMMUNITIES SPEND $20,000 TO PROTECT THEIR 

ECONOMY AND THEN NOT EVEN RESPOND FOR OVER A YEAR. THERE IS NO DUE 

PROCESS WHEN THE SERVICE CAN HOLD UP FLOOD CONTROL WORK FOR YEARS 

UNTIL PROPERTY WASHES AWAY. THERE IS SURELY NO DUE PROCESS WHEN 

THE SERVICE CAN PROSECUTE PROPERTY OWNERS FOR CRIMINAL "TAKES" ON 

PRIVATE PROPERTY WHICH IS NOT DESIGNATED CRITICAL HABITAT. 

THIS ACT HAS TO BE CHANGED TO ALLOW FOR PROPERTY PROTECTION, TO 

PROVIDE INCENTIVES INSTEAD OF PENALTIES TO PRESERVE ENDANGERED 

SPECIES HABITAT ON PRIVATE LAND, AND TO GIVE AUTHORITY BACK TO LOCAL 

GOVERNMENT OVER LOCAL AFFAIRS. 
169 

Honorable Richard Pombo 

Chairman, Task Force on Endangered Species 

U. S. House of Representatives 

Washington, D.C. 20515 

Dear Congressman Pombo: 

RE: TESTIMONY, APRIL 17 HEARING 

ESA REAUTHORIZATION 

BAKERSFIELD, CALIFORNIA 

My name is John Lemley, representing Holmes Western Oil Corporation. We are oil 

producers who also operate a well servicing and drilling business. Holmes Western is a 

family owned and operated business of 50+ years with 70 years of oil industry 

ellperience. We employ 100 people, operate 14 leases, and have a total of 150 wells. 

As an oil producer, I primarily operate leases managed by the Bureau of Land 

Management of which the federal government receives up to 12 1/2% In royalties. 

To get right to the point, 15 years ago we could obtain a permit in 2 days. Now, It takes 

a year or longer or is impossible to obtain. Also, the cost of mitigation, I.e. mitigation 

and bio-surveys has Increased. We have gone from paying for a U cent stamp to recent 

attempts in obtaining permits at a cost of $17,500 for 4 wells. That's before a shovel full 

of dirt can be turned and this figure does not take Into account any in-house costs. Due 

to the ESA, I can only drill 1 well per project per year. I have approllimately 10 

projects. 

If the ESA was administered properly (fairly)(as written) and both direct and indirect 

social, economic and environmental costs were considered, we could keep a drilling rig 

busy year round, employ an additional 30 people and would spend 9 million in the 

community and 3 million would be spent on payroll for my employees and employeees of 

service and supply companies. 

We are well aware that the list we are presenting is certainly not Inclusive of all of the 

roadblocks presented to the oil Industry. I could give several enmples of how the ESA 

has had an adverse affect on our Industry; however, specific to Holmes Western's 

operations the ellamples below stand out have certainly impacted our day-to-day 

operations and scheduling. Because of the ESA, our 1-year project has become a 20-year 

project. Needless to say, It has had an adverse Impact on both production and 

employment opportunities. 

Some ellBmples of adversities met with in trying to comply with ESA as currently 

Interpreted: 

Time Delays 

Our last well for which permitting was applied, took 4 days short of a year 
170 

to obtain from the U. S. Fish and Wildlife Service and this was with 

congressional intervention. Finally, after a year of delays, economics 

dictated that we not drill the well. 

We had already gone through the same ESA permit process with 4 wells in 

the immediate vicinity, 5 on the same 80-acre parcel and were in 

compliance with requirements for all 9 wells. Knowing the past 

requirements, we committed to comply with regulations at the outset of the 

permitting process. But even with this upfront agreement, the process still 

took 1 year and additonal costs ...... hiring of a botanist/biologist who had 

already surveyed the immediate area, which did not change the original 

mitigation. Time delays resulted in a $600,000 loss of employment and 

production. Another up-front cost is compensation for temporary and 

permanent habitat loss, i.e. for every 1 acre developed, 3 acres must be 

purchased or 3 acres of your own property donated. 

In addition to time delays and money lost, some of things we had to commit to in order 

to obtain a permit were: 

I. A verification survey of the site for San joaquin kit fox conducted by a 

qualified biologist within 60 days prior to the beginning of construction to 

determine if species of concern have moved into the area. The applicant 

will provide the Bureau with a report of the preactivity survey findings 

prior to construction. 

