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22-849 PDF 2005

THE ROLE OF NEPA IN THE

SOUTHERN STATES

OVERSIGHT FIELD HEARING

BEFORE THE

COMMITTEE ON RESOURCES

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED NINTH CONGRESS

FIRST SESSION

Saturday, July 23, 2005, in Nacogdoches, Texas

Serial No. 109-26

Printed for the use of the Committee on Resources

(

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

or

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

(II)

COMMITTEE ON RESOURCES

RICHARD W. POMBO, California, Chairman

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

Don Young, Alaska

Jim Saxton, New Jersey

Elton Gallegly, California

John J. Duncan, Jr., Tennessee

Wayne T. Gilchrest, Maryland

Ken Calvert, California

Barbara Cubin, Wyoming

Vice Chair

George P. Radanovich, California

Walter B. Jones, Jr., North Carolina

Chris Cannon, Utah

John E. Peterson, Pennsylvania

Jim Gibbons, Nevada

Greg Walden, Oregon

Thomas G. Tancredo, Colorado

J.D. Hayworth, Arizona

Jeff Flake, Arizona

Rick Renzi, Arizona

Stevan Pearce, New Mexico

Henry Brown, Jr., South Carolina

Thelma Drake, Virginia

Luis G. Fortun ̃ o, Puerto Rico

Cathy McMorris, Washington

Bobby Jindal, Louisiana

Louie Gohmert, Texas

Marilyn N. Musgrave, Colorado

Vacancy

Dale E. Kildee, Michigan

Eni F.H. Faleomavaega, American Samoa

Neil Abercrombie, Hawaii

Solomon P. Ortiz, Texas

Frank Pallone, Jr., New Jersey

Donna M. Christensen, Virgin Islands

Ron Kind, Wisconsin

Grace F. Napolitano, California

Tom Udall, New Mexico

Rau ́l M. Grijalva, Arizona

Madeleine Z. Bordallo, Guam

Jim Costa, California

Charlie Melancon, Louisiana

Dan Boren, Oklahoma

George Miller, California

Edward J. Markey, Massachusetts

Peter A. DeFazio, Oregon

Jay Inslee, Washington

Mark Udall, Colorado

Dennis Cardoza, California

Stephanie Herseth, South Dakota

Steven J. Ding, Chief of Staff

Lisa Pittman, Chief Counsel

James H. Zoia, Democrat Staff Director

Jeffrey P. Petrich, Democrat Chief Counsel

TASK FORCE ON IMPROVING THE

NATIONAL ENVIRONMENTAL POLICY ACT

CATHY McMORRIS, Washington, Chairwoman

TOM UDALL, New Mexico, Ranking Democrat Member

Ken Calvert, California

George P. Radanovich, California

Chris Cannon, Utah

Jim Gibbons, Nevada

Greg Walden, Oregon

Rick Renzi, Arizona

Stevan Pearce, New Mexico

Henry Brown, Jr., South Carolina

Thelma Drake, Virginia

Louie Gohmert, Texas

Richard W. Pombo, California, ex officio

George Miller, California

Edward J. Markey, Massachusetts

Frank Pallone, Jr., New Jersey

Grace F. Napolitano, California

Jay Inslee, Washington

Mark Udall, Colorado

Rau ́l M. Grijalva, Arizona

Jim Costa, California

Nick J. Rahall II, West Virginia, ex officio

(III)

CONTENTS

Page

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

Statement of Members:

Gohmert, Hon. Louie, a Representative in Congress from the State of

Texas .............................................................................................................. 2

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

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

Statement of Witnesses:

Carrillo, Victor, Chairman, Texas Railroad Commission, Austin, Texas ..... 14

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

Davis, W.I., Shelby County Farm Bureau Forestry Chairman, Texas

Farm Bureau, Nacogdoches, Texas ............................................................. 28

Prepared statement of ............................................................................... 29

Dean, Stephen E., President/CEO, Texas Forest Products, Inc., Gilmer,

Texas .............................................................................................................. 18

Prepared statement of ............................................................................... 20

Dructor, Daniel J., Executive Vice President, American Loggers Council,

Hemphill, Texas ............................................................................................ 5

Prepared statement of ............................................................................... 7

England, Stephen M., Manager of Mined Lands, TXI Operations, LP,

Dallas, Texas ................................................................................................. 30

Prepared statement of ............................................................................... 31

Johnston, Debbie, Public Affairs Director, Abitibi-Consolidated, Lufkin,

Texas .............................................................................................................. 10

Prepared statement of ............................................................................... 12

Nichols, Sandra, Staff Attorney, WildLaw, Montgomery, Alabama ............. 42

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

Shelton, Larry D., Trustee, Texas Committee on Natural Resources,

Austin, Texas ................................................................................................. 32

Prepared statement of ............................................................................... 34

Smith, Stephen F., Executive Director, Texas Mining and Reclamation

Association, Austin, Texas ........................................................................... 23

Prepared statement of ............................................................................... 25

(1)

OVERSIGHT FIELD HEARING ON THE ROLE

OF NEPA IN THE SOUTHERN STATES

Saturday, July 23, 2005

U.S. House of Representatives

NEPA Task Force

Committee on Resources

Nacogdoches, Texas

The Task Force met, pursuant to call, at 10 a.m., at the Cole

Concert Hall, Stephen F. Austin State University, Nacogdoches,

Texas, Hon. Cathy McMorris presiding.

Present: Representatives McMorris and Gohmert.

Miss MCMORRIS. The hearing will come to order. Good morning,

everyone. I would like to begin by welcoming County Judge Sue

Kennedy who will sing The National Anthem.

[National Anthem].

Miss MCMORRIS. Thank you very much, Judge Kennedy.

Please remain standing as District Judge Ed Klein leads us in

the Pledge of Allegiance.

[Pledge of Allegiance].

Miss MCMORRIS. Thank you, Judge Klein.

Now Dr. Rick Scarborough will present today’s invocation.

[Invocation].

Miss MCMORRIS. Thank you, Dr. Scarborough.

If everyone would take their seats, I will now recognize Scott

Beasley, Dean of the Forestry School, for his remarks.

Mr. BEASLEY. Good morning. I’m Scott Beasley, Dean of the

College of Forestry and Agriculture. This morning I’m here on

behalf of President Guerrero to welcome all of you and to welcome

the Task Force on Improving the National Environmental Policy

Act, or NEPA, as we like to call it.

Dr. Guerrero is out of the country, but he asked me to express

his regrets to the group for not being here to welcome everyone

personally. We’re honored and fortunate to be one of the three locations in the United States to host a hearing on this important

topic. I think we all realize that our public lands are threatened

as never before by such things as insects, diseases, and fires,

invasive species; and we need policies and regulations and laws

that will promote protection and management of our natural

resources.

I want to welcome all of you to this hearing, on behalf of President Guerrero, to Stephen F. Austin State University; and give a

2

special welcome and thanks to the Task Force Members,

Representative Cathy McMorris from Washington State and our

own Representative, Louie Gohmert from Texas.

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

Miss MCMORRIS. Thank you.

We’re going to start out just with some opening remarks, and I

want to start out by thanking my good friend, Congressman Louie

Gohmert, for inviting the Task Force to East Texas. It is great to

be here. He was with me when we kicked off the Task Force in

Spokane, which is my home base. I’m a Representative from Eastern Washington State.

I’ve been asked by Chairman Richard Pombo of the Resources

Committee to chair the NEPA Task Force. This is our third of six

hearings and already we have learned a lot about NEPA and the

NEPA process and some ways that we can hopefully improve that

process.

We all share the same goal of clean air, clean water, and a

healthy environment. We want to focus NEPA to ensure sound environmental decisions, instead of endless analysis and litigation.

We must protect and enhance our wildlife, watersheds, and communities; and put common sense back into environmental decisionmaking.

NEPA shouldn’t simply become bureaucracy in action.

Texas and the other states represented by our witnesses provide

us unique examples of how NEPA works and how it can be improved. The goal of the Task Force is to get out of Washington,

D.C., to listen firsthand to the people on the ground so that we can

better understand if NEPA is living up to its intent.

It’s no secret that NEPA, as well as other environmental laws,

have spurred vast amounts of litigation, have stalled important

economic development projects, and at times have cost the taxpayers millions. Nearly every word in the NEPA law has been litigated. That doesn’t help our economy, and it certainly doesn’t help

our environment.

The question before the Task Force is ‘‘How can we do better for

our economy and our environment.’’

Miss MCMORRIS. I would like now to recognize Congressman

Gohmert for his opening statement.

STATEMENT OF THE HON. LOUIE GOHMERT, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS

Mr. GOHMERT. Well, thank you. Cathy McMorris is a good friend.

It’s been wonderful to get to know you since we’ve been in Congress

together and I’m grateful for the leadership that you’ve had.

We started off—we did have a hearing in Spokane and one in

Arizona. This is the third hearing. There will be three more hearings, but this is one out of six in the entire nation.

And when I lobbied to have a hearing in this district and carved

a place within the district, this just seemed to be a perfect place.

Stephen F. Austin has perhaps the greatest forestry school department anywhere in the country. And with all the natural resources

with which we’ve been blessed in East Texas, what a place to come

3

and learn more about the effects of NEPA and environmental policies on our environment.

And as Chairwoman McMorris has mentioned, we all desire

clean air, clean water, a good environment. That’s something we all

need and something we all desire ourselves. But what we’ve been

hearing are there are some policies that have actually been detrimental to the environment. Although the intent is good, sometimes

the environment has been hurt when common sense goes out the

window.

So just as the—(inaudible). I can assure everybody that if somebody is going to try to do away with one of our historical sites here

in East Texas, they’ve got a fight on their hands because a lot of

us don’t want to see our history go away. It’s too rich here.

I would like to thank my district staff, my Washington staff; and

I would just like to ask that—they’ve helped get this together. If

you would all stand so people know who and where you are. And

if you have some additional information to give me, as your Congressman—if you-all would all stand, those that are on our staff.

And there’s a young man that picked me up in Houston and

raced me up here last night, taking his time—Justin Roberts,

where you are? Is Justin here?

Voice. He’s out back.

Mr. GOHMERT. He’s out back. Well, I wanted to give him

recognition.

I would also like to thank Stephen F. Austin for their great

hospitality. I knew when I proposed doing it here at Stephen F.

Austin we would get hospitality and helpful friendliness; and just

as I expected, it has really come through. So thank you and the

City of Nacogdoches, the County of Nacogdoches, and all those that

participated.

And when I called and talked with my good friend who’s the

Chairman of the Railroad Commission—for those of you who are

not from around Texas, the Railroad Commission, they are the ones

that have such tremendous impact on resources and control over

our resources in Texas.

And so I want to especially thank Chairman Victor Carrillo for

taking the time to come to East Texas. He had some family that

was coming in; and yet he felt that this was so important that he

would take his time, come from Austin, and share with us his

insight.

So, Chairman Carrillo, thank you so much for coming to be here

with us and giving your perspective for the entire state.

And also, there are two of us here physically. There is the

Resources staff that have been here; and, folks, these guys are

unbelievable. I just appreciate them so much. They make these

hearings flow smoothly.

Everything is being recorded. Everything will be taken down.

Everything will be transcribed. Also, these witnesses—we only give

them five minutes for a statement. That’s what we do in

Washington. That’s what we do in these hearings. But they can

make as long a statement as they want. It will be submitted with

the record. It will be part of the record, and the record is what

everybody reviews.

4

There are nine Democrats on this Task Force, and none of those

individuals are here today; but I know they care deeply about the

environment. So you can rest assured they will be reviewing the

testimony carefully and all the information that was derived, both

the written and the recorded testimony.

This gives us a chance to see faces, to analyze the information;

and we appreciate you-all being here. We appreciate you-all’s respect. Somebody may say something with which you disagree, but

everybody—I don’t care who it is—that will testify deserves to be

heard respectfully.

You can agree or disagree. Like Voltaire says, I may disagree

with what you say; but I will defend to the death your right to say

it. So if you would, be respectful, no matter what is said.

Thank you so much. Chairman, thank you for giving your time

today.

Miss MCMORRIS. Thank you, Louie.

Miss MCMORRIS. And I want to take a few minutes to mention

this is a bipartisan Task Force. We have bipartisan participation.

We are seeking broad input from everyone that is interested in the

NEPA process, and NEPA is the process by which we look at environmental impacts and make decisions, and it was the first of

many environmental laws that have been passed in this country.

We’re not—the Clean Air Act, the Clean Water Act, the National

Historic Preservation Act.

(Inaudible). NEPA lays out the process by which we look at those

environmental impacts and decisions. NEPA is also the law that

encourages and requires public participation, and I think that’s one

of the cornerstones of NEPA.

In keeping with that practice, even though we have only invited

nine witnesses here today, we want to hear from everyone; and I

encourage you to submit your comments to the Resources Committee so that we take all comments and recommendations into

consideration.

There’s a website that has been developed. It’s under the

Resources Committee website, and we encourage any comments

you might have.

At this time, I would like to introduce our panel:

To give us a NEPA success story from the national forests in

East Texas is Daniel Dructor, Executive Director of the American

Loggers Council.

To talk about NEPA, its impact on natural gas prices, and what

that meant for a local timber mill is Debbie Johnston, Public

Affairs Director of Abitibi-Consolidated.

Next is Chairman Victor Carrillo, Chairman of the Railroad

Commission of Texas, who will tell us how states are able to efficiently permit oil and gas operations.

Also here is Steve Dean, President of Texas Forest Products,

Incorporated. Mr. Dean will talk to us about the impact of

government regulations like NEPA on small businesses.

Steve Smith, Executive Director of the Texas Mining & Reclamation Association, will discuss NEPA and its role in mining.

Next will be W.I. Davis, representing the Texas Farm Bureau, to

talk to us about the different ways private and public lands were

impacted by the 1998 blow-down.

5

Stephen M. England, Manager of Mining Land from TXI Geologic

& Mine Services, will tell us about NEPA and construction.

Larry Shelton, a Trustee of the Texas Committee on Natural

Resources, will talk about NEPA’s public participation requirements.

And Sandra Nichols, a staff attorney with WildLaw, will share

her experiences with NEPA and timber projects. Sandra has joined

us from Montgomery, Alabama.

Now, it’s the policy of the Resources Committee to swear in

witnesses; so if you-all will stand and raise your right hand.

[Witnesses sworn.]

Miss MCMORRIS. Let the record reflect that the witnesses

answered in the affirmative.

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

at the front of the table to control the time. They will light up.

Each witness has five minutes, and I would encourage you to stay

as close to five minutes as possible; and I’ll try to keep it on time,

too.

So when the green light is going, you’re free to talk. When the

light turns yellow, you have one minute; and when it turns red, I

would ask you to wrap up. Your full testimony will appear in the

record. Keeping statements to five minutes will allow us time for

questions.

Mr. Dructor, you will begin.

STATEMENT OF DANIEL J. DRUCTOR, EXECUTIVE VICE

PRESIDENT, AMERICAN LOGGERS COUNCIL

Mr. DRUCTOR. Good morning, Task Force Chairwoman McMorris

and Congressman Gohmert. My name is Danny Dructor; and I’m

here today representing the Texas Forestry Association, as well as

the American Loggers Council.

The Texas Forestry Association is a non-profit organization representing family forest landowners, industrial forestry concerns,

and professional timber harvesters in the State of Texas.

The American Loggers Council represents over 10,000 timber

harvesting professionals in 27 states throughout the U.S., including

Texas, Louisiana, Arkansas, Mississippi, Alabama, and most other

states all over the country.

Our offices are located in Sabine County, Texas, near Toledo

Bend Reservoir. I appreciate the opportunity to testify before you

on this most important subject.

What I would like to present to you today is a success story, a

story of an incident occurring in the national forests of Texas in

February of 1998 where alternative arrangements were made to

streamline the NEPA process, resulting in the removal and restoration of approximately 103,000 acres of the timberland within the

national forest lands of East Texas.

On February 10, 1998, hurricane-force winds slashed across East

Texas. The storm damaged approximately 103,000 acres of national

forest across the Sam Houston, Angelina, and Sabine National Forests. In one afternoon, nature did more clearcutting on the national

forests in Texas than the Forest Service had performed in the previous decade.

6

Because of the high humidity and high temperatures associated

with our region, there was not time to prepare an EIS to analyze

the effects of removing the damaged timber before blue stain, insect damage, and rot would cause the downed timber to deteriorate, losing all of its commercial value.

Ronnie Raum, the Forest Supervisor working for the USDA Forest Service on the national forests in Texas at the time, went to

Washington and asked the Council on Environmental Quality for

what is known as alternative arrangements to normal NEPA requirements.

The three primary objectives for removing the downed trees

were: First, to avoid catastrophic fires that can originate in the

heavy fuel loadings resulting from the storm; second, to avoid further damage to Red-cockaded Woodpecker and bald eagle habitat;

and third, to avoid further habitat loss from bark beetle attack.

The following remarks are a portion of the presentation that

Ronnie made to the Texas Forestry Association Annual Meeting on

October 7th, 1998:

‘‘Thanks in part to Congressman Jim Turner, the CEQ granted

only the 38th request for alternative arrangements in 20 years; and

it was the first time ever that the CEQ allowed timber harvesting

under alternative arrangements.

‘‘Throughout the spring and summer over, 1,000 people from all

over the country were used to get the material on the market and

out of the woods. Over 106 MMBF of timber was offered up for sale

with an estimated economic value of $19 million in revenues.

‘‘In six months’ time, trees were removed from the vast majority

of the extensively and moderately damaged areas, which included

89 sales and covered over 29,000 acres. Areas avoided included the

riparian zones and scenic areas in order to ensure the trees could

get harvested and avoid the lawsuits and litigation that could possibly pressure the CEQ to withdraw the alternative arrangements.

‘‘Through it all, we have faithfully fulfilled our commitments

made to the CEQ. All that is left is to develop an Environmental

Impact Statement that will guide our reforestation efforts. Because

we did what we said we would do and did not play any games with

the CEQ approvals, other national forests that have similar natural disasters will hopefully get the opportunity to do what we

did.’’

I would like to show you some photographs—and you have copies

of them, as well. This is—all three of these—the first picture is the

devastation immediately following the blow-down in 1998. And this

is a picture that I took on July 13th of this year showing what

these areas look like. Again, total devastation.

With proper replanting, we now have longleaf pine trees established. And this is a CD down here to give you some indication of

the height of that tree.

Miss MCMORRIS. When was it planted?

Mr. DRUCTOR. I really don’t know the date. Given this is a

longleaf pine, probably—approximately four to five years ago. They

sit in the grass stage for about four or five years before they come

up.

Again, another picture where you can see the longleaf pines

starting to come up.

7

Miss MCMORRIS. We were going to fly over it today, but we ran

out of time.

Mr. DRUCTOR. Well, it’s really hard to see the regeneration from

the air. It’s pretty dense.

OK. Events like this are not uncommon in our southeastern forests or anywhere in the National Forest System. Naturally occurring events such as wildfires, ice storms, insect and disease infestations can and do occur in a moment’s notice; and we need a policy

that will allow us to act in a timely and efficient manner in order

to help protect and restore the forest and wildlife habitat once one

of these national disasters has struck.

Unfortunately, the events that took place in the national forests

in Texas between the months of February and August of 1998 are

the exception rather than the rule.

Because of the series of events that occurred between the sixmonth period, the forest and the wildlife living in its natural surroundings were protected and enhanced.

The National Environmental Policy Act, the 35-year-old law that

was established to protect our forests, may be the very law that obstructionists and liberal courtrooms use to destroy them. Lawsuits

and litigation appear to be the norm rather than the exception; and

oftentimes, cases are litigated on technical issues rather than environmental issues. Misinterpretation by the courts continues to

hamstring the process and delay projects that are necessary to restore forest health and reduce fuel loads.

Miss MCMORRIS. I need to ask you to wrap it up.

Mr. DRUCTOR. I would just like to say—we would like to offer up

to this Committee the need to administratively establish an alternative NEPA compliance procedure similar to that used by the national forests and grasslands in Texas.

We have some ideas on how we might standardize the process

working with CEQ to make it work.

We also feel that funds should be appropriated to the Forest

Service for the hiring of contractors to carry out these environmental management projects aimed at reducing fuel loadings to

protect and improve habitat.

There also should be returns to Ranger Districts of the revenues

generated from those projects to help continue the maintenance of

those projects. Thank you.

Miss MCMORRIS. Thank you very much.

[The prepared statement of Mr. Dructor follows:]

Statement of Daniel J. Dructor, Executive Vice President,

American Loggers Council

Good morning Task Force Chairwoman McMorris, and other members of the Task

Force, my name is Danny Dructor, I am here today representing the Texas Forestry

Association as well as the American Loggers Council. The Texas Forestry Association is a non-profit organization representing stakeholders, including family forest

landowners, industrial forestry concerns and professional timber harvesters in the

State of Texas. The American Loggers council represents over 10,000 timber harvesting professionals in 27 states throughout the US, including Texas, Louisiana,

Arkansas, Mississippi, Alabama, Georgia, Florida, South Carolina, Kentucky and

Virginia. Our offices are located on beautiful Toledo Bend Reservoir near Hemphill,

Sabine County, Texas. I appreciate the opportunity to testify before you today and

provide our comments on the very important issue of streamlining and improving

the National Environmental Policy Act (NEPA).

8

What I want to present to you this morning is a success story. A story of an inci- dent occurring in the National Forests of Texas in February of 1998 where alternative arrangements were made to streamline the NEPA process, resulting in the

removal and restoration of approximately 103,000 acres of timberland within the

National Forest lands of East Texas.

On February 10, 1998, hurricane force winds slashed across East Texas. The storm damaged approximately 103,000 acres of National Forests across the Sam

Houston, Angelina and Sabine National Forests. In one afternoon, nature did more

clearcutting on the National Forests in Texas than the Forest Service had performed

in the previous decade.

Because of the high humidity and high temperatures associated with our region, there was not time to prepare an EIS to analyze the effects of removing the damaged timber before blue stain, insect damage and rot would cause the downed timber to deteriorate, losing all commercial value. Ronnie Raum, the Forest Supervisor

working for the USDA Forest Service on the National Forests in Texas at the time,

went to Washington to ask the Council on Environmental Quality for what is known

as ‘‘Alternative Arrangements’’ to normal NEPA requirements. The three primary

objectives for removing the downed trees were: • Avoid catastrophic fires that can originate in the heavy fuel loadings resulting

from the storm • Avoid further damage to Red Cockaded Woodpecker and Bald Eagle habitat • Avoid further habitat loss from bark beetle attack.

The following remarks are a portion of a presentation that Ronnie made to the Texas Forestry Association Annual Meeting on October 7, 1998: ‘‘Thanks in part to Congressman Jim Turner, the CEQ granted only the 38th request for alternative arrangements in 20 years and it was the first

time ever that CEQ allowed timber harvesting under alternative arrangements. Throughout the Spring and Summer, over 1,000 people from all over

the country were used to get the material on the market and out of the

woods. Over 106 MMBF of timber was offered up for sale with an estimated

economic value of over $19 million in revenues. In six months time, trees

were removed from the vast majority of the extensively and moderately

damaged areas which included 89 sales and covered over 29,000 acres.

Areas avoided included the riparian zones and scenic areas in order to ensure the trees could get harvested and avoid the lawsuits and litigation that

could possibly pressure the CEQ to withdraw the alternative arrangements. Through it all, we have faithfully fulfilled our commitments made to the CEQ. All that is left is to develop an environmental impact statement that

will guide our reforestation efforts. Because we did what we said we would

do and did not play any games with the CEQ approvals, other National Forests that have similar natural disasters will hopefully get the opportunity

to do what we did.’’

I would like to show you photographs (see attachments) that depict the state of

the forest immediately following this catastrophic event in 1998, and the results of

prompt action and proper reforestation efforts that lead to the restoration of these

same forest as they are now seen today just 7 years later, a short timeframe in the

life of a natural resource whose life cycle can well exceed 100 years.

The incident I have just discussed with you was the result of landowners, forest

managers, loggers and public servants working together for the good of their communities, their economies, and most importantly, the health of their forests. Without immediate intervention, fuel loads on the National Forests in Texas across

103,000 acres would have been dramatically increased, leading to the possibility of

catastrophic wildfires which could have destroyed forests, wildlife habitat, private

property, and most importantly, lives. Watersheds were restored to ensure that soil

erosion and siltation into creeks and reservoirs was minimized. The Southern Pine

Beetle, which preys on mature, weakened and diseased pine trees, did not become

a problem in the National Forest that summer because the material had been removed from the forest, averting a possible epidemic of Southern Pine Beetle infestations. Sales prices for the timber sales remained strong throughout the summer,

bringing over $40.00 per ton ($320.00 per MBF). The citizens of East Texas turned

a potentially environmentally and economically devastating event into an event in

which there were no real significant impacts either to forest health or the local economy. What made this is a success was the ability to move fast, expedite the process,

and rapidly return our National Forest to being productive, healthy forests as well

as enhancing wildlife habitat along the way.

