U.S. GOVERNMENT PRINTING OFFICE

40–915cc u WASHINGTON : 1997

FLOOD CONTROL PROJECTS AND ESA

HEARING

BEFORE THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED FIFTH CONGRESS

FIRST SESSION

ON

H.R. 478

A BILL TO AMEND THE ENDANGERED SPECIES ACT OF 1973 TO IMPROVE THE ABILITY OF INDIVIDUALS AND LOCAL, STATE, AND

FEDERAL AGENNCIES TO COMPLY WITH THAT ACT IN BUILDING,

OPERATING, MAINTAINING, OR REPAIRING FLOOD CONTROL

PROJECTS, FACILITIES, OR STRUCTURES.

APRIL 10, 1997—WASHINGTON, DC; SACRAMENTO, CA

Serial No. 105–12

Printed for the use of the Committee on Resources

(
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

LINDA SMITH, Washington

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

JOHN SHADEGG, Arizona

JOHN E. ENSIGN, Nevada

ROBERT F. SMITH, Oregon

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MICHAEL D. CRAPO, Idaho

GEORGE MILLER, California

EDWARD J. MARKEY, Massachusetts

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́ , Puerto

Rico

MAURICE D. HINCHEY, New York

ROBERT A. UNDERWOOD, Guam

SAM FARR, California

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

WILLIAM D. DELAHUNT, Massachusetts

CHRIS JOHN, Louisiana

DONNA CHRISTIAN-GREEN, Virgin Islands

NICK LAMPSON, Texas

RON KIND, Wisconsin

LLOYD A. JONES, Chief of Staff

ELIZABETH MEGGINSON, Chief Counsel

CHRISTINE KENNEDY, Chief Clerk/Administrator

JOHN LAWRENCE, Democratic Staff Director
(III)

C O N T E N T S

Page

Hearing held April 10, 1997 ................................................................................... 1

Text of H.R. 478 ....................................................................................................... 66

Statement of Members:

Calvert, Hon. Ken, a U.S. Representative from California ........................... 2

Condit, Hon. Gary A., a U.S. Representative from California ...................... 3

Dooley, Hon. Calvin M., a U.S. Representative from California .................. 2

Herger, Hon. Wally, a U.S. Representative from California ......................... 5

Pombo, Hon. Richard, a U.S. Representative from California ...................... 2

Vento, Hon. Bruce F., a U.S. Representative from California ...................... 3

Young, Hon. Don, a U.S. Representative from Alaska; and Chairman,

Committee on Resources .............................................................................. 1

Statement of Witnesses:

Clark, Robert D., Manager, California Central Valley Flood Control Association ............................................................................................................ 39

Prepared statement ................................................................................... 124

Coe, Thomas S., Regulatory Branch, Department of the Army, Washington, DC ..................................................................................................... 47

Cook, Walter, Attorney at Law (Ret.), Chico, CA .......................................... 35

Prepared statement ................................................................................... 196

Cunniff, Shannon E., Deputy Executive Director, Floodplain Management

Review Committee ........................................................................................ 54

Prepared statement ................................................................................... 188

Davis, Michael L., Deputy Assistant Secretary of the Army for Civil

Works ............................................................................................................. 47

Prepared statement ................................................................................... 144

Frost, Rob, 2nd Vice President, California Cattlemen’s Association ............ 37

Prepared statement ................................................................................... 118

Garamendi, John R., Deputy Secretary, Department of the Interior .......... 45

Prepared statement ................................................................................... 131

Grugett, George C., Executive Vice President, Lower Mississippi Valley

Flood Control Association ............................................................................. 42

Prepared statement ................................................................................... 128

Guenther, Herb, Executive Assistant, Wellton-Mohawk Irrigation and

Drainage District .......................................................................................... 52

Prepared statement ................................................................................... 182

Hastey, Brent, Chairman, Yuba County Water Agency ................................ 6

Prepared statement ................................................................................... 70

Lee, Christopher, Trustee, Reclamation District 556, Walnut Grove, CA ... 13

Prepared statement ................................................................................... 92

McFarland, John W., County Commissioner (Ret.), Columbia County, WA

(prepared statement) .................................................................................... 213

Mount, Jeffrey, Professor and Chair, Department of Geology, University

of California, Davis ....................................................................................... 11

Prepared statement ................................................................................... 84

Nolan, Michael F., Chief, Civil Branch, Programs and Project Management, Sacramento District ........................................................................... 47

Nomellini, Dante John, Manager and Co-Counsel, Central Delta Water

Agency ............................................................................................................ 8

Prepared statement ................................................................................... 74

Peairs, Frank, Assistant Chief Engineer, Riverside County Flood Control

and Water Conservation District, CA ......................................................... 34

Prepared statement ................................................................................... 229
Page

IV

Statement of Witnesses—Continued

Ramos, Susan L., Chief of the Environmental Branch, Corps of Engineers, Sacramento District ........................................................................... 47

Rausch, Michael C., Treasurer, Upper Mississippi, Illinois & Missouri

Rivers Association ......................................................................................... 49

Prepared statement ................................................................................... 149

Yenni, Norman, Sears Point Farming Co. ...................................................... 9

Prepared statement ................................................................................... 78

Zappe, David P., General Manager-Chief Engineer, Riverside County

Flood and Water Conservation District (preparerd statement) ................ 110

Additional material supplied:

Baker, Tom, prepared testimony of April 16, 1997, on HB 476 ................... 210

Excerpt, ‘‘The Endangered Species Act,’’ from ‘‘How to Save a River,

a Handbook for Citizen Action’’ ................................................................... 157

Mississippi and Illinois Rivers Facts .............................................................. 164

Resolution No. F97-5 of Riverside County Flood Control and Water Conservation District .......................................................................................... 227

Communications submitted:

Cartoscelli, Karen (Yuma): Letter of April 4, 1997, to Hon. Richard

Pombo ............................................................................................................. 202

Collins, Roger L. (DOI): Letter of October 24, 1996, to Chet Worm ............ 172

Cook, Walter: Memorandum to Hon. Don Young with submitted material. ................................................................................................................. 203

Davis, Michael L. (Army): Letter of May 19, 1997, with attachments

to Hon. Don Young ........................................................................................ 215

Gauvin, Charles F. (Trout Unlimited): Letter of April 15, 1997, with

attachments to Hon. George Miller ............................................................. 219

Gibbs, Joseph B.: Letter of April 4, 1997, to Dave McMurray ..................... 180

Hansen, Rick L. (DOI): Letter of March 29, 1994, to Col. Richard H.

Goring ............................................................................................................ 167

Hughes, Joseph S. (Army): Letter of August 24, 1994, to Paul S. Davis ..... 170

Madlin, Joel A. (DOI): Letter of July 20, 1994, to Art Champ ..................... 102
(1)

FLOOD CONTROL PROJECTS AND ESA

THURSDAY, APRIL 10, 1997

HOUSE OF REPRESENTATIVES, COMMITTEE ON RESOURCES, Washington, DC and Sacramento, CA.

The Committee met, pursuant to call, at 12:10 p.m., in room

1334, Longworth House Office Building, Hon. Don Young (Chairman of the Committee) presiding.

STATEMENT OF HON. DON YOUNG, A U.S. REPRESENTATIVE

FROM ALASKA; AND CHAIRMAN, COMMITTEE ON RESOURCES

The CHAIRMAN. Good afternoon—good morning. It depends on

which side of this dais that you are sitting on. Those in Sacramento, it is good morning, and, of course, here it is good afternoon.

The Committee on Resources will come to order. Today, the Committee will try something new. As we sit here in the capital of our

country in Washington, DC, we will hear testimony from citizens

sitting in the State capital of Sacramento, California, through the

use of teleconference technology.

While this technology is not new, it is new to the House of Representatives. We have only had the capability to use teleconferences for the past few years. This will be the first time the Committee on Resources held a hearing through teleconference.

Today, we will hear from several citizens, who were victims of

the severe flooding in California this past December and January,

regarding how the Endangered Species Act has impacted their ability to protect themselves from floodwaters.

Ordinarily, for the Full Committee to have the opportunity to

hear their firsthand stories, it would require many of them to

spend a great deal of time and money to travel a long distance to

appear before us on this Committee. The Committee could go to

California but, again, at great cost to the Committee and only during the district work period.

I am particularly proud today to be able to take the testimony

of nine individuals with firsthand knowledge of the issue before the

Committee through the use of this wonderful medium. This hearing

is extremely important, not only to California, but to every area in

the country that may someday face flooding.

Whether it is down in Louisiana or in the northern end of Minnesota, as is happening today, the ability to build, repair, and reconstruct and maintain levees and other flood protection facilities

is vital to the safety of millions of Americans.
2

At this point, I would like to yield the remainder of my time to

a leader in this area, Congressman Richard Pombo, to make an

opening, brief statement and introduce our witnesses from California. Mr. Pombo.

STATEMENT OF HON. RICHARD POMBO, A U.S.

REPRESENTATIVE FROM CALIFORNIA

Mr. POMBO. Thank you, Mr. Chairman. I would like to take this

opportunity to welcome the witness panels that are testifying today

from Sacramento. It is new technology. I expect everything will go

well in doing this. It was our idea over the past couple of years to

try to bring more people into the process and to try to allow more

real people who don’t normally have the opportunity to testify before a congressional Committee to have that opportunity. This new

technology allows us that opportunity.

I would like to welcome you to this hearing today. And on our

first panel, Mr. Chairman, we have Mr. Brent Hastey, who is the

Third District Supervisor from Yuba County; Mr. Dante Nomellini,

who is the Central Delta Water Agency; Mr. Norm Yenni from

Sonoma, California; Dr. Jeffrey Mount, who is a Professor of Geology from Davis, California; and Mr. Christopher Lee, who is a

Trustee of the Reclamation District 556 from Walnut Grove, California. Welcome today, and thank you very much, Mr. Chairman.

The CHAIRMAN. OK. At this time, I will recognize Mr. Calvert—

if he would like to comment from California also.

STATEMENT OF HON. KEN CALVERT, A U.S. REPRESENTATIVE

FROM CALIFORNIA

Mr. CALVERT. Thank you, Mr. Chairman. I appreciate you having

this hearing today. In the first year that I was elected to Congress,

we had a flood in Riverside County along the Santa Margarita

River. It caused many millions of dollars in damage, and, in fact,

several Marine Corps helicopters were destroyed at Camp Pendleton because of dike failure.

We have a gentleman here who is going to testify in one of the

panels from Riverside County, Mr. Frank Peairs, and I look forward to his testimony because even though the news, of course, is

about northern California, we have problems in southern California; in fact, all over the United States because of lack of maintenance of flood control channels cause potential great harm and

have caused harm to the public safety to Americans. So I thank

you very much for having this hearing.

The CHAIRMAN. Thank you, Mr. Calvert. Mr. Dooley—Cal Dooley.

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

REPRESENTATIVE FROM CALIFORNIA

Mr. DOOLEY. Thank you, Mr. Chairman. I appreciate you holding

this hearing. I think the overriding objective here is how do we balance the application of the Endangered Species Act with a need to

ensure we are not infringing upon those issues related to health

and safety.

I would also at this time like to ask for unanimous consent that

any Democratic members can have their statements inserted into

the record, as well as a statement by my colleague, Gary Condit
3

from California, that he would also like to have entered into the

record.

The CHAIRMAN. Without objection.

[Statement of Mr. Condit follows:]

STATEMENT OF HON. GARY A. CONDIT, A U.S. REPRESENTATIVE FROM CALIFORNIA

Good Morning.

I want to thank the Committee for allowing me to present testimony today. I look

forward to working with you during this process as we work on finding solutions

to real life problems that we all face during times of crisis.

As the Committee is aware, the state of California, and in particular the 18th

Congressional District, was severely impacted by this year’s earlier flood disaster.

As you know, a tremendous amount of federal resources have been and continue to

be expended in response to this flood event. Although it is true that this was a flood

event of monumental proportions, and that only so much can be addressed by a

human response, I believe that much can be done to better address the long term

flood protection needs of California, and in particular of the Central Valley. It is my

hope that some of the solutions which we propose will better enable the federal government to provide a high level of flood protection so as to better enable us to avoid

the fiscal and human costs associated with future flooding of this magnitude. I know

that it is a shared goal of all of us that the federal government provide a high level

of assistance, instead of obstacles in the regulatory process.

To this end, a key issue involving levee and flood control system protection that

must be addressed is the need to waive portions of the Endangered Species Act so

that repairs and improvements to the system can take place. This waiver must go

beyond the period of the Spring snow melt, as proposed by the Department of the

Interior, as many of the repairs will not be completed by that time. Additionally,

any waiver of the Act must include maintenance of the levee systems. I am working

closely with Representatives Fazio, Herger and Pombo on various proposals including H.R. 478 and H.R. 1155, aimed at accomplishing these goals, and am hopeful

that the Committee will address these concerns in a Bill.

To close, let me give you an example I have used before of why legislation is needed. The 1995 flood in the City of Newman was caused by the nearby rain-swollen,

debris-filled Orestimba Creek. Similar circumstances along the Pajaro and Salinas

Rivers caused extensive damage to Monterey and Santa Cruz Counties as well.

For years, officials in these communities have been consulting with officials from

the Army Corps of Engineers and the U.S. Fish and Wildlife Service to receive authorization to remove the brush and debris from these waterways. It took over a

year to receive permits for two portions of the Orestimba Creek, because of the cumbersome consultation process related for protection of the Elderberry bush, habitat

for the Valley Elderberry Longhorn Beetle. It is expected to take as long to clear

the debris-filled section of Orestimba Creek that is responsible for the Newman

flood, regardless of the need to avert future disasters of this kind.

Pajaro and Salinas River Flood Control District officials never reached agreement

with the Fish and Wildlife Service regarding protection of an ivy plant, and, as a

result suffered a fate much worse than the City of Newman.

While some people may not agree that the problems associated with these examples are a result of the Endangered Species Act, I can say first hand that they are

a major contributor to the problems these communities and businesses in my district face every day with the way ESA law is currently administered.

Thank you again for allowing me this time.

The CHAIRMAN. And, Mr. Vento, do you have any statements at

this time?

STATEMENT OF HON. BRUCE VENTO, A U.S. REPRESENTATIVE

FROM MINNESOTA

Mr. VENTO. Well, Mr. Chairman, thank you for the opportunity

and for holding the hearing. I understand that there is some controversy that surrounds the application of the Endangered Species

Act as it deals with various projects. But my observations with regards to whether it is bridges, or flood projects—I guess this is

principally a flood project—is that it is a normal course in terms
4

of application time and advanced planning for these that becomes

very important.

We know that water projects per se are subject to a study—feasibility studies, obviously, with regard to improvement and repair

that may—but there are various types of waivers that are available

and should be utilized. I mean, obviously, life is complicated in

1997. I don’t know that we need to apologize for that as we gain

more responsibility and expect more out of our resources.