2. Perform pre-performance meetings prior to construction beginning with all 

employees and subcontractors. The session will review environmental, 

safety, and operations requirements. 

3. Implement an employee educational program on endangered species, and 

the measures required to protect them. 

4. Use water as a dust control measure during construction of well pad area. 

5. No grading will be performed on Howline right-of-ways. All lines will be 

laid along existing roadways. 

6. OtT-road driving will be prohibited. Speed is not to exceed 15 mph on 

access roads. 

7. Proper containment of and disposal of solid-wastes including food stuffs. 

Feeding of wildlife will be prohibited. 

Page 2 
171 

8. Inspection immediately before use and sealing of all pipes potentially of 

use to listed species. 

9. Fire lighting equipment will be required on all vehicles. All welding will be 

performed In open areas free of combustible materials. 

10. Should any federally listed wildlife species be killed or injured, the 

applicant's on-site representative will contact the Sacramento Field Office 

of the U. S. Fish and Wildlife Service and the Caliente Resource Area of 

the Bureau as soon as possible. 

11. Written notice will be given to the Service within 3 days of the incident. 

12. No firearms, knives, alcohol, or pets will be allowed on location for the 

duration of the drilling program. 

13. No Hoover's wooly-star will be disturbed. Populations discovered during 

the Bureau's Initial on-site inspection will be fenced to avoid Inadvertent 

disturbance. 

14. To minimize the potential for off-road use, the well pad will be fenced with 

'T' posts and smooth wire in those portions of the well pad perimeter that 

will not be needed for safe ingress and egress. 

15. The applicant will compensate for temporary and permanent losses of 

habitat in the form of habitat rehabilitation within the project area. The 

applicant has agreed to compensate for temporal)- habitat Joss with a 1.1 

to 1 ratio and for permanent loss with a 3 to 1 ratio. 

16. All areas containing listed species will be staked and nagged. No 

disturbance or activities will be conducted outside of the area surveyed 

without additional surveys. Use of additional area will be approved in 

advance by the Bureau. 

17. The applicant will submit within 45 calendar days after completion of the 

project a post-activity report that details the following information: dates 

of grading and construction; success in meeting project mitigation 

measures; explanation of failure to meet such measures, If any; known 

project effects on species of concern, If any (including numbers of burrows 

damaged or destroyed); occurrences of incidental take of federally listed 

species, if any; assessment of the extent and severity of project impacts on 

all sensitive wildlife habitats; summary of rehabilitation plans, if any; and 

other pertinent information. This report shall be written be a qualified 

biologist. 

Page 3 
172 

18. The area to be developed should be staked using the minimum area 

necessary for the pad. The flowline right-of-way should be staked to avoid 

all Hoover's wooly-stars. 

19. A preconstruction survey should be done by a qualified biologist to ensure 

that the flowline route is chosen to minimize the damage to existing small 

mammal burrows. 

20. Unsafe condition - location too small for equipment. 

In conclusion, the ESA has delayed many projects and cost the industry millions of 

dollars. Western Well, who In 1990 employed 290 people, has now decreased to 100 

employees. Of 34 operable rigs, only 6 are currently operating. Holmes Western 

considers the employees as family and feels an obligation to provide continuity of work 

and a paycheck every week. 

Also submitted with my testimony are comments from lOP A staff concerning general 

and specinc comments on the ESA reauthorization for your consideration. 

Page 4 
173 

RE: ESA HEARINGS 

APRIL 17, 1995 

As for how Congress might address these issues in future legislation, I have included a list with 

recommended ESA reforms .... 

I. GENERAL COMMENTS: 

1. Include provisions that will require timely public notice of petitions to list species. 

Also, provide for public participation in reviewing status review reports. 

2. Acknowledge a legislative preference for the conservation and management of 

species on existing public lands. 

3. Promote state-federal agreements that delegate the Implementation of the federal 

ESA in order to prevent the duplication of regulation and assure greater public 

accountability. 

4. Provisions must be incorporated to protest against the uncompensated taking of 

private property. 

5. Provisions must be incorporated that requires mitigation priorities be established 

that will place the highest priority for mitigation on public lands and multiple use 

should not be excluded. 

6. Time requirement for permit reviews and project decision making must be 

incorporated into statute, failure to meet such requirements, without a justifiable 

reason and mutually acceptable delay will result in the automatic approval or the 

permit. 