Events like this are not uncommon in our Southeastern Forests or anywhere in

our National Forest System. Naturally occurring events such as wildfires, ice

storms, insect and disease infestations can and do occur in a moments notice, and

9

we need a policy that will allow us to act in a timely and efficient manner in order

to help protect and restore the forest and wildlife habitat once one of these natural

disasters has struck.

Unfortunately, the events that took place on the National Forests in Texas between the months of February and August of 1998 are the exception rather than

the rule. Because of the series of events that occurred during the six month period,

the forest and the wildlife living in its natural surroundings were protected and enhanced. The National Environmental Policy Act, a thirty five year old law that was

established to protect our forests, may be the very law that obstructionists and liberal courtrooms use to destroy them. Lawsuits and litigation appear to be the norm

rather than the exception, and oftentimes cases are litigated on technical issues

rather than environmental issues. Misinterpretation by the courts continues to hamstring the process and delay projects that are necessary to restore forest health and

reduce fuel loads.

In an article recently published in the American Forest Resources Council newsletter, it was reported that in May, Representative Greg Walden, Chairman of the

Subcommittee of Forests and Forest Health, wrote the Forest Service requesting information about the timber sale program and any resulting appeals and litigation.

The response from Deputy Chief for National Forest System, Joel Holtrop indicated

that nearly 1.6 billion board feet are tied up in litigation as of May 31. After reviewing the report Walden commented ‘‘the timber sales program is in worse shape than

even these disturbing numbers would indicate. Not counted in this figure are the

proposed sales currently tied up in the administrative appeals process, nor those

held up while waiting for a resolution to litigation facing other sales. As we learned

during our work on the Healthy Forest Restoration act, the Forest Service spends

an enormous amount of time and money fighting a very organized and well-funded

appeals effort. The result is weakened forest health, weakened rural economies and

a great deal of taxpayer money going into the appeals and litigation rather than

into good stewardship of our forests.’’

The Forest Service’s current timber sale program offers approximately two billion

board feet per year. Annual mortality on national forest system land could be as

high as 10 billion board feet per year while the total growth is at least 20 billion

board feet. The table in Exhibit I shows timber under litigation by Region. (MMBF

= million board feet)

We would like to offer up to this committee the need to administratively establish

an alternative NEPA compliance procedure similar to that used by the National

Forests and Grasslands in Texas. We have some ideas on how we might standardize

the process working with CEQ to make it work.

We also feel that funds should be appropriated to the Forest Service for the hiring

of contractors to carry out environmental management projects aimed at reducing

fuel loadings, protecting and improving habitat and reducing or protecting against

insect and disease infestations. There should also be provided for an automatic return of revenue (one-half of net product revenue proceeds) to Ranger Districts for

the maintenance of accomplished project benefits.

There is also the need to provide training for forest service personnel in the use

of this project capability. Oftentimes the administration gives the agencies the tools

to work with, but forgets to explain how to use them. We are fortunate enough to

be sitting in an auditorium that is part of Stephen F. Austin State University, who

also happens to be my alma mater and who graduates, in my opinion, some of the

finest forest managers found in the country. These young men and women are the

future of our forests, and I dare say that I will put their expertise and education

on proper forest management up against any judge in any courtroom across the US.

They are the ‘‘doctors’’ of the forest, and do not need the opinion of a judicial appointee to write a prescription.

While NEPA was a godsend in its early beginnings, its metamorphosis into a battle ground between special interest groups and multiple-use, sustained yield advocates has turned it into a counterproductive piece of legislation. We ask that you

carefully consider adopting amendments to NEPA that will once again make it the

premier environmental management tool that its creators had envisioned.

Again, thank you on behalf of the Texas Forestry Association and the American

Loggers Council for this opportunity to testify before this Task Force. I would be

happy to attempt to answer any questions you may have.

10

Miss MCMORRIS. Ms. Johnston?

STATEMENT OF DEBBIE JOHNSTON, PUBLIC AFFAIRS

DIRECTOR, ABITIBI-CONSOLIDATED

Ms. JOHNSTON. Thank you, Chairwoman. My name is Debbie

Johnston. I’m a Public Affairs Director for Abitibi-Consolidated,

with responsibilities for most of our manufacturing and paper recycling operations in the southern half of the U.S.

Abitibi-Consolidated is a global leader in the production of newsprint and uncoated groundwood papers, as well as a major producer of wood products with operations located in the U.S., Canada, the U.K., South Korea, China, and Thailand.

The company’s Lufkin facility has deep-rooted ties to the local

community. The mill began operations in 1940, after the discovery

of a manufacturing process allowed the removal of pitch and resin

from southern pine trees, and financial investors agreed to bankroll

the construction of a newsprint mill in deep East Texas to prove

that the process worked.

Out of this risky venture, the manufacture of newsprint in the

southern U.S. Began; and the newspaper industry was freed from

its dependency on paper manufactured in the northeastern region

of the U.S. And in Canada.

Southland Paper Mills were the original owners of the mill; however, it was later purchased by St. Regis and then by Champion

International.

Over the years, dramatic changes in the newspaper industry, as

well as a decline in the demand for newsprint and lack of continued investment in the Lufkin mill by Champion led the company

to divest itself of its two Texas mills and paper recycling operations. In 1998, after nearly a year of searching for a buyer for the

Texas assets, they were purchased by Donohue, Incorporated,

headquartered in Montreal, Quebec.

11

Donohue executives quickly recognized the value of owning a mill

in the south to manufacture a new grade of paper that could provide printers and publishers in the south with paper for sales catalogs, advertising flyers, and coupons.

The company purchased a large paper machine that had been

idled and packaged for shipment to New Zealand, and was currently sitting on a site in British Columbia. The machine took approximately one and a half years to assemble on the Lufkin mill

site, along with other upgrades to the facility made at the same

time to improve environmental performance and enhance paper

quality.

However, in 2000, midway through this extensive modernization

project, Donohue was acquired by another Canadian newsprint

manufacturer, Abitibi-Consolidated. Abitibi-Consolidated completed

the project at a cost of over $350 million, the largest single investment ever made in Angelina County.

In August of 2001, the newspaper machine began—excuse me. I

got the wrong page—began production, notably one of the largest

paper machines in North America to produce this grade of paper.

The mill modernization project involved not only the addition of

the new paper machine, but also included extensive changes to the

pulp bleaching area that resulted in significant improvement to the

environmental performance of the new mill.

The mill was converted to an oxygen bleaching system, removing

the use of elemental chlorine in the process; and the mill’s onsite

waste treatment facility was upgraded and expanded, making it a

state-of-the-art facility in the industry.

Although the demand for supercalendered paper remained moderately strong during the 2001-2002 period, demand for newsprint

began to sag dramatically; and in December of 2002, the company

announced the idling of its newsprint mill in Sheldon, Texas. New

emphasis was placed on the Lufkin mill with a great deal of focus

on reducing manufacturing costs as the mill began to feel the pressures of an international marketplace.

It was also during this time that mounting energy costs began

to eat away at what had once been a promising investment

amongst the company’s assets. The mill’s energy infrastructure was

put in place when natural gas was cheap, plentiful, and preferred

as one of the cleanest burning fuels available. The mill self-generated approximately 50 percent of its energy needs and purchased

the remainder from a local provider. During this time period,

monthly energy bills began to reach the $3 million mark and continued to climb.

By 2003, for every $1 increase in the price of natural gas, the

mill’s annual energy costs increased by $11 million.

As natural gas prices rose and sustained themselves at the higher levels, the mill could not overcome the bleeding caused by these

costs. In an effort to stop the bleeding at the facility, the company

announced in December 2003 it would indefinitely idle the Lufkin

mill.

For the mill, uncontrollable energy costs also came at a time

when demand for supercalendered paper grades and newsprint

were not strong enough to command pricing that would cover

manufacturing costs. Although a very difficult decision for AbitibiVerDate 11-MAY-2000 14:10 Dec 14, 2005 Jkt 000000 PO 00000 Frm 00015 Fmt 6633 Sfmt 6602 J:\DOCS\22849.TXT HRESOUR1 PsN: HRESOUR1
12

Consolidated, the losses that mounted during the most recent years

of the mill’s operation abated much of the profit generated from the

company’s other operations in the U.S. And Canada.

With the idling of the mill, nearly 600 local employees were laid

off and countless other jobs in the region were impacted from the

loss of some of the highest paying positions in the county.

It was reported earlier this year to this Committee by a representative of the American Forest & Paper Association that 92

pulp and paper mills have closed in the U.S. In the past five years,

resulting in a loss of 47,000 jobs.

The Lufkin mill, along with our Sheldon facility, are real examples of this statistic. Abundant and affordable energy is needed to

support the jobs of those who produce the paper and forest products our nation depends on.

Legislation should minimize restrictions and consolidate the

process for approval of drilling permits. Infrastructure to bring natural gas to market should likewise be improved in an expedient

manner. Reserves can then be brought to market using existing environmental-friendly technologies without undue delay.

We appreciate the Committee’s interest in understanding energy

costs as they have affected our operations here locally, and we will

be happy to answer any questions.

[The prepared statement of Ms. Johnston follows:]

Statement of Debbie Johnston, Public Affairs Director,

Abitibi-Consolidated

Mr. Chairman and Members of the Task Force, my name is Debbie Johnston. I

am a Public Affairs Director for Abitibi-Consolidated, with responsibilities for most

of the Company’s manufacturing and paper recycling operations in the Southern

half of the U.S.

Abitibi-Consolidated is a global leader in the production of newsprint and

uncoated groundwood papers, as well as a major producer of wood products with operations located in the U.S., Canada, the UK, South Korea, China and Thailand.

The Company’s Lufkin facility has deep-rooted ties to the local community. The

mill began operations in 1940, after the discovery of a manufacturing process allowed the removal of pitch and resin from Southern pine trees, and financial investors agreed to bankroll the construction of a newsprint mill in Deep East Texas to

prove that the process worked. Out of this risky venture, the manufacture of newsprint in the Southern U.S. began, and the newspaper industry was freed from its

dependency on paper manufactured in the Northeastern region of the US, and in

Canada.

Original owners of the facility—Southland Paper Mills, Inc.—employed over 250

local individuals, as well as some Canadian papermakers who migrated South to

help share papermaking skills with the less experienced laborers in Texas. The

Company grew quickly, adding additional paper machines, as well as second newsprint mill in Sheldon, Texas in 1967.

In 1977, Southland Paper was purchased by St. Regis Paper Company, expanding

the scope of the operations. St. Regis invested heavily in the Lufkin mill, upgrading

key pieces of processing equipment and the mill registered gains in production,

sales, and profitability.

In September of 1984, Champion International Corporation announced it had

agreed to purchase St. Regis. The combined capacity of Champion International Corporation was now three million tons per year, making it the industry’s largest manufacturer of ‘‘white paper’’. The two Texas mills also made Champion the second

largest domestic producer of newsprint.

However, over the years dramatic changes in the newspaper industry, as well as

a decline in demand for newsprint and a lack of continued investment in the Lufkin

mill by Champion led the Company to divest itself of its two Texas mills and paper

recycling operations. In 1998, after nearly a year of searching for a buyer for the

Texas assets, they were purchased by Donohue Inc.’’ headquartered in Montreal,

Quebec.

13

Donohue executives quickly recognized the value of owning a mill in the south to manufacture a new grade of paper—super-calendered—hat could provide printers

and publishers in the South with paper for sales catalogs, advertising flyers, and

coupons. The Company purchased a large paper machine that had been idled and

packaged for shipment to New Zealand, and was currently sitting on a site in British Columbia. The machine was transported by a cargo ship to the Port of Houston,

and hundreds of shipping containers were trucked to Lufkin. The machine took approximately 1 1/2 years to assemble on the Lufkin mill-site, along with other upgrades to the facility made at the same time to improve environmental performance

and enhance product quality. However, in 2000, midway through this extensive modernization project, Donohue was acquired by another Canadian newsprint manufacturer—Abitibi-Consolidated.

Abitibi-Consolidated was committed to completing the modernization of the mill,

and starting up the new paper machine to produce super-calendared paper. The

Company completed the project at a cost of over $350 million—the largest single investment ever made in Angelina County. In August of 2001, the new paper machine

began production—notably one of the largest paper machines in North America to

produce this grade of paper. The mill modernization project involved not only the addition of the new paper machine, but also included extensive changes to the pulp bleaching area that resulted in significant improvement in the environmental performance of the mill. The

mill was converted to an oxygen bleaching system, removing the use of elemental

chlorine in the process, and the mill’s on-site waste treatment facility was upgraded

and expanded, making it a state-of-the-art facility in the industry. The mill can now

meet all of its proposed wastewater permit limits, which are considered to be the

most restrictive of all Southern U.S. kraft mills.

Although demand for super-calendared paper remained moderately strong during the 2001-2002 period, demand for newsprint began to sag dramatically, and in

December of 2002, the Company announced the idling of its newsprint mill in Sheldon, Texas. New emphasis was placed on the Lufkin mill, with a great deal of focus

on reducing manufacturing costs as the mill began to feel the pressures of an international marketplace. The new large machine continued to produce a HiBrite grade

of newsprint, along with a super-calendared grade, but the mill’s second paper

machine—used strictly for manufacturing newsprint and newsprint grades—continued to be idled for weeks at a time to adjust for growing inventory levels and sluggish demand in newsprint. It was also during this time, 2002-2003, that mounting energy costs began to eat away at what had once been a promising investment amongst the Company’s assets.

The Lufkin mill’s energy infrastructure was put in place when natural gas was

cheap, plentiful, and preferred as one of the cleanest burning fuels available. The

mill self-generated approximately 50% of its energy needs, and purchased the remainder from a local provider. During this time period, monthly energy bills began

to reach the $3 million mark, and continued to climb. By 2003, for every $1 increase

in the price of natural gas, the mill’s annual energy costs increased by $11 million.

As natural gas prices rose and sustained themselves at these higher levels, the

mill could not overcome the ‘‘bleeding’’ caused by these exorbitant costs. In an effort

to ‘‘stop the bleeding’’ at the Lufkin facility, the Company announced in December

of 2003 to indefinitely idle the Lufkin mill. For the mill, uncontrollable energy costs

also came at a time when demand for super-calendared paper grades and newsprint

were not strong enough to command pricing that would cover manufacturing costs.

Although a very difficult decision for Abitibi-Consolidated, the losses that mounted during the most recent years of the mill’s operation abated much of the profit

generated from the Company’s other operations in the U.S. and Canada. And adding

to an already difficult operating environment, the U.S. dollar remained weak.

With the idling of the Lufkin mill, nearly 600 local employees were laid off, and

countless other jobs in the region impacted from the loss of some of the highest paying positions in the County.

It was reported earlier in the year to this Committee by a representative of

AF&PA (American Forest & Paper Association), that 92 pulp and paper mills have

closed in the U.S. over the past five years, resulting in a loss of 47,000 jobs. The

Lufkin mill, along with our Sheldon, Texas facility, are real examples of this statistic. Abundant and affordable energy is needed to support the jobs of those who

produce the paper and forest products our nation depends on.

So the Lufkin mill continues to sit quiet, housing a small site team that maintains

the facility and continues to work on energy solutions and changes to manufacturing

equipment that would allow it to manufacture a higher quality grade of paper. And

what was once considered a pioneer facility in East Texas, and then a giant in the

paper industry remains idle, but with the hope of some day producing paper again.

14

The site team is currently investigating opportunities to burn alternative fuels in a new multi-fuel boiler, however this is only possible with additional significant capital investment—likely $50-70 million. Capital dollars within the corporation compete with proposed projects of other Company facilities—some with much lower

manufacturing cost structure and higher payback, making an argument for an additional investment in the Lufkin mill all the more difficult.

Although changes to federal energy policies may not come quickly enough to help the situation the Lufkin mill finds itself in today, energy legislation is required that

expands the energy supply—particularly natural gas—promotes energy efficiency,

and encourages the development of new technology. Environmental rules and regulations have driven industry toward increased gas consumption without providing

for increased access to the supply that is needed to keep natural gas costs competitive.

Legislation should minimize restrictions and consolidate the process for approval of drilling permits. Infrastructure to bring natural gas to market should likewise be

improved in an expedient manner. Reserves can then be brought to market using

existing environmentally-friendly technologies without undue delay. We appreciate the Committee’s interest in understanding energy costs as they have affected our operations here locally and we would be happy to answer any

questions.

Miss MCMORRIS. Mr. Carrillo?

STATEMENT OF VICTOR CARRILLO, CHAIRMAN,

RAILROAD COMMISSION OF TEXAS

Mr. CARRILLO. Good morning, Madam Chair, and welcome to

Texas.

Miss MCMORRIS. Thank you.

Mr. CARRILLO. My name is Victor Carrillo. I’m Chairman of the Texas Railroad Commission; and in spite of our name, we oversee

the oil and gas industry, the pipeline industry, surface mining, and

coal mining here in Texas, and natural gas utilities. My background is in the energy sector as a geologist and geo- physicist and former energy attorney. Before I was elected to my

statewide position, I was a county judge for my hometown, though

I can’t sing as well as Judge Kennedy. I’m also here on behalf of the Interstate Oil & Gas Compact

Commission. The IOGCC is a Congressionally ratified interstate

compact that includes 37 states that, together, produce over 99 percent of the oil and gas domestically in the U.S. The Chairman is

Governor Murkowski of Alaska, this year.

Responsible oil and gas exploration and development and stewardship of our land and water resources can both be achieved simultaneously. The fact is we see it done here in Texas daily.

In Texas, we are quite proud of our ongoing role as the premier

energy-producing state in the nation. We’re the number one producer of oil and natural gas among any of the states. We produce

about 6 trillion cubic feet of natural gas every year, which represents over 25 percent of the total U.S. Demand for this clean

burning fuel.

As of yesterday, here in Texas, we had 615 active oil and gas rigs

operating in the state. That represents almost 50 percent of the

total activity across the nation. There are 26 refineries in the state,

with a total refining capacity of over 4 million barrels per day,

equaling over 25 percent of the nation’s total refining capacity.

As our nation’s voracious appetite for energy continues to grow,

Texas has stepped up to the plate and will soon be the nation’s liquefied natural gas leader, as well. The FERC has already approved

15

four new onshore LNG facilities along our Texas Gulf Coast. Texas

is, indeed, still the preeminent energy producing and refining state

in the nation.

In February, I traveled to Washington and testified before a

House committee in support of the Energy Policy Act of 2005, and

I believe that the House version is a very good first step to help

ensure our nation’s future energy security.

Turning to today’s topic, there’s no country in the world that produces its natural resources, oil, natural gas, coal, to higher environmental standards. Texas and the other energy-producing states are

proud of these environmental standards, for we do indeed believe

that we have a stewardship responsibility over our land and water

resources. But the ever growing and often Draconian legislative environmental laws and regulations sometimes threaten the future

development of our domestic energy resources: Oil, gas, and coal.

Recognizing that my time is limited, let me hit a few quick topics; and perhaps we can fill in with some questions.

I encourage opening up areas currently off limits to exploration,

whether it’s oil, gas, coal, in the Intermontane West, in Alaska, and

in our Outer Continental Shelf areas.

And pertinent to this Task Force, we should also seek to streamline the regulatory process for areas that are already open for development but that are frequently tied up in sometimes unnecessarily complicated environmental regulations.

I recently completed an IOGCC survey identifying several factors

that inhibit some of this development, including the fact that when

state and Federal entities both have permitting responsibilities for

oil and gas development, state entities, frankly, can get the job

done about 20 to 35—in about 20 to 35 percent of the time that

it takes for a Federal permit in the same state.

Wildlife issues often delay the permitting of oil and gas development; and response to this survey encouraged consideration of offsite impact mitigation to address some of these wildlife habitat

issues.

We also recommend specific approve or deny timetables for oil

and gas permits to avoid a permit languishing in a Federal agency

for months and sometimes years.

In summary, the IOGCC supports the concept of revamping

NEPA to streamline the process without negatively impacting true

environmental concerns.

I have some comments with regard to storm water runoff issues

that I won’t be able to cover but that impact NEPA, also, and hydraulic fracturing issues, both of which are dealt with, I believe,

appropriately in the Energy Policy Act of 2005 in the House

version.

Let me just—let me just wrap up by saying that no doubt certain

environmental laws and regulations are essential to protect the

public health and safety. However, many of these environmental

laws far exceed their original intent. To the degree that we can,

both at the state level and the Federal level, we must limit government regulations that all too often are over broad, complex, costly,

and that stifle innovation, ingenuity, and investment growth.

Finally, let me just emphasize the need for flexibility in the laws

and the regulations and the regulatory oversight as opposed to

16

having rigid, unbendable rules and laws that I think ultimately

limit the development of our natural resources.

With that, I’ll wrap up. Thank you for the opportunity to be here with you today. [The prepared statement of Mr. Carrillo follows:]

Statement of Victor G. Carrillo, Chairman,

Texas Railroad Commission

Madame Chair McMorris, Congressman Gohmert, members—my name is Victor Carrillo and I appreciate the opportunity to testify before you. I am Chairman of

the Texas Railroad Commission. In spite of the name, we oversee the Texas oil &

gas, pipeline & surface mining industries, including lignite coal mines. My background is in the energy sector as a former exploration geologist/geophysicist and oil

& gas attorney.

I am also here today on behalf of the Interstate Oil and Gas Compact Commission

(IOGCC). IOGCC member states produce over 99% of the oil and natural gas produced onshore in the U.S. Formed in 1935, the IOGCC is a congressionally ratified

interstate compact that includes 30 member and 7 associate states. Our 2005 Chairman is Governor Murkowski of Alaska. I will be 2nd Vice Chair of the organization

for the upcoming year.

The mission of the IOGCC is two-fold: to promote conservation and efficient recovery of domestic oil and natural gas resources while protecting human health and

the environment. Though many would have you believe that those dual goals are

mutually exclusive—let me assure you they are not. Responsible oil & gas exploration and development and stewardship of our land and water resources can both

be accomplished simultaneously. We see it done in Texas day in and day out.

In Texas, we are quite proud of our ongoing role as the premier energy producing

state in the nation. Texas is still the #1 producing state for oil and natural gas. We

produce about 6 Trillion Cubic Feet of natural gas per year, which represents over

25% of total U.S. demand for the clean burning energy source. We are also the 5th

largest producer of coal in the nation.

As of one week ago, Texas had 619 active oil & gas rigs operating in the state—

representing almost 50% of all land rigs in the nation. And as a nation as we move

to establish more LNG (liquefied natural gas) facilities, I’m proud to say that four

new onshore LNG facilities have already been given the green light by FERC along

our Texas Gulf Coast.

Texas has the most extensive pipeline infrastructure in the nation with over

250,000 miles of underground petroleum pipelines throughout the state. There are

26 refineries in the state with a total refining capacity of over 4 million barrels per

day, equaling over 25% of the nation’s total refining capacity. Texas is still the preeminent energy producing and refining state in the nation.

In February, I testified in Washington alongside Governor Frank Murkowski of

Alaska in support of the Energy Policy Act of 2005. I continue to believe that the

House version is a very good first step to help ensure our nation’s future energy

security by helping to maximize the production of our domestic petroleum resource.

Turning to today’s topic, no country in the world produces its oil, gas and coal

to higher environmental standards. Texas and the other energy producing states are

proud of these environmental standards for we believe that we have a stewardship

responsibility for our land and water resources. But the ever growing and often Draconian federal environmental laws and regulations threaten future exploration, production, and refining capacity.

I’d also like to point out that while Texas is the top oil and gas producing state,

Texas also ranks first in overall consumption of petroleum, natural gas, coal, and

electricity. So we share the national concern for reliable energy supply sources at

reasonable and stable prices. A secure source of domestically produced oil, natural

gas, and coal is in the best interest of all—producing and consuming states alike.

Recognizing that my time is limited, let me address just a few specific hot topics.

Stormwater Runoff.