But I am interested in looking at this to see if there are solutions

to difficulties that are arising. Quite candidly, I think all of us are

served better by that, rather than trying to find, as it were I think,

and some of us suspect—I know there is some concern about the

fact that we not scapegoat a specific law.

One of the problems I think that has repeatedly occurred with

the Endangered Species Act, Mr. Chairman—it is a powerful law

and an important law—but that, frankly, other environmental laws

and procedures are not used, and so this becomes sort of the last

resort sort of aspect. And I think that it really indicates some serious flaws in terms of updating processes for projects and for our

consideration; for instance, using NEPA or using EIS’s more effectively, or the planning processes and procedures that we have in

place.

I think that is what is really indicated by this, and I hope that

this hearing will be helpful in terms of trying to work toward an

overall solution with regards to these issues rather than keeping

to heap criticism on what I think is an important law.

The CHAIRMAN. Well, I would somewhat agree with the gentleman, but I can also suggest that anytime a bureaucracy has authority to do what the Congress never intended it to do and misuses that to allow people to be actually flooded, I think that is inappropriate. And I can suggest for those who are in Sacramento,

I am well aware of your area. My brother lives in Woodland. My

other brother lives in Meridian. We were faced with floods in ’38,

’39, and ’40. I went through those. My niece got flooded in Meridian

this year.

We very nearly got flooded, and a lot of it is because of the lack

of maintenance of those levees, especially the one right above our

place. It very near the bubble came out, and it was because they

had not been able to maintain that levee. And I am not particularly

happy right now with the Act as it is in place. We can have our

differences of opinion—the gentleman—we are wasting time now.

I just want to suggest——

Mr. VENTO. Well, I don’t want to——

The CHAIRMAN. Your time is up.

Mr. VENTO. Well, Mr. Chairman, I would feel remiss if I didn’t

mention coming from Minnesota that the——

The CHAIRMAN. You have a few floods too but not like——

Mr. VENTO. [continuing]—Red River of the north is now——

The CHAIRMAN. The gentleman from—excuse me—the gentleman

from California.

Mr. VENTO. [continuing]—many feet over, and we are concerned

about floods too.

The CHAIRMAN. I yield to the gentleman from California.
5

Mr. POMBO. Mr. Chairman, at this time, I would like to ask

unanimous consent that our colleague, Mr. Wally Herger, whose

area was also impacted by the floods, be allowed to sit on the dais.

The CHAIRMAN. Without objection. Where is Mr. Herger? You

shouldn’t be standing back there, Mr. Herger. Are you trying to

make a grand entrance? Just get up here. We also have—Mr.

Radanovich has joined us too, and he is on the Committee. And I

welcome both of you. Do either one of you have a statement before

we get started? Gentlemen, either one of you want to comment before we get started?

[Statement of Mr. Herger follows:]

STATEMENT OF HON. WALLY HERGER, A U.S. REPRESENTATIVE FROM CALIFORNIA

Thank you, Mr. Chairman, and members of the Resources Committee, for this opportunity to share my testimony regarding HR 478, The Flood Prevention And Family Protection Act Of 1997.

HR 478 restores proper balance to the Endangered Species Act by placing human

life as the top priority, ahead of bureaucratic red tape. The ESA was never intended

to compromise human life, yet that is exactly what happens each time a levee or

other needed flood control project is postponed or delayed because the ESA requires

extensive delays for studies on endangered species and subsequent species mitigation projects. The ESA has established mitigation as a priority over protecting

human life. We need HR 478 to return the proper balance.

This issue can be summed up in the very real story surrounding the January 2,

1997 levee failure on the Feather River, in the community of Arboga, near

Olivehurst, California.

Since 1986, California Reclamation District 784 otherwise known as RD 784, has

attempted to complete reconstruction on the Feather River levee system. In 1990,

a US Army Corps of Engineers report determined repairs should occur on the

Arboga levee as expeditiously as possible, stating, ‘‘... Loss of human life is expected

under existing conditions (without remedial repairs) for major flood events.’’

Despite this acknowledgment, more than six years passed before permission was

finally granted to begin repairs. Instead of repairing the levee, in the years 1990

to 1996, RD 784 spent more than $10 million on ESA mitigation required by the

Corps before the project was finally put out for bid in 1996. When the levee broke,

three people were killed, 32,000 were driven from their homes, and 25 square miles

of property and habitat were flooded.

RD 784 officials have concluded that, not only did bureaucratically imposed red

tape contribute to the levee’s failure, but mitigation required prior to construction

also undermined the levee’s integrity. Even before the levee broke, RD 784 officials

argued effective maintenance of levees—namely: clearing brush, repairing cracks,

and controlling rodent populations that burrow into levees—conflicted with efforts

to establish wildlife habitat. The district also disagreed with a required wetland site

they were forced to build within 600 feet of the levee. Because of the soil conditions

unique to the levee’s location, water from the 17-foot-deep pond was free to seep

from the pond to the levee, increasing chances of catastrophic levee failure.

If HR 478 had been in place, this tragedy could possibly have been avoided. No

one was surprised by the failure of the Feather River levee. Federal and local officials knew the levee needed structural repairs, but ESA mitigation requirements

mandated that, instead of proceeding directly with construction, officials were required to waste time and money on unnecessary studies and delaying mitigation

projects. From 1991 to 1994, officials were forced to perform studies to determine

what mitigation would be needed for 43 elderberry bushes found on the levee even

when the bushes held no evidence of housing even one endangered elderberry beetle.

From 1994 to 1995 officials were then forced to plant over 7,500 stems of elderberry

bushes on a $10 million, 80-acre mitigation site on the Feather River side of the

levee. This mitigation site was eventually washed away in the January floods.

Now, in spite of all they have gone through, residents of RD 784 may also be required to add an additional eight acre mitigation site to their levee project that will

cost an additional $200,000.

What really caused the levee to break? It is true that construction on the levee

was not scheduled to begin until spring 1997 and spring 1998. According to the

Corps, the project was divided into increments with different phases of the project

scheduled to be completed at different times along the way. The timeline for these
6

phases, however, was dictated by regulations mandated by the ESA. It was the ESA

that mandated all mitigation be completed first, before the contract for engineering

work was put out for bid six years after the Corps had determined ‘‘loss of human

life [was] expected under existing conditions.’’

By favoring mitigation before construction opponents establish a policy that levees

and similar flood control projects are habitat first, when in fact the primary purpose

of levees, according to federal regulations, is to provide flood control in order to protect human life.

The fact is, animals also benefit from a properly managed levee system. When levees fail and flood waters rage, animal habitat is also destroyed.

Mr. Chairman, the facts surrounding this legislation are very clear. Species mitigation delayed construction on the Feather River levee by preempting and excluding

all other activities. HR 478 will remove this red tape as an obstacle to saving

human lives. This legislation allows us to maintain levees without having to wait

six years to perform necessary repairs.

The ESA was not intended to endanger human life. Protecting human life and

protecting endangered species are not mutually exclusive.

HR 478 protects human life, it protects animal habitat and it returns common

sense to the Endangered Species Act.

Mr. Chairman, the facts are clear. Most of the suffered losses to both habitat and

human life could have been prevented. Had proper flood control maintenance activities been permitted and not deferred until losses were already occurring not only

would my constituents have saved their property, but they would be alive today.

The CHAIRMAN. In that case, we will bring up our first witnesses.

I believe it will be Mr. Brent Hastey, Third District Supervisor,

Yuba County, Marysville, California. Mr. Brent, you will be the

first witness to appear on this teleconference. Welcome.

STATEMENT OF BRENT HASTEY, THIRD DISTRICT

SUPERVISOR, YUBA COUNTY, MARYSVILLE, CALIFORNIA

Mr. HASTEY. Great. Thank you, Mr. Chairman. Thank you for allowing me this time to come before you today. It is an honor to be

the first witness in a televised hearing.

Yuba County is in northern California, and it is bounded by the

Feather and Bear Rivers and bisected by the Yuba River. Historically, the area has been subject to massive floodflows about every

10 years. Since the 1860’s, there has been a continuous effort to

provide and improve flood protection for the area. The early efforts

were to build levees and provide flood channel capacity to safely

pass floodflows. Later efforts included flood storage reservoirs, and

the current efforts are primarily to maintain and restore existing

levees and floodways.

Although the levee and floodway systems are manmade tools to

protect the resources of the area, overzealous governmental regulators have lost sight of their intended purpose and have dictated

that their primary purpose be wildlife habitat. This often has delayed, increased the cost, restricted, and, in some cases, stopped

needed maintenance activities.

The Yuba River since the early 1860’s has been impacted by upstream hydraulic mining debris. Although the California Debris

Commission was created by Congress to deal with the problem and

major efforts were made, the continued downstream movement of

this mining debris reduces the lower river channel capacity.

Until about 10 years ago, local aggregate companies each summer harvested sand and gravel from the accumulated river bars.

Regulatory agencies either prohibited or made the process so cumbersome that this practice had stopped, and the channel capacity
7

continuously degrades. It now takes three Federal and one State

permit to harvest accumulated material from within the floodway.

What was previously done at no cost to the Federal Government will probably now require the expenditure of $3 to $5 million for

the government to carry out its obligations under the Federal California Debris Commission Act just to correct the loss of channel capacity from the January ’97 flood.

The routine levee maintenance in California is generally carried

out by locally funded Levee or Reclamation Districts with limited

staff and resources. A number of the districts only have part-time

staff and do not even have an office. Obtaining permits and complying with environmental regulations becomes a major and sometimes overwhelming task for these local districts, taking scarce resources that would otherwise have gone to provide essential maintenance to levees and floodways.

Since 1988, there has been a major effort to restore the existing

levee system to the level of protection the levees were constructed

to provide. This work is not new construction or betterment, but

simply major maintenance to existing levees. The environmental

assessment for this work identified 43 clumps of elderberry bushes,

made up of 1,538 stems that would be disturbed by the levee restoration work. The elderberry bush is habitat for the endangered

Valley Longhorn Elderberry Beetle.

The required mitigation before any of the identified maintenance work could be undertaken was to create a 76 acre, $1.9 million

mitigation-site. The January ’97 floods caused damage to the mitigation-site, requiring $0.4 million in repair. This brings to date

$2.3 million for mitigation of 43 clumps of elderberries, or $55,800

per clump, or $1,495 per elderberry stem.

The assessment also included seven acres of emergent marsh.

This was due to the fact that when high water is against the levees, some of it seeps through the levee. In Fish and Wildlife’s estimation, this seepage creates wetlands that need to be mitigated.

Taking this logic to its fullest, one must assume that the 27 square

miles of Yuba County that went underwater will now need to be

mitigated. Water seeping through the levee at high water is a failure of the flood control system and should not need to be mitigated.

As a result of the ’97 flood, the U.S. Army Corps of Engineers

has identified several additional levee sections needing major maintenance and have indicated that this work on existing levees will

require the development of an additional 69 acres of mitigation.

If the previous cost of $25,000 per acre holds, this will be an additional $1.725 million or a mitigation cost in excess of $4 million

to maintain about 29 miles of existing levees. The mitigation cost

to maintain 29 miles of existing manmade flood control levees will

be approximately $138,000 per mile.

We frequently hear from the resource and regulatory agencies

that the ESA does not need reformed and that its problems can be

corrected administratively. We have not found this to be true. As

an example, the January 1997 California floods resulted in three

levee breaks in Yuba County and one in adjacent Sutter County.

Secretary of Interior Babbitt suspended the requirements of ESA

so the levee breaks could be expediently restored to prevent further

flooding. The resource agencies agreed that the water flowing
8

through the levees could be stopped with minimal consultation.

However, before full repair of the levee break was made, the full

consultation process would have to take place.

The resource agencies said that mitigation for the substantial

habitat loss was not necessary for the levee break, but the impact

from repairing the levee break had to be fully mitigated. In spite

of these assurances from the Secretary of Interior, as part of repairing the three levee breaks in Yuba County and one break in

Sutter County, it is being required that an additional eight acres

of mitigation-site, at an estimated cost of $200,000, be provided for

closing the levee breaks.

Although the Administration continues to give assurances that

the ESA works and any problems can be corrected administratively, the end results show otherwise. The policies of the multitude

of governmental agencies implementing the ESA are diverse and

independent of each other. Without amendments to the ESA, we

see little hope for it ever being reasonably implemented.

As an example, it does not seem justified to require mitigation

at a 5–to–1 ratio for maintaining an existing manmade levee that

protects not only human life and private and public property, but

extensive amounts of wildlife habitat; nor does it seem justified to

be required to mitigate for fully closing the hole in a broken levee

that cost the lives of three people, the displacement of 40,000 people, and the loss of many hundreds of homes and several hundred

million dollars of damage to public and private facilities. We urge

your passage of this bill. Thank you for your time to speak with

you today. I will be available for questions at your convenience.

[Statement of Mr. Hastey may be found at end of hearing.]

The CHAIRMAN. I thank you, Mr. Hastey. We will continue with

the witnesses until we are finished, and at that time, the panel will

ask questions. At this time, I would also like to have Mr. Pombo

take the Chair, and I will probably be back a little later. I have

another appointment. Mr. Pombo, will you please take the Chair?

Mr. POMBO. [presiding] Thank you. The next witness would be

Mr. Dante Nomellini.

STATEMENT OF DANTE NOMELLINI, CENTRAL DELTA WATER

AGENCY, STOCKTON, CALIFORNIA

Mr. NOMELLINI. Members of the Committee, my name is Dante

John Nomellini. I am an attorney from Stockton, California. I serve

as co-counsel for the Central Delta Water Agency, which is an umbrella group, speaking on behalf of the local reclamation districts,

a number of which I serve as secretary and counsel.

The issue that I see is whether or not we should be imposing environmental restraints, including Endangered Species Act restrictions, on maintenance of existing levee systems, systems that have

been in place for many years. These levees were built by our forefathers in accordance with plans. Many of them were built with the

help of the Corps of Engineers. They are project levees.

The local maintaining agencies have been given the duty to

maintain these facilities. And what we are embarking on right now

is a contest between the duty of the local agencies to carry out

their functions and the duties of environmental organizations to

protect endangered species and other aspects of the environment.
9

Vegetation, in particular, which, in some cases, involves endangered species—some cases it does not—but vegetation on levees

create an additional risk of flooding. It impairs levee inspection. It

impairs the ability to react in an emergency.

In the recent flood when we had to put plastic down on the levees and sandbags, we had to put crews in by hand to clear the

vegetation out of the way. That takes crucial minutes and hours of

time that could be the difference between the levee failure and saving it. Additionally, the vegetation under the water, of course,

when the water is up to a high level cannot be removed at the time

of the emergency.