7. Provision to allow applicant participation in agency consultations (Section 107) 

II. SPECIFIC COMMENTS: 

A. SECTION 3: 

1. Form an "Independent" peer review panel that will evaluate relevant scientific 

Information based on clearly defined and objective standards; 

2. Provide for mandatory public hearings In the listing process following publication 

or the scientific justification and an analysis or potential human, social and 

economic impacts. 

Page #1 - ESA Reforms 
174 

RE: ESA HEARINGS 

APRIL 17, 1995 

3. Require the preparation and consideration or the socioeconomic impact statement 

ror consideration prior to each listing and specll'y standards that acknowledge a 

listing may not be In the national Interest due to countervailing economic and 

social Impacts. 

4. Provide ror an abbreviated process to de-list species in order to emphasize the 

Importance or removing recovered species rrom the list. 

B. SECTION 4 - Recovery Planning: 

1. Amend Section 4, to explicitly require the consideration or both direct and 

indirect social, economic and environmental costs in the development or recovery 

plans. 

2. Require the Interior Secretary to solicit public participation in the preparation or 

recovery plans. 

3. Require that a Recovery Plan and disclosure or criticial habitat determination be 

published simultaneously when a species is proposed ror listing, with the final 

listing not valid until those issues are resolved. 

4. Require the USFWS develop and implement Recovery Plans in cooperation with 

State agencies. 

5. Give priority to multi-species recovery planning with common habitat needs on an 

area SIH!cific basis and emphasize recovery on existing rederal lands. 

6. Amend the ESA to consider the connection between critical habitat and the 

Incidental "take" or listed species located "outside" or designated critical habitat 

areas. 

C. SECTION 7 - Consultation Process: 

1. Acknowledge that the "No Jeopardy" finding place emphasis on multi-species 

rather than species specific standards where appropriate. 

2. Allow expedited consultations when new lnrormation discovered at the last minute 

threatens to delay projects that are already underway. 

3. ClarifY that during the Section 7 consultation process, rederal agencies shall have 

Page #2 - ESA Rerorms 
175 

RE: ESA HEARINGS 

APRIL 17, 1995 

the responsibility or demonstrating rrom existing inrormation: 

a. The presence or Threatened & Endangered Species in the area or proposed 

activity; and, 

b. The proposed activity will adversely affect the species. 

This would eliminate the impossible burden on private parties to conduct new 

scientinc investigations and inventories. 

4. Amend Section 7 to allow the direct consultation available ror non-rederal parties. 

In addition, allow voluntary consultations with enrorceable conditions ror small 

projects in lieu or 10(a)(1)(B) permits when there is no regional HCP in place. 

D. SECTION 9 • Take Prohibition: 

Claril"y the intent or the "take prohibition to be consistent with the intent or Congress. 

This includes clarification that "take" does not include the modification or species 

habitat. 

E. SECTION 10 • Habitat Conservation Plans: 

Acknowledge a legislative prererence ror the development or multi-species conservation 

plans that avoid the need ror micro-managed, species by species protection. 

F. SECTION 12 • Authorization or Appropriations: 

1. Provide expressly allocated public runding ror implementation or the law 

including Recovery Plans and habitat conservation plans. Give prererence to local 

government conservation planning efforts. 

2. Establish broad-based runding mechanisms and incentives that encourage 

planning, acquisition, protection, enhancement, management and restoration. 

Page #3 · ESA Rel"orms 
176 

UNITED STATES HOUSE OF REPRESENTATIVES 

COMMITTEE ON RESOURCES, TASK FORCE ON ENDANGERED SPECIES 

Testimony of Ted James, AICP, Kern County Planning Director 

April 17, 1995 

Thank you Chairman Pombo and Committee Members for the opportunity to testify about the 

effect of the Endangered Species Act (ESA) on the people of Kern County and how your Task 

Force might address revisions to the law. 

My name is Ted James, Director of the Kern County Planning Department. I am in a unique 

position to comment on the ESA since I deal with this law, the U.S. Fish and Wildlife Service 

(USFWS) and affected property owners on a daily basis. The County Planning Department is 

involved in addressing endangered species mitigation as individual land use applications are 

proposed. The Planning Department has also been involved in two significant Habitat 

Conservation Plans and the delisting of a ground squirrel under the California Endangered 

Species Act. 

Kern County's jurisdiction is unique since it involves a diverse geographic region of more than 

8,000 square miles. Significantly, 75 percent of the County is under private ownership. 