I am concerned with EPA rulemaking under the NPDES Stormwater Permit Coverage for Small Oil & Gas Construction Activities which would potentially require

a stormwater permit of oil & gas operators for activities affecting one acre or more,

particularly with their interpretation of ‘‘common plan of development’’ concept in

the Construction General Permit. EPA’s rule would improperly seek to treat oil &

gas activities activities like residential/commercial construction activities—and they

are not the same. In residential/commercial construction projects, there is often a

17

common plan of development that would impact an aggregated area of disturbance.

With oil & gas exploration, there is no guarantee of success of the first well, much

less any subsequent wells. In fact, let’s say you drill a $2 million dollar exploratory

well and you find nothing or at least nothing that is economic to produce, then any

plans for future wells in that immediate area project will likely never come to fruition. For the oil & gas producer, there simply is no common plan of development

in the vast majority of cases. A recent independent economic analysis completed for the U.S. Department of En- ergy (Estimated Economic Impacts of Proposed Storm Water Discharge Requirement

on Oil & Gas Industry Report from Advance Resources International, Inc. to U.S.

DOE Office of Fossil Fuels, Dec. 2004) estimated that just this one EPA regulatory

change could cost the country from 1.3 to 3.9 billion barrels of domestic oil production and 15 to 45 trillion cubic feet of domestic gas production over the next 20

years. To put that into context, and taking the median of those numbers, that represents over five years of Texas natural gas production and over seven years of

Texas oil production that would be lost.

Hydraulic Fracturing.

There is a current effort in the context of the Energy Bill seeking to broadly regu- late hydraulic fracturing under the Safe Drinking Water Act for the very first time

ever. Hydraulic fracturing is a technique developed in oil & gas exploration to fracture deep underground oil & gas bearing strata, thus releasing more of the oil &

gas to be produced. The technique has been safely and successfully used in states

like Texas for decades without any known negative impact to drinking water supplies. In the vast majority of wells that have used these techniques in Texas, the

fracture zone is thousands of feet deep, well below any possible contact with the

drinking quality water, which is generally limited to a few hundred feet from the

surface.

Technological advancements allow industry to find & produce more domestic oil & gas, more efficiently, where we already know it to exist. It is technological advancements like hydraulic fracturing, that have allowed the Barnett Shale Gas Play

near Dallas/Ft. Worth to develop into the largest producing gas field in Texas and

one of the hottest gas plays in the nation. Without the ability to use hydraulic fracture techniques in the Barnett Shale, this huge gas deposit would not be economic

to produce.

A one-size fits all, federally mandated, EPA administered regulatory approach in this issue unnecessarily trammels state rights to oversee this activity in our state,

by our own more flexible and appropriate means. State programs like ours in Texas

have for almost 100 years protected precious ground water resources while allowing

domestic oil and gas production to supply our national energy needs.

Refining (Downstream).

There has been no major new refinery built in the U.S. since 1976. Did you know that now, in addition to importing almost 60% of the oil (unrefined) that we need,

we are now importing about 10% of the refined gasoline that we need. The fact is

that there is limited domestic refining capacity. We had over 300 U.S. refineries in

1980. At the end of 2003, there were about 149—a 50% reduction. Most are running

at near capacity. Why have no U.S. based refineries been built in almost three decades? While NIMBY plays an important role, so do the incredibly stringent environmental controls (NEPA, Clean Air Act, Clean Water Act, RCRA, etc.) that apply to new major

construction. Some estimates suggest that it would take several hundred permits

and at least $2 billion to build a new refinery—perhaps half of that cost attributable

to the regulations directly In the last decade alone, industry has invested almost $50 billion in environ- mental improvements to existing facilities. And we wonder why gasoline prices are

at their current prices.

Access to Public Lands.

One final issue I will mention is the need to encourage opening up areas currently off limits to oil and gas exploration—areas in the Intermontane West, in Alaska,

and in our Outer Continental Shelf (OCS) regions. And pertinent to this task force,

we should also seek to streamline areas that are already open to exploration but

that are frequently tied up in unnecessarily complicated environmental requirements, particularly on federal lands.

In summary, I believe that we would all do well to support the general notion that

‘‘government that governs least governs best.’’ No doubt, certain environmental laws

and regulations are essential to protect the public health and safety. However, many

of these environmental laws far exceed their original intent. To the degree we can,

18

we must reel in and restrain government regulations that all too often are

overbroad, complex, and costly and that stifle innovation, ingenuity & investment

growth in private sector. When the federal government does pass a law or regulation, it should be simple, clear, understandable, limited in scope, reasonable, practical, & pass the common sense test.

Finally, let me emphasize the need for flexible regulatory oversight and management tools as opposed to rigid, Draconian measures that simply add cost and delay,

and ultimately limit domestic energy production at the very time that we need to

be more, not less, energy self sufficient.

Thank you so much for the opportunity to appear before you today. If I can provide any additional information, please just ask. I personally stand ready to assist

you in any energy-related matter in which you are interested.

Miss MCMORRIS. Mr. Dean?

STATEMENT OF STEVE DEAN, PRESIDENT,

TEXAS FOREST PRODUCTS, INC.

Mr. DEAN. How is that for the mike?

Miss MCMORRIS. Very good.

Mr. DEAN. I want to thank Congressman Gohmert for giving me

the opportunity to testify. I also thank Madam Chairman and other

Committee members who couldn’t come to East Texas today.

My remarks are going to be limited primarily to water.

In 1997, the Texas Legislature passed Senate Bill One, in which

Texas was divided up into 16 geographical areas; and a water

group was formed for each area. Board members represented a

cross-section of the general public, counties, municipalities, industry, agricultural, small business, environmental, river and water

districts, and utilities.

Each group had a state and Federal agency representation member, plus coordinating members from adjoining states, from adjoining regions, and from the Republic of Mexico.

The planning process involved water quality and water development.

At our water meeting on April the 21st, 2004, I addressed the

board with the following comments regarding drinking water and

arsenic:

Since 1942, the U.S. has maintained a standard of 50 parts per

billion of arsenic in drinking water. Taking the current drinking

water standards into account, Texans enjoy some of the best drinking water in the entire world. The Safe Drinking Water Act of ’74

mandated by amendment that arsenic standards would be reviewed.

After a 16-year review by the National Research Council and further review by the EPA, ultimately—based on the standards set by

the World Health Organization and the European Union, the EPA

recommended the adoption of 10 parts per billion.

Water supply proponents argued that the existing 50 parts per

billion were sufficient, while environmental groups pushed for more

stringent standards, some as low as three parts per billion. This

(inaudible) would not pass three parts per billion. President Clinton signed an order adopting 10 parts per billion as the new standard in the final days of his administration.

The new standard was one of those last-minute rules forced upon

the administration.

19

When President Bush suggested that the standards be left unchanged, headlines throughout the Nation stated, ‘‘Bush proposes

to add arsenic to drinking water.’’

During one of our Water Planning meetings, I asked our Texas

Water Development Board representatives whether the impact of

the new drinking water standards were being considered in calculating our revised water inventory models. He said, ‘‘No.’’ No consideration was being given to how the new standards would impact

the current water inventory.

As a result of those comments, I made a recommendation to the

Water Board; and I’ll read that:

I would offer a motion that we adopt a resolution in support of

the current administration’s desire to retain the 50 parts per billion standard until such time as water inventory calculations and

scientific data are taken into account and that any recommendation

to change these standards be broad based and discussed in the

light of public scrutiny.

The Region D Planning Board adopted that motion.

And then as far as water development goes—economic development, water, energy, transportation, urban development, aviation,

timber, agricultural, industry, all face huge challenges for success

in the future. It all depends on water.

I made this comment to our Water Board:

Worthy water projects considered for the Texas 2050 Water Plan

have come under attack from stakeholders who agree that water is

needed, but who disagree with the idea of the multiplier effect of

mitigation imposed by the Corps of Engineers.

Environmental interests have already removed the ability of East

Texans in Region D to provide for their own water development by

blocking construction on the Sabine River at Waters Bluff.

Mitigation requirements have doubled, tripled, quadrupled, and

in some cases, proposed acreage set-asides that are forced on landowners as a result of well-thought-out, logical, and reasonable

development.

Mitigation requirements are being used as an enforcement tool

against water planners by the U.S. Army Corps of Engineers with

disregard to the underlying stated reasons for mitigation lands in

the first place.

When reasonable accommodations from the Corps are requested

for consideration by stakeholders, the request is generally considered, but almost universally fall upon deaf ears.

As board members of the Water Board, we realized that common

sense was a necessary ingredient in making a decision. Consequently, I offer this resolution: Mitigation rules, as we know

them and as we are forced to abide by them, have nothing to do

with common sense. The State of Texas was built upon sound

thinking and common sense. Texas and the U.S. will thrive in the

future if we stay with common sense.

I will, therefore, offer a motion that this regional water-planning

group adopt a resolution to remove the total concept of mandating

and managing mitigation lands from the Corps of Engineers and

turn it over to the individual states.

The Region D planning group adopted my motion.

20

Madam Chairwoman, this concludes my remarks. I have attached the minutes of the water board meeting where these two

resolutions were passed. I appreciate your time.

[The prepared statement of Mr. Dean follows:]

Statement of Stephen E. Dean, President/CEO,

Forest Products, Inc.

I want to thank Congressman Gohmert for giving me the opportunity to testify

today. I also thank Madame Chairman and other committee members for coming

to East Texas. I could speak on a number of environmental issues that have affected

me and my family on a very direct and personal level. However, I will limit my remarks to an issue that affects everyone in the country.

WATER

In 1997 Senate Bill One was passed by the 75th Texas Legislature. The State of

Texas was divided up into 16 regional geographical areas and a water planning

group or board was formed for each area. Board members represented a cross section of the general public, counties, municipalities, industry, agriculture, small business, environmental, river and water districts, and water utilities. Each planning

group had state and federal agency representation plus coordinating members from

adjoining states, from adjoining regions, and from the Republic of Mexico.

I was selected to serve on the initial group for Region D, and I eventually served

three consecutive 2-year terms. Senate Bill One laid out a planning process that

would address the water needs for the State of Texas through the year 2050.

The planning process involved water quality issues and water development issues.

At our water meeting on April 21, I addressed the board with these comments

regarding drinking water and arsenic.

Since 1942 the U.S. has maintained a standard of 50 parts per billion of arsenic

for drinking water. Taking the current drinking water standards into account, Texans enjoy some of the best drinking water in the entire world. The Safe Drinking

Water Act of 1974 mandated by amendment that arsenic standards would be reviewed by 1996.

After a 16-year review beginning in 1983, the National Research Council recommended in 1999 that stricter Arsenic standards be developed as ‘‘soon as possible’’, but gave no specific recommendations. Next, the EPA studied arsenic effects

in other parts of the world and finally recommended adoption of 10 parts per billion,

the drinking water standard of the World Health Organization and the European

Union.

Water supply proponents argued that the existing 50 ppb standards were OK

while environmental groups pushed for more stringent standards, some as low as

3 ppb. In the final days of his administration, President Clinton signed an order

adopting 10 ppb as the new standard.

In 1936, there were 2,411 pages in the Federal Register.

Today there are approximately 75,000 pages. President Clinton added 29,000

pages during the waning days he was in office.

The new arsenic standard was one of those last minute rules. Because of the manner in which it was forced upon the incoming administration, with no public forethought or opportunity for discussion, it is clear that the decision to change the

standards was completely politically and not scientifically motivated. When President Bush suggested that the standards be left unchanged, headlines throughout

the country stated ‘‘Bush Proposes To Add Arsenic to Drinking Water.’’

Early in the Bush administration, during one of our Water Planning meetings, I

asked our Texas Water Development Board representative whether the impact of

the new drinking water standards were being considered in calculating revised

water-inventory models.

He answered NO. No consideration was being given to the impact the new arsenic

standards would have on existing water inventories. The water supply models that

our consultants and the TWDB use do not take into account the new more stringent

standards.

As a water-planning group, we were obligated to set aside political motivation and

seek the best and most reasonable course of action to provide water for Texas for

the future. We are obligated to use good science and common sense.

I would offer a motion that we adopt a resolution in support of the current administration’s desire to retain the 50 ppb standards for arsenic until such time as water

inventory considerations and scientific data are taken into account, and that any

21

recommendation to change the standards be broad based and discussed in the light

of public scrutiny.

Naturally occurring background levels of arsenic in soil tests in Gilmer are in the

12 ppb range.

As goes water development, so goes economic development.

Economic development, water, energy, transportation, urban development, aviation, timber management, agricultural, and industrial planners in Texas face a

HUGE challenge to success in the future.

I made the following comments to the water board...

Worthy water projects considered for the 2050 Texas Water Plan have come under

attack from stakeholders who agree that water is needed, but who disagree with the

idea of the multiplier effect of mitigation requirements imposed by the USACE.

Environmental interests have already successfully removed the ability and right

of East Texas stakeholders in Region D from being allowed to decide for themselves

about water development for their use in the local area on the Sabine River at

Waters Bluff.

Mitigation requirements have doubled, tripled, quadrupled, and more in some

cases the proposed acreage set-asides that are forced on landowners as a result of

well thought out, logical, and reasonable development.

Mitigation requirements are being used as an enforcement tool against water

planners by the U.S. Army Corps of Engineers...with disregard to the underlying

stated reasons for mitigation lands in the first place.

When reasonable accommodations from the USACE are requested for consideration by the stakeholders, the requests are generally considered but almost universally fall upon deaf ears.

Members of the Region D Water Planning Group were selected because they represent the stakeholders of the region. When they make a decision, the individual

member and his family must live with the consequences, good or bad for the future.

As board members we recognize that common sense is a necessary ingredient in

decision making for our future.

Mitigation rules as we know them and as we are forced to abide by them have

nothing to do with common sense. The State of Texas was built upon sound thinking

and common sense. Texas and the U.S. will thrive in the future if we stay with common sense. I would therefore offer a motion that this regional water-planning group

adopt a resolution to remove the total concept of mandating and managing mitigation lands from the USACE and turning it over to the individual States.

The Region D Planning Group adopted my motion.

Madame Chairman, this concludes my remarks. I have attached the minutes of

the water board meeting where the two resolutions were passed.

Thank you,

Attachment

MINUTES OF THE NORTH EAST TEXAS REGIONAL WATER PLANNING GROUP

WEDNESDAY, APRIL 21, 2004—2:00 P.M.

GILMER CIVIC CENTER

US 271 NORTH

GILMER, TEXAS

The Region D Water Planning Group (NETRWPG) met in an open meeting on

Wednesday, April 21, 2004, at 2:00 P.M. The meeting was held at the Gilmer Civic

Center located on U.S. 271 North, Gilmer, Texas. Notice of the meeting was legally

posted.

The meeting was called to order and invocation given by Chair Williams at 2:00

p.m. A quorum was present.

The following voting members were present:

22

Larry Calvin

Steve Dean

John Durgin

George Frost

Gary Jackson

William R. Justiss

Richard LeTourneau

David Parsons

Mendy Rabicoff

Vernon Rowe

Jim Thompson

Tony Williams

L. D. Williamson

Terry Winn

Beth Wisenbaker

Eldon Wold

The following non-voting members were present:

Virginia Towles, representing Texas Water Development Board

Mike Rickman, representing Region C

Bobby Praytor, representing City of Dallas

Tommy Slater, representing AEP/SWEPCO

The following non-voting members were absent:

Curtis Campbell, representing Region B

Jerry Clark, representing SRA

Kevin Craig, Corps of Engineers

Glenda Kindle, Liaison for Region I

Robert McCarthy, NTMWD

W. David Ryburn, representing City of Irving

Thomas E. Taylor, representing Upper Trinity Regional Water District

Greg Conley, representing TP&W

The following alternates for non-voting members were present:

Michael Brice, representing Greg Conley

The following voting members were absent:

Charles Ball

Barry Boswell

John Bradley

Gerald Brewer

Mike Dunn

C. W. Forsyth, represented by Aaron Gann

William Y. Rice

Committee members and alternates each identified themselves and acknowledged

the county and area of interest represented.

Minutes of the February 18, 2004 meeting were approved, on a motion by Mendy

Rabicoff and seconded by Gary Jackson. Motion carried, all voting aye.

Gary Jackson made a motion to approve the notice concerning expiring terms of

Regional Planning Group members. Beth Wisenbaker seconded the motion. Motion

carried, all voting aye.

Mr. James Beach of LBG-Guyton Associates gave a presentation concerning

groundwater supply and related modeling. Chair Williams thanked Mr. Beach for

the informative presentation.

After discussion on the topic of arsenic, Steve Dean made a motion to approve a

resolution in support of the current administration’s desire to retain the 50 ppb

standards for arsenic until such time as water inventory considerations and scientific data are taken into account and that any recommendation to change the

standards be broad based and discussed in the light of public scrutiny. Gary Jackson seconded the motion. Motion carried.

After discussion on the topic of mitigation, Steve Dean made a motion to approve

a resolution to remove the total concept of mandating and managing mitigation

lands from the USACE and turning it over to the individual states. Vernon Rowe

seconded the motion. Motion carried with a vote of 10 votes for and 6 votes against.

Vernon Rowe made a motion to approve BWR invoices and the financial report

as presented. Terry Winn seconded the motion. Motion carried, all voting aye.

Jim Thompson, the group’s liaison to Region C, gave an update on two recent

meetings.

Terry Winn presented a report to the group concerning the Desalination Workshop which he attended in Austin. He stated that three projects are actually being

funded. They are Rio Grande, Corpus Christi and Freeport. Mr. Winn advised that

the price for this activity will be approximately $2.50 per thousand gallons but the

price may not include brine disposal stream. Virginia Towles, of the Texas Water

Development Board, added that there is information concerning desalination available online and reminded the group of the Groundwater Rule of Capture meeting

in Austin on June 15th.

23

The meeting was then opened for public comment concerning water planning ef- forts. Comments were received from Mr. David Nabors of Paris.

Wednesday, May 19, 2004, at 2:00 p.m. was established for the next meeting date at the Gilmer Civic Center.

The meeting was adjourned at 3:30 p.m.

Terry Winn, Secretary/Treasurer Additional Attendees:

Walt Sears -- NETMWD

Stan Hayes -- NRS Engineering

Ray Flemons -- Bucher, Willis & Ratliff

James Beach -- LBG-Guyton Associates

William W. Brown -- NETMWD

Michelle Thorne -- NETMWD

Nancy Stirl -- NETMWD

Jodi Sheridan -- Texarkana Gazette

Shirley Shumake -- DeKalb

Sharon Nabors -- Paris

David Nabors -- Paris

Patricia MeKelvey -- Bogata

Joe Max McKelvey -- Bogata

Wendell Davis -- Clarksville

Gordon Hall -- Mt. Pleasant

Helen Sessums -- Bogata

Floyd Sessums -- Bogata

Max Shumake -- DeKalb

Jack Grant

Mary Grant

Linda Henderson -- Douglasville

Eric Birdsong -- Denton

Bessie Heath -- Douglasville

Richard Zachary -- Mt. Vernon

Tommy Spruill -- Mt. Pleasant

Mary Templeton -- Lake Creek

Bill Templeton -- Lake Creek

Melvin Reynolds -- Gilmer

Greg Carter -- Corpus Christi

Nancy Clements -- Douglassville

Bob Bowman -- Longview

Robert Haney -- Longview

L. D. Caudle -- Maud

Red Birdsong -- Denton

Miss MCMORRIS. Mr. Smith?

STATEMENT OF STEVE SMITH, EXECUTIVE DIRECTOR,

TEXAS MINING AND RECLAMATION ASSOCIATION

Mr. SMITH. Good morning, Chairwoman McMorris and Congressman Gohmert. I appreciate the opportunity to be here this morning. My name is Stephen Smith, the Executive Director of the

Texas Mining & Reclamation Association.

We’re a (inaudible) association. We have a little over a hundred

member (inaudible) companies that are either owner/operators in

the mining business, active mining operations or (inaudible) provide goods and services to these owner/operators. We mine a lot of

resources in the state. Among the resources that our members

mine are clay, sand, stone, gravel, uranium, lignite, and coal.

What I would like to share with you are some recent examples

of some of our members—and I typically refer to this association

as TMRA or TMRA (different pronunciation), with an acronym—

some of the TMRA members have gone through in recent years and

talked about some of the good things that happened and some

things that maybe were not—not so helpful.

24

But TMRA—we tend to support the NEPA process as it was

originally deemed by Congress, and we urge that this Task Force

carefully consider whether the NEPA processes are necessary to

duplicate the processes of other Federal environmental statutes

which have been implemented since NEPA.

We appreciate the work that you’ve already done. It’s a tough

job. We look forward to continuing to work with you to achieve an

efficient NEPA process.

Several of our members were involved with the NEPA process

during the ’70s, ’80s, early ’90s as they expanded their (inaudible).

Recently, we’ve had two member companies who have gone

through the NEPA process, either completed it or are currently involved with it right now. For one particular company, the EIS was

recently completed in the (inaudible) time period. I don’t know

what the cost was. It was an undisclosed cost. The final EIS was

780 pages in length, and I really don’t know if that’s good or bad

in terms of some of the standards across the country. But that has

been published and the process followed. Their (inaudible) permit

has been issued.

There were some positive experiences. Some things worked well

for this particular company. One thing in particular is the project

manager that was assigned to that company was a very organized,

efficient individual. This individual was very conscientious of deadlines. They were obviously focused on conducting a very efficient

process.

So whether that was the luck of the draw or what, I really don’t

know. They could have just as easily been assigned a project manager who did not have those skills and then maybe their experience

would not have been so good.

I think what’s interesting, though, is the decision to conduct that

EIS rather than pursue the nationwide (inaudible) option for their

(inaudible) permit was really driven by the company and not the

agency. It was basically a legal decision that company made in response to a recent court decision that required an EIS on a pipeline

company here in the state even though there were no grounds for

requiring such a study.

So the timing of obtaining that permit was very critical to this

company, and they felt like the timing anticipated would be less if

we went ahead and pursued the EIS up front rather than pursuing

the nationwide (inaudible) and taking the chance of added time to

allow for a court-driven EIS. So basically, it was a roll of the dice

for them. That’s kind of what it’s evolved to.

Then as they got into it via the timeline concerns, the need for

a permit, they had to (inaudible) during the scoping process (inaudible) they had to accept (inaudible) that are not required under

the jurisdiction of any regulatory agency.

Another one of our companies to employ solution mining while

mining for uranium has a project out in New Mexico has been

issued (inaudible) material license. They were oversighted by ELM,

NRC, and the Bureau of (inaudible) Affairs; and when it got down

to choosing whether to do an EA or an EIS—typically, these types

of projects across the country are handled by an EA, at best, because of the low environmental impact of that particular operation.

25

In this case, the EA did not have (inaudible) and regulations to address the EA; so it had to go through the EIS process, which

they did, costing several million dollars. They published that in

February of 1997, so—since the publication of that, this—this EIS

has been the subject of litigation before the NRC, ASLD and—

which has been brought on by various intervenor groups. So here it is July 23rd, 2005—this is more than eight years after publication of the EIS—the company still doesn’t have its (inaudible) operation. It’s spent several more million dollars on legal expenses for litigation. Tens of thousands of pages of material have

been produced. The effort has consumed the (inaudible) capabilities

of that company and likely will increase the cost of fuel.

Ultimately, the fuel (inaudible) power plants and, therefore, the

power that homeowners use. The NEPA process in their situation,

developed really into a procedural filibuster, which is what—what

has happened there.

A recent judge’s decision that dealt only with water issues was

73 pages, and none of the rulings so far—or rather all of the rulings have supported the EIS; so really there was no technical merit

to any of the things (inaudible) by the intervenors.

Miss MCMORRIS. Would you please wrap up, Mr. Smith.

Mr. SMITH. We have recommendations in our written comments.

I would say in conclusion that NEPA can be fixed. It won’t be an

easy job. It will be a lot of work to do that, but we feel like it can

be fixed and function like Congress intended it to. And it can be

fixed so that it can provide certain regulatory processes and still

continue to protect the environment.

Thank you very much for the opportunity to comment.

[The prepared statement of Mr. Smith follows:]

TEXAS MINING AND RECLAMATION ASSOCIATION

111 CONGRESS AVENUE, SUITE 1800

AUSTIN, TEXAS 78701

JULY 21, 2005

The Honorable Cathy McMorris

Chair

Task Force on Improving NEPA

1333 Longworth House Office Building

Washington, DC 20515

Re: Comments Regarding Necessary Improvements to NEPA

Dear Representative McMorris:

This letter is submitted on behalf of the Texas Mining & Reclamation Association

(‘‘TMRA’’) and is intended to provide ideas and suggestions for improving the National Environmental Policy Act (NEPA) to the U.S. House Task Force on Improving

NEPA.