What I urge you people to do is remove the environmental restrictions on maintenance of existing levee systems. And I don’t

think there should be a debate as to what constitutes maintenance.

We use the term rehabilitation. Levees sag. They slump and sometimes your repairwork has to actually take the form of widening

the levee or raising it somewhat, not necessarily putting it back exactly the same.

But there is no sense to putting our environmental resources in

competition with our limited flood control resources. The local districts, as the previous speaker said, do not have the ability to generate the funds to go through these environmental processes.

And I would submit that we shouldn’t require the maintenance

of existing facilities to be subjected to these obstacles. Let us take

our limited flood dollars and see if we can’t do the most work we

can for the dollar, the biggest bang for the buck. Let us take our

environmental regulatory dollars and point them in a different direction.

We would be better off spending money to put habitat off of the

levee in reserves or by different policies that encourage landowners

to foster the habitat and not put it in competition with our levee

function.

Let us take an elderberry bush on the levee. That bush is there.

It propagates itself. There is going to be another bush right next

to it. We can’t work around it. In order to remove it, we have to

consult—plant another bush someplace else. Eventually, we are

going to have to destroy that elderberry bush. Whether it is in an

emergency or part of routine maintenance, we will destroy it.

So our regulatory environmental investment in that bush is

going to be gone, and we will have spent thousands of dollars consulting, debating, mitigating back and forth, and, essentially, we

are wasting limited dollars at the local, State, and Federal level.

Thank you.

[Statement of Mr. Nomellini may be found at end of hearing.]

Mr. POMBO. Thank you. At this point, I would also call on Mr.

Norman Yenni.

STATEMENT OF NORM YENNI, SONOMA, CALIFORNIA

Mr. YENNI. Good morning, California; good afternoon, Washington. My name is Norm Yenni. I am a fourth generation farmer

in Sonoma County, California. My brother and I farm dryland hay

and grain on 2,300 acres of diked baylands along the north shore

of San Pablo Bay. The land was leveed off in the late 1870’s and

has been in crops or pasture ever since.
10

There are another 12 to 14,000 acres in this area similar to ours

used in agriculture. A wide variety of wildlife on these lands have

peacefully co-existed with the farming practices for generations.

Since this is tideland, ongoing maintenance of our levees is essential to protect the land from high tides and stormwater runoff.

The work is slow and costly, but it is also necessary.

Poor maintenance of levees can result in seepage, overtopping,

and even levee breaches. This translates into lost crops, delayed

planting, damaged equipment, reduced habitat for wildlife, and

could even take human life. Saltwater intrusion can cause crop

damage years after the actual flooding event.

Prior to 1980, no one was very concerned about farmers maintaining their property. In 1984, our Soil Conservation Service got

a levee maintenance permit for the landowners of the area from

the Corps of Engineers. Then in May of 1990, the Soil Conservation

Service applied for renewal of that permit. The Corps granted a

one-year extension, but the permit itself was returned for more detailed information. And the same thing happened in ’91 and ’92.

After three years of extensions and reapplications, the Corps denied further extensions, and we felt that the permit may never be

issued. In October of 1993, Congresswoman Lynn Woolsey assigned

one of her aides to expedite the permit process.

From this point on, the key sticking point was the Endangered

Species Act. Specifically, the salt marsh harvest mouse, which may

exist in our area, and the clapper rail are both considered as endangered. The U.S. Fish and Wildlife Service declared that we

must mitigate for 71 acres of lost species habitat; that being the

borrow areas, where mud is excavated, adjacent to the levees.

As landowners, we contend that the borrow areas are the same

as they were 120 years ago. Siltation heals and restores the borrow

area long before the need to excavate more materials, and the levees have not been moved. Thus, any habitat taken was done years

ago, and the impaired habitat has been a static figure. What we

are talking about could be termed retroactive mitigation.

Collectively, the farmers of this area provide hundreds of acres

of nonfarmed wetlands in the form of ditchbanks and lowlands. Numerous species use our cropland for food and shelter. Our ongoing

practice of digging borrow ditches creates tidal flow essential to the

health of a salt marsh. Often, borrow ditches are the only channel

of tidal flow. They also reduce mosquito populations by draining

ponded areas. Our levees and farmlands serve as a highwater refuge to those species living in the berm areas. But none of this negated the demand for mitigation.

The mitigation, which is still in progress today, is to the tune of

half a million dollars. All this so we can spend more of our own

money to protect our property. The landowners rejected the proposal.

Fortunately, our congressional aide and the U.S. EPA were working behind the scenes looking for a solution. They convinced the

agencies and several other groups to pool their resources already

planned for wetland enhancement and credit this restoration to our

permit mitigation. After five years, that was the plan that we finally settled on.
11

But as for myself and my neighbors, the settlement came too

late. For two years, we couldn’t do any levee maintenance. We experienced serious flooding in 1995, most of which could have been

avoided. Water coming over the top of our levees flooded two-thirds

of our ranch, destroying what crop was planted, and delaying further planting until late in the season.

If we had been allowed to do the type of maintenance which we

practiced for the last 100 plus years, much of this flooding never

needed happened. If we had legislation such as H.R. 478, this flooding could have been avoided. Levee maintenance must be done on

a timely basis. We can’t engage in endless negotiation and mitigation to protect a phantom species.

Several government people really went out of their way to make

this permit happen, putting in hours of overtime and suffering

verbal abuse. Without their help, I don’t know that we would have

a permit even today. But what we ended up with can set a dangerous precedent. The agencies will claim that mitigation was done.

The landowners claim that mitigation was never justified, and we

didn’t provide any.

This is not how the regulatory process is supposed to work. We

shouldn’t have to mitigate for a phantom mouse, we shouldn’t need

congressional help to get a maintenance permit, and the process

sure shouldn’t take five years. There was little agency consideration given to the beneficial aspects of our practices, the wildlife we

harbor in our everyday activities, or the consequences of a denied

permit.

Regarding the Endangered Species Act itself, I think most farmers support the original intentions of the Act. As farmers, we need

an environment suitable to grow our crops and safe for ourselves

to work in. The public has the right to expect meaningful results

from the ESA. For all the efforts and all the money spent, and all

the conflict generated, I believe the results of the ESA have been

disappointing at best.

A lot of what we as farmers do relies on common sense. Federal

regulations should be based on common sense as well. I think the

public would agree that the American farmer is the best person to

protect endangered species, and I know they would agree that we

must maintain our levees without delay or added cost. Passage of

H.R. 478 will help put some common sense and credibility back

into the Endangered Species Act. Thank you for your consideration

of my comments.

[Statement of Mr. Yenni may be found at end of hearing.]

Mr. POMBO. Thank you. Dr. Jeffrey Mount.

STATEMENT OF JEFFREY MOUNT, PROFESSOR OF GEOLOGY,

UNIVERSITY OF CALIFORNIA, DAVIS, CALIFORNIA

Mr. MOUNT. Thank you, Mr. Pombo, for the opportunity to be a

part of this new technology and the application of the new technology. I am from the University of California at Davis. I am a geologist, which is going to give a slightly different perspective than

most of the speakers that you will hear today.

And I also want to address the issue of what difference this bill

might make from a systemic view of flooding. And what I will say

at the outset is I doubt that this will make a significant difference
12

in flooding in the Central Valley. And, again, I take the systemic

view—the regional view. Let me give you some examples.

I think there are—I have given you in my attached testimony literally an academic laundry list of my views on this. And I can boil

it down to a few comments. I think one of the things we have to

keep sight of is the lessons learned from this flood and how it

might apply to this bill. Let me start with the first lesson.

Lesson number 1, it is an immutable fact that we cannot prevent

flooding in the floodplain of the Central Valley. It is a floodplain

by virtue of the fact that it floods. And as was shown this winter

and will be shown in winters in the future, we cannot, despite our

herculean efforts, prevent flooding.

Unfortunately, seven out of ten Californians believe that we can,

and it is built like this, particularly with a title that starts with

the Flood Prevention Act that actually leads people to believe that.

We cannot prevent it.

I think the second aspect that we need to learn which is relative

to this bill is that levees fail. Levees fail both figuratively and literally. First of all, levees, by virtue of the way they change the

basic hydrology of a river, are the source of their own undoing. And

I can go into a lengthy academic description of that. Levees have

a nasty habit of tearing themselves down because of the change

that they make on rivers. But in the long run, of course, we are

lulled into a false sense of security.

That actually brings me to the third part of the lessons learned

that I think we should keep track of. It is my belief that we are

locked in a vicious, if you want to call it, cycle of serial engineering.

And I see that this bill does not do anything to get us out of that

cycle of serial engineering.

Let me explain what I mean by this. We erected levees in Central Valley basically to allow farmers to get into their fields earlier

in the season. Eventually though, we became dependent upon those

levees as a source of protection for urbanization, urbanization

which is rampant right now in the Central Valley. There are more

than 20 new communities proposed in the Central Valley. At least

half of those were under water in the last flood.

What happens is we become dependent on those levees, and we

assume that they will prevent flooding, but they won’t. Flooding

will occur; the levees will fail. Even the best engineered levees,

which would have nothing to do with this bill, will fail and flooding

will occur.

And then, naturally, like now, there will be a call for new structures, new laws, tinkering with new laws which will really, in reality, have only cosmetic local effect and do not address the systemwide or systemic problems that cause flooding in the first place.

But, unfortunately, when we come to the end, we will say we have

done something, and we assume we are safe. And what that does

is it just stimulates the cycle of growth again on the floodplain.

That is our cycle of serial engineering, which is exacerbated, I

want to add, by the fact with our immutable capacity to forget that

we had floods. I want to tell you, and I am sure you know, that

by September we will be talking about water supply and not flooding because we tend to forget in about six months. I think General
13

Galloway called it the flood memory half-life effect, and it plays a

major role in flood engineering.

So we have to break out of this cycle of serial engineering, and,

unfortunately, I don’t think this bill does anything toward that.

And, basically, what we have done is we have asked too much of

our floodplains. That is where rivers store water during floods.

That is the mechanism that rivers use to actually manage their

own flood. And levees, when placed right against a river, divorce

the river from its floodplain.

I think the steps that we have to take in the future, and as I

say in the attached testimony, you will see I have got a long list

of these things. Most of these deal with actually looking at a

watershedwide basis—taking a watershedwide look, not local look,

toward flooding. That is really going to be the best approach in the

long run and cost the least in the long run.

I am not criticizing or addressing the Endangered Species Act in

particular, but what I am cautioning is both by title and deed in

this particular bill we are not really going to solve any significant

flood problems in the Central Valley. And I thank you for your

time.

[Statement of Mr. Mount may be found at end of hearing.]

Mr. POMBO. Thank you. Mr. Robert Clark.

Mr. LEE. Congressman, it is Christopher Lee.

Mr. POMBO. Oh, I have got the wrong one. Yes, excuse me. Mr.

Christopher Lee.

STATEMENT OF CHRISTOPHER LEE, TRUSTEE, RECLAMATION

DISTRICT 556, WALNUT GROVE, CALIFORNIA

Mr. LEE. Good afternoon, Congressman, and members of the

panel. If I can just take a second to take issue with the good professor to my left. Those of us that are actually involved as trustees

in maintaining these levees are not just about to rip up 100 years

of history and move out of the valley. This is where our homes are.

They have been unflooded for 100 years, and the systems work

pretty well. And begging the question, so to speak, on this issue

that levees fail doesn’t do a thing for us as we are discussing this

this morning.

What this hearing I hope is about is taking responsibility on the

part of the United States Congress. In 1973, you passed the Endangered Species Act. As was said today, it was a good idea. We don’t

like farmland being paved over. It is not conducive since there is

only so much of it.

On the other hand, with the passage of the regulations that I

have here, and I urge you all to read these regulations promulgated

to enforce the Endangered Species Act in 1986, these regulations

are an absolute recipe for disaster. They are an excuse not to get

things done, and that has been the general effect.

I speak as a trustee on Reclamation District 556 located on the

Sacramento River, and which during the 1997 flood, we had a levee

in danger of failing. The Corps of Engineers appeared on the scene

by helicopter. We negotiated the deal in five minutes, and in three

days they spent $650,000 to fix 2,600 feet of levee. It worked very

well, and, of course, the Endangered Species Act was suspended.
14

The contrary example is Reclamation District 348 located 30

miles south of Sacramento, Thornton, California, that flooded in

1986, closed Interstate 5, and was generally a mess because that

levee failed.

That reclamation district, using State funds, applied to get the

levee rebuilt. It took them eight years—not eight months—eight

years and five Federal and State environmental agencies, as Mr.

Nomellini has stated, all competing with each other to who could

have the most extreme environmental view, making the district put

up signs, put up fences around elderberry bushes—that kind of

nonsense.

Now, did this have anything to do with good flood management

to maintain these structures that are flood control structures? Absolutely not. All they did was enter into a contest with Federal and

State bureaucrats doing what the law said they could do, but they

took no responsibility for the safety of the people behind these levees.

These levees are no different than California freeways. Freeways

protect the public for public transportation. These levees protect

the public by keeping water off homes, farms, businesses, and residences. And until you have ever fought a flood like we did in ’97

working 22 hours a day, you don’t even have a concept of how extreme these problems become.

But why should we allow—and in my written comments I attach

a letter from the U.S. Department of Interior, Fish and Wildlife

Service, to the Corps of Engineers during this eight-year period of

nonsense in which the Fish and Wildlife make outrageous demands

on this district.

To give the Committee an example, we maintain my district in

Walnut Grove—we maintain over 10 miles of levees. Our tax budget on our local landowners is only $35,000. Now, we maintain these

levees for the benefit of the water highways which transfer water

for Federal and State water projects to central and southern California. The public gets a huge benefit.

What we don’t need, and where this thing has absolutely gone

to Alice in Wonderland—a good idea gone bad, and the good idea

was we are going to protect the environment, and then we are

going to apply that law to public agencies doing the public’s work.

Now, in California, when we lose the Oakland Bay Bridge or the

Century Freeway, we get right on it and fix it like we did the levees. But why do we have to operate under a system where we close

the barn door? We have a great deal of government concern to the

poor people that are flooded out and the animals and endangered

species that are killed. Why don’t we fix this ahead of time? Get

the Federal Government off our back so we can do our job. Thank

you.

[Statement of Mr. Lee may be found at end of hearing.]

Mr. POMBO. Thank you, Mr. Lee. I appreciate the testimony of

all the panelists. Mr. Hastey, you testified that—in your testimony

it says that since 1988 that there has been a major effort to restore

the existing levee system and go on to identify what the mitigation

was for the elderberry bushes in that area. What length of time did

it take from when the project was started before the work was actually completed?
15

Mr. HASTEY. Well, the work actually hasn’t been completed, Mr.

Pombo. The work was actually ready to start this spring after we

had finished the 76 acres of mitigation that was required to be

done before we could start the construction on the actual work on

the project itself. Where the levee broke was scheduled for June to

start to repair the levee.