Kern County's economy has significant national importance in that Kern is the top oil-producing 

county in the nation and one of the leading agricultural countys. Edwards Air For~ Base and 

the Naval Air Warfare Center at China Lake also provide important contributions to the 

County's economy and the nation's defense. 

Kern County is unique from other regions in the nation in that it contains one of the highest 

concentrations of plant and animal species protected by the ESA within the continental United 

States. The region is occupied by 18 species listed as threatened or endangered under federal 

law. Another 81 species are candidates for federal listing. The listed species include plants, 

foxes, birds, rats, lizards and even a little "freeze-dried" species called the fairy shrimp. In 

addition to these plant and animal species, there is another evolving endangered species that the 

ESA is ignoring which is the people of Kern County. 

The conservation of America's wildlife and natural resources is an important goal. However, 

the implementation of the ESA by the USFWS is not achieving this purpose. Many Kern 

County residents exhibit outrage and frustration at the manner in which the federal government 

is using this law to dictate private land use, extort land and money from private property owners 

and create an environment of distrust and scientific suspicion. 
177 

I have personally witnessed the following negative situations in the administration of the law: 

I. USFWS staff defensively promote species conservation to such a degree that lillie 

emphasis is placed on protecting the economic pursuits of private landowners; 

2. Individual personalities at the USFWS seem to dictate a project's success or failure in 

complying with the ESA; 

3. USFWS staff view their roles as being "regulators" rather than "facilitators " when 

implementing ESA. 

4. USFWS staff make decisions to list species without adequate scientific basis in the 

absence of meaningful public review; 

5. There exists a redundant endangered species regulatory process in California where both 

the USFWS and the California Department of Fish and Game impose requirements that 

the public views as over-regulation. 

It is no wonder why this type of regulatory environment causes Kern County property owners 

to exhibit outrage and frustration with their federal government. If your going into business in 

Kern County, whether it involves farming , oil production or urban development, the ESA can 

make life very complicated and expensive. For example: 

I. Throughout much of Kern County, it is typical for the USFWS to require the 

replacement of three acres of suitable habitat for each one acre that is developed along 

with the provision of adequate maintenance and endowment funds. The reasoning 

provided by the federal government for requiring three times the amount of land taken 

is the lost carrying capacity for endangered species that results from the "take" of habitat. 

Applicants must not only seek out this replacement habitat, but they must also ensure that 

a reserve management entity is available to receive the property. In addition , expensive 

biological reports are required and species "take" minimization or relocation measures 

are imposed along with time consuming and uncertain USFWS negotiations. 

2. One Kern County resident proposed to develop a business that would treat and recycle 

oilfield wastes so it could be used as a road surfacing material. He selected a 20 acre 

site in western Kern County that was proximate to the oil fields. The USFWS viewed his 

property as a "designated endangered species reserve area" even though it is privately 

owned. It tOQk several years and many time-consuming meetings to develop an 

agreement with the USFWS. For a 20 acre project site, the agreement specified that this 

individual had to acquire and transfer 380 acres of compensation land to a suitable habitat 

management organization including enhancement and endowment funds. That is a 19: 1 

compensation ratio. The time, the $100,000 expense and extent of mitigation was 

excessively burdensome for establishing a much-needed business. 

-2-
178 

3. In February , 1992, much needed transportation congestion improvements were being 

undertaken at a major highway interchange in Bakersfield. A pair of San Joaquin Kit 

Fox moved on the construction site during a rain-delayed lull in construction. Work on 

the $8.5 million interchange project came to a halt when biologists assumed that a kit fox 

was having pups in the den. Federal requirements do not allow active dens to be 

disturbed during the January I to April 30 denning season. Following a two month 

delay, the biologists concluded that there were no pups and work could proceed. The 

delay ended up costing taxpayers in excess of $100,000. 

4. In 1993, the USFWS issued a Biological Opinion at the request of the Environmental 

Protection Agency (EPA) regarding the continued agricultural use of several common 

fumigants and rodenticides. The use of these measures are important for controlling 

mice , rabbits, gophers and ground squirrels in farming operations and also for protecting 

dams and levees. If the EPA were to implement the Biological Opinion, there would be 

significant impacts to over 400,000 acres of Kern County 's agricultural crops. The 

California Department of Food and Agriculture and the University of California prepared 

a 1994 study which indicates a minimum $13 million annual loss to Kern County farmers 

if the new restrictions are imposed. 