Introduction

TMRA is a state organization comprised of approximately 140 mining, electric

utility, and supplier companies, and more than 800 individuals. TMRA supports coordinated, rational, and consistent federal, state, and local policies to assure proper

economic recovery of the state’s minable resources in an environmentally sound

manner.

TMRA’s members play a vital role in Texas’ economy. Mining provides more than

$28 billion annually to our state and accounts for more than 50 percent of the local

tax base for many of our state’s rural communities. TMRA members also

significantly contribute to the environmental health of the state. The Texas mining

26

industry plants more than two million trees annually on reclaimed mined land,

spends in excess of $100 million each year on land reclamation and protection of

water and air quality and archeological resources, and reclaims land for cattle grazing, crops, commercial timber, wildlife habitat, wetlands, and recreational use. The

industry also promotes and assists in the development and implementation of new

environmental controls and technologies by working in concert with environmental

and regulatory agencies and university researchers. TMRA industries have a strong

environmental ethic and have received numerous state and national awards for

their environmental programs.

Comments

1. The Task Force should encourage Congress to revise NEPA to eliminate duplicative and overlapping environmental review processes given the number of

environmental laws that have been implemented since NEPA was originally

enacted.

NEPA is a procedural law that creates a formal review process for public comments and the consideration of alternatives. NEPA does not have any measurable

or substantive environmental protection standards.

Substantive environmental standards are implemented under evolving federal and

state environmental regulatory schemes where hosts of environmental protection

authorities are vested with the authority to enforce environmental statutes that

have been enacted over the last 30-plus years. Examples of these statutes include

the Clean Air Act, Clean Water Act, and the Solid Waste Disposal Act. In addition

to substantive requirements, these statutes have extensive procedural requirements.

Therefore TMRA believes that Congress should 1) evaluate how NEPA interacts

with these laws, and 2) identify where there are duplicative review processes. Once

identified, TMRA recommends that NEPA be revised to eliminate duplicative processes.

2. The Task Force should work with Congress to clarify the meaning of ‘‘major

federal action’’ and what specific activities trigger a NEPA review.

Generally, determining whether an action is a major federal action is the threshold issue for determining whether an EA or an EIS is required. Given that certain

TMRA members have mining activities that present relatively similar concerns and

circumstances (i.e. environment, geological conditions, and mining methods), it

would be beneficial to the industry if Congress clarified exactly what types of actions were ‘‘major.’’

3. The Task Force should encourage Congress to mandate standardized reviews

to ensure a more consistent, reliable, and timely review process.

Although site-specific reviews are a necessary component of the NEPA process.

There are several standard components of a NEPA review that could be standardized to facilitate a more consistent, reliable, and timely review process. Mandating

the use of standardized revised, complete with standardized checklists and timelines

(discussed further below), will eliminate much of the inconsistency that results from

re-creating the wheel with new agency personnel in each individual case. This approach will also enable the regulated industry and the public to more accurately

gauge the substantive and procedural requirements that will apply during a given

review so they can better estimate budgets and timelines. Therefore, TMRA encourages the Task Force to urge Congress to mandate standardization to the maximum

extent possible.

4. The Task Force should revise NEPA to streamline the number of alternatives

proposed by agencies.

Opponents to development routinely use the NEPA process as a delay tactic. For

example, federal officials are often forced to consider so many alternatives (e.g. different locations and project sizes) that the review process is tangentially and unnecessarily expanded into many different directions.

From TMRA’s perspective, the ‘‘alternatives analysis’’ is often ill-suited for mining

and reclamation activities because geological factors—-and not mere ‘‘alternatives’’—

dictate where such activities can or should occur. In other words, the coal, ore, or

rock is either present or it is not. In this simple, but very real-world scenario, satisfying the current alternatives analysis requirement becomes a time consuming

paper exercise that does not add any qualitative or quantitative value to the environmental analysis.

TMRA respectfully request that Congress ensure the agencies’ alternatives are

reasonable and focused on the purpose and needs of the specific mining or reclamation project under consideration. A focused purpose that keeps the context of the

regulated industry in mind will ensure that the most reasonable, technologically

achievable, and economically feasible alternatives are considered.

27

5. The Task Force should ensure that Congress reforms the manner and impact

of judicial review under NEPA

Because NEPA issues are usually raised in federal courts, it is common for TMRA

members to face conflicting judicial opinion among various federal courts. These conflicting decisions not only create uncertainty for regulated industries, but also create

‘‘venue shopping,’’ which is the practice petitioners often use to seek out a friendlier

district to hear their suit. TMRA submits that the Task Force should encourage

Congress to significantly restrict venue shopping.

Moreover, NEPA judicial review is often used to delay project development for

years even though the substantive standards of all other environmental laws have

been satisfied and no other permit or authorization is being challenged. TMRA submits that judges should be restrained from enjoining project development during

NEPA judicial review or, at minimum, be required to expedite their decisions.

6. The Task Force should evaluate the timing delays associated with current

NEPA processes and recommend to Congress specific timelines for NEPA review.

To add meaningful structure to the NEPA process, Congress should establish

clear time frames to all relevant review periods for governmental entities. Statutory

time frames would create a quantitative requirement for all NEPA review processes,

and cases would be naturally prioritized based on their level of interests and whether there were issues that truly impacted the environment. In addition, each phase

of the NEPA process, including the Categorical Exclusion (CE), Environmental

Analysis (EA), and Environmental Impact Statement (EIS) should have a clearly delineated timeline.

Revising NEPA to include specific, statutorily-mandated time frames would benefit TMRA members by creating certainty during the permit application process.

Congressional direction that encourages focused, streamlined coordination, would

also benefit federal agencies by increasing efficiency. If governmental agencies failed

to comply with the statutory time frames, the NEPA review should be automatically

deemed complete. TMRA believes mandatory ‘‘end dates’’ for reviewing NEPA-related issues would provide much needed closure for regulated entities.

TMRA notes that this solution is not without precedent. The Council on Environmental Quality, as well as several federal land management agencies (e.g. U.S. Forest Service and Bureau of Land Management) have regulations or guidance documents expressing the need for time limits. However, because of the myriad of federal issues or agencies that could potentially trigger a NEPA review, only a congressional mandate is strong enough to bind all federal agencies. In conclusion, TMRA

requests that the Task Force recommend to Congress required statutory time lines

for NEPA review.

7. The Task Force should encourage Congress to revise NEPA to ensure that nonsignificant and temporary activities are evaluated under ‘‘Categorical Exclusions.’’

Categorical Exclusions (CEs) are an effective tool currently authorized under

NEPA that provide a mechanism for streamlining and speeding up approval for

common projects and activities that do not threaten the environment. Congress

should expand the use of CEs by including:

• Existing projects that simply require a renewal permit.

• Activities that are non-significant and temporary.

• Completed or proposed mitigation actions that are sufficient to avoid significant

impacts.

It is TMRA’s experience that many agencies do not effectively use the Categorical

Exclusion mechanism because of conflicting court decisions. For example, in an effort to avoid costly appeals, agency officials often opt to conduct a full-blown EA or

EIS to evaluate every detail of a proposed activity, although the conditions may not

warrant such a lengthy review. To encourage the use of categorical exclusions, Congress should better define what constitutes a significant impact to the environment.

As noted, TMRA believes that Congress should promote the expanded use of Categorical Exclusions. Such action would allow federal agencies to more effectively

execute their NEPA responsibilities.

8. The Task Force should identify areas in the NEPA process that would benefit

from risk-based decision making.

As explained, NEPA is a process oriented statute with little or no quantifiable

methodologies. Currently, risk based criteria are not used during a NEPA review.

TMRA believes the scientific and technical aspects of NEPA would be improved if

a more quantifiable approach that included some of the fundamental concepts of

risk-based decision making were taken into account.

28

Conclusion

TMRA requests that the Task Force carefully consider these comments in their

efforts to improve NEPA. TMRA is concerned that the existing NEPA process will

negatively impact the long-term interests of its members.

TMRA appreciates the opportunity to voice its position and is available to assist

the Task Force as it further considers the much needed refinement of NEPA. If you

have any questions regarding these comments, please feel free to call at your

convenience

SINCERELY,

STEPHEN F. SMITH

EXECUTIVE DIRECTOR

Miss MCMORRIS. Mr. Davis?

STATEMENT OF W.I. DAVIS, TEXAS FARM BUREAU

Mr. DAVIS. Good morning, Chairwoman McMorris and Representative Gohmert. Welcome to East Texas, and thank you for

your efforts in considering this important issue. Thank you, Representative Gohmert, for hosting the Task Force and championing

our local concerns.

My name is W.I. Davis. I represent the Texas Farm Bureau of

which I’m a member along with over 380,000 Texas families. The

Farm Bureau is a grass-roots organization representing the interests of rural Texas in agricultural production, which includes forestry. Our policies are developed by individuals who are actively

engaged in production and who know best the impact of laws and

regulations.

Texas is proud of its private property ownership heritage, but we

have considerable economic interests related to timber production

on Federal lands. The health and prosperity of many local communities and families rely on the sound management practices of our

natural resources. Additionally, private holdings are directly impacted by disease and pest conditions on adjacent Federal land.

I am a hands-on active manager of a 3300-acre family tree farm

for which I’ve had an interest for the past 60 years. From 1945 to

1998, we’ve practiced uneven age management which calls for a selective harvest with the remaining seed trees to regenerate the

area.

Miss MCMORRIS. I need to ask you to pull the microphone in,

please.

Mr. DAVIS. Beg your pardon?

Miss MCMORRIS. Please pull the microphone in.

Mr. DAVIS. Oh, OK. I’ll get it right.

In the ’60s, we experienced a straight-line windstorm which damaged 250,000 board feet, which we were able to salvage. We left the

remaining trees to naturally reseed the voided areas. That was a

big mistake. From that experience, we learned that under stocked

stands quickly fill with undesirable herbaceous and wood plants

which prevent natural regeneration.

When the 1998 storm hit our farm and the adjoining Sabine National Forest, the damage suffered in the ’60s was remembered. In

order to prevent that mistake, we made a complete harvest of the

severely damaged area and salvaged the remaining downed trees.

This operation covered 900 acres with a salvage of 4.5 million

29

board feet, which was completed by midsummer of that year. That

was only half of the job. From 1998 through 2003, we reclaimed the devastated area by site prepping and planting with genetically improved seedings. At

this time, I am happy to report that over 95 percent of the storm

damage has been reclaimed and is contributing its part to the environment and success of the family tree farm. This was only possible because we did not have to wait for over two years for an EIS. At this time, I would like to refer you to pictures that’s in your— the first picture is a picture that was made by the Austin (inaudible). They came down and did a report on it. The gentleman standing there with his back to the picture is my daughter’s family’s consulting partner, and he is near the east—the west boundary line

of their property. And that windstorm went from west to east, and

the trees that you see in the far distance are U.S. Park Service.

The next picture shows a stand of trees that is there now. The

ones on the left are longleaf. The ones on the right are loblolly.

They’re from 15 to 20 feet tall at this time.

The next picture is a part of the 80 acres that were planted with

longleaf pine. In that year—which was over 250 acres. 80 acres of

it were longleaf.

Now, approximately a mile and a half from that first picture is

what you’ve got just across the county road. It’s just wilderness.

Nothing has been done. The salvage was made but no regeneration.

These sound management practices, which remove much of the

dead timber before pest and disease can set in, and reseed adequately to prevent trashy undergrowth, contribute greatly to

healthy woodlands. Similar practices need to be quickly implemented on Federal lands when conditions warrant. Our——

Miss MCMORRIS. Mr. Davis, can you wrap up, please?

Mr. DAVIS. Beg your pardon?

Miss MCMORRIS. You’re out of time. Will you wrap up now? Then

we’ll come back and ask some questions.

Mr. DAVIS. All right. Again, I want to thank you, Chairwoman

McMorris and Representative Gohmert. We look forward to working with you to achieve positive results in improving the National

Environmental Policy Act. I will do my best to answer any questions later.

Miss MCMORRIS. Very good. Thank you.

[The prepared statement of Mr. Davis follows:]

Statement of W. I. Davis, Shelby County Farm Bureau Forestry Chairman,

Texas Farm Bureau

Good morning Chairwoman McMorris, and members of the Task Force. Welcome

to East Texas and thank you for your efforts in considering this important issue.

Thank you Representative Gohmert for hosting the Task Force and championing our

local concerns.

My name is W. I. Davis, I am representing Texas Farm Bureau of which I am

a member along with over 380,000 Texas families. Farm Bureau is a grassroots organization representing the interests of rural Texas and production agriculture—

which includes forestry. Our policies are developed by individuals who are actively

engaged in production and who know best the impact of laws and regulations.

Texas is proud of its private property ownership heritage; but, we have considerable economic interests related to timber production on federal lands. The health

and prosperity of many local communities and families rely on sound management

practices of our natural resources. Additionally, private holdings are directly impacted by disease and pest conditions on adjacent federal timberlands.

30

I am a ‘‘hands on’’ active manager of a 3,300 acre family tree farm of which I have

had an interest for the past 60 years. From 1945 to 1998 we practiced uneven age

management which called for a select harvest with the remaining seed trees to regenerate the area.

In the 60’s we experienced a straight line wind storm which damaged 250,000

board feet, which we were able to salvage. We left the remaining trees to naturally

reseed the voided areas. That was a big mistake. From that experience, we learned

that the under stocked stands quickly filled with undesirable herbaceous and wood

plants which prevented natural regeneration.

When the 1998 storm hit our tree farm and the adjoining Sabine National Forest,

the damage suffered in the 60’s was remembered. In order to avoid that mistake,

we made a complete harvest of the severely damaged area and salvaged the remaining downed trees. This operation covered 900 acres with a salvage of 4,500,000

board feet which was completed by midsummer of that year.

From 1998 through 2003, we reclaimed the devastated area by site prepping and

planting with genetically improved seedlings. At this time I am happy to report that

over 95 percent of the storm damage has been reclaimed and is contributing its part

to the environment and success of the family tree farm.

These sound management practices, which remove much of the dead timber before

pest and disease can set in, and reseed adequately to prevent trashy undergrowth,

contribute greatly to healthy woodlands. Similar practices need to be quickly implemented on federal lands when conditions warrant. Unfortunately, the procedures in

place under the National Environmental Policy Act, and the willingness of some to

further stifle the process, too often limit the opportunity to restore forest health in

the best manner.

Our Farm Bureau policy supports efforts to streamline and expedite the National

Environmental Policy Act requirements to allow for the sound harvesting of mature,

burned, dying, downed or dead timber. We believe the long term health and viability

of our natural resources can best be achieved through these principles. Without

these changes, our natural resources will continue to be wasted, opportunities for

healthy forest regrowth will be lost, and the best interest of local communities and

families will be sacrificed to the misguided policies of activists.

Again, thank you Chairwoman McMorris, Representative Gohmert and members

of the Task Force. We look forward to working with you to achieve positive results

in improving the National Environmental Policy Act. I will do my best to answer

any questions you may have.

NOTE: Attachments to Mr. Davis’ statement have been retained in the

Committee’s official files.

Miss MCMORRIS. Mr. England?

STATEMENT OF STEPHEN M. ENGLAND, MANAGER OF MINED

LANDS, TXI GEOLOGIC AND MINE SERVICES

Mr. ENGLAND. Chairwoman McMorris, Congressman Gohmert,

thank you for inviting me to provide testimony today. I am here on

behalf of the National Stone, Sand & Gravel Association and TXI

Operations, LP.

We appreciate the opportunity to provide comments to the Task

Force on improving the National Environmental Policy Act.

TXI believes the stated goal of the Task Force of ensuring Federal decisions are made in an appropriate and environmentally

sound manner, rather than by litigation, is indeed necessary. TXI

does not dispute the intent nor the value of NEPA to the decisionmaking process.

In fact, in talking with the agencies and consultants (inaudible)

permits, the NEPA process has provided guidance to review our applications in an orderly fashion; and that has helped in many instances. In fact, there are several positive aspects of NEPA that we

could discuss; but time won’t allow that today.

31

Unfortunately, I have to address some of the other issues. NEPA,

as it stands today, is a process that’s been used to create regulatory

pitfalls, stalling important projects.

Much of what I do with TXI in recovery of the necessary construction aggregates is the reclamation portion and mitigation. To

mining projects, TXI provides substantial opportunities to provide

filtration and storage along rivers because these are full of deposits

that we need to bring to market.

Unfortunately, busy agencies have been forced to try and protect

their NEPA documentation from legal challenges by producing

piles of paperwork that exhaustively discuss every potential impact

in hopes of creating a bullet-proof document. While the agencies

may see this padding as a way of reducing litigation vulnerability,

padding has a significant impact on the process and is a litigation

pitfall all its own.

Perhaps the most frustrating aspect we the regulated community

faces is the fact that it’s nearly impossible to plan for the permitting process. Wetlands permitting, for example, requires a NEPA

process that has no clear end point. Too often, the NEPA process

is turned upside down by a game of ‘‘gotcha’’ whereby the agencies

complete their review only to be sued for failure to have considered

some report or failure to respond in detail to some minor comment

on an obscure point.

A recommendation that we would make is the establishment of

reasonable deadlines and tighter schedules that will provide significant benefits in terms of planning finality and avoiding delays

while still protecting the environment. Data submitted at the last

second should not be cause for the agency to have to reopen the entire NEPA process. Data of tangential importance not reviewed by

agencies should not be cause for agencies to reopen the entire

NEPA process. And I’ll emphasize the tangential portion of it.

The conclusion being: The tactics of those wishing to use NEPA

to delay resource development are well-known. These tactics deplete important agency resources and siphon away precious tax dollars needed for conservation and stewardship of all our nation’s resources.

I think, for the most part, all of us who have come to this meeting today, having worked in offices, lived in homes, driven on roads

all provided in large part by construction aggregates—it’s not that

we are oblivious to the need to protect the environment. It’s just

that the recovery of resources occurs oftentimes in areas that are

sensitive to all of us.

Thank you for the opportunity to comment on how NEPA has affected TXI’s aggregate production in Texas, Oklahoma, and

Louisiana.

Miss MCMORRIS. OK. Thank you. Very good.

[The prepared statement of Mr. England follows:]

Statement of Stephen M. England, Manager of Mined Lands,

TXI Operations, LP

TXI Operations, LP appreciates the opportunity to provide comments to the Task

Force on Improving the National Environmental Policy Act (NEPA). TXI believes

that the stated goal of the Task Force of ensuring that federal decisions are made

in an appropriate, environmentally sound manner, rather than by litigation is indeed necessary. TXI does not dispute the intent and value of NEPA to the decisionVerDate 11-MAY-2000 14:10 Dec 14, 2005 Jkt 000000 PO 00000 Frm 00035 Fmt 6633 Sfmt 6621 J:\DOCS\22849.TXT HRESOUR1 PsN: HRESOUR1
32

making process. As NEPA stands, at times the process has been used to create a

regulatory pit fall, stalling important projects. Moreover, the unfortunate reality is

that delays in projects (such as wetlands permitting) due to unnecessarily lengthy

NEPA reviews has a ‘‘ripple effect’’ on the cost of construction materials.

Unfortunately, busy agencies have been forced to try and protect their NEPA documentation from legal challenges by producing piles of paperwork that exhaustively

discuss every potential impact in hopes of creating a ‘‘bullet-proof’’ document. While

the agencies may see this padding as a way of reducing litigation vulnerability, padding has a significant impact on the process and is a litigation pit fall all its own.

Perhaps the biggest permitting frustration we the regulated community faces is

the fact that it is nearly impossible to plan for permitting when there is a Federal

decision required. Wetland permitting for example requires a NEPA process that

has no clear end point. Too often, the NEPA process is turned upside down by a

game of ‘‘gotcha’’ whereby the agencies complete their review only to be sued for

failure to have considered some report or for failure to respond in detail to a minor

comment on an obscure point.

RECOMMENDATIONS FOR NEPA REFORM

• Establishing reasonable deadlines and tighter schedules will provide significant

benefits in terms of planning finality and avoiding delays, while still protecting

the environment.

• Data submitted at the last second should not cause the agency to have to reopen the entire NEPA process

• Data of tangential importance not reviewed by the agencies should not cause

the agency to have to reopen the entire NEPA process

CONCLUSIONS

The tactics of those wishing to use NEPA to delay resource development are well

known. By asking for more discussion of peripheral issues, and then moving on to

other theoretical concerns, each time the agency responds, does not protect the environment effectively. Under this approach, aggregate resource development opponents will always be able to point to some area of the record that is not discussed

as much as other areas, and or claim that the failure to properly analyze one small

issue is fatal to the overall process. These tactics deplete important agency resources and siphon away precious tax dollars needed for conservation and stewardship of all of the nations resources.

Thank you for the opportunity to comment on how NEPA has effected TXI’s aggregate production in the Texas, Oklahoma and Louisiana region. Should you have

any questions or require further information from me please call me at (214) 502-

0571. We look forward to working with the Committee in this effort.

Miss MCMORRIS. Mr. Shelton?

STATEMENT OF LARRY SHELTON, TRUSTEE,

TEXAS COMMITTEE ON NATURAL RESOURCES

Mr. SHELTON. Good morning. I would like to offer my appreciation first to the invitation and opportunity to address the Task

Force this morning.

My name is Larry Shelton, and I have lived in Nacogdoches

County for the past 25 years. I have been a member of the Texas

Committee on Natural Resources, also known as TCONR, since

1985. TCONR is a citizen conservation group that works on conservation and public health issues in both rural and urban areas.

Today I’m here to offer my support for the National Environmental Policy Act in its entirety. I would like to talk about its benefits and my experience under NEPA, as well.

Passage of NEPA in 1969, clearly marks a milestone in the long

history of America’s relationship to its national resources. NEPA

acknowledges the paramount importance of this country’s national

resources and the inseparable connection between Americans and

the environment. Additionally, NEPA addresses environmental

management in a comprehensive and consistent way by estabVerDate 11-MAY-2000 14:10 Dec 14, 2005 Jkt 000000 PO 00000 Frm 00036 Fmt 6633 Sfmt 6602 J:\DOCS\22849.TXT HRESOUR1 PsN: HRESOUR1
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lishing specific protocols for the guidance of Federal land and resource managers.

To fully appreciate NEPA, one must recognize that it took this

country nearly two centuries to finally pass legislation and create

a single comprehensive policy for managing our environment. Prior

to this, a lack of foresight in planning essentially created boom and

bust cycles that frequently left in its wake a trail of economic depression and hardship, community deterioration, impairment of

natural resources, and environmental degradation. So we can see

from the past that the cost of no comprehensive environmental

planning is also very high, as well.

By the 1960s, the Nation was forced to acknowledge that we

were facing an economic, human health, and sustainability crisis

due to the lack of comprehensive environment planning and full assessment of environmental impacts.

Clearly, we had a problem; and NEPA was the solution. NEPA

calls for the comprehensive disclosure of environmental impacts.

NEPA mandates consultation with state and local agencies and

does provide a comprehensive forum in which to view environmental-significant actions in light of all current legislation.

In essence, NEPA serves the same function as the rudder of a

ship. It provides guidance and direction. NEPA brings a wide range

of agencies, jurisdictions, and mandates under one umbrella so the

Nation can make environmental decisions in intelligent and consistent ways.

NEPA allows the process of public participation, and any attempt

to repeal the rights afforded to the American citizen under NEPA

is an affront to the democratic institution of this country and the

belief in the citizens’ ability to control their own destiny. NEPA is (inaudible) the participation of diverse agencies and the

public. This cooperation leads to areas of agreement and also provides for resolving conflicts before final decisions are made. So sensibility at the start helps to reduce legal challenges to final decisions and helps to avoid the high cost of correcting poorly planned

projects, hence the opportunity for NEPA to save money.

In the past 20 years, working through the NEPA process, I have

brought important resource information and experience to the planning table to supplement agency personnel and information, especially on national forest issues here in Texas.

In my written testimony, I have included some of these NEPA

experiences, but today I just have a few minutes to offer a brief example of how NEPA has been successful in East Texas.

Following a tornado in the Davy Crockett National Forest last

year, the Forest Service sought NEPA on the best way to reforest

the area after the damaged timber was salvaged. By convening diverse groups and having meetings and working through the NEPA

process, a proposal was made to naturally regenerate the area

rather than replant seedlings.

As a result of this proposal, all of the objectives of the area were

met. The proposal resulted in the least impact to the environment

and also resulted in savings of the tens of thousands of dollars in

replanting costs.