Mr. POMBO. So you are testifying that the work or the project

that was begun in 1988 has not been completed yet, and that the

additional work that has been outlined by the Army Corps of Engineers will cost the district an additional $4 million in mitigation.

Will that delay the work that has been set out by the Army Corps

to be done—the additional costs that——

Mr. HASTEY. I don’t think that the work will delay the work that

is now being done. What has happened in the past is that we have

been required to do the mitigation work. And what we were told

by under the ’86 Flood Act is that we were required to do the mitigation before we could do any of the contract work on repairing the

levees. The Corps has now told us that we will be able to do the

repairwork and then mitigate after the repairwork is done. They

have changed the rules at this point because of the emergency.

But the levee broke in ’86. They were repaired in ’88. We started

doing the planning. We were told that we had to mitigate for those

43 elderberry bushes, and that work had to be completed before

they could start any construction or reconstruction on the levees

themselves.

Mr. POMBO. So the work that is scheduled—that was begun in

1988 is scheduled to be done this year?

Mr. HASTEY. Yes, sir.

Mr. POMBO. Thank you. Mr. Lee, in your experience in maintenance of the levee and repair of the levee system, it has been said

that there are currently exemptions within the Endangered Species

Act that in a time of emergency that work can be done. In your experience, is that sufficient to allow you to properly maintain the

levee system?

Mr. LEE. Absolutely not. Good planning and good maintenance is

something that is an annual and ongoing event in the Sacramento

delta, and I assume for other California levees. The exemption

after the damage is done doesn’t do anybody any good. You are

spending a lot more money; people are disrupted; their lives are ruined; their businesses are ruined. In the exemption, everybody feels

sorry for them, and they come in.

Good maintenance is done every year on all parts of the levees

and that this is not rocket science. You plan for the flood five years

from now. You plan for the flood 10 years from now or 20 years

from now, and you don’t do it at the last minute when the water

comes up. You go out there and fix the levees and repair the levees

as part of good government. Making us study it to death is bad

government.

Mr. POMBO. Dr. Frost testified in his statement—excuse me—Dr.

Mount testified in his statement that people forget, that they have

short-term flood memory; that when it is wet, people pay attention

to that, and when things begin to dry up, they begin to forget that.

Mr. Lee, knowing that as you do to be the case, what do you

think is going to happen in the very near future when we are talk-
16

ing about there not being enough water in the Central Valley with

these maintenance programs that you have been undertaking over

the past several years?

Mr. LEE. Well, Congressman Pombo, we remember so well in the

Walnut Grove area where one island after another was either close

to flooding or did flood, and a bunch of houseboats were up against

our bridges. We had 40 television cameras, and as soon as the crisis left, the television cameras disappeared. That seems to be a

common experience today.

Our problem is that we cannot—if we analyze or look at a necessary repair as we do now after the ’96 floods, all these levees

need repaired. Now, are we going to identify the problem, get it

properly engineered, and do the work? Are we going to identify the

problem, apply to the Federal Government, have five Federal and

State environmental agencies compete to who can work us over the

most, and then try to get the project done in 10 years? As I illustrated, we fixed a levee in three days a half a mile, and it took

Thornton, California, District 348, eight years. Now, this kind of

nonsense has got to stop.

Mr. POMBO. Thank you. One final question for Mr. Nomellini.

Mr. Nomellini, do you feel that the implementation of the Endangered Species Act, as it is currently being implemented, played any

role at all in the recent flooding that you experienced in your area?

Mr. NOMELLINI. Yes, I do and I think the role that the Endangered Species Act played is that of an obstacle to channel maintenance and levee maintenance. There are levees that would be in far

better condition today and channels had the Endangered Species

Act not been applied. They were designed—these facilities were designed to sustain certain flood stages.

And, as testified many times by others, vegetation in the flood

channel, vegetation on the levee obstructs the flows. The water is

higher in the river than it would have otherwise been. And, of

course, on the levee, it is more difficult to maintain.

It is very difficult to tell why a particular levee fails, but there

is no question that the Endangered Species Act, which is part of

a package of environmental restraints, has resulted in less maintenance, less efficient flood control systems, and a squander of valuable limited resources both on the environmental side and the flood

control side.

Mr. POMBO. Thank you. At this point, I would like to turn to Mr.

Dooley for his questions.

Mr. DOOLEY. Thank you, Mr. Pombo. I guess in listening to the

majority of the testimony, it seemed like most of the witnesses

were commenting on the inability or the difficulty in maintaining

levees which resulted in increased incidents of flooding in this last

event that we had in California.

I guess when I look at H.R. 478 though, I am a little concerned

in terms of its breadth and its scope because it appears that it

could go even beyond just the operation and maintenance of levees

because it includes also a statement which would allow for the

building of facilities in order to prevent flooding.

And I am a little concerned that even while I am one who totally

supports, you know, the exemptions for operations and maintenance of ongoing maintenance of levees, I would be interested to
17

hear from some of the members of the panel, do you believe that

we should exempt the major construction of new facilities from the

provisions of ESA?

And, in fact, in some interpretations of H.R. 478, which we are

considering today at this hearing, would even say that you could

even put the building of the Auburn Dam in this—being exempted

from many provisions of the ESA under this legislation. And I

would just be interested in hearing from some of you. Do you think

that would be appropriate?

Mr. LEE. Congressman Dooley, perhaps I can help you out on

this. The California legislature is ahead of Congress in this matter.

This week the Assembly passed Senate Bill 181 by Senator Kopp

of San Francisco, and they have exempted the Endangered Species

Act as it applies to California by State law for a period of two

years. And this bill is going to pass out of the California legislature

by the Assembly bill. It was voted bipartisanly 72–to–1 out of the

80-member Assembly.

Mr. DOOLEY. So just to clarify, are you saying the California

State legislature passed legislation that would exempt the construction of dams from any California ESA actions?

Mr. LEE. Well, I should have finished. They exempted the San

Francisco Giants ballpark and the levees. OK.

Mr. DOOLEY. The levees.

Mr. LEE. And the levees were included as a bipartisan measure.

I don’t know how you want to clean up this language here if it

needs cleaning up, Congressman Dooley. But what the panelists

are talking about today are maintenance of existing structures,

some of which are over 100 years old. And that is my position as

a farmer and an attorney and a trustee. We have got to be able

to fix these flood control structures.

I might add something though. We have another problem that

this bill does not address, and it does no good to fix the levee and

strengthen the levee if you don’t dredge the rivers because, as Senator Feinstein personally observed during the ’97 floods, the Sacramento River at Rio Vista—its bed has been raised four feet in the

last 10 years. Well, you can have the strongest levee in the world

if you don’t go back to dredging, and this is a continuing problem.

Mr. DOOLEY. I would just go on to say that I think that just in

all honesty, just for some of you in terms of achieving your ultimate objective, if we don’t, I think, further limit the scope of some

of this legislation that it is going to have a very difficult time passing.

And I would say that there is an alternative that has been introduced by Congressman Fazio, as well as co-sponsored by a number—myself and also Mr. Condit, that does try to limit this exemption as it relates strictly to the operation and the maintenance that

is required to maintain the integrity of the levees and also enhancement to those levees. And I think that is something I hope

you will consider because even in the political environment we

have in Washington, I think something that goes much beyond that

is going to be very difficult to achieve.

Mr. POMBO. Thank you. At this time, I would like to recognize

Mr. Herger if he had any questions at this point.
18

Mr. HERGER. I do. Thank you very much, Mr. Chairman. I do appreciate you having this hearing. My district was one that all 10

of the 10 counties I represent were declared disaster areas. The

flood in Yuba County, of course, that inundated all of Yuba County

is also my district.

And I would just like to, before I ask a question, just respond to

a couple of the comments that were made. One is that the intention

of this bill is to do nothing more than to be able to go in and repair

our levees and make sure we have an integrity within the levee

system that they were originally designed to complete.

The goal of this legislation is not to build new reservoirs. I personally feel that we need to do that, but that is not the intention

of this legislation, and certainly that can be defined as we go further into the process.

I would also like to comment on Mr. Fazio’s bill, which was just

mentioned. Even though that is legislation that would be helpful

with this disaster, regrettably, it is limited to this disaster. It will

not help us prevent future floods. It will not help us do the type

of things that we need to maintain the levees that we need to

maintain in years to come. So it is, therefore, very shortsighted.

And even though I support the Fazio legislation, it will only help

us during this immediate disaster and does nothing for us in years

to come so, therefore, again, I believe we do need this.

Just as background, and I would like to ask Mr. Hastey a question if I could. And, Mr. Hastey, if you could comment on this. We

had, as was mentioned, this process, and the reason for this legislation is that the process of repairing these levees were identified as

far back as 1988, some nine years ago.

Some studies were done. In 1990, the Corps of Engineers came

out, and they wrote a document, and I want to quote from that. In

their 1990 document, the U.S. Army Corps of Engineers reported

and determined that repairs should occur on the Arboga levee as

expeditiously as possible, stating—now, this is on the very levee

and the very spot that broke in which three lives were lost, plus

millions of dollars of damage and thousands of acres were inundated—‘‘From this 1990 study,’’a study done some seven years ago,

‘‘loss of human life is expected under existing conditions without

remedial repair for the major flood events.’’

So this is something we identified in 1988 that needed to be repaired. A study was done two years later in which the Corps of Engineers themselves predicted what actually happened, and that

was that there would be loss of life. We are still now—yet in January 2 of 1997, this year, that levee had still not been repaired because of environmental hoops that had to be jumped through. And

we have three individuals that lost their lives, plus that.

Mr. Hastey, if I could ask you, can you explain the mitigation requirements that were mandated for this levee before these construction efforts were allowed to begin? And how many acres and

how much money was spent on this?

Mr. HASTEY. Certainly, Congressman Herger. There were identified 43 clumps of elderberry bushes. And when an elderberry bush

is checked on by the Fish and Wildlife Service, they then go

through the process of measuring every stem. And every stem that

is over one inch is required to be mitigated. They identified 1,538
19

stems on elderberry bushes. To mitigate it, they ripped out 76

acres of prime production peaches that were in production and

planted 76 acres at a cost of $1.9 million.

They planted the elderberry bushes’ stems at a 5–to–1 ratio. Not

only did they plant the bushes at a 5–to–1 ratio, but they removed

25 of the grown elderberry bushes and replanted them inside the

riverbottom inside this mitigation area. It came to a cost of $55,800

per bush to mitigate for these stems for an Elderberry Beetle that

has never been sighted north of Stockton.

And when you talk to Fish and Wildlife and you talk to the

Corps of Engineers, we would ask the Corps, ‘‘Why are we doing

this?’’ And the Corps would say, ‘‘Because it’s not worth fighting

with Fish and Wildlife over this. It is just better to go spend the

$2 million.’’ And we would rip our hair out, and we would build

mitigation-sites instead of fixing levees that protect people’s lives.

Mr. DOOLEY. Thank you. Do you know how much money was

originally expected to repair this particular levee? Mr. Hastey, I

don’t know, are you aware of the amount of money that the original

construction of repair for this particular levee was placed at?

Mr. HASTEY. If it was placed into just that section of levee, probably the best fix would have been a slurry wall. Slurry walls

amount to about $4 million a mile. There is probably about a threequarter mile stretch there so it is about $3 million to fix that

stretch of levee.

Mr. DOOLEY. And yet there were some 8 million or more that was

spent during this period of time just on litigation on this berry

bush, and in the process, we have spent far more money, probably

more than double the amount of money, just on mitigation——

Mr. HASTEY. Right.

Mr. DOOLEY. [continuing]—some eight years later and still do not

have the levee repaired. And yet we ended up losing three lives.

And I believe that for itself speaks for the absolute necessity of this

legislation and also speaks for the fact that we cannot come up

with just a temporary fix that only fixes this for this disaster. We

have a responsibility as Members of Congress to come up with the

type of insight and the type of leadership that will help prevent

this type of incident from not happening again. Thank you. Thank

you, Mr. Chairman.

Mr. POMBO. Thank you. At this point, I would like to recognize

another Californian, Mr. Sam Farr.

Mr. FARR. Thank you very much, Mr. Chairman. Perhaps this

question goes to Mr. Hastey. As I understand it, levees by definition are manmade. We have two types of levees. We have Federal

levees that are maintained by the Corps of Engineers, and we have

other levees that are maintained locally. The levees in question,

are they federally maintained levees?

Mr. HASTEY. To my knowledge, Congressman, there are no federally maintained levees. Levees in the State of California are maintained by the local levee districts, and this happened to be maintained by Levee District 784.

Mr. FARR. Do those levee districts have a maintenance plan that

has been adopted and funded?

Mr. HASTEY. They have a maintenance plan that they have

adopted, and they have an assessment that is given to the property
20

owners. The property owners pay the tax for the maintenance on

the levees.

Mr. FARR. Is that assessment adequate to do the maintenance requirements in a continual process so that they can maintain them

in a timely fashion?

Mr. HASTEY. It is. When you consider what maintenance is in the

State of California, I think you need to go to—reclamation districts

are much like your garden person who is taking care of your lawn.

And I will use this definition.

The State of California owns the levees in California. The Corps

of Engineers was the general contractor who built them. The levee

districts maintain them, check them for squirrels, mow them, and

burn them. They do not do major maintenance. They are like your

landscaper who comes to your lawn. The engineering work and the

ownership is held by the State of California.

One of the major problems in our State is when there is a disaster, we call on these levee districts who have been doing maintenance. We call on the kid mowing the lawn to fix the problems that

the owner should have seen long ago.

Mr. FARR. Well, that is what my point is. I represent some of

those districts, and what I have seen in the process is that they

have not either adequately assessed themselves, or they have refused to do the maintenance work. And then a flood comes along,

and the blame goes around, and it ends up the ESA is the one that

the people like to blame.

On my own time, Mr. Chairman, what I am suggesting is that

this issue needs to be addressed in a management fashion. You are

talking about managing a water system that has awkward jurisdictional governance. It is not something that one government owns,

and one government can fund, and one government can plan for.

This bill, I think, goes far beyond that process because this bill

relates to the building of dams, to the operating of dams and rivers,

to the repairing and maintenance. And I think what the whole testimony we have heard here today about is the maintenance of levees. The majority of those levees are not even controlled by the

Federal Government.

And I think that what we ought to be focusing on with this legislation is a maintenance program that allows a proper maintenance

with all the agencies having to be on board with one plan. When

we have that, we operate well in these jurisdictions. And, in fact,

many areas in my district have been able to operate under these

laws without problems except for the lack of funding—sometimes

blamed on the Federal Government; sometimes blamed on the

local.