5. Many farmers are fearful that endangered species will recolonize lands that have come 

out of agricultural production due to changing agricultural practices or lost water 

entitlement. As a result, they keep fallow fields plowed which can aggravate airborne 

dust problems and cause unnecessary fuel costs. 

6. Kern County and the City of Bakersfield undertook the preparation of a significant multispecies habitat conservation plan that was approved by the USFWS last year. The 

Metropolitan Bakersfield Habitat Conservation Plan involves a 408 square mile program 

area. With all of the biological benefits afforded by this comprehensive program, it is 

unfortunate that it had to endure an arduous seven year process from program initiation 

to final approval. Both the USFWS and the California Department of Fish and Game 

created successive roadblocks after consensus was achieved locally amongst the building 

industry, environmental and public groups. Unless the USFWS can demonstrate their 

commitment to facilitate the development of locally acceptable programs, local 

governments and landowners will be reluctant to commit the significant time and 

resources that are presently required to undertake the tedious negotiations and redundant 

review procedures that characterize the federal habitat conservation plan approval 

process. 

As can be seen by the aforementioned examples, ESA and the USFWS make it difficult to 

develop planning programs and undertake economic pursuits in Kern County. It is clear from 

these examples that comprehensive ESA reform is needed. Listed below are recommendations 

for ESA Reauthorization: 

-3-
179 

NEEDED REFORMS OF THE FEDERAL ENDANGERED SPECIES ACT 

A. General Conunents 

Acknowledge a legislative prefe rence for the conservation and management of species on existing 

pub I ic lands rather than private property. 

Promote federal-state. agreements that delegate the implementation of the federal Endangered 

Species Act in order to avoid duplication of regulations and assure greater public accountability. 

Provisions must be incorporated to address the uncompensated taking of private property. 

B. Section 3 Listing and De-Listing Improvements 

Form an independent peer review panel that will evaluate relevant scientific information based 

on clearly defined and objective standards. 

Provide for mandatory public hearings in the listing process following publication of the 

scientific justification and an analysis of potential human, social and economic impacts. 

Require the preparation and consideration of a socio-economic impact statement for consideration 

prior to each listing and specify standards that acknowledge a listing may not be in the national 

interest due to countervailing economic and/or social impacts. 

Provide for an abbreviated process to de-list species in order to emphasize the importance of 

removing recovered species from the list. 

C. Section 4 Recovery Planning 

Require the U.S. Fish and Wildlife Service to develop and implement recovery plans in 

cooperation with state agencies. 

Set deadlines for completion of recovery plans for all listed species. 

Require recovery plans to be developed and implemented in cooperation with state agencies. 

Amend Section 4 to explicitly require the consideration of both direct and indirect social, 

economic and environmental costs in the deve:opment of recovery plans. 

Give priority to multi-species recovery planning and emphasize recovery on existing federal 

lands. 

-4-
180 

D. Section 7 Consultation Process 

Acknowledge that the "No Jeopardy" finding place emphasis on multi-species rather than 

species-specific standards where appropriate. 

Allow voluntary consultations with enforceable conditions for small projects in lieu of 

IO(a)(l)(B) Permits when no regional HCP is in place. 

E. Section 9 Take Prohibition 

Clarify the intent of the "take" prohibition to be consistent with the intent of Congress. This 

includes clarification that "take" does not include the modification of species habitat. 

F. Section lO(a)(l)(B) Habitat Conservation Plans 

Acknowledge a legislative preference for the development of multi-species conservation plans 

that avoid the need for micro-managed species-by-species protection. 

Institutionalize the "No Surprises" policy so that unforeseen listings cannot void pre-existing 

deals. 

G. Section 12 Authorization Of Appropriations 

Provide expressly allocated public funding for implementation of the law including recovery 

plans and habitat conservation plans. Give preference to local government conservation planning 

efforts. 

Establish broad-based funding mechanisms and incentives that encourage endangered species, 

planning and conservation measures. 

Conclusion 

It is important that the ESA Reauthorization effort be based on the application of the best 

scientific principles. Past reliance on bad science and incomplete research has severely damaged 

the credibility of the law. In addition, it is imperative that ESA promote conservation of wildlife 

in a way that considers economic factors and respects the rights of private property owners. The 

concepts of conservation and the furtherance of economic pursuits do not have to be mutually 

exclusive goals. Incentives, flexibility, reasonableness and emphasis on the utilization of 

existing public lands and resources should be the guiding principles of the reauthorization effort. 