In terms of meeting its goal to reduce environmental impacts,

reduce conflicts, and save money, NEPA has been extremely

34

successful. NEPA has worked here in East Texas; and as a result,

the vast majority of final decisions on the national forests in Texas

are implemented without opposition or appeal.

With regard to the Abitibi plant, we are all sympathetic to the hardships caused by unemployment; but we truly believe that (inaudible) are the result of a host of different issues, and NEPA

should not be singled out for disproportionate scrutiny. Also, with regard to NEPA being cited for—cited as (inaudible) to the harvest of timber in the national forests, I would like to address that. Timber harvest objectives are established in the National Forest Management Plan which is mandated by the National

Forest Management Act which in turn calls for the (inaudible) resources to meet the various needs and values of the country. So

NEPA does not set specific timber value—timber harvest levels.

Also, to put things in perspective, the National——

Miss MCMORRIS. I need to ask you to wrap up, Mr. Shelton.

Mr. SHELTON. OK. Can I have 30 seconds?

Miss MCMORRIS. All right.

Mr. SHELTON. The national forest constitutes only 5 percent of

the timberland in East Texas and contributes to only about 3 percent of the timber mix for a harvest year.

The timber industry is, in fact, self-sustaining.

(Inaudible) national forest. The industry no longer depends on

the national forest timber harvest ability to be there because it is

(inaudible).

So in essence, only 5 percent is national forest land and 85 percent of those are timber harvesting; so in all, 98 percent of East

Texas forest lands are open to harvesting. And NEPA has very little impact, as a result, on the timber industry.

I strongly urge the Task Force on Improving National Environmental Policy Act to make no changes to NEPA or to the regulations promulgated by the Council on Environmental Quality and

other Federal agencies who implemented NEPA.

Thank you.

Miss MCMORRIS. Thank you.

[The prepared statement of Mr. Shelton follows:]

Statement of Larry D. Shelton, Trustee,

Texas Committee on Natural Resources (TCONR)

My name is Larry D. Shelton and I live at 15449 FM 1878 Nacogdoches, TX.

75961. I have lived in Nacogdoches County continuously since 1979. I have been the

owner and operator of Osage Woodworks, a custom woodworking business, since

1983. I have been a member of the Texas Committee on Natural Resources

(TCONR) since 1985 and have served on the board of trustees since 1994. TCONR

is a citizen conservation group that works on conservation and public health issues

in both rural and urban areas of Texas and the United States. Since 1997, TCONR

has been the state affiliate of the National Wildlife Federation.

TCONR very much appreciates your inviting me to be a witness at this hearing.

In my testimony today I offer clear and unambiguous support for retaining the full

integrity of the National Environmental Policy Act (NEPA) and to urge this Committee to make NO changes to the substance or intent of NEPA and none to the

regulations that have subsequently been promulgated to implement NEPA.

I will discuss some of the benefits that this country has reaped as a result of the

passage of NEPA and will share with this committee my personal experience with

NEPA over the past 20 years.

The passage of NEPA in 1969 clearly marks a milestone in the long history of

America’s relationship to its natural resources. NEPA acknowledges the paramount

importance of this country’s natural resources and the inseparable connection

35

between Americans and their environment. Additionally NEPA addresses environmental management in a comprehensive and consistent way by establishing specific

protocols for the guidance of federal land and resource managers as well as interested and affected parties and user groups of federal lands and resources. To fully appreciate the logic and intent of NEPA one must first look at the history of America’s relationship with the abundant natural resources that constitute our

environment. As a young nation our first century was marked by phenomenal expansion and an insatiable consumption of natural resources that at the time were

thought to be inexhaustible. Our forefathers cleared the land for crops, often burning or otherwise destroying the virgin forests. In ignorance we depleted the soil

through unsustainable farming practices, only to move on when the land would no

longer produce. When forests were harvested, it was for quick profit without regard

for sustainability, regeneration or maintenance of native wildlife habitat. Wildlife

was slaughtered, often to the edge of extinction. The common result of this thoughtless exploitation of resources was a ‘‘boom and bust’’ cycle that frequently left in its

wake a trail of economic depression and hardship, community deterioration, impairment of natural resources, and environmental degradation. Advances in technology and industry through the 1950’s further enabled this country to exploit and modify our resources to the point that environmental systems

were becoming dysfunctional. The cumulative impacts of chemicals, pesticides and

other pollutants were beginning to negatively affect human lives and livelihoods.

Loss of habitat was threatening the continued existence of much wildlife, including

popular game species. Extensive dam building and water diversions had significantly altered the natural dynamics of the nation’s watersheds. By the 1960’s the

nation was forced to acknowledge that we were facing economic, human health and

sustainability crises due to the lack of comprehensive environmental planning and

full assessment of environmental impacts and potential alternatives.

NEPA is the result of the courage and diligence of those willing to recognize the

lessons learned from our past mistakes and to commit to preventing the repetition

of those mistakes. I would like to share with you a very good summary of the importance of NEPA that was provided in 2003 by the General Counsel for the Council

on Environmental Quality:

At its heart, the NEPA process is grounded on certain basic beliefs about

the relationship between citizens and their government. Those core beliefs

include an assumption that citizens should actively participate in their government, that information matters, that the environmental impact assessment process should be implemented with both common sense and imagination, and that there is much about the world that we do not yet understand.

NEPA also rests on a belief that the social and economic welfare of human

beings is intimately interconnected with the environment. [Dinah Bear, 43

Nat. Resources J. 931, 932 (2003)

Due to increased population and development pressures, the challenges we face

today in terms of managing our environment and resources to benefit people over

the long-term are perhaps even more imperative than they were at the time of the

original passage of the Act. NEPA acknowledges the significance of environmental

management and provides the guidance to carry it out.

The significance of NEPA is paramount in that it calls for the comprehensive disclosure and full accounting of environmental impacts associated with federally funded projects and other actions requiring a federal permit. NEPA establishes a process

wherein the public has the right to offer comments prior to final decisions on environmentally significant actions. NEPA mandates consultation with relevant federal,

state, and local agencies and provides a comprehensive forum in which to view environmentally significant actions in the light of all current environmental legislation.

NEPA calls for the development of multiple alternatives, including the option of ‘‘No

Action’’. In some regards the passage of NEPA constitutes a ‘‘bill of rights’’ allowing

for the American citizen to engage in the democratic processes of this country regarding actions that have significant environmental impacts. These impacts relate

to the physical environment, public health, social, cultural, and personal values, impacts on biotic communities, and economic repercussions.

Any attempt to repeal the rights afforded to the American citizen under NEPA

is an affront to the democratic institutions of this country and further reduces the

democratic principles Americans support and live by and citizens ability to control

their own destiny. The many provisions of NEPA are inseparably linked. To preserve the integrity of the legislation it must be preserved in its entirety.

NEPA Ensures Disclosure of Impacts and Alternatives

NEPA is about creating an informed public by broadly sharing important information that prior to NEPA would have been restricted to a handful of federal bureauVerDate 11-MAY-2000 14:10 Dec 14, 2005 Jkt 000000 PO 00000 Frm 00039 Fmt 6633 Sfmt 6621 J:\DOCS\22849.TXT HRESOUR1 PsN: HRESOUR1
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crats or might never have been developed or analyzed at all. NEPA calls for the full

disclosure of environmental impacts associated with federally funded and federally

permitted projects. The many actions of the federal government often result in varied impacts not only to the physical environment, but to the economy and on citizen’s personal lives as well. It is through the development and public distribution

of environmental impact statements that the citizen’s ‘‘right to know’’ is maintained. Environmental impact statements and environmental assessments provide the

public with information on the impacts of the proposed action, along with the cumulative impacts of that action when considered together with other related or similar

actions. They also must set out a reasonable range of alternative actions for public

consideration. The development of alternatives lies at the heart of NEPA. For the

average American, this consideration of alternatives is a vital force toward lowerimpact and more sensitive project design. Only when the population has ready access to accurate information can members of the public engage fully and competently in the democratic processes of this country. The current federal requirements for reporting impacts associated with the physical environment gives the citizen information that may reveal additional impacts to one’s health, finances, property and community. We urge you not to deny citizens the knowledge they need to

provide meaningful input in the decisions that affect their lives.

NEPA promotes the democratic process

NEPA allows citizens the right to participate directly in the processes that result in decisions that affect their environment and subsequently impact their lives.

Whereas our country is founded on the principles of democracy including the involvement of the public in shaping the laws and decisions of government, NEPA directly empowers the citizen to participate in the democratic process. Americans

cherish their freedoms and rights afforded under the laws of this land. Alterations

that have been proposed to NEPA would relinquish some of those rights

NEPA is a forum

NEPA provides a framework to view the environmental impacts and significance of federally permitted projects within the context of the full spectrum of laws and

mandates applicable to that project. Through the NEPA process a project is analyzed in the light of all natural resource laws including those related to water, air,

wildlife, public health, sustainability and land and resource management. Such a

forum allows for truly comprehensive disclosure of impacts and the development of

alternative actions intended to minimize or mitigate those impacts.

NEPA promotes informed decisions that avoid costly mistakes

NEPA does not dictate a specific final decision about a project, but rather guaran- tees informed decisions. NEPA has been attacked as leading to delay and higher

costs. While the NEPA process may entail some additional delay and additional cost,

the better decisions that result save time and money in the long run. Bad decisions

can be made quickly, and initially they are cheap, but spending a little more time

and money in making a good decision rather than to rushing to a bad one can really

pay off. The costs and delays of living with bad decisions or of trying to fix them

after-the-fact are vastly greater than any costs incurred in complying with NEPA.

NEPA has been a success

NEPA has been a tremendous success. It works. It has provided innumerable benefits to the public by preventing and reducing environmental impacts that also save

the federal government money. Because NEPA calls for a comprehensive disclosure

of the impacts related to a project as well as public participation we often see a wellreasoned decision making process emerge from the consensus of interdisciplinary

management teams and affected publics and user groups. Such cooperation at the

planning stages of projects works well toward finding areas of agreement and for

resolving conflicts before final decisions are made. Such consensus building at the

start helps to reduce legal challenges to final decisions and to avoid the high cost

of correcting poorly-planned projects.

Public participation can be a valuable service to government agencies that lack

sufficient resources and insight to fully identify and articulate all issues and concerns. The downsizing of government agencies has in many instances left those

agencies understaffed and overworked to the point that full development of issues

and concerns is not possible without public participation. And it is the full development of issues, concerns and information that leads to consensus building and conflict resolution. NEPA equates to fairness by offering a ‘‘level playing field’’ for those

groups competing for the same resources. It helps us manage our natural resources

and the impacts associated with using our natural resources in a way that provides

enduring benefits to people over the long-term.

37

My participation in NEPA processes

As a member of TCONR over the past 20 years I have engaged extensively in the

NEPA process at many levels. My most persistent work has been with the National

Forests and Grasslands in Texas (NFGTX). I provided input to two Land and Resource Management Plan (LRMP) revisions and one amendment. I have worked

with planning teams developing management plans for three wilderness areas in

Texas as well as numerous other individual project plans. After these 20 years of

working closely with federal resource management issues I would claim NEPA to

be a rousing success. Coordination between federal, state, and local agencies and affected user groups has led to many projects being fully developed and implemented

to the satisfaction of all parties involved. As a representative of TCONR I have often

brought important resource information and experience to the planning table to supplement agency personnel and information. The diligent work of all involved parties

has resolved conflicts and resulted in a satisfactory decision that was ultimately

implemented.

NEPA successes I’ve witnessed

The following are but two of many examples of NEPA success stories that I have

participated in, beginning with a recent episode from the Davy Crockett National

Forest. A tornado had damaged a portion of the forest, precipitating a discussion

on the best way to salvage damaged timber and then regenerate the area to forest.

Through the NEPA process a consensus was reached that satisfied the needs for

both salvage and regeneration in a way that was satisfactory to most agency personnel and to participating user groups. Rather than implementing expensive site

preparation and replanting of the site, the decision was made to allow natural regeneration after the salvage operation was finished. Natural regeneration of the site

will result in savings to the federal government of tens of thousands of dollars in

replanting costs—a result driven by NEPA.

In a case on the Sabine National Forest, timber harvesting was planned for portions of a recognized sensitive area. TCONR and other citizen groups expressed concern that high-impact logging would occur in the primary zone of a designated natural heritage site. A scoping meeting and field trip including agency personnel and

user groups was held to assess the situation. With only this one-day meeting, a consensus was reached that satisfied all parties. By slightly modifying the sale boundary, to avoid logging the primary protected area and allowing for thinning in the

secondary buffer area, all parties involved felt that their objectives were satisfactorily met and the project was greatly improved. These are but two of many such

NEPA engagements in which TCONR has been involved that resulted in a satisfactory consensus, decision and implementation.

Attached to my testimony are three other NEPA success stories that were compiled by other TCONR members. If you have questions about those stories, I would

be happy to put you in touch with persons who worked with those projects.

NEPA has been misrepresented

Despite the many successes some individuals have sought to distort NEPA’s proud

record of forging reasoned decisions based on the full spectrum of information, public participation and implementation options. One such example is the case of the

Abitibi-Consolidated owned paper mill in Lufkin, Texas.

NEPA has been attacked as one of the cause of the paper mill impasse when in

fact NEPA was not relevant to the decision-making process. The decisions about

Abitibi were actually the state’s obligations under the mandates of the federal Clean

Water Act that preclude the downgrade of water quality standards. NPDES permits,

such as Abitibi was seeking, are exempted from NEPA.

Because there is misunderstanding about the role of NEPA in the Abitibi case,

I think it is appropriate to take a few paragraphs to describe what actually happened. As Abitibi-Consolidated made clear in its public statements when the plant

was closed in 2003, this case involves a difficult suite of issues including economics,

public health, pollution of public waterways and multiple jurisdictions. In newspaper accounts at the time, Abitibi cited weak markets for newsprint, the weaker

market due to the technology industries ‘‘bubble’’ bursting, continuing after-effects

of the September 11, 2001 attack on the World Trade Center, a stagnant market

dynamic, and high energy costs as among the reasons for the closing. A spokeswoman for Abitibi specifically stated that the shutdown was unrelated to what the

company had invested in environment-related projects at the mill, saying that they

had met their environmental challenges. Critics have linked NEPA to the increase

in costs of energy, but there are a large number of reasons for increase in energy

costs. Any impact NEPA would have had, if any, on the plant closing would be

38

minuscule compared to other factors, such as increased global competition for limited energy supplies and weather-related impacts like hurricane damage. The paper mill has a decades-long history of discharging industrial effluent into the Angelina River which currently flows into the Sam Rayburn Reservoir. This reservoir is a regional recreation and municipal water supply resource for a multi-county area. The effluent discharge flowing into Sam Rayburn Reservoir has serious

public health implications. Warnings have already been posted at the reservoir advising limited fish consumption due to mercury contamination, probably from atmospheric mercury fallout. There is pending litigation regarding alleged dioxin contamination in the reservoir. Sources of pollutants in the reservoir, which the City of

Lufkin plans to use as a municipal water supply, are very controversial. Lufkin’s initial plan was to place a water intake at the upper (north) end of the

reservoir, close to the city, where the Angelina River enters. The city has made subsequent plans to move the water intake further south on the reservoir, possibly in

an attempt to avoid the lower quality water resulting from the industrial effluent

discharged from the paper mill. The placement of the water intake further south

in the reservoir increases the distance to the city itself, resulting in more pipeline

distance (at greater cost), a longer cleared right of way and more energy consumed

to pump the water to the city. Due to the new water intake location the pipeline right of way is now proposed to cross the Angelina National Forest resulting in the permanent loss of federal forest as the land is converted to a cleared right of way. This forest land currently provides forest products, vast public recreational opportunities, jobs to the forest products industry and critical habitat for the endangered red-cockaded woodpecker.

A quick enumeration of the costs and benefits on both sides of the issue reveals

the inequity involved in the discharge of pollutants that degrade water quality the

mill’s proposal to increase the discharge of industrial effluent. The debate over the

continued operation of the paper mill at Lufkin has been misconstrued as a simple

choice between local jobs and unnecessary government regulation. This perception

is simply untrue. It was not NEPA that caused the closing of the Abitibi plant, but

rather the overall economic situation concerning the paper mill.

Conclusion

As the world’s population increases with each passing year, more pressure is

placed upon natural resources and the environment that sustains us. Polls conducted over many years consistently reveal that the great majority of Americans are

strongly aware of our important relationship with the environment and that they

support conservative resource management. America is considered the world leader

in terms of progressive environmental policies enacted to conserve resources, guard

public health, promote sustainability and reduce unnecessary impacts during resource management and extraction. This honor has not been achieved by chance but

through the conscientious and far-sighted efforts of dedicated leaders. This honor is

the result of the passage of the National Environmental Policy Act and over thirtyfive years of sound, competent environmental management carried out in a comprehensive and transparent fashion.

NEPA has been a tremendously successful and popular piece of legislation for a

number of reasons. NEPA’s authors recognized the complex and comprehensive relationship that modern humans have with the environment and penned its provisions

accordingly—the Act calls for full and in-depth analysis of potential impacts of proposed actions. NEPA’s authors sought to uphold the democratic spirit of government

that has shaped so many of our laws—the Act allows for full interagency and interdisciplinary participation as well as that of interested and affected public and private organizations and individuals. NEPA’s comprehensive and inclusive approach

to planning as well as the development of different alternatives provides the best

chances for final decisions to be implemented with the least amount of controversy—

the vast majority of final decisions on the National Forests in Texas are implemented without opposition or appeal.

Considering the ongoing high rates of success enjoyed by the NEPA process, the

enduring public support for NEPA over the past thirty years and the continued relevance that NEPA holds for the ongoing resource and public health challenges we

will be facing for many decades to come, NEPA is as important now as ever.

NEPA has not only served as a stellar domestic policy but has earned for America

prestige and respect at the global level. As legislation goes, the text of NEPA is not

long, but each of its provisions is important and essential to the integrity of the Act

as a whole.

In its current form, NEPA achieves its intended purpose of providing comprehensive environmental and resource policy guidance that provides the greatest benefit

to the most people without causing unnecessary impacts or jeopardizing public

39

safety and health. As a representative of TCONR and a long-time participant in resource planning through NEPA, I strongly urge the Task Force on Improving National Environmental Policy Act to make NO changes to NEPA or to the regulations

promulgated by the Council on Environmental Quality and other federal agencies

to implement NEPA.

Again, thank you for the opportunity to testify this morning.

ADDITIONAL NEPA SUCCESS STORIES

Sims Bayou Federal Flood Control Project—Complied by Evelyn Merz

Beginning in 1991, the Houston Regional Group of the Sierra Club questioned the

proposed design for the Sims Bayou Federal Flood Control Project contained in the

EIS prepared by the U.S. Army Corps of Engineers. Local residents quickly formed

the Sims Bayou Coalition (SBC) which mobilized opposition to the Corps’s plan to

channelize and concrete Sims Bayou.

Under the NEPA process, the Coalition was able to counter the Corps design with

an alternative that relied primarily upon detention instead of channelization. Although the Coalition alternative has drafted was not accepted by the Corps, meetings held between the Coalition and its supporters, the Corps, the Harris County

Flood Control District, and elected officials from the county and Congress led to an

agreement for a vastly improved modification of the original Corps plan in 1992.

In the modified plan, the rigid trapezoidal channel shape was replaced with a

flood bench having gently sloping side, most of the concrete was removed and replaced with vegetated slopes over cellular mats, and trees became a part of the design specifications. The residents and representatives from the Corps and Harris

County Flood Control walked sections of the project together to determine where the

orientation of the channel excavation could be changed to avoid disturbing valuable

trees and mapping trees to be saved in place or marking trees to be moved.

As of 2005, the Sims Bayou Project is still under construction and is often used

by the Harris County Flood Control District (the local project sponsor) as an example of its new approach to a ‘‘greener’’ form of flood control. The Coalition and other

residents benefited from a design that allowed for Sims Bayou to be a green ribbon

through its neighborhoods instead of a concrete ditch and offered an opportunity to

preserve and restore habitat. The NEPA process allowed all parties to compromise

on an acceptable flood control design for Sims Bayou.

Wallisville Reservoir—Compiled by Evelyn Merz

The Wallisville Reservoir project is in Liberty County near the mouth of the Trinity River as it flows into Galveston Bay. Construction began in 1966 and halted in

1974 under an injunction. The Corps of Engineers had not prepared an adequate

EIS.

Through following the NEPA process, a 20,000-acre project which would have inflicted major damage upon the Galveston Bayou estuary system was scaled back to

a salt-water barrier to protect agricultural water intakes, which was the only valid

reason for proposing the project. Water rights sought by the City of Houston

through construction of the project were satisfied by the construction of the salt

water barrier. The saltwater barrier allowed downstream flows of nutrients which

would have been blocked by the original design. The reduction in size and depth

of the reservoir allowed the preservation of the Lake Charlotte cypress swamp area.

Lake Jackson Golf Course—Compiled by Brandt Mannchen

From 1995 to 2000 the Houston Regional Group of the Sierra Club, the Houston

Audubon Society, and an individual participated in the National Environmental Policy Act (NEPA) process; U.S. Army Corps of Engineers (ACOE) Section 10/404 permit process; and a lawsuit regarding noncompliance with NEPA for ACOE Permit,

No. 20271.

The proposal originally would have created a municipal golf course on 400 acres,

many of which were wetlands. Due to concerns about wetland impacts the golf

course proposal was reduced to approximately 209 acres. Additional mitigation conducted during the NEPA process reduced impacts to 154 acres, with about 54 acres

remaining undisturbed.

The lawsuit was filed because the ACOE did not analyze the cumulative environmental impacts that the golf course would have on Columbia Bottomland forests

and neo-tropical migrant birds in its environmental assessment. The federal judge

ruled that the ACOE must assess cumulative effects due to construction of the golf

course. The ACOE did this and the case was dismissed in 2000.

40

Addendum to Testimony Presented by Larry D. Shelton

Please accept these additional comments relative to my original written TESTIMONY submitted July 20, 2005, and my ORAL TESTIMONY presented on July 23,

2005, in Nacogdoches, Texas. I request that they be submitted into the record of the

hearing.

While the hearing was to consider the ‘‘Role of NEPA in the Southern States’’ it

was apparent that much of the testimony presented concerned situations where

NEPA had no bearing or direct impact. I cite some examples below.

Oil and gas drilling

Many comments were made concerning high energy costs. Delays caused by

NEPA were cited as the cause.

Statements presented by Texas Railroad Commissioner Victor Carrillo revealed

that Texas in fact has very little federal land and that as a result very little oil and

gas drilling in Texas is subject to the NEPA process.

Mr. Carrillo further explained that the state had streamlined the permitting process such that a delay of one to five days for a drilling permit was now reduced in

most cases to a single day. Clearly, NEPA is not causing serious delays in oil and

gas drilling in Texas.

The committee should also recognize that oil and gas prices are set on the world

market and therefore local increases in production do not significantly affect prices

as a whole.

The argument presented was that making changes to NEPA would expedite oil

and gas production and therefore lower the price of energy. We would hope that the

committee recognizes the fallacy of this argument. In fact oil and gas reserves are

finite and as reserves dwindle the price will rise based on simple supply and demand principles. Expedited production simply reduces reserves faster. The real reason for escalation in energy costs is that global demand is continually increasing at

the same time that reserves are being depleted. Simple logic tells us that increasing

demand on finite reserves will result in rising prices until fossil fuels are fully depleted or other energy sources become available.

In summary, testimony presented on July 23, 2005 in fact verified that NEPA has

very minimal impact on the length of time needed to obtain a drilling permit in

Texas. Oil and gas prices are set on the global market where the United States is

a minor producer in comparison to many other countries.

Forestry-related issues

Testimony was presented suggesting that NEPA has had a significant impact on

forestry related issues. In fact, federally-managed National Forest land in Texas

makes up a very small portion of the overall commercial timberland area—only

about 6% of the commercial timberland base is federally owned. Additionally, National Forests contribute only about 3% of the overall mix of forest products harvested in Texas. It should also be noted that of the National Forest land in Texas,

85% is managed for the growth and harvest of pine timber, which means that less

than 1% of Texas commercial timber land is taken out of the productive timber

base. In reality, the timber industry is able to meet their needs independently of

the National Forests due to the extensive industrial and private land base currently

being managed for timber harvest. NEPA does NOT place any restrictions on these

lands.