We have one river where the north side of the river is in one

county, and the south side of the river is in the other county. They

have two different assessment districts, two different boards of supervisors to deal with, a special district on one side, upstream by

two other counties, and nobody can get along, and we can’t adopt

a maintenance plan. But that is the problem. It is not just the Endangered Species Act that I think people are trying to attack today.

So I appreciate the testimony from Sacramento. I sat in that

room many times in my career in the legislature, and I would sug-
21

gest to this Committee that you just heard from the witnesses at

the California legislature, which is right on top of this problem.

In dealing with it, they limited their legislation to levee maintenance, and they did it for a two-year moratorium, essentially, on

the ESA to get the levees from the last storm back in. They did

not go as far as this bill does to providing exemptions for building

and operating dams. So thank you, Mr. Chairman.

Mr. POMBO. Thank you. At this time, I will recognize Mr. Billy

Tauzin.

Mr. TAUZIN. Thank you, Mr. Chairman. I am Billy Tauzin from

Louisiana where we know something about levees. If we didn’t

have levees, most of us could not survive in my district in southeast Louisiana. I am shocked, frankly, by some of the testimony I

read and hear today and by some of the documents in front of me.

I particularly refer to your submitted testimony, Mr. Lee.

I have gotten in my hands a copy of the ‘‘Policy Guidelines and

Regulations for the Mitigation for Levee Construction, Maintenance, and Repairs’’ for the Sacramento district of the U.S. Army

Corps of Engineers. Look at this thing.

And when I read the statement of Mr. Lee and the actual letter

from the Corps of Engineers detailing the mitigation requirements

to make a simple repair in the west bank of the Mokelumne River

near Thornton in San Joaquin County, California, I am astounded.

This report by the Corps says before you can fix that levee, because you are going to possibly hurt some Elderberry Longhorn

Beetles, who are dependent upon the elderberry, that you had to

go out and identify all the elderberry plants of a certain dimension

in a one-third-of-an-acre area. You have got to mitigate by 5–to–

1.

You have got to transfer a title to the mitigation area to either

some resource agency or a private conservation authority, and you

have got to fund that private conservation organization in perpetuity to permanently maintain that new area.

A qualified biologist has to be on board all during this process;

written documentation requiring that on an annual basis other

plants are manually picked up so they don’t disturb the

elderberries; that permanent fencing has to be provided; permanent

signs; two or three species of other plants have to be planted for

every five elderberry seedlings; monitoring by qualified biologists

annually with annual reports on December 31 identifying with

maps where individual adult beetles have exited holes in elderberry shrub, and elderberry plants have to be analyzed; survival

rate condition; real and likely future threats have to be identified;

field notes; photographs; all on-site personnel receiving instructions

regarding the presence of the Elderberry Longhorn Beetles, et

cetera.

It seems like the agency is spending a great deal more time making sure that this mitigation-site is maintained than anybody is

concerned about fixing the levee. And all of this cost has to be

borne, I assume, by the owner of the levee. Is that correct?

Mr. LEE. That is correct, Congressman. The routine maintenance

that—and as Mr. Nomellini said earlier, this becomes a contest between the environmental staffs of the Federal and the State agencies to see who can come up with more absurd requirements, and
22

their backside is covered because all they have to say is, ‘‘We are

following the 1986 regulations,’’ which are even sillier. And——

Mr. TAUZIN. We had to do it because of this book. Right?

Mr. LEE. That is correct. So all the staff people that are making

these ridiculous demands, they are covered. Now, this is why I feel

so strongly about this, that Congress has to take the lead—not the

California legislature, but Congress. Everything starts——

Mr. TAUZIN. Now, let me ask you something because time is limited. It is my understanding that whoever owns the levee, whether

it is a Federal levee or State or local levee, that when repairs are

due and maintenance is required on that levee that you still have

to go through 404, and you still have to be subject to the Endangered Species Act requirements. In other words, before you can get

help or before you can maintain or repair that levee, you still have

to go through this process. Right?

Mr. LEE. Except in catastrophic emergencies such as 1997.

Mr. TAUZIN. Right. You are given an exemption after the event.

But even after the event, you still have to restore it to the conditions that existed before, which means you got to go do all this

mitigation again. Right?

Mr. LEE. If it is the secondary drill controlling the main function

of the project.

Mr. TAUZIN. Now, here is an extraordinary thing I have learned

too today, and that is, before you can get Federal help to fix any

levees so lives are not lost and people’s property is not destroyed

while the riverbed is rising, before you can lift the levee or maintain it or repair it, that you have to sign an agreement assuming

liability with the Corps before they will come in and help.

And then if the Corps delays, if the Corps fails to fix it right, or

they put in a mitigation requirement that somebody in court believes contributed to the failure of that levee, such as a mitigation

bond, all of a sudden you find yourself in court having assumed the

liability for the Corps’s failure or the Corps’s actions.

You are in court now potentially liable to those citizens because

the levee failed for lack of maintenance or because of a mitigation

project that may have contributed to its failure. Is that correct?

Mr. LEE. That is correct.

Mr. TAUZIN. That is absolutely—it is absolutely astounding.

Those of us in Louisiana who depend upon levees are getting real

concerned that maybe we need some national legislation. Thank

you, Mr. Lee.

Mr. POMBO. Thank you. The Chair recognizes Mr. Miller.

Mr. MILLER. Thank you very much, Mr. Chairman, and thank

you to the panel for your time and your expertise. Dr. Mount, if I

might, a lot of discussion here on the ESA and its implications, and

I think much of it very valid in terms of mitigation and repair of

levees. But let me ask you, if I read your testimony correctly, we

can set that argument aside.

We still have a fundamental problem in the State of California

with respect to the management of these rather extreme

hydrological events, and you seem to suggest that if we continue

down the same vein that we have continued over the last 50 years,

that our future doesn’t look much brighter than the events that we

have experienced in the past. Is that a fair characterization, that
23

we have got to start thinking about some other management tools

and other means of providing relief on these water courses?

Mr. MOUNT. Yes. Mr. Miller, thanks for bringing that up. I appreciate it because in all this discussion, I haven’t heard any discussion about how we are going to reduce flooding in the Central

Valley. This bill doesn’t make any difference at all because every

time a levee failed in this valley, it saved other levees. It prevented

failure on other levees.

So what you are essentially talking about is translating the problem somewhere else, not actually addressing the flood control problem. And that is one of my big concerns. And in this particular bill,

it does nothing to help people get out of harm’s way. In fact, it

stimulates growth in harm’s way. It doesn’t address the fundamental issues. And actually, I expected at some point to hear some

testimony about that, and I have not.

Mr. MILLER. Let me ask you this. And I don’t know if you can

answer it, but I think it would be very helpful to the Committee

and certainly in terms of our long-term planning, when you look at

current water courses and river paths and various floodplains that

are available, is it your opinion that we have the ability to construct some alternatives in terms of relief during these events

other than just simply building the levees higher and higher as we

have done in the past? I mean, do we have places where we can

provide strategic relief and anticipated relief to manage these

events?

Mr. MOUNT. Mr. Miller, we are at a crossroads here. We are fast

closing the window on options. We will eventually—if we do not

slow the rate of growth on the floodplain, we will close off all our

options. I am not advocating that we should be moving people off

the floodplain and relocating whole cities, but we still have time

and we still have the space to maintain ag land and wildlife habitat as a way to manage floods.

Again, this bill does not address any of that issue, but it is the

most compelling and most important issue. This window is coming

to a close. If we don’t act now within the next few years, we will

have lost all our options.

Mr. MILLER. So in a sense, we have been in a little bit of a

catch–22 here, that we have built the levees stronger so people who

have moved into more of the floodplain and some of those areas you

look at north of Fresno and elsewhere or almost anywhere in California now, unfortunately, and they have relied on those levees.

But at the same time we are reducing some of the options that

we would have available to us in terms of planning for these future

events. I mean, so we are kind of in a vicious circle here. I mean,

is that what you are saying? I don’t want to put words in your

mouth. I am good at that but——

Mr. MOUNT. Trust me, I have plenty of words of my own. Yes.

What I call it is the cycle of serial engineering, that we are basically locked in this cycle. As long as we continue to erect new and

higher levees, we will never break out of that cycle.

And, look, the Army Corps themselves have pointed out that we

are locked in this cycle. The Army Corps is usually pointed as the

bad guy who builds lots of levees. The Army Corps has said, ‘‘Look,

we have to back off. We have to cut out this overdependence on lev-
24

ees as the solution to flood control because they don’t work. They

are an untrustworthy ally.’’

And I think that is a message that is lost in all of this, and,

again, I want to reemphasize, we are losing our options very rapidly by the rate of growth that we have here in the Central Valley.

And when we turn over prime ag land and pave it over, we have

lost it as an option for flood control. Again, I didn’t hear it.

Mr. MILLER. Well, I want to just thank you very much for your—

my time is about to run out—thank you for your testimony and for

the thought that you have put into this. And I must say that I am

encouraged. I know that Congressman Condit is working with

groups down in his area, which is among some of the highest

growth areas in the Valley.

And some of the statements, I think, by the governor have been

encouraging in terms of our ability to look at some of these options

in the future so that we have some opportunity to try and—it

doesn’t appear that we can prevent floods, but we may be able to

have some enhanced ability to manage these episodes in a much

less destructive and tragic manner. Thank you very much for your

testimony.

Mr. POMBO. Mr. Gilchrest.

Mr. GILCHREST. I thank the gentleman for yielding, and I also

want to compliment Mr. Pombo and Mr. Herger for bringing this

issue to the level that I think is necessary in order for us to make

it a priority to understand the full ramifications of what we are

doing.

Sort of continuing on the line of Mr. Miller’s questioning, I almost feel compelled to ask if dolphins have any impact on these

levees. Mr. Miller didn’t hear me say that so we will just move

along.

I guess 100 years ago when these levees were constructed, they

were constructed for the purpose of trying to settle this region, protect the residents from harm, from floods, from flood damage, property damage, lives, and all those other things. But I would also

guess from the comments that I have heard here this morning that

in the last 100 years, and probably especially in the last 10 years

or so, we began to understand a little bit more about the mechanics

of natural processes.

And it seems through the testimony, especially from the testimony of Dr. Mount, that it seems that no matter what we do, and

correct me if I am wrong, no matter how rigorous the engineering

design constraints, according to your testimony, that the best levees will fail.

And if I could read one other sentence, ‘‘The predictable failure

of levees also stems from the manner in which they are applied.

Levees, more than any other flood engineering effort, failed because

they usually conflict with rather than conform to natural river

processes.’’

I think what we are trying to wrestle with here is figuring out

if we can maintain existing levees without a great deal of conflicting of bureaucracies to do what we know is right to do under

the existing structure but then move on from that.

And my question, I guess, Dr. Mount, is there a limit to the capacity of existing water resources to sustain human population in-
25

creases? Is that going to happen? And that is whether it is flood

control or drinking water supplies to all the various communities

downriver. At what point do we reach the point where we have exceeded the capacity to save lives and to give people drinking water?

Have we reached that point now? Will we reach it in 10 years? 20

years? Dr. Mount?

Mr. MOUNT. I think that is actually a monstrous question in that

here in California we have 1,400 dams. We have almost 6,000 miles

of levees. And despite all that, at present, we cannot prevent flooding in California. And we can’t simply afford to prevent flooding in

California. So in answer to part of your question, in many respects,

we already have exceeded our capacity when it comes to something

like flood control; that is, we cannot control the flood.

As for water supply, that is a whole separate issue, but it is, as

you might expect, enmeshed in this overall issue as well. And,

again, it would take me a long time to address that. Currently,

there is enough water to sustain the population here in California.

We are squabbling over it a great deal at present.

But in terms of flood control, I think the evidence was here on

January 2, 1997, that we have exceeded the capacity of our system.

We cannot engineer flood protection so that it is foolproof. And we

are fooling ourselves if we think otherwise.

Mr. GILCHREST. Could one of the other gentlemen or any of you,

understanding this data, this information, understanding, I

guess—we understand here in Washington that we have got to

maintain those levees, and we want to expedite the process to

make sure that that is done. Is there any thought of future managed growth techniques as a result of past flooding? Would anybody like to address that issue on the panel?

Mr. NOMELLINI. I will take a crack at it—Dante Nomellini. I

think there is room for more planning. I think use of the

floodplains for shock absorber capability in the flood is a good idea

in some places. I think dams still have a value for flood control.

There is a degree of benefit to a number of opportunities, and we

should look at the planning issue.

While it is true that there are no absolutely failproof levees, just

like there are no absolutely failproof bridges or highways or rockets

that go to the moon, that should not deter us from trying to minimize or lower the risk of failure of our existing structures.

So we should make sure that we are doing the best we can with

the dollars we have to maintain the facilities that have been designed and are in place, and then we should separately look at

what we could do to enhance our capability. And this floodplain

idea, I think, is a good one. I think, too, on the water issue we may

have exceeded the capacity in California to serve all of our constituents and feed them at the same time.

We have a conflict between agriculture and the urban areas, but

those are broader issues that I think should be addressed, but they

should not detract you from the task of trying to keep us from foolishly spending our limited dollars at the local, State, and Federal

level of having our environmental interests compete with our flood

control interests where we have a duty to maintain the existing facilities. We don’t have a choice. We can’t walk away from that.

Thank you.
26

Mr. GILCHREST. Thank you, Mr. Chairman.

Mr. POMBO. Thank you. Mr. Vento.

Mr. VENTO. Well, thanks, Mr. Chairman. I was reading some of

the background material here, and it commented that after the ’86

floods there were—which these particular projects that we are talking about here in Sacramento and San Joaquin delta—there is over

a thousand miles of levees in this area. And so they, obviously, as

has been pointed out, for 100 years have been important.

But the issue was that much of the repairwork had been done

except on the Marysville and Yuba City area, and it had been

started there, and that the contention, obviously, concerning this,

that there was some delay with regards to the giant garter snake

or something when it was dormant, but that there was also some

lawsuits and other things that were involved in terms of protests

over the bidding, which I think we are going to hear about later

in the testimony from the Department of Interior. The question I

have for Dr. Mount is was this ’97 flood an unprecedented

hydrological event?

Mr. MOUNT. This was truly, in my view, a regional flood of this

century. That does not mean it was the 100-year flood. That is actually a statistical best guess. But it certainly was a large event.

But if you think back over the last 10 years—10-12 years in California, we have seen at least three significant events here in California, and that should be our road map to the future, that, in fact,

these events are going to come.

Now, it may be that for the rest of my lifetime I don’t get to see

a flood like this. But it also equally may be that I will see another

one next winter. The odds are just the same. So I think we have

to keep in mind that although this was a large event, it certainly

wasn’t unprecedented.

Mr. VENTO. Well, I think the issue here too is is this a common

problem? For instance, I notice that one of the witnesses, Mr.