Mr. Chairman, I thank you for the opportunity to comment before your Committee. 

TJ:jb 

House.rep:c:wrkgroup 

4/95 -5-
181 

STATEMENT PRESENTED BY DENNIS IVERSON ON BEHALF OF 

11ffi UTAH FARM BUREAU FEDERATION TO 11ffi HOUSE COMMITTEE 

ON NATURAL RESOURCES TASK FORCE ON ENDANGERED SPECIES ACT, 

CONGRESSMAN BILL TIIOMAS, CHAIRMAN 

BAKERSFIELD, CALIFORNIA • APRIL 17, 1995 

My name is Dennis Iverson. I appreciate the opportunity to testify at this hearing in 

behalf of the Utah Farm Bureau Federation and over 23,000 Farm Bureau members throughout 

the state of Utah. I'm a cattle rancher and I live in the small community of Washington in 

Washington County, which is located in the southwest corner of Utah. 

My ranching operation is based in Utah. The Utah/Nevada line splits my winter range, 

so I actually ranch in Lincoln County, Nevada, as well as Utah. My family has been farming 

and ranching in the area for well over 100 years. My grandfather immigrated to this area in the 

early 1860's. I began ranching with my father as soon as I was strong enough to handle a horse. 

I purchased my first ranch from my father at age 19. I have since bought out neighbors and 

relatives until I now maintain a herd of about 400 mother cows. My ranch is dependent upon 

the ability to use the public lands. My permits are attached to and based on my private property, 

similar to the way water rights are attached to a piece of land. I have worked with public land 

agencies for many years and generally we have had a good relationship. Together we have been 

able to develop good range management practices. As I have worked with the land management 

agencies in developing allotment management plans, we have enjoyed seeing and managing for 

wildlife, livestock and other land resources. 

Then along carne the Endangered Species Act and the threatened listing of the Desert 

Tortoise. Bear in mind the listing is "threatened," not endangered. The animal is not 

endangered, there are thousands of them scattered over millions of acres. The reason for the 

threatened listing is due to some loss of habitat around cities such as Las Vegas and an upper 
182 

respiratory infection that was discovered in the species, a disease which has most likely existed 

with the tortoise historically. There is no evidence to the contrary. The Bureau of Land 

Management has the responsibility to implement the recovery plan as set forth by the U.S. Fish 

& Wildlife Service. Most of my winter range is tortoise habitat and would become a part of a 

desert wildlife management area. Domestic livestock grazing would be eliminated under the 

plan. The only way that we have been able to keep our livestock on the range has been to 

challenge the process in court. Litigation is expensive. There must be a better way. 

My livestock depend on this range for 7 months during the year, from November to May. 

ln May, [ move onto national forest range. Without a winter range for my cattle, the summer 

range has little value. With the elimination of grazing on tortoise habitat, my ranching operation 

would virtually be eliminated. As we were called into meetings to review the biological opinion 

and the proposed grazing decision on the allotment, the B.L.M. representative asked the U.S. Fish 

& Wildlife Service if they were prepared to defend their decision should the ranchers challenge 

it in court. The Fish & Wildlife Service indicated that would be the responsibility of the B.L.M. 

B.L.M. officials then stated they had no documentation which indicated that livestock grazing had 

a negative impact on the tortoise. 

The decision to eliminate livestock is based on the assumption that grazing may have a 

damaging impact on tortoise. There are several practices which could be implemented to 

promulgate the tortoise, such as predator control and the elimination of collecting by people. 

It would seem reasonable that the first tortoise preservation practices implemented should not 

eliminate the livelihoods of America's producers. Certainly, sound science should be in place 

before taking away the grazing rights of southwestern ranchers. 

2 
183 

History indicates that the presence of ranching activities has been beneficial to the Desert 

Tortoise. When the first settlers arrived in southwestern Utah, northwestern Arizona and eastern 

Nevada, they found the native Piute Indians existing on anything they could gather for food. 

This included lizards and rats. No mention is made of tortoise being available. Predators were 

so numerous that early sheepherders had to build fires around their flocks at night to protect them 

from bobcats and coyotes. An outbreak of rabies and extensive predator control helped eliminate 

the predator problem. After that, the tortoise began to be more abundant. The forage plants 

preferred by tortoise were introduced as a result of livestock grazing. It is my strong opinion that 

the presence of ranching has increased tortoise populations in the northeast portion of the Mojave 

Desert. 