Testimony was presented concerning the large blow-down of timber on the Sabine

National Forest in 1997. This testimony mentioned a special arrangement made

with the Council on Environmental Quality to expedite the salvage of the downed

timber. The record shows that the salvage operation was carried out in an expedited

manner due to this arrangement and that the current regulations allow for such exceptional circumstances. Testimony presented by Mr. Davis said that ‘‘the salvage

was carried out successfully.’’ This episode strongly suggests that the current situation is working.

It is worthy of mention that mistakes were made in terms of protecting federal

resources apparently due to the wide-spread nature of the operation and insufficient

oversight from Forest Service personnel.

Specifically, a Special Management Area that was NOT supposed to be logged was

cut over on a Sunday under what appeared to be suspicious circumstances. An additional important point: a Forest Service hydrologist brought in from another region

to provide expertise for the salvage effort wrote a letter clearly stating for the Forest

Service record that in his professional opinion stream protection as a whole was

NOT adequate during the salvage operation. These lapses resulted from the expedited ‘‘arrangements’’ already made under NEPA. We oppose any changes to NEPA

41

that would make failure to adequately protect resources as mandated a more common occurrence.

Water Development

Testimony was also heard concerning water development and the construction of

Marvin Nichols Reservoir on the Sulfur River. From the testimony it was unclear

as to specifically how NEPA was influencing that project.

Part of this testimony included a reference to mitigation that would amount to

a 10 to 1 compensation rate of mitigated land to inundated land. In 1990 biologists

with Texas Parks and Wildlife Department and the U.S. Fish and Wildlife Service

estimated that mitigation for Marvin Nichols could range between 163,620 and

648,578 acres, depending on intensity of management. This would be a ratio of 2.3

to 1 for the smaller number of acres and 9 to 1 for the larger number. Proponents

of the reservoir are saying that they have done more site-specific studies and are

using mitigation cost estimates that indicate roughly a 2 to 1 ratio for Marvin Nichols. Mitigation formulas are admittedly complex but the suggestion that the entire

area affected by the lake would be subjected to the 10 to 1 standard is exaggerated

by any estimate. At best, only a portion of the site would be subject to the highest

rate; other portions of the site would be subject to a lower rate or to no mitigation

at all. In reality, the 600,000 acre mitigation figure cited is so unlikely that people

close to the reservoir issue, neither proponents nor opponents, routinely use it.

The construction of Marvin Nichols is a state project rather than a federal one.

Several other issues figure prominently in the challenges that the proposed lake

faces. Among those are the huge impacts to the agricultural and timber economy

of Northeast Texas, the length and expense of the pipeline to the nearest market

for water, and the fact that the lake would be built to serve the distant Dallas-Fort

Worth area that has the highest per capita water consumption rates in the state.

The Region C Water Planning Group, the official water planning group established

by the Texas Legislature, has shown that there is almost twice as much water available from already-existing reservoirs as will be needed in the Dallas-Fort WorthNorth Texas area in the year 2060. The fairness issue is raised when one area is

expected to give up productive lands to meet the water needs of other areas with

exceptionally high water consumption rates. Again, we urge the Committee to be

diligent in separating state from federal issues and in deciding the actual degree

of NEPA influence, if any.

Abitibi Consolidated paper mill

The spokeswoman for Abitibi presented testimony that the mill’s primary issue

was securing a long term supply of lower priced energy. As mentioned above it is

very unlikely that world energy prices will significantly decrease considering the

ever increasing demand and the finite nature of oil and gas reserves. The Committee must exercise great care in weighing the relative impacts of diverse issues

on the price of energy, especially NEPA and the far greater global energy market

conditions.

Abitibi also faces significant water quality issues at the state and local level that

are minimally influenced by NEPA. At issue is the discharge of industrial effluent

into the Angelina River and in turn the Sam Rayburn Reservoir. This Reservoir is

a regional recreation and municipal water supply resource. The right of self determination rises to the forefront here as local citizens see the water they use for recreation and water supply polluted. Those of us here in the counties surrounding Sam

Rayburn do not want to see any changes in federal statutes that would make it easier for local industries to discharge toxins into our drinking water. Nor should NEPA

be cited as the main impediment to the mills operation when the water quality issue

is the real problem facing our communities.

The Committee faces a huge challenge in sorting through the diverse testimony

and written comments that will be generated as a result of the Task Force’s review

of NEPA. I strongly urge the members to exercise the utmost caution in segregating

actual NEPA issues from state, local and even larger global issues. NEPA should

not be used as a scapegoat for unrelated issues.

I would also urge the Committee to maintain its bi-partisan mission to objectively

look at the Role of NEPA. At the Nacogdoches hearing, the representatives of southern industrial America were lined up both physically and symbolically in close proximity to members of the Committee. The industrial representatives (including Texas

Railroad Commissioner Carillo) argued to the last witness that economic considerations should be elevated in priority such that their respective industries may have

quicker and wider access to the natural resources of this country.

I wish to make my belief clear that resource consumption is necessary and a part

of all of our lives.

42

It is the responsibility of the Resources Committee to make the distinction between the original intent of NEPA and this clear lobbying effort of American industries to prioritize their personal economics over all other considerations in resource

management decisions. NEPA mandates that all aspects of resource management be

considered including the diverse personal values represented in resources and the

impacts associated with resource utilization, both for today’s Americans and for future generations. There is a strong appearance of bias in this NEPA review process

from both the disproportionately large representation of industry on the witness

lists and the uniform assertion by those witnesses that NEPA should be changed

to allow easier and wider access to resources to increase their profitability. There

also appears to be a discrepancy between the mission of the Task Force to ‘‘improve’’

NEPA and the apparent agenda of industrial representative witnesses to weaken its

provisions meant to insure strong environmental protection and equity through reduced impacts and comprehensive consideration of resource values.

Again I urge you to make no changes to NEPA that would weaken environmental

and human health protection. Additionally a full range of resource values should be

considered without prioritizing economics over the others.

Miss MCMORRIS. Ms. Nichols?

STATEMENT OF SANDRA NICHOLS, ATTORNEY WILDLAW

Ms. NICHOLS. Hi. I’m Sandra Nichols. I’m with WildLaw, an environmental nonprofit law firm. I would like to thank Chairwoman

McMorris and Representative Gohmert for this opportunity to talk

about this.

My organization, WildLaw, has reviewed over 5,000 NEPA documents, including several hundred full Environmental Impact Statements. We work throughout the Southeast and work on a range of

environmental issues, but we focus on national forests; so I would

like to share with you some of our experiences working with the

national forests in Alabama, Mississippi, and Louisiana.

I would like to begin by saying we need to keep this in perspective. The vast majority of projects subject to NEPA proceed without

any problems, and there’s no controversy or litigation. In fact,

changing laws results in more litigation. When the law changes all

those (inaudible) are uncertain, and that’s when litigation and challenges result.

In fact, NEPA is already a flexible law. The standard of how

much information needs to be collected is a reasonable standard.

There’s no page limit—page requirements for Environmental Impact Statements.

When implemented correctly, NEPA makes projects better. When

Federal agents use the law in the spirit in which it was intended,

conflicts and potential problems are resolved early in the planning

stages. The law allows identification of environmental, social, economic, and historical concerns early on; and they can be resolved

before the project—before there’s too much invested in the project.

NEPA does not stop projects. Problems with projects stop

projects.

We all know from—hearing from across the country the great

controversies caused by fire danger in the national forests. The

problem is that not only do fires threaten public resources, our national forests; but often communities that are part of the national

forests are endangered by this risk, as well.

Well, right next door, in Louisiana, they have a fire danger problem; but we don’t hear about it on the news. The Forest Service in

Louisiana has used NEPA to do exemplary planning and involved

43

the community, and there’s no objection to their plans. The way

that they have accomplished this is by keeping the public informed.

They send out scoping notices with details about what they’re

planning to do, and they do thorough Environmental Assessments

with detailed site-specific information, photos, and they—they inform the public so that the public is aware in advance, and they

collaborate. Now, NEPA does not require consensus. It only requires collaboration.

The (inaudible) in the Kisatchie National Forest has won an

award for their (inaudible) based on this process.

Another example of a successful implementation of NEPA is from

Alabama. The Conecuh National Forest—I’ve heard mention of the

longleaf pine. That’s one of the rarest ecosystems in the country.

And up until the early ’90s, the longleaf was being systematically

destroyed by (inaudible).

There was a change in personnel in the agency in Alabama and

in—and the new personnel decided that they wanted to restore the

historical longleaf and wire grass ecosystem, and they went about

it by fully embracing the spirit of NEPA.

NEPA encourages taking a holistic view of resources and gathering full information in order to make informed decisions. One

complaint about NEPA is that it requires a lot of procedure.

Well, the personnel at Conecuh found a way to follow NEPA

without bogging down their work. They did one large comprehensive Environmental Impact Statement on the whole restoration

project. They included all the stakeholders from the area, and they

looked at all the resources in the forest.

Now, it did take them some time. For the past five years, they’ve

been implementing their plan out there, working on the ground;

and all the stakeholders, including the loggers and all the different

(inaudible) in the community are happy with the results.

NEPA resolves conflicts. It allows different perspectives (inaudible) potential problems to be revealed early.

Citizens sue when they’re surprised. If they’re not informed or if

there’s a problem with the project, that’s when they report it. And

the courts—courts aren’t biased toward citizen groups. They only

stop projects that are actually bad projects.

Because of the great attitude toward NEPA in the three states

that we work in, there’s no—there’s currently no litigation in Alabama, Mississippi, or Louisiana national forest areas on NEPA

issues. In fact, the Forest Service actually does a great job of collaborating with citizen groups in these three states.

In conclusion, I would like to say if not for NEPA there would

be a lot more litigation. I agree that changes can be made, but they

should be changes in the implementation but not the law.

When NEPA—when agency personnel implement NEPA according to the spirit it was intended, if they’re motivated to do so, and

they’re trained to do so, NEPA results in better projects. Thank you

very much.

[The prepared statement of Ms. Nichols follows:]

44

1 42 U.S.C. ’’ 4321 et seq.

2 42 U.S.C. ’ 4432(C)(i).

3See generally Robertson v. Methow Valley Citizens Council, 109 S.Ct. 1835 (1989), and

Marsh v. Oregon Nat. Resources Council, 109 S.Ct. 1851 (1989).

Statement of Sandra Nichols, Staff Attorney, WildLaw

The National Environmental Policy Act 1 (NEPA) is perhaps the shortest federal

environmental statute. Yet its benefits are incalculable. In countless cases, NEPA

procedure has enabled the discovery of potential problems early enough to resolve

them before they became obstacles to the completion of federal projects. This small

act’s purpose is to require federal agencies to consider the environmental consequences of major federal actions; it is aimed at the federal government and not

at individuals or the states. NEPA directs that all federal agencies must include in

all ‘‘major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on...the environmental impact

of the proposed project....’’ 2 This requirement is the genesis of what is commonly known as the environmental impact statement (EIS), and the cases that deal with

whether a federal agency must prepare an EIS on a particular project are legion. Congress created NEPA to provide procedural steps for agencies to take prior to initiating projects to assure that the decision maker and the public would be aware

of the environmental consequences of the project. When making project decisions,

among the factors federal agencies must consider, NEPA requires a look the environment and public concerns. The Supreme Court has held that NEPA is strictly

procedural in nature, which means that NEPA requires only that an agency evaluate the environmental consequences of any action. NEPA require agencies to consider the environmental impacts of their decisions, but it does not mandate projects

or methods. NEPA requires an agency to take a hard look at environmental impacts,

but that agency can still take any course of action. There is no requirement in

NEPA that the agency bias its decision in favor of protection of public health and

the environment. 3

NEPA and the regulations adopted there under by the Council on Environmental Quality (CEQ) are binding on all federal agencies. For every federal project an environmental assessment (EA) must be performed. The main purpose of the EA is to

determine whether an EIS needs to be done. If, as a result of the EA, the agency

finds that there is no ‘‘significant’’ environmental impact, then the agency issues a

Finding Of No Significant Impact (FONSI) and continues with the project. The definition of ‘‘significant’’ has been heavily litigated because if an agency issues a

FONSI as the result of its EA, and there are unresolved conflicts about the impacts

of the project, those concerned will argue that the FONSI was incorrect and that

an EIS must be prepared prior to continuing. WildLaw attorneys have reviewed more than 5,000 NEPA documents, including

several hundred EISs, thousands of EAs, and thousands of Categorical Exclusions

(CEs), Decision Memos (DMs) and other related work. We have seen 12-page EAs

that fully complied with NEPA, and we have seen 450-page EISs that did not even

come close. Page length and ‘‘administrative burdens’’ have nothing to do with

whether an agency complies with NEPA or not. It is the attitude of the agency personnel that matters most.

If agency personnel see NEPA as a burdensome hurdle to be overcome, they will

inevitably fail to comply with the law. When they see NEPA as a process to improve

information collection and decision-making and as a means to improve public participation, they invariably do excellent work, both in the NEPA analysis and on the

ground.

Examples of NEPA Working in the Southeast

Kisatchie National Forest, Louisiana

Some U.S. Forest Service District Rangers use the new Healthy Forests Initiative

(HFI) authorities (which deal with NEPA requirements, mostly) to shortcut public

participation. When they decide to undertake a project on their national forest they

send out generalized scoping notices (sometimes no more than two paragraphs) and

do not allow public comment on any draft EAs they do. The only information the

public ever gets about any categorically excluded HFI project before it is decided is

the scoping notice. Thus, if the scoping notice does not give specific details, the public is taken by surprise, after the decisions are made.

Districts in the Kisatchie National Forest, such as the Kisatchie District, send out

5-10 page scoping notices that include detailed maps and several photos of the

project areas, all with brief, but clear and detailed, descriptions of the project areas

and planned actions.

45

After a CE project is decided, it is important that the decision memo (DM) cover

the analysis done and properly justify the project and the use of the CE under the

HFI. Otherwise, a member of the public concerned about the project will have no

way to find out more. Commonly, citizens in this position resort to litigation in order

to learn the details of the project. Again, districts in the Kisatchie shine in providing

detailed DMs, including analysis of data on management indicator species and other

surveys, that give a very clear picture of the staff’s work and analysis and of the

project’s proposed actions and impacts.

A good CE scoping notice and a good CE DM can head off much trouble if they

show thoughtful, careful and proper use of the HFI authorities in ways that actually

do address forest health problems.

If a project is too big for a CE and requires an EA, the agency should send out

the draft EA for a reasonable period for public review and comment. Courts have

ruled that the public must have a chance to review and comment on a draft EA (or

NEPA material that is substantially equivalent to the EA) from the Forest Service.

All the districts in the Kisatchie provide reasonable comment periods on their

draft EAs. For an example of an exemplary EA, get a copy of the draft EA for the

Little Kisatchie Project Area project from the Kisatchie District. It is a very fine EA

giving the reader an excellent and clear review of the project, its purpose and its

impacts.

National Forests in Alabama

In 1992, the National Forests in Alabama were the worst in the whole Forest

Service system. Their only goal was logging and this negligence resulted in legal violations. A series of lawsuits, appeals and other legal actions shut down all logging

in the National Forests in Alabama in 1999. Since then, the leadership of the Forests and much of the staff has changed. Now, the National Forests in Alabama are

implementing scientifically-valid restoration programs, all of which were prepared

under (and in full compliance with) NEPA. If NEPA can be followed in Alabama,

after such dismal failure, such a reversal can be achieved anywhere. The first to

do this new type of restoration work, the Conecuh National Forest prepared a full

Environmental Impact Statement (EIS) on what restoration is needed for that forest’s unique Longleaf Pine/Wiregrass ecosystem (the rarest forest type in North

America) and on what work could be done in five years to correct past mismanagement and restore the natural and healthy forest native there. That restoration plan

was not challenged legally in any way and is proceeding successfully.

The Talladega National Forest just released their five-year restoration EIS in

early 2004. It covers 19,000 acres. They had MIS data for the entire area over several years, and they did complete surveys for endangered, threatened, proposed and

sensitive species on every acre of that 19,000 acres.

Now National Forests in Louisiana, Florida and parts of Mississippi are also

doing great Longleaf Pine restoration work, all in compliance with NEPA. Population trend data on management indicator species is being collected and analyzed.

Survey data on threatened, endangered, and sensitive species is being collected and

analyzed. Public participation is open and good. NEPA analysis for most of these

projects is exemplary and does not slow down the agency at all. Indeed, most of

these forests have found that doing NEPA analysis right, instead of trying to shortcut NEPA, makes their final decisions better and more successful.

How can agencies comply with NEPA? Simple, do these things: Follow the

law, use good science, be honest and open with the public.

Which takes longer? (1) Doing a quickie EA in four months, or (2) Doing a full

and thorough EIS for two years? Answer: (1).

Consider one timber sale WildLaw challenged in the late 1990s. The EA came out,

and it was garbage. We appealed the decision to proceed with the project and we

won. The second EA came out much the same, and we appealed and won. The third

EA came out, and, yep, we appealed and won again. The fourth EA came out; it

was finally better but still lacking. It got stopped by a lawsuit. So, the EA that took

four months to do has still not been implemented now eight years after it was

started.

Around the same time, the Conecuh National Forest did a full EIS on longleaf

pine restoration on the forest; it took them about two years to plan and prepare the

EIS. They are now entering year five of that five-year project and are starting the

phase two EIS tiered to the first EIS. That Ranger has won numerous awards, got

a nice, big Tahoe to drive, and has made the local loggers and politicians happy.

Scientists and all environmentalists involved in that forest are pleased. The Ranger

who did the crappy EA has disappeared somewhere into the bureaucracy.

46

Read the Conecuh Longleaf Pine Restoration EIS. It is not a long EIS in page- length as it is a good example of site-specific detail and data without unnecessary

filler. When they did it, they got a lot of flack within the agency about how ‘‘this

is not the way we do things,’’ but guess what? Once it was done, it was not appealed

or sued over (not even by that 5% who oppose logging on principle), and the

Conecuh is now winning awards and national recognition for their work. And rightfully so. Now, all the forests in Alabama are doing restoration EISs. The analysis

work takes longer than for an EA but the result is MUCH better. Below are photos showing how the Conecuh National Forest uses clearcuts with reserves to eliminate unnatural Slash Pine plantations to restore them to native

Longleaf Pine: NOTE: The following pictures have been retained in the Committee’s official files.

• Figure 1: All Longleaf is retained and debris is spread to prevent erosion and

rutting. • Figure 2: Longleaf seedlings are planted and prescribed fire maintains the composition of the stand. • Figure 3: Longleaf forest in need of fire. • Figure 4: Prescribed fire in action. • Figure 5: Restored Longleaf forest after thinning and with regular prescribed

fire.

Also, you don’t see massive wildfires on Alabama’s National Forests, precisely be- cause they have a well-planned work program to restore the natural forests, including regular prescribed fire. Instead of disingenuously claiming that clearcuts done

to get the cut out ‘‘mimic natural processes,’’ they are actually restoring and assisting natural processes. These photos show how using prescribed fire for restoration

purposes works in the Conecuh National Forest.

The other National Forests would do well to learn from the Conecuh in Alabama.

They should take a year or two to do a full and excellent EIS on what restoration

really means for their district or forest. If they consider all forest needs, road repair

and road obliteration, stream rehabilitation, indeed entire watershed rehabilitation,

etc., and involve all stakeholders at every step they will be in a vastly better position for future projects. It is more effective to do a comprehensive analysis than to

analyze individual projects which cumulatively are big. Yes, that takes longer than

an EA, BUT the rewards could be significant. They include: • No need to do NEPA analysis, National Forest Management Act data collection

or Endangered Species consultation for five years. Instead of doing EAs and

having to do the same analysis over and over for each project, do all the analysis at once and do 20 projects together as one restoration plan. Then, the 20

projects will make more sense and do a better job for the land than if you did

them all piecemeal. Do the analysis once and then do work in the woods for

five years before you have to do analysis again.

• 95% of your opposition will be gone. Why? If you comply with the law, collect

and use good data, utilize good science and be open with everyone and keep

them involved, the result will be better. Sure, there is 5% out there who will

oppose anything the Forest Service (or other federal agencies) does, but how

often do they sue? They do occasionally, but the they only win when the agency

has broken the law.

• Make your work truly bulletproof. For years WildLaw has heard about Forest

Service people trying to ‘‘bulletproof’’ their EAs by using certain language or by

making up shortcuts that they think will look like compliance with the law.

Guess how many of these ‘‘bulletproof’’ EAs WildLaw has been able to shoot

dead? The only way to ‘‘bulletproof’’ your work is to do the work right. Follow

the law, use good science, be honest and open with the public, and no attorney

with any sense will dare sue you.

• Awards, big vehicles, commendations, accolades, promotions and fast career advancement (for solving the ‘‘analysis paralysis’’), admiration from your fellow

agency people and from a variety of folks in the public, and good beer and fine

whiskey.

In woodworking, the saying goes ‘‘measure twice, cut once.’’ It means take the

time to verify that the planned action is correct and then you get to take that action

without making mistakes and without having to do the work over. For NEPA analysis, the same is true. Take the time to make sure what you are doing is right and

done well, then you can do it without having a judge tell you to go do it over again.

And over again....

The solution to NEPA ‘‘burdens’’ lies not in changing the rules of analysis but in

changing how the analysis is done. For too long, agencies have compartmentalized

(literally) their work. Trying to make each project look small and insignificant

seemed like a good way to avoid doing population data collection, cumulative

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impacts analysis and a host of other things required by law for ‘‘big’’ projects. That

hasn’t worked too well, has it?

Agencies need to stop looking at compartments and individual projects. Instead, they should use NEPA as a tool to assess what the land needs and what they can

do to meet those needs over a longer term, at least five years. This is not project

planning but rather an approach to how to implement plans with a broad vision instead of a microscope.

Main problems we see with EAs (in no particular order)(and many of these will be in the context of National Forest projects, which we review the

most):

1. Emphasis with packing EA with boilerplate language. More does not make better; better makes better.

2. Lack of site-specific information about the project area and the impacts to it.

3. Lack of cumulative impacts identification and assessment.

4. Failure to consult with and use the expertise of local scientists.

5. In the rare species realm, the idea that ‘‘if we assume they are there and plan the project accordingly, things are okay.’’ The idea that you do not impact rare

species if you assume they are there is a fallacy. It is impossible to know that

mitigation measures and other actions to reduce impacts to rare species work

unless there is some science showing they do. If you do not survey for rare

species and just assume they are there, you have no way to know if your assumed mitigation works. Example: you can assume that Passenger Pigeons

are in a project area and execute the project and its mitigation accordingly,

but you will not have any Pigeons when you are done.

6. Conversely, without truly looking for sensitive species there is no way to

know whether they are present in a project area and how a project may impact them.

7. Similar to the above, the assumption that leaving habitat available for a species means that the species uses it. Without actual, on-the-ground, survey

data, you have no way to know this. Example: the National Forests in the

South have plenty of good habitat for Passenger Pigeons, so that means we

have lots of them, right? You can build a $100 million baseball stadium in

Slapout, Alabama, but that does not mean a major league team will use it.

In order to know you are doing the right thing, you must know the facts about

the land and about the impacts of your actions on it; you cannot guess, estimate, speculate or model reality. You have to know to know.

8. Lack of reasonable alternatives. Some EAs have even had only one action alternative (with the obligatory but readily dismissed ‘‘no action’’ alternative).

Really give consideration to the ‘‘no action’’ alternative; it won’t kill you, honest. I know of two Forest Service projects (one in AL and one in LA) where,

once the Ranger gave real thought to the ‘‘no action’’ alternative, they chose

it. Action is not always the best action.

9. Do not limit your decision or your alternatives by drawing up an artificially

narrow purpose and need for the action. Remember: if we can show a court

that you fiddled with the purpose and need to predestine the outcome, we can

get the project enjoined no matter how well you complied with the laws after

that. Some forests are now giving full consideration to noncommercial methods of achieving the purpose and need; doing so does not mean you have to

choose it but failing to consider the option when it is possible means losing

in court. But some districts have chosen noncommercial alternatives, particularly for thinning young, dense stands of pines. Sometimes, not selling trees

works best.

10. Conversion of natural forests, example: hardwoods to pine.

11. Perpetuation of problems. We saw half a dozen Southern Pine Beetle projects

in 2001-02 that planned on logging infected Loblolly Pine and then planting

Loblolly right back again. You cannot solve a problem if the solution recreates

the very conditions that caused the problem in the first place. If you are not

going to truly solve a problem, it would be better just to leave it alone. Districts that solved the problem replanted with Longleaf, which was what was

supposed to be there.

12. BEs based on lack of data from project site and on overall population data

on rare species.