Nomellini, pointed out that a lot of environmental laws get in the

way of this. I mean, it comes to my mind to me that I assume that

these levees are for flooding, but there are also other reasons that

they are put in place—principally flooding, but, I mean, there are

other benefits.

When they do feasibility studies, they try to add up all the different benefits that are going to occur so some of them might be

in terms of protection of various types of endangered species or

recreation or other types of uses that occur in terms of the feasibility studies. These are important. If we are going to take away

those particular values here, then you subtract them in terms of

how you look at the report.

But there was a study done in 1994 by the Floodplain Management Review Committee, which was chartered by the Administration’s Floodplain Management Task Force, an independent review,

of the ’93 floods. And they did not find that the Endangered Species Act or other events were the reason for the problems. I don’t

know all the reasons they found, but they didn’t identify that.

They did find it was the result, again, of unprecedented

hydrological and meteorological events. And we are having a couple

of those in Minnesota right now on the Red River in the north, as

a matter of fact. And it is flat up there, and that is a problem that
27

we are also having in my district. But the Mississippi River Valley

in St. Paul, Minnesota, is a little wider. And so we can accommodate there, and we have moved a lot of things off the river, and

they have breached the levees in our area.

So the concerns are I think multiple with regards to what we are

doing here. These other environmental laws like the Endangered

Species Act, the Clean Water Act, the requirement to do EIS’s—

they weren’t in force 100 years ago. How do we integrate new environmental policy like this when we have existing structures in

place? I mean, that is the real challenge that we have here.

It sounds to me like it was being used or being approached in

a proper way. I don’t know that—I guess though that somebody

has to be blamed for this so we are going to blame a beetle for it.

I mean, I certainly don’t want to take the blame, and, apparently,

those in California are not eager to admit some responsibility. Dr.

Mount, how do we integrate these new environmental laws with

these existing type of structures?

Mr. MOUNT. You have used the most important term possible

and that is integrate. What we have to do is start taking a more

watershedwide view of these problems, rather than a local view of

these problems. That is how we solve flooding. Now, it may be that

we can promote habitat in other parts of the watershed which will

actually spare us this tragedy each time in terms of maintenance

of levees, especially those that are protecting urban areas. So we

have to take an integrated look.

I am sure that, in fact, everyone on this panel will agree with

me that, in fact, part of the problem is this local view especially

when it comes to environmental laws. So I think integrated is the

right word, and it is a watershedwide approach rather than breaking it up into simple, local districts.

And I want to also come to this local issue you have identified.

That is a lot of the drive to the problem here. I want my levee to

be rebuilt stronger and higher so that I can have a city right next

to this levee. But, unfortunately, that causes harm to the entire

system. And once we get out of that local issue and take a systemwide view, I think we are going to be able to solve more of these

environmental problems.

Mr. VENTO. Let me point out that there was a statement made

that under the emergency flood response, would that require consultation and mitigation before repairs are initiated? And the answer to that—the short answer is not unless there are substantial

changes over and above what would be required.

So I think that some misunderstandings have arisen here with

regard to this. From what I have heard at the hearing here, it

sounded like some believe that that would be the case. So I hope

the hearing will shed some light rather than just a lot of heat in

terms of this issue. And thank you, Mr. Chairman. Thank you, Dr.

Mount, for your responses.

Mr. POMBO. Mrs. Chenoweth.

Mrs. CHENOWETH. Thank you, Mr. Chairman. I want to thank

you and Mr. Herger for this hearing and for bringing this issue to

our attention. I have no questions to ask, but I have a very quick

statement with regard to the same type of thing that is going on

in my State.
28

In my district, Mr. Chairman, we have also suffered a lot of

floods, not to the extent that you have. But in the beautiful town

of St. Maries, Idaho, we had the Army Corps of Engineers and the

U.S. Fish and Wildlife Service in a conflict. The conflict was resolved by them cutting cottonwoods along a levee along the St. Joe

that housed the habitat for the bald eagle.

I was down there, and the townspeople were very upset because

they were destroying the habitat. Now, they have decided to impose

on the townspeople—the local units of government—the fact that

the planting of new trees will take place two miles away from the

levee, that the requirements include placing four or five artificial

perches for the eagles on each area of levee where cottonwoods

were removed.

Now, these perches for the eagles instead of the natural cottonwoods—these perches must be 60 to 100 feet high and have at least

three ‘‘limbs’’ 60 to 100 feet high capable of holding a 20-pound

eagle. Other requirements include limiting construction and maintenance to only March 1 through October 1 and then when fewer

eagles are present on their artificial perches; then keeping vehicles

and snowmobiles off the levee roads. I am not sure how we can

maintain the levee at all without having some vehicles in there.

And posting signs that tell people to keep their distance from the

birds. I am sure people will not be attracted any longer to the

beautiful St. Joe with these 60 to 100-feet high artificial perches.

Mr. VENTO. If the gentlewoman would yield——

Mrs. CHENOWETH. So thank you very much for bringing this to

my attention.

Mr. VENTO. Would the gentlewoman yield?

Mrs. CHENOWETH. And I yield back to the Chairman.

Mr. VENTO. Would you yield to me? You have the time.

Mrs. CHENOWETH. Oh, certainly.

Mr. VENTO. Who made the decision in terms of the removal of

the cottonwoods?

Mrs. CHENOWETH. The Fish and Wildlife Service and the Army

Corps of Engineers.

Mr. VENTO. The Fish and Wildlife Service made the——

Mrs. CHENOWETH. They were involved——

Mr. VENTO. I mean, you know, the reason—I don’t know what

the nature of the problem was with the levee in Idaho. Was this

for an irrigation purpose?

Mrs. CHENOWETH. It was flood control primarily.

Mr. VENTO. It was flood control.

Mrs. CHENOWETH. And irrigation but——

Mr. VENTO. But, you know, often, of course, cottonwoods absorb

and transpire a great deal of water, and so there may be—I

thought there may be other reasons here that the irrigation districts might have been concerned about the cottonwoods’ presence.

Mrs. CHENOWETH. Our concern is making sure we can maintain

the levee. We have a 200 percent snowpack and expect another

flood. We have had one this last February, and we are really worried, of course, about the levee and want to be able to work with

the agencies on making sure we can maintain the strength of the

levees. But the rush to judgment and imposing 60 to 100-feet high

artificial trees on the levee is not what will bring the beautiful,
29

pristine environment back to the beautiful St. Joe River. Thank

you.

Mr. POMBO. I thank the lady. Mr. Gibbons.

Mr. GIBBONS. Thank you, Mr. Chairman. Gentlemen, my name

is Jim Gibbons. I represent that portion of Nevada that is just to

the east of you and during the same 1997 timeframe, we had three

rivers flood in the district I represent—the Walker River, the Carson River, and the Truckee River—with loss of life along with it.

And we had structural failure. Some of those structures were flood

protection rather than levees. They are structures, not levees.

What concerns me is from some of the testimony that I have

heard from those people who are so concerned about the protection

of the longhorn beetle that they will not vote for a bill or a measure

that will allow me to go back to these people along these rivers in

my State and tell them that we were able to take action that would

have prevented not only the loss of life of your loved ones, but

maybe the future loss of life because of their refusal. I am very concerned about that.

I would like to direct my questions to Mr. Lee, but before I do,

I want to join my colleague from Louisiana, Mr. Tauzin, in his concern about the number of regulations and the amount of work that

is required to maintain one of these levees. And I was looking

through this historical background, and very quickly I want to read

off in 1992 what is required before work on a levee could begin.

You have to comply with the National Historic Preservation Act,

Archeological Historic Preservation Act, Archeological Resources

Preservation for Protection Act, Preservation of Historic Properties,

Abandoned Shipwreck Act reviews, Clean Air Act permit requirements, Clean Water Act Section 404, Coastal Zone Management

Act review, Endangered Species Act consultation, Estuary Protection Act, Federal Water Project Recreation Act review, Fish and

Wildlife Coordination Act, Land and Water Conservation Fund Act,

Marine Protection Research and Sanctuaries Act.

This is nuts. National Environmental Policy Act, Rivers and Harbors Act, Wild and Scenic Rivers Act, Executive Order 11988 Floodplain Management, Executive Order 11990 Protection of Wetlands,

CEQ Memorandum Analysis of Prime and Unique Farmlands in

Implementing National Environmental Policy Act, and at the same

time you have got California laws on Environmental Quality Act

and Endangered Species Act.

How in the hell do you people get anything accomplished over

there with all of these reviews that don’t just bury somebody in the

act that you need to take place, which is protect the safety of the

citizens from flooding? And that is the point we are here to talk

about. We are not here to talk about how to prevent flooding. We

are here to talk about protection of lives, loss of property.

And I want to ask Mr. Lee if he can tell me is this flood a 100-

year flood, and if the levees would have held, would you in California have seen or experienced the same level of damage if those

levees that are under consideration had held in 1997?

Mr. LEE. Certainly not, Congressman. We have all kinds designed into the system besides dams, Federal and State and local

dams—we have bypasses all up and down the Central Valley. We

were prepared as a district down at the confluence of the Sac-
30

ramento River and the Georgiana slough right at the head of the

delta to take this flood. Unfortunately, the levee failed at the Yuba

and up by the Sutter bypass.

But California has a very intricate and well-planned system of

levees, bypasses, and dams that have been designed for over 50

years. We are not talking about brand new structures so some developer can come in and put a bunch of houses in the floodplain.

The whole intent of the witnesses here, and I think even the

good professor, is we are talking about 50 and 100-year old structures that are designed to take these waters. Now, because you

have a failure occasionally, that doesn’t defeat the basic premise

that these levees have to be maintained.

Mr. GIBBONS. Well, Mr. Lee——

Mr. LEE. In fact, except for—go ahead.

Mr. GIBBONS. Mr. Lee, let me ask this question because time is

limited here, and that is the exact point I want to ask you. It is

my understanding from your testimony that you are saying that as

a result of the Endangered Species Act and its application to these

levees that these levees failed during the 1997 flood.

And let me follow that with a quick question that you might also

answer, that if Congress gives this exemption to the reclamation

districts for these levee repairs and dredging, will or will not every

other special interest group want the same exemption? Can you answer those two questions?

Mr. LEE. Well, yes, I can. I can only speak for those that are

charged as public officials such as I am and such as the supervisor

from Yuba County with protection of life and property. We are not

seeking to change or enlarge or create something new like concrete

over the elderberry beetle.

We are simply saying these are flood control structures much

like the California freeways or the California dams or the bridges

across San Francisco Bay. These have to be fixed and maintained.

We are not asking for something new. That is not our problem. But

we have a duty as local public officials to handle this problem. And

as long as the Federal Government is getting in the way, we are

having a heck of a time.

Mr. GIBBONS. Mr. Chairman, I asked a question, and I don’t

think the witness answered the first part of it, and I just would

like your indulgence for one minute to ask that one question again.

Mr. Lee, from your testimony, are you saying that as a result of

the restrictions imposed by the Endangered Species Act that these

levees failed in the 1997 flood?

Mr. LEE. I think the supervisor from Yuba County has adequately answered that question in the affirmative. Yes, that levee

up in Yuba County should have been rebuilt years earlier. It wasn’t

because of the mitigation required by the environmental agencies.

The work would have been done.

On the Thornton levee that I talked about earlier that took eight

years to do five and a half miles, we abandoned six feet on the

water side of the river because of environmental concerns. If we

had not abandoned fixing that levee on the water side and only

concentrated on the land side, we still would be studying the problem, Congressman, and that whole area would have been under

water in ’97.
31

Mr. GIBBONS. Thank you, Mr. Chairman.

Mr. POMBO. Thank you. Mr. Schaffer.

Mr. SCHAFFER. Thank you, Mr. Chairman. I would like a number

of people, whoever has opinions there on the panel, to comment on

the statement that I heard a little earlier from Dr. Mount when he

described his belief that if you repair one levee on the system that

it essentially forces or places some kind of pressure on another

levee or another structure on the system that will cause it to fail,

and that these are all related, that failure will occur somewhere,

but repairing levees may just move that failure to some other section of a river or other water system or other sort.

Dr. Mount, I would like you to tell us more about that theory and

provide an example. If the levee in question here were repaired and

replaced, what failure will be caused as a result of that? And, secondly, I would like to hear from some of the others, whether they

concur or whether they have a different opinion on that matter.

Mr. MOUNT. I think one of the most important things that came

out of the Galloway report from the floods in the Mississippi River

of 1993 is one person’s disaster is another person’s salvation, that,

in fact, the 1,000 levee failures that occurred upstream of St. Louis

spared St. Louis, literally.

And I will also argue, and I will argue strongly about this, that

one thing we should keep in mind is that levee failures save the

delta. Now, I am going to get some disagreement from my colleagues on this, but it is my professional opinion that indeed the

delta, which handles two-thirds of the State’s drinking water,

would have collapsed had all the levees held in the system. Failure

of those levees took pressure off and saved the delta.

So I think that is something that has to be kept in mind. Unfortunately, I don’t have a recipe for how to deal with that issue when

you are a local homeowner who is staring at the shadow of the

levee next to you. But I think that is something we have to keep

in mind when we sit and review the consequences of bills like this.

Thank you.

Mr. NOMELLINI. I will take a crack at that question. I think while

it is true that when you have water in the river at a certain stage,

when a levee fails adjacent to your district, there is a drop in water

elevation. So to that extent, you can say that, yes, there is some

relief due to the fact that others have suffered a failure.

There are floodplains in the system that are designed to take

water. There are also areas that are not protected to the same degree as others. So there are always in every flood opportunities or

situations where water spreads out.

And while it is true—you know, I am down in the delta. I would

agree, if the water didn’t spread out in the upper river areas, the

problems in the delta would be greater. But I don’t think you go

from that premise to the conclusion that you shouldn’t repair and

maintain existing levee systems. What it tells us is that we need

a better plan overall which needs time to be developed.

I think it is incorrect for us to take off on the assumption that

the solution to the problem is not to repair existing levee systems.

We have cities, we have farms, we have large investments that we

must protect while we do a better job on our planning.
32

Our previous planning was willing to tolerate a disastrous event

maybe on the frequency of once every 50 years. Today, we think

we don’t want to ever have a flood. Well, we are going to have

floods, and we are going to have levee failures. And the degree of

protection is one of cost and investment. Do we want to protect

against a 1–in–300 event?

I don’t think we could ever protect to the point that we could assure there will not be some flooding. There are going to be levee

failures. There are going to be dam failures. Bridges are going to

fall down. Those things are going to happen on some frequency, but

we should maintain what we have, plan for the future, take into

consideration these floodplain things, put a larger degree of flood

protection in there if we want. But by no means is there any justification for the premise that we should not maintain and repair

existing systems.

Mr. HASTEY. I would also like to take a crack at that. I think

that one of the things we have to look at is the system, and as

being one member of this Committee, that my house has still not

been rebuilt. The system works. I mean, 98 percent of the State of

California was dry.