Another challenge with management of endangered species under the current Act is the 

threatened loss of water rights in order to guarantee instream flows to protect certain obscure fish. 

Three species are involved. The Virgin River Chub and the Woundfin Minnow are currently 

listed as threatened species in the Virgin River. Another tiny minnow, the Virgin River 

Spinedace, has been proposed for listing. The habitat of the spinedace occurs in tributaries of 

the Virgin River, but is not found in the main river channel. 

As currently written, the Endangered Species Act provides that these fish be preserved 

at all cost. Remember, these are not game fish with economic value, but rather until recently 

have simply been regarded as "trash" fish. Prior to the Endangered Species Act there was never 

any organized effort to preserve them, and yet the fish have survived. 

Water is a most precious commodity in the southwest. The Virgin River provides the 

lifeblood for our communities and crops. Please recognize that the people who depend on this 

river are eager to assure that its waters continue to flow. But because of heavy demands on the 

river during the summer irrigation season it is absolutely necessary that additional storage 

3 
184 

reservoirs be constructed to conserve excess flow during the winter and early spring so there will 

be enough water to support the growing human population in St. George and other communities 

served by the Virgin River. It is ironic that those who seem to be most concerned about saving 

the little fish arc also the ones who oppose additional reservoir development. 

In closing, I want to thank the Committee for holding this hearing. Conserving the plant 

and animal species of the earth and providing adequate habitat is a noble intent worthy of pursuit. 

It is absolutely essential, however, that preservation of the human race be paramount. The 

Endangered Species Act must be reformed and modified to address the concerns of privaie 

property owners. Scientific data and study of endangered species must be thoroughly peer 

reviewed to provide assurance of accuracy. Human and economic concerns must be addressed 

during all phases of any recovery effort. In its current form, the Act specifically forbids 

consideration of human and economic impacts of recovery efforts. Critical habitats for over 800 

species of animals and plants are being created, with more than 4,000 additional species under 

active review for additional protection. We, the American people, expect and deserve a common 

sense approach in revising the Endangered Species Act to make it compatible with human 

population growth and the continuation of our civilization. 

Dennis Iverson 

40 East 200 North 

Washington, UT 84780 

801-673-2936 

4 
185 

TO: The Honorable Richard Pombo, Chairman 

Endangered Species Act Task Force 

1519 Longworth House Office Building 

Washington, D.C., 20515 (202) 225-1947 

(SAMPLE QU ESTIONNAIRE OF 

HUND REDS RECEIVED) 

Honorable Richard Pombo: 

Please consider this questionnaire and accompanying comments as "'Y testimony for the Task Force 

Hearings on the Endangered Species Act I wish to include i11to the records my comments about: 

_LMining ~Forestry -l.Lfarming ..L_Private Property Rights ...!::_Grazing 

I am concerned about the following Endangered Species: 

~Owl ;::::Faiiy Shrimp -"-Salmon _::::Other 

I. The EndaJ!~red. ~~cies Act has impacted my ability to earn a living. 

(A.GREE .. ' DISAGREE NO OPINION 

. 2. The Endangered Species Act has caused land owners in California to lose access to private property. 

0Q_~if; DISAGREE NO OPINION 

3. The Endangered Species Act should be amended so that listing of a species will occur only after a 

recove:~ 

~ 

been produced and financed. 

DISAGREE NO OPINION 

4. The Endangered Species Act should be amended so that private property will not be taken without 

compensat(Qn.___ 

@REEj DISAGREE NO OPINION 

S. The Endangered Species Act should be amended to include a process for delisting as soon as 

recovery plans ~ achieved. 