13. ‘‘Site-specific’’ information that is clearly wrong. We do check the sites of

projects from time to time; we won’t claim that we check every stand in every

project, as we don’t have enough people or money for that. But we get out

to more of them than you will ever know. The odds are if you are misrepresenting the situation on the ground, we will nail you on it sooner or later.

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14. Assumption that ‘‘because what we are doing is supposed to be good for the environment, then we don’t have to do much analysis.’’ NEPA requires equal

identification and analysis of all impacts, even ‘‘good’’ ones, to make sure that

the real result of a proposal can be reasonably known ahead of time. 15. Use of ‘‘paper reality.’’ Example: ‘‘Visual Quality Objectives will not change due to clearcut.’’ VQOs are standards set on paper, and they are changed by

changing the paper; they won’t change even if a nuclear blast hits the site.

A clearcut will change the scenic and visual quality of an area even if Plan

and paperwork says the VQO stays the same. NEPA requires assessment of

real world impacts, and that duty cannot be foregone by saying your paper

classifications would be changed by timber cut. Another example: classifying

a site as a ‘‘pine site’’ in order to claim that cutting down the 100-year-old

hardwoods there is ‘‘not conversion.’’

16. Failure to show how mitigation measures will be applied in a site-specific manner and how they will work. Merely listing mitigation measures in the

EA is not legally sufficient. You must show that they will reduce impacts to

a level of insignificance or you HAVE TO prepare an EIS. If you have used

those mitigation methods in the past and they have worked, don’t just say so;

demonstrate that success in the EA through data, studies, research or even

well-documented observations and photographs. Although a scientific study on

how stream buffers in your district did indeed prevent sediment from entering

the water is best, accounts of actual field observations of similar buffers on

similar slopes and soils in the past that did show that sediment stopped yards

form the stream is an acceptable demonstration of the impacts and results of

mitigation. Unsupported claims of ‘‘best professional judgment’’ mean nothing,

but judgment based on documented past experience is something worthwhile.

Include in the EA accounts of past similar projects and how the mitigation

measures worked there; include photos, maps, field notes, etc.

17. Misunderstanding of the ‘‘significance’’ standard in NEPA. An EIS must be prepared unless the agency can show that the impacts will be insignificant,

either in themselves or through use of properly documented mitigation measures. If the impacts might be significant, or if the agency just does not know

if they will be significant or not, the agency must prepare an EIS. Most districts assume that unless the impacts are clearly shown to be significant, then

an EA is all that is needed; that is not the law. NEPA assumes that an EIS

is required unless the EA can prove that the impacts will not be significant;

failure to make that proof mandates an EIS. The burden is NOT on the public

or environmental groups to prove significance. 18. Minimization of negative impacts, a lack of honesty about things being bad. Example: claims that a clearcut will not look bad, it will provide ‘‘visual diversity’’ or ‘‘a deeper view into the forest.’’ Use of euphemisms or contrived language (‘‘timber harvest,’’ ‘‘visual diversity,’’ ‘‘regeneration cut,’’ etc.) Don’t

make ridiculous claims like ‘‘portions of the public like how clearcuts look.’’

Yes, the 1/10 of 1% of the public who are loggers may like a clearcut but to

‘‘balance’’ that evenly with the 99.9% of people who do not is just deceptive.

BE HONEST! A clearcut to restore the native forest type WILL look bad for

many years; admit that but explain clearly that the adverse visual impact is

needed to get the beneficial result of restoring the natural forest in that area.

Admit where you lack data. Admit where you do not know if mitigation measures will work. We will be inclined to work with you to address those deficiencies if you admit them, but if you hide them, we will attack you (and

rightfully so).

19. Attempts to minimize negative impacts by artificially limiting space and time

of impacts analysis. Examples: using a three-year time frame for assessing

impacts from clearcuts; real world impacts from a clearcut last much longer

than three years. Limiting analysis to artificial boundaries such as compartments or ‘‘action area’’ or a conveniently drawn ‘‘project area.’’ A clearcut in

compartment X will have cumulative impacts (scenic, wildlife, etc.) with a

clearcut 30 feet across a road from it in Compartment Y, but if EA analysis

only looks at Compartment X or the watershed that holds X (although X and

Y are compartments next to each other at the top of two adjacent watersheds), real world impacts will be ignored and public will be deceived by the

paper. But a judge will see my photographs and video showing how you

missed a cumulative impact that was just 30 feet from your project.

20. Attempts to force inappropriate projects into types that are categorically excluded from the requirement to conduct an EA. If the project is valid, considering the environmental impacts and informing the public can only make it

better.

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Suggestions for ways an agency can improve its NEPA compliance (in no particular order):

1. Better maps in EAs (need clear copies, color works best).

2. More detailed scoping notices.

3. Provide more information on projects even when they are categorically ex- cluded from the EA requirement.

4. Distribute EAs and EISs on CD-ROM in addition to paper. You will save

paper, and those of us who are computer savvy will appreciate it. 5. More site-specific description and information.

6. More identification and assessment of cumulative impacts. Really monitor after the project and develop real data on what impacts are. This will be very

useful to you for future projects. 7. Less boilerplate language. Use it only when really appropriate; do not try to use it as a substitute for real work. Packing an EA or EIS with irrelevant

information is a waste of your time; it will not ‘‘bulletproof’’ your work. 8. Use local data and studies. Less reliance on distant studies to justify action. Example: a southern National Forest in the 1990s used New England bird

studies (from more than 1000 miles away) on impacts from clearcuts planned

in Alabama (totally irrelevant to local climate, forests and bird species) and

rejected local studies done in that very district by the state’s foremost ornithologist; even though those local studies were complementary to 80% of what

the district was doing in its timber program. Things like this make for easy

winning appeals and lawsuits for us. 9. Seek out and use work and opinions of local experts. Local university sci- entists, studies funded by environmental groups (For five years, WildLaw and

its client Wild Alabama funded more studies on the National Forests of Alabama than anyone, including the agency), Natural Heritage Programs, National Speleological Society (for finding caves and assessing them for endangered bats), etc. The Forest Service admits it lacks resources to do all the scientific research it would like, so you need to be more proactive in getting help

from outside sources. Form networks with experts BEFORE projects are proposed and get their input at all stages. Don’t just assume experts will know

about projects and comment if needed, because often they do not. 10. Consider more alternatives.

11. Give consideration to economic impacts other than those that support the proposal. For example, when planning a timber sale, consider the effects of lost

recreational use.

12. Use reality. If real world and paper classifications do not match, admit it and assess the real world impacts; do not sweep them under the rug. 13. Admit it when you don’t know things. NEPA does not require perfect knowl- edge but a reasonable attempt to identify impacts. Do the best you can and

admit data gaps. ‘‘Best professional judgment’’ means nothing when you have

collected no data; when you use your ‘‘judgment’’ on a foundation of nothing,

you are just guessing, and smart judges know it. But when you have made

a good, honest effort to collect what data and research you could and then

make reasonable assumptions based on best professional judgment to fill

gaps, that can be okay. 14. And when in doubt about the data and impacts, be humble and act cautiously. Do not take a ‘‘see no evil’’ approach. Be respectful of the fact that you really

do not know everything there is to know about a forest; no one every will.

Environmentalists are much more willing to work with agency people who

recognize and admit the limitations of their knowledge. Agency people who

act like they know it all are big, bright (and EASY) targets for us. 15. Give equal weight to other uses of the land in question.

16. Give REAL consideration to the thoughts, ideas, and (yes) feelings of the peo- ple who use and love the area. In some areas and in many ways, the people

who use the area for hunting, hiking, etc. do indeed know the place better

than the agency people do, and you must be honest and brave enough to

admit that fact and REALLY seek their help. Do not just pretend to seek public input and then brush it off and do what you want anyway. Example: a

number of truly world-class archeological finds have been made on the

Bankhead National Forest in the last 15 years, ALL by local people, none by

the Forest Service.

17. Distribute information widely. Make the mailing lists open; assume that people want the stuff unless they tell you otherwise. Do not try ways to get people off the list so that you can ‘‘hide’’ projects from them; do not send out

quarterly notices saying, ‘‘If you do not return this card within ten days, we

will assume you have no further interest and will drop you from the list.’’

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Your default should be that people are interested until they say they are not,

not the reverse. In this age of electronic mailing lists, you have no excuse for

not including everyone on everything.

18. Get out into the woods with environmentalists. We are not your enemies, unless force us to be. WildLaw has often found common ground while actually

out standing on the ground and discussing things as we saw them. Invite all

environmentalists who comment or show interest in your forest for hikes, cook

outs, canoeing, camping, whatever. Those who are truly interested in the forest and the project will accept and be willing to talk with you. Those who

refuse your repeated attempts to reach out to them are more interested in

their agenda than anything real; we cannot help you with those folks other

than to say to do your job right and the best you can and ignore them the

best you can. If you comply with the law, they cannot beat you in court. Environmentalists only win in court when they are right; there is no ‘‘bias’’ among

federal judges toward environmentalists. We have practiced before more than

200 judges; none of them let us have what we wanted just because we wanted

it.

Remember: if an agency hides things, minimizes real world impacts or evades full

compliance with the laws and regulations, the public will assume that it is up to

something, and they will challenge the proposal. Even if a proposal will have beneficial results (such as restoring the natural forests in that area), if you cut corners,

we have to assume that you are up to something dastardly. Otherwise, why would

you be cutting corners? Honesty and openness in all things will do you much more

good than anything else.

NEPA is a tool for exploring environmental issues and public concern about these

issues at a point when true problems can be resolved without impeding projects.

When the NEPA process is followed in the spirit of collaboration, only flawed

projects will be challenged. NEPA results in improved agency work.

I deeply appreciate this opportunity to address the Committee and present this

testimony before it. I remain committed to working with the Committee’s members

and staff to find real solutions for making NEPA a better and more effective law.

Representative Joe Barton has publicly invited environmental groups ‘‘to come out

of the trenches’’ and meet you halfway. If that invitation is truly sincere, as we believe it is, we are here to do that.

Thank you,

Miss MCMORRIS. Thank you. Excellent testimony. Congressman

Gohmert and I are going to take turns now asking questions.

I’ll let you start.

Mr. GOHMERT. (Inaudible) I really appreciate your time. (Inaudible). So let me go straight to our Texas Chairman of the Railroad

Commission.

You had mentioned in your testimony, Chairman, that there was

some storm water runoff issues that apparently you didn’t get to.

Would you care to address that issue?

Mr. CARRILLO. Yeah. There’s some particular provisions to the

proposed EPA rulemaking under the NPDES storm water permits

that would potentially require a storm water permit for oil and gas

operators for activities affecting 1 acre or more of activity, particularly with what’s referred to as the common plan of development

concept in the Construction General Permit.

From my perspective, what would happen is—if that occurs is

that EPA’s rule would really improperly seek to put oil and gas exploration and development—categorize it as if it was residential/

commercial development. There are big differences in residential

and commercial development. Clearly, if you’re building a subdivision, you start out here and you know you’re going to have 500

homes, you can plan.

You can say that, yes, indeed, the total activity is going to impact

this certain amount of acreage.

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In oil and gas development, for example—I’ll give you an example. You may spend 2 1/2 million dollars to drill a well and you—

you certainly have plans to develop that property beyond that; but

it could very well be that that is a dry hole and you abandon those

plans and the impact ultimately ended up being just one pad site.

So there’s some rules that are being considered that I think could

negatively impact development to the tune of—one study said it

could cost the country from 1.3 to 3.9 billion barrels of domestic oil

production and 15 to 45 trillion cubic feet of domestic gas production over the next 20 years.

To put that in perspective, Councilman, taking the median of

those numbers—that represents over five total years of Texas natural gas production and over seven years of Texas oil production

that would be lost.

And the issue, as I see it—and I recognize that we’re doing—

NEPA is kind of used as an umbrella through which all of these

other laws are considered, whether it’s the Clean Water Act, Clean

Air Act, Endangered Species Act, et cetera. And so while it doesn’t

relate directly to NEPA, I think due to the—due to the fact that

you’re dealing with these additional environmental laws, it does

come into play.

Mr. GOHMERT. Let me follow up, too. You’re familiar with hydraulic fracturing, for example. I understood that the State of

Texas had a program that’s worked for a hundred years that has

oversight over hydraulic fracturing. Can you explain some of the

steps in place that—the Texas regulations that protect the environment and perhaps that could be exported into the Federal level?

Mr. CARRILLO. Hydraulic fracturing refers to fracturing the subsurface strata, generally thousands of feet below the surface, to release oil and gas that is—that is currently trapped under there.

The Barnett Shale Gas Play, the hottest gas play in the State of

Texas, and one of the biggest and most important plays in the nation, is just under the City of Fort Worth and surrounding counties.

If we—if industry was not allowed to fracture the rock and the

subsurface that—that play would not be a viable economic play.

That represents about 26 trillion cubic feet of natural gas potential.

So at the very time that this nation needs more energy resources—we’re importing about 50 percent of our oil—we’re actually importing gasoline right now, and we’re looking to build

liquified natural gas facilities. This is the very time that we need

to encourage more domestic production, not unnecessarily discourage it.

Now, hydraulic fracturing does have a history—about a hundred

years here in the state—of production without any known damage

to groundwater resources, because, in fact, the fracturing is limited

to those strata thousands of feet underground, not anywhere near

the—the near surface, I guess, groundwater resources.

And so I guess my encouragement is to give the states more

flexibility to deal with these issues internally as opposed to having

a Federal answer—one-size-fits-all answer to the very different and

varying problems of the individual states that I believe deal with

them and do on a regular basis.

Mr. GOHMERT. Thank you, Chairman.

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Miss MCMORRIS. I wanted to direct a question to Mr. Dructor. I

was—found it interesting to hear about the alternative arrangement that was made with the CEQ in response to the wind that

(inaudible). I understand that you mentioned in your testimony it

was only the 38th time that they had granted such a request.

I wanted to ask if you—were alternative arrangements used to

expedite other restoration activities such as reforestation? If not,

what do you believe were the consequences?

Mr. DRUCTOR. I think according to Mr. Davis’ testimony and

what I saw in the photos he presented, there’s evidence there that

the alternative NEPA arrangements (inaudible) harvesting activities of that timber.

When it came down to reforestation projects and NEPA processes

were involved, full EISs had to be administered; and because of

that—those pictures were taken on July 13th of this year. When

I was out there looking last week, taking those pictures, they were

still doing sod prep (inaudible). They hadn’t been planted yet.

And so we’re looking at trees that haven’t been put in the ground

versus 15- to 20-year-old trees already re-establishing. And as a result of that, you know, we’re losing habitat for our Red-cockaded

Woodpecker every time one of these storms hits. And the frequency

of these storms is not just every once in a while. It’s quite often

in the southern forests due to hurricanes, tornadoes, windstorms,

all that.

And so if we’re really going to be concerned about protecting

these Red-cockaded Woodpeckers, we need to get something done

a little bit faster. And we propose, you know, to do that, we need

to look at some alternative ways to evoke NEPA or to streamline

NEPA to get these projects underway.

I think it’s amazing that, you know, that out of the 2 billion

board foot allowable to be cut right now, the Forest Service are

under litigation for 1.6 billion board feet. So is NEPA working? I

don’t think so.

I brought this with me. I’m sorry I didn’t have time to show it

a minute ago. This is the timber sale volume that is under litigation across the national forests throughout the United States. And

certainly, you heard we don’t have but about 3 percent of volume

of Federal lands in Texas. In Region 8, where we fall, we have 50

million board foot of timber that’s under litigation.

Miss MCMORRIS. I’m in Region 6.

Mr. DRUCTOR. Pardon?

Miss MCMORRIS. I’m in Region 6.

Mr. DRUCTOR. Region 6? Yes, Washington. There’s 277 million

board foot under litigation. And this doesn’t include the timber in

the Timber Sale Program that’s under appeals prior to being (inaudible). It’s being determined how it’s going to be managed.

So is NEPA working? Are we using the best process? I think

NEPA has got good (inaudible) to it, but we need to take it back

to its original intent.

Miss MCMORRIS. If we were to put something, you know, administratively to establish an alternative arrangement, how do you believe it would impact public participation? Because that is one of

the bases of the NEPA process, encouraging—we want to be encouraging public participation. Can you talk to me a little bit about

53

how, you know, we could encourage more people in this process

with arrangements—how it might impact public participation?

Mr. DRUCTOR. Well, I think—I think, again, you have to get it

back down to more of the local level. You can’t do everything out

of Washington, D.C. We’ve got the (inaudible) office building right

here at Stephen F. Austin State University. These guys (inaudible) for our forests, and they know what’s going on on the ground. We can’t legislate and set forest policy (inaudible) each individual impact down here on our forests. We’ve got

to get control back to the local levels and invite public input on the

processes, the local folks who it’s going to have the biggest impact

on.

Miss MCMORRIS. In your written testimony, you referred to an

assessment by Congressman Greg Walden of the timber sales program; and you were commenting a little bit about it, you know, I

think, by showing this chart, the state of timber sales program.

What do you feel the effect has been on local communities?

Mr. DRUCTOR. Devastating. I certainly know of mills that have

closed here in East Texas because they were dependent on Forest

Service timber sales, (inaudible) in Huntsville, Texas, and a few

others around. Because they didn’t own their own acreage, they

had to go out and buy—the Forest Service usually had some setaside sales where they could go out and get on those (inaudible)

support.

So I think it’s (inaudible) important when you start getting an

even analysis of what are the economic impacts. I don’t think

there’s enough emphasis put on—in the NEPA analysis of how it’s

going to affect the local economies.

Miss MCMORRIS. Thank you.

Mr. GOHMERT. I’d like to hear from Ms. Nichols.

Ms. Nichols, I appreciate your comments and appreciate the information you also provided in writing. We don’t know each other

personally, but I’ve heard a good deal about your organization and

you personally, and the——

From my understanding, you and your organization are a great

example of how people can approach things from two different positions in concern for the environment that your organization has

and concern for individuals and families that are adversely impacted. My understanding is that your group has worked well with

other groups, that you try to arouse common sense.

You testified a moment ago that the vast majority of your

projects proceed without any problems. From what I understand,

that may be true because of the commonsense approach that you’ve

had in protecting the environment. But from testimony we’ve seen

around the country, with litigation just skyrocketing over the last

35 years and continuing that rapid growth and—for example, as

board feet continue to decline in inverse proportion to the amount

of litigation—it seems that it’s—not everyone uses good judgment

in trying to protect the environment, as I understand you and your

group have. So I think you-all are to be applauded.

I do need to make—since all of this is being recorded and will

be part of our Congressional Record on this issue, with regard to

(inaudible) and Environmental Impact Statements, Section 1502.7

requires that there not be—the final EIS shall normally not be less

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than—I’m sorry—shall normally be less than 150 pages; and proposals of unusual scope and complexity shall normally be less than

300 pages.

But when you—you say that NEPA resolves conflicts. I mean,

we’re seeing this heightened litigation that’s created more conflicts;

and we saw in our hearing in Spokane where there were, like,

eight feet or more of just documents over a (inaudible) less than

a mile of road. It’s been in litigation for years.

I really appreciate your approach; so let me just ask: How is it

that you have been able—what have you done to work with groups

to come to conclusions so that you can say the majority of the

projects proceed without problems? What are you—how do you——

Ms. NICHOLS. Well, I have to start—thank you. I have to point

out that there are always going to be people with extreme positions

on both sides; so there will always be conflicts of this type, and it’s

not—NEPA doesn’t give them any advantage. People would be objecting to development projects, no matter what.

Our approach is that, you know, logging trees is legal. Mining is

legal. All these projects are very important to our economy, but we

just want to see them done in the best way possible.

And from our perspective, NEPA—when—with an emphasis on

when it is implemented correctly. If the stakeholders are involved

and there’s collaboration and different perspectives are respected,

conflicts get resolved. It’s really when people are shut out of the

process—we are talking—NEPA only affects public resources; so

when people are—when the public is shut out of the process,

they’re more inclined to sue, even if it turns out it’s a good project.

If they’re listened to, if informed, and their perspective is at least

considered—and we all know NEPA doesn’t dictate how Federal

agencies do their work. They can still do with any project what

they want; but 99 times out of a hundred when concerns are at

least considered and decisions are explained, then most reasonable

people will try not to fuss.

Is that basically what you’re saying?

Mr. GOHMERT. Uh-huh. I appreciate that insight, yes, ma’am.

Ms. NICHOLS. Thank you.

Mr. GOHMERT. And let me also mention that it seems that one

of the problems we hear is it’s not necessarily just NEPA, itself;

but as with any law that Congress passes and—then you get the

agencies involved and people that are not elected ending up giving

their twists on regular—regulations, it ends up creating more problems for individuals than was ever intended by the laws.

And so as you continue to answer questions, if you know of regulations that have created problems that we can address rather than

the law, itself, then that would be a good insight.

If I might just add this last: I like this as an example of regulations being completely different from the law’s intent. Congress

wanted, after 9/11, for airline pilots to have the right to carry guns

in the cockpit. If they’re going to fly one of the biggest weapons in

America, a jet airliner, then surely, they can be trusted to have a

gun.

And I asked one of the pilots, ‘‘Do you-all carry guns?’’ And he

said, ‘‘Do you know what the regulations are in order to carry a

gun? We’ve got to go through this intensive psychological review

55

and testing and all these rigorous requirements.’’ Most people are

not going to—and that becomes part of your permanent file. Well,

nobody wants all this psychological testing in their file. Regulators

knew that; so they overcame the will of Congress just by the regulations they put in place.

So any insight that you might have about Federal regulations

that we need to get after will be helpful.

Miss MCMORRIS. And I might just mention that our goal is—as

a Task Force, we haven’t yet figured out what our recommendations will be, but it is—there could be recommendations to the statute or to the way NEPA is implemented; so we’re open to any suggestions you might have.

I want to get back to Ms. Johnston. You said that the plan was

impacted by the high natural gas prices, and we wanted to share

with the audience—we have a chart that shows natural gas prices

around the world, and I think it is important to note that we, in

this country, are paying the highest of any country around the

world.

Ms. Johnston, can you just talk a bit more about your—you

know, you made some choices, using what was probably the most

environmentally friendly option that you had; and yet those choices

ultimately affected your decision to shut down the mill; is that correct?

Ms. JOHNSTON. Yes, that is correct. And as I stated in my testimony earlier, the infrastructure—the energy infrastructure of the

mill was put in place at a time when natural gas was plentiful and

inexpensive, and so we saved money. And certainly, we didn’t see

the kind of prices that we experienced in 2002 and 2003. Prior to

that time, we did have fluctuations in gas prices, but nothing like

the levels that we saw at that particular time and have continued

to sustain themselves, which was a huge problem.

The other problem was we were making product that did not

have high profit margins; so we weren’t able to build additional

costs into price of the product. And so with no end in sight in gas

prices, the only decision that the company could make at that time

was to close the facility, take a step back, and look and see if there

aren’t some other energy options that could be pursued to give us

some relief on the costs.

Miss MCMORRIS. Just so everyone understands, NEPA does come

into play in natural gas contracts. The government considers openland explorations or giving lease permits, and I wanted just to ask:

What do you think it would take for you to be able to plan and

make appropriate cost adjustments? If supply were increased, that

might lead to more stable pricing. Would that be something that

would be helpful?

Ms. JOHNSTON. Certainly. And you are exactly correct in connection with closing the mill. The fact that—one of the primary reasons that the facility closed was because of these energy costs (inaudible) current configuration with prices in natural gas.

And if exploration and drilling were expanded for natural gas,

that would increase the supply, and we believe that it would impact the pricing of natural gas. We are a perfect example of what

happens to a facility when the prices remain high and we can’t

overcome them by incorporating them into our prices.

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Miss MCMORRIS. Good.

Mr. Carrillo, I want to follow up. You made some statements related to the difference between state and the Federal processes and

talked about the state—you were able to work through the state

process in 25 to 35 percent of the time it takes to meet Federal requirements.

I wanted just to have you talk a little bit more about some of the

differences; and from that experience, if you have some recommendations as to how we might be able to improve the process,

that would be——

Mr. CARRILLO. Certainly. Thank you. Actually, I would like to follow up on her response briefly. I think one of the things that I

mentioned but didn’t elaborate on is that for the good of the Nation

and on a long-term basis, developing a liquefied natural gas facility

to bring natural gas to some of these places far away from where

the natural gas is said to be stranded, is less expensive than bringing it (inaudible) is an answer—may be the answer for stabilizing

natural gas prices over the long term.