I mean, you can’t say that the total system works. The dams did

their jobs. The flows were kept down. The system actually worked.

It failed miserably because we have levees that are 100 years old.

None of the levees in the North Valley failed because the water

was coming over the top. This event wasn’t a big enough event to

cause the levees to fail by overtopping. It was caused by the structural integrity of a poorly built levee and possibly poorly maintained. And part of that maintenance problem is because we are

confined with ESA rules.

One of the things I would like to point out in this bill that I

know Dr. Mount agrees with is that we need setback levees. We

need those levees further back so we can widen the channel. If this

passes, you may actually get those, but I can tell you there aren’t

many districts and there aren’t many people in the State who can

afford to go through the EIS and the entire process to move those

levees back. That is monumental.

I mean, it will take 20 years to get that done. I mean, if you

want setback levees, and that is important, and you believe that

is a process that needs to happen, then I believe this bill goes a

long ways toward making those happen.

Mr. YENNI. I think that an optimal term we need to address here

is we talked about flood prevention, and I think you need to contrast that with flood control. I think at least in my instance, we realize that we can’t prevent a flood 100 percent. What you need to

concentrate is on controlling it and to what extent are you going

to control that flood.

Regarding building the levees higher and putting pressure on

other systems further down, I know in my area if my levees are

adequate, the only pressure that also results will be in San Francisco Bay. And I don’t think it is going to flood San Francisco Bay.

It will put the whole Marina district under water. Likewise, further

up the system from me, the drainage is small enough such that we

can push the water down with a small elevation in height.
33

Another thing that we have, I think it was mentioned a little bit

earlier about dredging of channels. The Corps of Engineers has determined that sloughs and creeks surrounding our lands are navigable waterways.

I know that when we went out there to look at some of the restoration-site which is taking place on a portion of the place I farm,

Fish and Wildlife Service, Fish and Game were out there. And we

had trouble finding that navigable waterway.

We are standing in the middle of it along about July or August.

We said, ‘‘Yes, I think it is—it must be around here. There is a depression. That has to be the channel.’’ So we need to have a little

consideration given to these navigable waterways and how you

can’t find them.

Mr. POMBO. Thank you. All right. I want to thank this panel for

their testimony and at this time call up the next panel. Thank you

very much, and you are excused at this time. The next panel is

made up of Mr. David Zappe—excuse me—Mr. Frank Peairs is taking his place; Mr. Walter Cook; Mr. Robert Frost; and Mr. Robert

Clark.

Mr. TAUZIN. Mr. Chairman, I ask unanimous consent to be recognized out of turn at this point. Mr. Chairman, I was not here for

an opening statement. I just want to make an observation.

Mr. POMBO. Without objection, the gentleman is recognized.

Mr. TAUZIN. As we are gathering the second panel, it just occurred to me that, you know, we have a similar concern in our

State where we are building and trying to maintain levees to protect lives and property. And all too often, we have very, very limited resources available for us; that often the levee doesn’t get

built, not because of regulations, and the repairs are not made, not

necessarily because of regulations, but because we don’t have

enough money. And when we finally gather the money together, we

are told that part of the money has to be used now to go do an environmental mitigation project.

And while environmental mitigation may be very important and

environmental projects may be very important, what I guess we are

discussing today is whether these precious dollars, and the precious

time we have to fix levees and maintain them, and the precious effort that is available to us in terms of public resources to get that

work done should be diverted for other governmental and highminded purposes to protect beetles. In short, are beetles more important in terms of spending these precious dollars than protecting

lives?

And Mr. Herger showed me a report by the Corps of Engineers

that predicted that lives were going to be lost in his district if the

levee was not fixed on time. It was not fixed on time, and we are

hearing that part of the reason it was not fixed on time was because the government decided that spending money to protect beetles was a higher priority.

And I think that is what really this panel has taught me—is that

in my own State we think we have problems already with these

concepts, and we haven’t yet been faced with these kind of regulations. If we ever have these problems, I don’t know how we would

survive in south Louisiana. And I understand a little better why
34

some of your constituents were not able to survive, Wally, and why

we need to change some laws in this country.

Mr. POMBO. At this time, I would like to recognize Mr. Frank

Peairs who is the Assistant Chief Engineer at the Riverside County

Flood Control and Water Conservation District. Mr. Peairs.

STATEMENT OF FRANK PEAIRS, ASSISTANT CHIEF ENGINEER,

RIVERSIDE COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, RIVERSIDE, CALIFORNIA

Mr. PEAIRS. Thank you, Mr. Chairman, members of the Committee. Over the past 50 years, the district has developed an extensive system of flood control facilities, including 35 dams and detention basins, 48 miles of levees, 188 miles of open channel, and 182

miles of underground storm drains. Timely maintenance of the district’s system is critical to ensure protection of the lives and property of our residents.

The district is mandated to maintain projects constructed with

Federal partners to standards dictated by the Federal agencies.

And the Federal Emergency Management Agency, or FEMA, mandates local government to maintain its flood control facilities as a

condition of participation in the National Flood Insurance Program.

Failure to do so can result in expulsion from the program and other

sanctions.

For decades, the district routinely maintained its system without

outside interference. But over the past several years, we have been

hamstrung in this effort through the regulatory activities of several

Federal agencies, including the Corps of Engineers, the Environmental Protection Agency, and the U.S. Fish and Wildlife Service.

These agencies have veto power over local flood control maintenance activities by virtue of regulations promulgated under authority of the Clean Water and Endangered Species Acts. Although

these laws have been on the books for many years, their impact

has become more burdensome as Federal agencies have issued new

and more stringent regulations, often without authority of new law

and sometimes as a means to negotiate settlement of environmental lawsuits of questionable merit. An example is the lawsuit

negotiation which resulted in the Corps of Engineers adopting the

so-called Tulloch Rule which was recently overturned by the

Courts.

Today, three separate Federal permits are required under the

Clean Water Act to operate and maintain the district’s flood control

systems, including a Section 404 permit from the Corps of Engineers. In addition, under Section 7 of the ESA, the Corps is required to consult with the Fish and Wildlife Service where a permitted activity may jeopardize and endanger a threatened species.

And EPA retains veto power over any activities that they do not

agree with.

This web of multiple Federal permits prevents timely maintenance of critical flood control facilities and poses an ongoing threat

to the public health and safety. Many examples can be cited.

In one case, the district was prevented from making critical repairs to the Santa Ana River levees because two endangered woolly-star plants were discovered in the general area of the work. The

district is mandated to maintain these levees by the Corps of Engi-
35

neers which constructed them. We could not do so for more than

two years, even though a failure would have been catastrophic.

In another case, in January 1993, overflow from Murrieta Creek

caused serious flooding in the Old Town area of the city of

Temecula. Flows raged through businesses, restaurants, and residences causing over $10 million worth of property damage. I was

there that night. The power was out, and as I looked into the darkness of Old Town, I was certain that many lives had been lost.

Through some miracle, none were. But there were many close calls.

The real tragedy is that the flood was absolutely preventable.

Prior to the flood, Federal officials had refused to allow mechanical

clearing of vegetation and the removal of accumulated sediment on

the creek, partially due to alleged concerns about the endangered

least Bell’s vireo, and only after the damage occurred did they

allow the critically needed maintenance to take place. Ironically,

FEMA later reimbursed the district and the city of Temecula for

the cost of the post-flood maintenance.

Survival of an endangered or threatened species was not at stake

in either of the cited cases, but inflexibility built into the ESA, coupled with indifference to public health and safety issues on the part

of the resource agency and regulatory staffs, prevented the district

from taking appropriate corrective measures in a timely manner

unnecessarily jeopardizing lives and property.

I have focused on maintenance issues today, but the district has

also experienced major difficulties with the ESA in permitting new

flood control projects. Additional information on these problems has

been provided in the district’s written testimony, along with a specific list of reforms to the Endangered Species Act recommended by

the district.

Time prevents me from covering the entire list, but the most critical of the proposed reforms is a categorical exemption from provisions of the ESA for routine maintenance and emergency repair of

all existing flood control facilities, and I would say not just levees.

Accordingly, on April 8, 1997, the district’s governing board approved Resolution Number F97–5 supporting H.R. 478, the Flood

Prevention and Family Protection Act of 1997. A copy will be provided to the Committee upon certification by the clerk of the board.

The district fully understands that flood control programs and

projects are currently undergoing dramatic change. But numerous

citizens still rely on existing flood control systems to protect their

lives and property. And reform is urgently needed to ease the regulatory burden on local governments and to allow critically needed

maintenance to take place. Thank you for your consideration of

these remarks and the additional information and recommendations contained in our written testimony. Thank you.

[Statement of Mr. Zappe may be found at end of hearing.]

Mr. POMBO. Thank you. Mr. Walter Cook.

STATEMENT OF WALTER COOK, CHICO, CALIFORNIA

Mr. COOK. Well, thank you, Mr. Chairman. My name is Walter

Cook. I am a retired attorney, and I own a walnut orchard which

is located adjacent to the Feather River levee which broke on January 2, 1997. Much of my orchard was washed away. The remainder

is covered by about six to eight feet of sand. My house, shop, and
36

mobile home were disintegrated. Most of my equipment is hidden

under the sand in unknown, scattered locations.

H.R. 478 is being offered as a remedy for future flooding. However, before adopting a remedy, the cause of the problem must be

first explored. So far, there has been much loose talk that the beetle did it. Based on my personal knowledge of the Arboga levee, I

would like to share some information and thoughts which relate to

the many probable causes of this breach.

The levee is made entirely of sand. During previous high river

flow, substantial levee erosion has been common in the vicinity of

this break. Such erosion is likely to have occurred during the ’97

flood and could easily have caused the levee break. Moreover, the

toe of this levee had been a long-term problem.

Rather than a delaying of repairs to the levees, in 1989, repairs

were made to the levee at my orchard. A 1,000-foot long, 10-foot

deep trench—a toe drain—was dug along the landward toe of the

levee just north of Country Club Road. It may be more than coincidence that the break occurred at the precise location of this toe

drain.

While we cannot know whether the toe drain weakened the

levee, we do know that the toe drain was ineffective in preventing

the break of a levee that had previously existed for some 50 or

more years.

I understand that this stretch of levee was constructed over deep

sand and gravel of the old riverbed. Incorrect original placement of

the levee was another probable cause of the breach.

Despite the many factors which could easily have caused the

breach, many have seized on the mitigation pond as the undisputed

cause of the break. This scenario, disregarding all others, is being

used to justify diminishing the effectiveness of the Endangered

Species Act.

The pond is located about three-quarters of a mile from the center of the levee break and about 200 yards riverward of the levee.

The claim that this pond caused the break requires an active

imagination, in my opinion.

It is also claimed that the Endangered Species Act prevented

proper levee inspections and repairs, and that it held up levee restructuring. In its ’96 study, the Army Corps stated that the levees

in the study area are maintained regularly. I could relate to that.

Since 1976 annually, the levee slopes have been burned. There has

been a prevention of the colonization of endangered species on the

sides of this levee.

In addition to burning the levee, there has been a dragging of a

bar across the sides of the levees with a bulldozer. Maintenance—

I have to commend Reclamation District 784 for having done an excellent job in maintaining the levee. There has apparently been no

problem with the Endangered Species Act insofar as levee maintenance of the levee that just broke.

In summary, we need to change our outlook on the natural

world. The destruction of my orchard is not the fault of nature. The

flood was caused by the refusal of we humans to accept the natural

world the way it is. And our pitiful attempts to force the river to

go where it would not go, blaming other species, which we are

about to destroy forever, is not the answer.
37

Despite our greed and arrogance, what right do we have to satisfy our own desires by driving other creatures to extinction? Humans can build faulty levees and dams that don’t work, but we

cannot create even one of nature’s most insignificant bugs or rodents. Rather than doing everything we can to destroy the earth,

we must learn to live with and protect the paradise we were given.

The choice is not whether humans or bugs are superior. Humans

must live in harmony with other creatures.

Without providing any substantial benefits to flood control, H.R.

478 will result in more Los Angeles rivers and other poorlythought-out projects. Elimination of dams from review is particularly unconscionable. H.R. 478 is a bad bill and should be rejected

out of hand.

Mr. Chairman, I have a small package here of additional information which relates to the toe drain of 1989. I would like to submit that as part of the record if that is possible at this time.

Mr. POMBO. Without objection, it will be included in the record.

Thank you.

[Statement of Mr. Cook and added information may be found at

end of hearing.]

Mr. POMBO. Mr. Robert Frost.

STATEMENT OF ROBERT FROST, CALIFORNIA CATTLEMEN’S

ASSOCIATION, SANTA PAULA, CALIFORNIA

Mr. FROST. Thank you, members of the Committee. My name is

Rob Frost. I operate a cattle ranch and land clearing business in

Santa Paula, California, which is in southern California. I am currently serving as Second Vice President of the California Cattlemen’s Association. I am here today representing the organization,

as well as landowners along the Santa Clara River who have suffered severe flood damage.

The CCA is a nonprofit organization which has over 3,000 members and has represented the State’s beef cattle producers in legislative and regulatory affairs since 1917. Our members own, control,

and manage approximately 38 million acres of California’s 100 million acres. On the land we control, we house a majority of the

State’s wildlife, plant species, and correspondingly the greatest percentage and number of the State’s endangered and threatened species under the Endangered Species Act.

My testimony today serves to call attention to two issues: the dilemma which I and other landowners along the Santa Clara River

have experienced due to the lack of flood control measures to protect public and private property. The other is the dilemma which

ranchers and other landowners throughout California face due to

agency permitting requirements that restrict our ability to repair

or restore property other than just levees and other flood control

projects damaged or destroyed by flooding or other natural disasters.

Basically, in both cases, the dilemma has been the direct result

of the Federal Government’s enforcement of ESA which has taken

a severe toll on the ability of landowners to protect their property

and their livelihoods. It seems like every year now we have a flood.

Just normal rainfall causes floods in Ventura County, predominantly ’92, ’93, and ’94, and ’95—weren’t bad years but we had
38

floods, and the main reason is that Ventura County Flood Control

District will not fund money to do normal maintenance. And then,

of course, we have the Corps of Engineers and the Fish and Wildlife Service stepping in with these horrendous mitigation measures.

Many producers lost hundreds of acres of crops and land—a permanent loss of 20 to 100 feet of soil depth in each case and the irrigation system that went with them due to torrential rains that

caused the river to shift course on a four-mile stretch and rip up

nearly $2 million worth of crops and land. Refer to the Sacramento

Bee article that is in my testimony. In addition, at least two oil

wells and oil lines were at immediate risk, a natural gas line was

ruptured and destroyed twice, and utility lines were downed, creating tremendous risk.