0GREE../ DISAGREE NO OPINION 

6. The E~ Species Act has caused severe economic and social devaslation in rural California. 

~~~ · DISAGREE NO OPINION 

7. The costs of implementing the present Endangered Species Act are unacceptable to government, to 

busincg. to Dmmunities, and to individuals. 

AGREE • DISAGREE NO OPINION 

8. The failure oftbc Endangered Species Act is compounded by the severe economic and social harm it 

basimpo~----.. 

~~g_) . DISAGREE NO OPINION 

9. Our laws should balance protection of the species with protection of people and natural resource 

providing !;O...nlllt_unitics across Amarica. 

(AGREE) DISAGREE NO OPINION 

WrinenCommcn~·-----------------------------------------------------------· 

To nlkSMe )'OUt QOdQCIKJ pkuc fiU in compkldy: 

Signature Phone Fax 

Name. Address 

Town .Slate.' Zip Date. 
186 

THIS I S A SAMPLE Of HUNDREDS OF PETITIONS CONTAINING THOUSANDS 

OF SI GNATURES RECEI VED 

PETITION SUPPORTING REFORMS TO THE 

STATE AND FEDERAL ENDANGERED SPECIES ACTS. 

'1N 1 the untfcraigned citizens of the United States, suppon reauthorization of the State and l'edcral Endaflllcred 

Species Act• only if it includes the followins reform provisiODI: The Act must be changed sn as to protect the rishts 

ofrrivnte rrnrcny owncu; •cicntific peer review must be required beforea species is listed; economic impact rcpons 

mu•t he done sn ns to dctl:f1lline the effects ofa listins on 1 community; the Endangered Species Act mu~t take into 

occuuutlhc right• ufturaying Americans IS afForded by the United Statu Constitution and The Bill of Rights. 

l::·:L ~:;;~~~~~:~~~~~:::C:ily~-~15 -~la~:~~~~~mll ~~)::~-:;;;~~~~ .. -~.::.;;; · ;.·::· =· ,.· 'l J::::,-.------'--------Ci-1)<-IS-~::: ------. ~-~-----~ 

Non~c(l'rinl) ______________ Silnalun:: ---------~ 

Addoc.,._, (l'rioot);_::::---:~~~~~~~~C~d)l~-~/S~-~(P~rinl~):~~~~~~~~:;;;::z~d ~~oo (Print)· __ ·- _____________ Sip!lblnl: _____________ ] 

l~~"'" (t'r~nt)~ City/State (Print): Zip: I 

~nmc;l~rioot)_ ... __________ S~ ----------1 

I Addro." (~nnt)r;_· ---:;~~~~~~~~~~~C~ily~/S~Ia~lc~(Print~-~)~: ~~~~~~~~~Z~ip~: ~~~-

[:::-);_-~~~-:--=-~-~-~~-~~-~-~~~-i-~-~-~-~-~-~-Cii)<~'~/~S-ta~:~ipa~(Prinl~:=~);:~-;;;;;;~-;;;;;~-;:~Zi~p;~~~~~~ ~;:t_)_ .. _· _________ Cily/S_ _~::; ________ Zip- .-,--j 

~Nwnc (l'rint): __________ Sipatun:: ------__ ~Zip: -

l Min:.~•. (l'rint) City/Swc (Print): ~ 

Pctitfto> o:ircul•tcd by:---------=-=-----

Phnilc Nn _____ Addn:s.: ----..,_,.....,----·! 
187 

SUBMISSIONS FOR THE RECORD 

Due to the high cost of printing, material submitted from the following was placed in the hearing record files of the committee: 

Art, Sandra 

Axtel, Dwight 

Bacon, Prof. Leonard A. 

Balls, M. Reed 

Barber, BradT. 

Bissett, Elizabeth and Lester 

Bowns, Dr. James E. 

Brown, Karen J. 

California Association of Resource Conservation Districts 

California State Association of Counties 

Clove, Terrill 

Cole, Claudine 

Cypher, Brian L. 

Dagget, Dan 

Delgado, Bruce 

Edwards, Harold L. Ellis, Dr. John F. 

Fagerland, Lloyd 

Filkins, Mylon 

Fawcett, Clark R. 

Flournoy, Rodney 

Gifford, Ryan L. 

Grant, Eric 

Grazing Lands Conservation Initiative 

Hall, Gene 

Hedges, Candace 

Henry, Mary Ann 

Howe, Aaron L. 

Jennings, Dr. John M. 

Keeler, John B. 

Kessinger, Mary Alice 

Laber, Steven R. 

Lewis, Ty 

Masterson, Lance 

Maze, Bill 

Murphy, Jim 

National Association of Conservation Districts 

Polyniak, Michael J. 

Price, Bob 

Pritchard, Charles 

Range Magazine 

Ranpp, Carol D. 

Rich, Steve 

Rickett, Joseph A. 

Roberts, Joi 

Ryan, Kurt J. 

Sartore, Joel 

Schulz, Larry 

Scow, Jan C. 

Shell, Mary K. 

Stuart, Patricia M. 
188 

Utah Farm Bureau Federation 

Waymire, Russ 

West, Ray 

Wyman, Senator Phil and Jennifer M. Deming 

ISBN 0- 16-047427-2 

90000 

9 7801