I do think that the American public needs to brace themselves,

frankly, for relatively high energy prices for, you know, the mid—

short term to mid term; but, ultimately, some of these prices can

be stabilized by what you said, increasing domestic production and,

frankly, building an LNG facility, which we are doing, as I mentioned—Texas, Louisiana, and the Gulf Coast areas are doing.

Even those areas in the northeast and west aren’t willing to have

these facilities along their shores; so that’s one (inaudible).

With regard to your question—and I was specifically mentioning—referring to permits to drill oil and natural gas. And I

mentioned that we, here in Texas, have almost 50 percent of the

total activity across the Nation in terms of onshore drilling.

Typically—for example, at our state agency, we’re on pace to approve some 15,000 drilling permits this year.

That’s a huge number of drilling permits. We have a system in

place where, under normal circumstances, that takes from about

one to five days. We have an expedited process, frankly. Operators

can pay an additional fee; and they can walk it through, basically.

And we can have a typical turnaround time of one day.

We also have, over the years, increased our electronic filing ability so people can, from their office through the computer, via the

Internet, submit their forms. We can process them more efficiently

and do a turnaround time that’s much quicker, and that is one

thing—I’m not that familiar with the Federal process and whether

electronic processing is available, but it should be. It should be encouraged. It certainly enhances the speed with which one can get

that accomplished.

I don’t know if that answers your question.

Miss MCMORRIS. Thank you.

Mr. GOHMERT. Following up on the permit issue and the ability

of the Railroad Commission to process permits promptly, apparently, you have the data in place that allows you to examine what

will be impacted by a particular permit; is that correct, so it can

be reviewed.

Mr. CARRILLO. Certainly. And we have cooperative working relations with other state agencies. For example, we can get informaVerDate 11-MAY-2000 14:10 Dec 14, 2005 Jkt 000000 PO 00000 Frm 00060 Fmt 6633 Sfmt 6602 J:\DOCS\22849.TXT HRESOUR1 PsN: HRESOUR1
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tion from the CEQ and Water Board that tells us to what depth

is drinking quality water found so that we, in our requirements—

our regulations require adequate protection of that water be—occur

with the operator.

So there’s a lot of cooperation with different agencies that—I

know it’s more difficult at the Federal level, but it needs to be encouraged.

I don’t know if that answers——

Mr. GOHMERT. Yes, it does. And so—so in consideration of a permit and whether or not you approve it, you take into consideration

the drinking water, the groundwater, those different aspects that

are so vital to the rest of us. Is that accurate?

Mr. CARRILLO. That is accurate. And frankly, I mean, there’s

been oil and gas drilling activity here for over a hundred years.

Over a million wells have been drilled in Texas; so a lot of it comes

with the fact that we have just, over the years, had to develop

some processes to work these efficiently through the system.

Texas is also rather fortunate that we—there’s very little federally owned land as opposed to some of the other western states, in

particular; so it really doesn’t—some of these Federal laws and regulations don’t necessarily impact the state or the industry to the

degree that they do in certain other states, particularly in the west.

Mr. GOHMERT. Following up on permits, Ms. Johnston, is it your

experience with Abitibi that you-all could pretty well get permits

reviewed and a definitive answer in one to five days?

Ms. JOHNSTON. That’s a loaded question.

Mr. GOHMERT. That’s an opening to discuss any permit problems

that you face.

Ms. JOHNSTON. Well, (inaudible). Congressman, as you’re aware,

we have had a problem. We’ve had a (inaudible) permit that has

been hanging out there for probably five to seven years. The permitting process—now, this is state, not Federal; but it does begin

to be quite burdensome. And as many of my colleagues have said,

it leads to additional costs and drain on the company.

Mr. GOHMERT. Well, Mr. Dean, you brought up, obviously, water;

and obviously, you’ve been an active advocate on water issues. And

then we’ve heard from Ms. Nichols that one of the keys is getting

adequate input from the public—getting adequate information and

availability from and through the public and to the public.

What’s your sense about the effect that—public comments you’ve

made and others have made on the water laws that you’ve been

discussing?

Mr. DEAN. Well, one thing—it seems like the public comments

are invited, but then the reaction to those comments is—has

been—it seems to be falling on deaf ears.

And the point about trying to get—I’ve talked to the Corps of Engineers, for example, on mitigation issues. When the Texas Water

Plan effort started in Northeast Texas, we were looking at building

a large reservoir in Northeast Texas (inaudible) Marvin Nichols

Reservoir, for example, 65,000 acres.

And in some of the conversations that we had with the consultants who were sitting around the table and representatives from

the other agencies, I asked the question—I just threw the question

58

out on the table. I said, ‘‘What is the thinking on mitigation for this

reservoir?’’

And one of the representatives from one of the state agencies

said, ‘‘Oh, well, we like to think in terms of 10 acres of mitigation

for every one acre that you put in the lake.’’ So they’re planning

in terms of 650,000—600,000 acres of mitigation for a 65,000-acre

lake.

And one of the Water Board members who is here today, Mr.

LeTourneau, just reported to me—I asked him, how things were

going on the Water Board. He said, ‘‘Well, maybe you didn’t know;

but the Marvin Nichols Reservoir has been taken off of the agenda

as far as our Water Board in concerned.’’

So Northeast Texas has 55 percent of the developable water in

the State of Texas; and yet we have to go through such regulatory

land mines, so to speak, that we can’t get anything done.

It takes 30 years to get a lake permit, and yet it—and it costs

millions and millions of dollars; and so apparently, the Water

Board for Northeast Texas has decided it wasn’t worth it for the

Marvin Nichols to go through all that.

So—so we have obvious needs that need to be fulfilled. We have

reasonable ways to follow and fulfill those needs. We have—we

have both sides of the public who are trying to work together, from

the environmentalists—you know, all the way from the left to the

right.

And yet we have government agencies who have their own agenda or their own turf that they want to protect, and so it makes it

impossible for—for the public—for us as general—as average citizens to get anything done. So we’re just going to sit here and wait

until we run out of water, I guess.

Miss MCMORRIS. Mr. Shelton, first of all, thanks for your testimony—your written testimony. It was very thorough, and I appreciate the time that it must have taken you to put that together and

the examples that you shared about where NEPA has been a success and has worked well.

One thing that struck me about your testimony was going back

to the ’50s and the ’60s and the conditions that were present when

NEPA was passed, and I wanted to ask if you feel the same conditions today exist.

Mr. SHELTON. Well, I guess the answer would be yes and no.

We’ve solved some of those problems, but what’s happening out

there with—with our resources can be looked at as a slice of pie—

or pie, so to speak; and we’re just continuing to divide that pie up

into smaller and smaller pieces.

And what’s interesting to note in the conversations we’ve had

today is in some cases, with some resources, you can compromise.

You can have your cake and eat it, too; but in other resource management decisions, they constitute an irretrievable commitment.

And I believe the conversation about building Marvin Nichols—

I mean, how can you compromise on building a lake? Because on

the one hand, you have a functional stretch of river bottom which

provides jobs and wildlife habitat and functional farms and productive timberlands; but once you build a lake, those are gone. So

you’re faced with an either/or.

59

I think that the challenge we face in managing our resources and

our environment today is trying to find positions where we truly

can compromise and have our cake and eat it, too, rather than

being faced with an irretrievable commitment that we cannot take

back.

So, you know, as our lands are divided and developed—you

know, things have changed a lot since the ’50s and ’60s. And even

though, in terms of impact on the environment, each particular industry may have reduced significant acts or conditions on the environment, we have more and more industries who are, in fact, contributing to this. So the cumulative effects over time are adding up.

And as people increase, as demand on resources increase, you

know, we’re—we’re eventually going to hit—hit a dead end somewhere along the way. So we really need to be very careful with

what we do.

Miss MCMORRIS. You—you made it perfectly clear that you—

there should be no changes to the substance of the regulations,

that any attempt to repeal the rights under NEPA confronts the

democratic institution.

I just want to make it clear that I think that more public involvement is very important in the NEPA process. I think there are—

I do personally believe there’s ways that we can improve this law

and build upon what has been started, and it goes beyond just filling out reports or—and handing them off to the public and asking

for public—you know, that we have disclosure or more information

or more reporting. I’m not sure that that accomplishes our ultimate

goal of protecting the environment.

I really believe that if we can, early on, start the collaboration

and work together that we’re going to ultimately make better decisions for the environment.

I wanted to ask you about the—the alternative approach that

was used with the blowdown and to ask if you feel that there’s an

opportunity in some circumstances where we can utilize that type

of approach when it’s important that the decision be made quickly,

because I understand that—that it was appealed, too, and that an

EIS—you know, there’s still resistance.

Mr. SHELTON. Yes. I was involved in that particular action; and,

you know, ultimately, the timber was salvaged, as we saw. But

pretty much what happened is due to this act of nature. We had

a volume of timber that was impacted or damaged that was equal

to, I believe, approximately two or three years’ worth of timber harvest.

It would have been—it would have been the allowable sale quantity of the amount of timber that they would have normally harvested during that period. We would have had this—literally, a

huge windfall out there; and rather than having these impacts and

this timber harvest distributed out over a period of years and, actually, over the whole land base of the national forests, it was all concentrated in one particular area.

So I think the concern there was that we were actually accelerating the harvest rate for that particular area of the Sabine National Forest. Of course, there was nothing that could be done

about that. The timber was down.

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But the concerns were the impacts that go along with that, and

I think that a really important point that needs to be made here

today is that with respect to the national forests, you have all

kinds of mandates which (inaudible) multiple uses and multiple resources out there.

Mostly what has been focused on today is timber and forest products coming from the national forests and the great thing about a

democratic country is that we can all have our input and we can

pass laws which reflect our personal values and what we feel like

our personal needs are.

And we need to stress here that the national forests are trying

to provide for the diverse values and needs of the whole population.

There’s no mandate out here that says we have to turn national

forests into tree farms, because the same tree that will provide 2-

by-4s also provides wildlife habitat and habitat structures, provides

(inaudible) resource that protects the soil and water, and these are

all very important values to the diverse American public out there.

And so our group, especially, thinks that with respect to the national forests we should manage it with types of resources which

are not well-represented in the private sector. As I mentioned, 94,

95 percent of East Texas is—manages the timber it’s harvesting. So

we—we feel like we should give special consideration to those other

resources out there that are not being well-represented on private

land, and we should focus those things on the national forests and

should be especially conscientious of resources there.

Miss MCMORRIS. The private landowner also has to comply with

the Endangered Species Act and the Clean Water Act and other

laws.

Mr. SHELTON. The Endangered Species Act, yes. The best management practice is a voluntary thing which is supposed to help

them comply with the requirements of the Clean Water Act,

though. There’s—there’s a whole host of mandates out there that

(inaudible).

Miss MCMORRIS. OK. I might have to come back to you for all

my questions.

Mr. SHELTON. Sure.

Miss MCMORRIS. Did you want to——

Ms. NICHOLS. I wanted to add—I just wanted to add one quick

comment about responding to unusual emergency situations in

projects that relate to NEPA.

There is a whole (inaudible) in the regulations of (inaudible) that

a category be excluded from the whole NEPA process. It’s a much

briefer process, and emergencies such as storm damage and field

outbreaks are generally often covered by those exclusions.

I just wanted to point out that NEPA already is flexible. I’m not

familiar with the specifics of that issue, but I wanted to point that

out. Thank you.

Mr. GOHMERT. And I do appreciate those comments. We have

heard—and you’ve got it in your testimony previously. You said

generally they’re excluded. Well, they can be; but you have to go

through the process of getting an exception. And as was pointed

out by Mr. Dructor, the alternate arrangements have only been

allowed 38 times in 28—in 20 years.

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And we’ve heard testimony in cases in which pine beetles have

devastated an entire forest without anything being—ever being

done because an exception was not granted.

Forests have been destroyed by natural elements like the—a winter storm and then not getting a permit in time to go in and salvage the timber before it’s completely lost and worthless.

So it’s one of those things—in fact, in his written testimony, Mr.

Shelton had a quote—had a quote from an article. The article was

entitled ‘‘Some Modest Suggestions for Improving the Implementation of the National Environmental Policy Act. And you note the

article—that NEPA wants to protect NEPA, and that’s the gist—

I mean, that is his title, ‘‘Some Modest Suggestions for Improving

Implementation’’; and he has a quote in his article that says (quote

read).

And that’s what we’re trying to do, even though I don’t know

what ossified means. So anyway—I know what mechanical means,

and the mechanical approach it seems has gotten us into some

problems.

And it was mentioned a moment ago, Mr. Shelton, about the forests; but there also is no mandate that the forests become wilderness. And as we’ve seen here in Texas—and you can go to the Sahara Desert—there are areas where there have been wonderful,

wonderful environments that nature, itself, has destroyed.

And I think—this an editorial comment of my own. I think we

were given the job to tend the garden here; and if we don’t try to

protect it, it goes to a terrible situation. Species go extinct on their

own without man ever having a role in that, before man was

around. So our goal is to try to be a good steward. And I appreciate

everyone’s testimony.

I would like a little input—Mr. Smith, we didn’t ask you a bunch

of questions. And going back to permits, if you could give us a little

snapshot of your—the problems or lack of problems for getting permits in order to proceed in mining areas.

Mr. SMITH. That’s a great question. We have a very good relationship with Chairman Carrillo’s agency. We meet with members

of the (inaudible) Committee on a regular basis—on a quarterly

basis, and we address permit issues.

There’s a great exchange of information there where the staff of

the Railroad Commission—if there’s any explanation—discussion of

the permitting requirements, that’s thrown out on the table. If we

have any questions or concerns, we throw that information out on

the table. We work with them.

We—Chairman Carrillo, himself, directed us about a year or so

ago to take a special look at our permitting system in the State of

Texas, which we did. Are there some ways that we can streamline

that permitting process to make it go quicker in the state? So we

have done that. We’re continuing to do that.

You always have parts of the permit—the Railroad Commission

permit to go into an area and mine for lignite is a very unique permit in terms of complexity, length, and all that. There’s a lot of

pieces to that permitting system, and I would say that the best

thing you can have is a good agency relationship and a good focus

on making the best permitting system you can possibly make.

That’s what we’ve got in place now.

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There will always be parts of that permitting process that we

wish would work a little quicker, whatever; but we’re working on

those things and hope that the end result will continue to be as efficient as we can possibly make it.

Miss MCMORRIS. Very good.

Well, I thought I would go back to Mr. Shelton real quick. My

friend here mentioned the Council on Environmental Quality, and

they did a—you know, they did a review of NEPA and came up

with some more—came up with internal recommendations of how

to better implement NEPA.

You, in your testimony, quoted the—what you thought was a

good summary. And it is mentioned under a title that is about

modest improvements for NEPA, and I just wanted to give you the

opportunity, if you had any—if you could change anything about

NEPA, what would it be?

Mr. SHELTON. Well, it’s interesting that NEPA—and (inaudible)

talked about this—is a relatively short piece of legislation as it

goes. It’s only several pages long.

And as I mentioned, it’s really an umbrella—several of the witnesses have mentioned it—it’s an umbrella. It essentially establishes a direction for this country so that we would have a consistent and comprehensive, you know, environmental policy.

So I think that’s essentially sound, and its provisions that would

avoid any unnecessary impact are good. (Inaudible) impacts if we can avoid them. It also helps protect

the public health and safety and gives alternative actions to choose

from and public participation. These are all very sound aspects of

the foundation of NEPA. As far as those myriad other mandates

and laws which are tucked under this umbrella, I certainly can’t

say that I’m familiar with every last one.

I think that the rest of my testimony is that we are opposed to weakening environmental protection. I don’t think any specific (inaudible) has been put forth by this Task Force. I think your job

here is to take testimony and listen. So until we really have anything specific to respond to, you know, it’s hard to do. But I think

that my point here is that the principles and the practices of NEPA

are sound and, you know, its purpose is to protect our environment

and our public health and I think that’s what it should do.

Miss MCMORRIS. Good. Thank you.

Mr. England, would you speak to the ripple effect of current

NEPA reviews on cost of construction, if you would?

Mr. ENGLAND. Certainly.

Miss MCMORRIS. Make sure you pull the mike in.

Mr. ENGLAND. If the permitting process—we—projects are on a

particular schedule. In order to close real estate, for instance, you

get the permits. If it’s not in a timely fashion—in order for you—

the owners are not obligated to follow through with a real estate

deal, and we lose that opportunity to develop those resources.

If the permit costs or permit process results in delays, you end

up with additional consulting costs. You end up with additional financial costs. You have laborers and equipment you’re not working.

That ripples through the entire process.

If we can’t provide construction aggregates to market, the same

kinds of effects occur. It’s becoming more and more difficult for

63

construction companies, themselves, to—with big projects to (inaudible) both financial, labor, and other costs.

Miss MCMORRIS. Would you—would you just describe a little bit

what happens when NEPA has to be reopened?

Mr. ENGLAND. My view of what happens when NEPA has to be

reopened is that you end up with the additional delays that we’re

talking about. If we—if—the NEPA process, as I understand it, is

a process that you can check and ensure that the myriad of regulations are being addressed; but once an agency has checked off that

issue, they should feel comfortable in being able to move on to their

(inaudible) document with the assurance that it’s not going to go

into litigation.

If it’s reopened for some minor item, oftentimes not necessarily

directly related to the specific site condition, it—it results in substantial delays and loss of (inaudible.)

Miss MCMORRIS. Very good. Thank you.

Mr. GOHMERT. I couldn’t help but be struck by—as we were talking about some of these, thinking about an issue that’s gotten a lot

of attention in the (inaudible) Resources Committee; and that’s the

energy bill. One of the most controversial issues is MTBEs, and

when MTBEs—you’ll have to check the history of when they were

first brought up as a way to make gasoline burn more cleanly and

efficiently, which it does. MTBEs make gas burn more efficiently

and saves air. Congress demanded and passed laws requiring

MTBEs to be put into gasoline.

The gas companies—oil and gas companies were screaming,

‘‘Please don’t make us do that. It’s going to be more costly. It’s

going to cost us in the long run. We’re not sure about the long-term

effects. There’s things we don’t know about MTBEs. Please don’t

make us do that.’’

Congress didn’t hear. They said, ‘‘Put it in. It’s going to make gasoline burn more cleanly. We need that to (inaudible). It was required. They put it in anyway. They didn’t care what the companies thought.

And now one of the biggest issues before Congress and one of the

hang-ups in the energy bill is that some of the same people that

said, ‘‘These oil and gas companies are corrupt. Make them put the

MTBEs in there.’’ You know, ‘‘They should be required to put

MTBEs’’—they’re now saying, ‘‘Can you believe these corrupt oil

and gas companies? They’re asking that they not have to pay every

dime to clean up the environment that’s been devastated by

MTBEs being put in gasoline.’’

They didn’t want to put it in there, and Congress required them

to put it in. Now these same people that found out it can pollute

drinking water are saying, ‘‘Make those sorry companies clean up

the water they polluted. They should have known those MTBEs′′—

well, I’ll stop it there.

Anyway, it’s nice if we can come and figure out and—get all of

the input on issues before they’re forced through legislation, and so

I would just encourage each of you—I appreciate your testimony

and any insights you have on any part of the process that can be

made better, can be streamlined, can be made more effective.

Obviously, as Ms. Nichols said, we can do a better job when we

get more input from people; so I don’t—well, I’ll tell you what, why

64

don’t we follow up with our—and we are good friends. Chairman

Carrillo, I appreciate you coming, but with—you had mentioned the

IOGCC study that had been done, a survey.

Let me ask you to—you know, that apparently indicated that

there were personal agendas by some team members who work on

permits and issue the permits that contribute to permit delays. It

also was found that NEPA activity involved in oil and gas permitting was more process oriented and did not readily accommodate

useful, proven remediation techniques. Do you know of any specific

incidents of remediation techniques that were not adequately accommodated?

Mr. CARRILLO. I have to apologize. I do not—I don’t think I have

an adequate answer for that particular question. The gist of the—

of the 2005 IOGCC survey was that there are inherent issues that

operators/producers routinely run into; but as to that very specific

question, I do not have any (inaudible) of some of those proven

remediation techniques that were not allowed to be used. So I

apologize.

Mr. GOHMERT. OK. Well, I don’t have any further questions. I do

thank all of you. I know it’s taken your Saturday morning. We got

elected to do this kind of thing; so we brought it on ourselves. Youall didn’t get elected to do this; so thank you very much for taking

time to help us.

Mr. England, do you——

Mr. ENGLAND. Yes. I apologize. I would like to follow up with the two additional points with regards to the (inaudible) Act. Specifically, when geology dictates where we can get construction aggregates and we are forced to seek other sites, two specific ripple—additional ripple effects occur. One is that the sites aren’t (inaudible).

You can’t get quality aggregates everywhere; so if you cannot get

a permit to a particular place, you lose that opportunity and/or—

or you’re forced to seek a permit farther away. The result being further delay for us on the (inaudible) process

with regard to that. Thank you.

Miss MCMORRIS. Well, Mr. Davis, we don’t want you to get away

without a question. Do you want to do—just speak to your experience as it relates to how—you know, in the event of a windstorm

or fire or insects or disease, how you, as a private tree farmer, can

respond compared to the Forest Service?

Mr. DAVIS. Thank goodness we weren’t—we weren’t under the

regulation of NEPA. (Inaudible). We didn’t have to follow—follow

the regulation. We were free to go and do what needed to be done

immediately. We were able to—and actually, I think that I would

like to see that, when those types of disasters happen, that the

Forest Service has the opportunity to act and act immediately, not

only to salvage, which was a success, but the reestablishment

(inaudible).

They’ve got—they’ve got some longleaf pines that’s still in the

grass stage that are trying to fight its way through underbrush to

get sunlight. So hopefully—hopefully, some relief can be given

there to the Park Service.

What I would like to do is—I missed this. I want to get a Farm

Bureau statement in. Our Farm Bureau policy supports the effort

to streamline and expedite the National Environmental Policy Act

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requirements to allow for the sound harvesting of mature, burned,

dying, downed, or dead timber. We believe the long-term health

and viability of our natural resources can best be achieved through

these principles.

Without these changes, our national resources will continue to be

wasted, opportunities for a healthy forest regrowth will be lost, and

the best interests of local communities and families will be sacrificed through misguided policies.

Miss MCMORRIS. Amen. Thank you. I think we’ll wrap it up. I

want to thank everyone in the audience for being here today. What

makes America great is the fact that citizens are involved directly

in our government. Thank you for taking the time on a Saturday

morning to be here. If you have brought written comments and

want to leave them, there is a table in the back of the conference

hall. We would welcome any comments you have for us.

I want to thank the panelists for being here. Each of you did excellent. We may have other questions for you, and we will submit

those to you in writing and ask that you respond in writing when

you receive such questions.

This hearing is a continuation of the process of listening to a

range of people as to how they’ve been impacted by NEPA. And we

heard from all of you today, impacts from three states. We shared

a host of perspectives and recommendations. I think that the views

provided today, as well as those provided to the Task Force via email and fax have laid a foundation for developing recommendations on improving NEPA.

I would like to thank Congressman Gohmert for welcoming me

to East Texas, for hosting the Task Force meeting here today. It’s

great to be here.

Is there anything you want to add in closing?

Mr. GOHMERT. Thank you. And we do appreciate you coming to

East Texas. We do feel like it really is as close to the Garden of

Eden as you can get, but—I hope by the time you leave, you’ll understand that Washington is not my home, and it will never be my

home.

Again, thanks to the panel. Thank you all. And I did want to

mention one other thing, though. I read an editorial in the Tyler

paper today that indicates that because of some of the Federal laws

more and more companies like Temple Inland—and I’ve discussed

this with some of their officials, but we have laws that are almost

pushing them into selling off some of their timberland to private

owners who are seeing the short-term benefit of cutting trees and

not remediating and not planting more trees to replace the ones

they’ve cut down.

So it’s an ongoing process of trying to make the laws help the

country more and (inaudible) laws that encourage people to have

long-term visions for continuing to provide trees, and we shouldn’t

be discouraging that, so...

There is—anything I’ve ever written in my life, I’ve always found

ways to edit it. Even after it has won awards or things like that,

I go back and go, ‘‘Oh, that can be said better.’’ That’s what we’re

trying to do with NEPA, and we appreciate the audience participation.

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I will tell you this, too: We’ll try not to let you get away before

we serve you some real barbecue. It’s not like what you get around

Washington, D.C.

Miss MCMORRIS. With that, we’re adjourned. Thank you.

[Whereupon, the Task Force was adjourned.]

[NOTE: Information submitted for the record has been retained

in the Committee’s official files.]

Æ