The landowners have requested help. Our problem down there is

not levee maintenance. It is just maintaining the pilot channel in

our river. The river is not controlled by levees, but the levees do

protect the sidewalls of the river.

The landowners who requested help and had limited financial resources were denied permission to expedite repairs on their property to prevent further flooding and restore what was damaged.

Landowners with adequate financial resources were allowed to take

immediate action for restoration efforts but only because they could

financially commit to unreasonable mitigation procedures.

For many years, not less than 70, the local flood control agencies

contracted out pilot channel excavations in the river to small contractors and owner/operators of earthmoving equipment. Simply

put, these contractors and equipment companies maintained a pilot

channel that would handle just about any kind of normal rainfall.

Except for the major flood we had in 1969, it would take care of

that.

We had rock and sand companies willing to come in and excavate

the pilot channels and serve an economic benefit to Ventura County which was out of aggregate at an economical yield. All that stuff

was fine and dandy, and the agencies were ready to go until they

came up with the mitigation measures.

Now, we are talking the farmland valued at $15,000 to $35,000

an acre in Ventura County. The mitigation requirements by the

agencies—there was just no cost benefit ratio to the farmers. Nothing was done. The center of our river is higher than the banks

right now.

I am about out of time, but, anyway, we fully support H.R. 478.

Our biggest problem is the agencies won’t react. They have—I don’t

mean for anybody to take it personally—they just don’t know what

is going on. They have got no sense. And we have people down

there—small family farms—that are absolutely financially desperate because of the flooding we have had. I mean, they have lost

orange groves mainly because the agencies will not maintain a

pilot channel down through the river.

In closing, natural disasters can take a significant financial toll

on investment we have in our businesses and our ranches. Property

owners who have gone through the trauma associated with having

their property destroyed and lives disrupted should not be further

burdened with expensive permitting and delayed processes. Thank

you.
39

[Statement of Mr. Frost may be found at end of hearing.]

Mr. POMBO. Thank you. Mr. Robert Clark.

STATEMENT OF ROBERT CLARK, CENTRAL VALLEY FLOOD

CONTROL ASSOCIATION, SACRAMENTO, CALIFORNIA

Mr. CLARK. Mr. Chairman and members of the Committee, I am

the manager of the California Central Valley Flood Control Association, and I want to thank you for the opportunity to bring some

of the concerns of our members to this Committee today.

The Association was formed in 1926 to promote and secure the

integrity of the Sacramento River Flood Control Project. Today, we

represent the interests of those responsible for the maintenance of

the levee and drainage system with membership from throughout

the Sacramento Valley and Delta.

Our members include reclamation, levee, drainage districts,

counties, one city, and private landowners. The importance of the

Endangered Species Act is recognized by our members who, of

course, provide considerable habitat for protected species.

We want to work with the Congress and regulatory agencies in

an effort to provide for practical and successful implementation of

the Act, while recognizing the greater need to assure protection of

life and property from the ravages of flood. We believe the Act

needs to be changed to recognize the conflicts created by its strict

application.

Flood control facilities are safety devices. Here in California, our

economy, our property, and our lives depend on their successful

construction, operation, and maintenance. This protection extends

to the wildlife and habitat within the leveed system. Yes, levees

protect wildlife too.

The protection provided wildlife and habitat by levees is never

considered when mitigation requirements are developed. A secure

flood control system should not be compromised by the misguided

desire to enhance fish and wildlife.

Environmental law, regulation, and regulators have served to

delay, discourage, and sometimes prevent essential flood control

work. And in almost all cases, they reduce significantly the funds

available for flood protection. One of the most difficult aspects of

compliance with environmental regulation requirements is the constantly narrowing time period when work is permitted to be done.

It seems that by the time periods are set aside for nesting, hibernating, and migrating species, there is inadequate opportunity to

accomplish the needed maintenance and repair work in a reasonable and efficient manner. This drastically increases cost and limits

the availability of contractors capable of accomplishing their work.

Safety first, not safety second, should be our motto.

The California flood of 1986 resulted in identifying many areas

where levee standards were deficient. Many of these sites remain

unimproved 11 years later. At one of these sites you heard about

a major failure that occurred. We have heard these delays categorized as administrative. Environmental law and regulation is

the primary cause of these administrative delays.

Most of the environmental aspect of a project is based on biological opinion. The opinions expressed by the several regulatory agencies are often in conflict, and resolution of these conflicts delays
40

progress. There is no motivation for any of the regulatory agencies

to proceed in a timely manner, and personnel changes, as well as

the ongoing process of new ESA listings and revised biological opinions, further add to the delay and rising cost.

The actual cost of project implementation is often a fraction of

the overall project cost. Funding for construction is not requested

or scheduled until all environmental documentation and mitigation

is determined.

The ESA is not used directly to stop projects. It is used as a fallback authority to acquire potential habitat. Flood control managers

are good stewards of the environment. They are willing and ready

to assist in the preservation of habitat and endangered species.

Their first priority, however, is providing protection for the lives,

property, and economy of the area they serve. People who live behind the levees are highly motivated to assure a secure flood control system.

The obstructionist and what appears to be punitive nature of the

application of the ESA on vital flood control projects must be overcome. Lacking any achievement of practical reform to the Act in recent years and the current method of application to vital safety

projects has led our Association to the support of H.R. 478. We

strongly support the view that operation and maintenance of existing flood control structures should be exempt from requirements

under the ESA. Thank you for your consideration of our comments.

[Statement of Mr. Clark may be found at end of hearing.]

Mr. POMBO. Thank you. Mr. Clark, in your opinion, is public

safety being put at any additional risk by the delays and cost increases associated with the ESA compliance?

Mr. CLARK. Chairman Pombo, I certainly believe there is a risk.

Whenever you have a levee that is identified as deficient and defective and you delay for years resolving that problem, it is bound to

be a risk when you know you have a problem.

And even if you don’t know it, you should be working on it. But

the delay that is associated with it, it is not unusual to go to a

meeting on these projects and spend eight hours discussing them,

and the only thing resolved is setting the date for the next meeting.

Mr. POMBO. Do these additional costs of mitigation and compliance have any impact on the ability of the individual districts to

make the repairs that are necessary?

Mr. CLARK. They certainly do if the cases that are not emergencies because the project—there is a local cost sharing for construction, and, of course, many of the project levee—many of the

levees—not project levees—that are owned by reclamation districts,

particularly in the delta, are not Federal levees so they receive no

Federal funding.

They get some State assistance in some areas but not all areas.

So they do definitely add to the cost and the ongoing mitigation.

And I just think the permitting costs are in many cases exorbitant,

and they could be much—be streamlined by revisions to the Act.

Mr. POMBO. You represent a number of people who are involved

with the maintenance of the levee system, with the reconstruction

of the levee system throughout the entire area. In your opinion and

through your experience, when you have these kind of delays that

you have described in your testimony and in answering the ques-
41

tions to the repair of the system, over a period of a number of

years—say 15 years—where work that should have been done is

delayed over a period of time, which, you know, even if it is ultimately done, it delays other work that should be done, and when

you have an event like what we went through in the first part of

this year, does that impact the ability of the system to handle that

amount of flow, that amount of water that goes through it?

Mr. CLARK. Well, the levee system in the Sacramento River Flood

Control Project is, of course, a very integrated system. It is integrated with the reservoir operations, the levee system, the weirs

and bypass system, and so forth. And the delays in environmental

work or ones I have referred to earlier, they are expensive.

They are often faced with impractical mitigation requirements,

and it takes time to resolve those differences of opinion. Opinions

are written by what I would term apprentice biologists in distant

offices, and they have to be revised once they get out to the field

and they are reviewed.

I think one of the main aspects of environmental regulation is

the uncertainty it provides to the operations people in the field.

They never know what issue is going to impact them in the work

they are doing.

Mr. POMBO. Thank you. At this time, I will recognize Mr.

Herger—if he has any questions.

Mr. HERGER. Thank you, Mr. Chairman. I would just like to reemphasize what the purpose of this legislation is and also what the

purpose is not. There were some comments that were made earlier

in our hearing that perhaps the purpose of this legislation was to

build more reservoirs. I personally feel we need to build more reservoirs, but that is not the purpose of this legislation.

What the purpose of this legislation is, is to ensure that we do

not have a repeat of what we had happen on the Yuba River, and

which in 1986—again, to repeat this—Reclamation District 784 recognized that they needed to repair a specific levee problem.

Four years later in a study because of environmental laws, U.S.

Army Corps of Engineers reported—again, let me—I don’t know if

we can quote this too many times—this is their quote—now, this

is in the precise location where the levee broke—their quote was,

‘‘Loss of human life is expected.’’

And, Mr. Cook, I hope you are listening to this because certainly

our purpose of this is not to destroy or allow any of our endangered

species to become extinct. That is not the purpose.

But the purpose is to put human life first, and I believe we have

every right to expect that. I believe the families of those three individuals who lost their lives have every right to believe that the

U.S. Congress is putting the lives of our citizens even before that

of endangered species.

And to finish this quote, it says, ‘‘Loss of human life is expected

under existing conditions without remedial repairs for a major

flood event.’’ Now, that was a statement made by the Corps of Engineers four years after the levee was attempted to be repaired,

and seven years before the levee break occurred, and about sevenand-a-half years before it was finally down to be repaired. Now,

that is wrong. That is about as incredibly unacceptable as any disaster that I have ever seen.
42

That is the purpose of this legislation, to be able—and during

this period of time, also the comment was made that it is not anything new to anyone in this Congress, or certainly in our State, or

in any of our 50 States that we have a shortage of funds here in

Washington.

We are attempting to balance the budget, and I serve on the

Budget Committee. We are looking at every dollar we spend. And

you know what we spend on a break or—that the original estimate

to repair in 1990 of this break was $3 million for this problem—

we had in this specific levee, $3 million. Now, after it broke, it is

going to cost $9.3 million. Plus that, we spent $10 million on mitigation.

And not only is the levee still not repaired, but it was written

in a letter—a memo I have from the Yuba County Water Agency,

35,000 people were displaced by this one repair that was recognized in 1986, 500 homes were destroyed, 9,000 acres of prime

farmland was displaced, and four of the largest employers in all of

Yuba County were inundated.

But as bad as all that is, the worst of all is that three human

lives were lost that need not to have been lost right directly in

front of where that levee broke. Now, that is wrong. And we have

a responsibility to not only protect endangered species, which I also

support, but to protect human life.

And this legislation would allow us to go in and to build and repair our levees, to put that as our highest priority, to do it in an

expeditious way in which we do not have to go in and mitigate first

so as to be stalled. That is the purpose of the legislation, Mr.

Chairman, and I appreciate all of our witnesses that are here testifying on this today.

Mr. POMBO. Thank you. Mr. Schaffer? Mrs. Cubin? I would like

to thank the panel for your testimony. There may be further questions that would be submitted to you in writing. If you get those

questions, I would appreciate it if you could answer them as quickly and succinctly as possible so that they can become part of the

official record of the Committee hearing. And at this time, I would

like to dismiss the panel and thank you very much, all of you, for

your testimony.

OK. At this time, we are going to call up the next panel that is

going to testify here today. It is going to take just a few minutes

of delay so that the stuff can be moved out of the way so that they

can sit at the hearing table. So we are going to delay for just a few

minutes here while they do that.

STATEMENT OF GEORGE GRUGETT, LOWER MISSISSIPPI VALLEY FLOOD CONTROL ASSOCIATION, MEMPHIS, TENNESSEE

Mr. GRUGETT. Mr. Chairman, thank you very much, and I do

apologize. I made the only reservation I could to get back home tomorrow. But my name is George Grugett, and it is my pleasure

and privilege to serve as the Executive Vice President of the Lower

Mississippi Valley Flood Control Association, an agency composed

mainly of public officials that for the most part are elected to serve

the people on levee boards, drainage districts, ports and harbor,

State agencies, cities and towns, and other State agencies in the

States of Illinois, Kentucky, Tennessee, Missouri, Arkansas, Mis-
43

sissippi, and Louisiana, extending from Hannibal, Missouri, to the

Gulf of Mexico.

Mr. Chairman, I have been in this business for about 50 years,

and I would like to just deviate a little bit from my statement and

make a few comments. Dr. Mount, in his statement, said that levees will fail. We in the Lower Mississippi Valley have not had a

levee failure since 1927. That is about 70 years. Congressman

Tauzin’s comments I really enjoyed.

There was a lot of mention made of floodplains. Our floodplain

in the lower valley is 100 miles wide. When you have got that kind

of floodplain, you don’t talk about moving people out. But this Association has appeared before the Congress and served the people

in the lower valley for well over 60 years.

I sincerely appreciate this opportunity to testify today on the implementation of the Endangered Species Act. Let me begin by stating emphatically that I strongly believe in protecting our environment, and everyone I know and associate with shares that belief

and desire. I also strongly believe in private property rights, the

rights that form the economic framework that this country was

founded on.

It is my strong opinion that the multibillion dollar environmental

movement and some bureaucratic government agencies have

harmed our economy and violated the liberties and freedom of the

American public. I am also sure that only the elected Congress of

the United States can change that violation of private property

rights and prevent Americans from being crushed by fanatical environmental extremists.

My discussion of the implementation of the Endangered Species

Act must begin with the long-held belief that there is nothing basically wrong with the Act itself, but the interpretation and enforcement of this Act by Federal agencies have created a very costly and

unacceptable time-consuming situation that is not visible to or

known by the public.

This interpretation and enforcement has caused the Federal Government to expend lots of resources, both money and people. Fortunately, because of the generosity of the taxpayers, the Federal Government has those resources.

Unfortunately, the local people do not have the necessary resources and assets. Therefore, work, especially flood control work,

simply does not get done. The time and money required just to file

an application for a permit is not available in most cases to the ordinary citizen.

The Federal Government has to expend the time and money because of the rules, regulations, and policies that have been promulgated by the Endangered Species Act. The majority of this effort is

to satisfy the U.S. Fish and Wildlife Service.

An example of the resources that must be used to both satisfy

the misinterpretation of the Endangered Species Act and provide

adequate flood control protection took place on the St. Francis

River in east-central Arkansas.

This reach of the St. Francis River was an integral part of the

complex St. Francis Basin Project that provides flood protection for

almost 2 million acres in northeastern Arkansas and southeastern
44

Missouri. The project had been jointly built by the local people and

the U.S. Army Corps of Engineers.

In order for the flood control project to function properly, maintenance work in the form of dredging to remove accumulated siltation was required on the St. Francis River south of Highway 64 in

Arkansas. The Corps awarded a contract for the maintenance work

in 1977 at an estimated cost of approximately $1 million.

Shortly after work began, a dead mussel, identified as a fat pocketbook pearly mussel, was discovered near the worksite. Since the

fat pocketbook pearly was one of 50 or so mussels listed as endangered, work was stopped. The contractor filed a claim against the

government, and he was paid approximately $1 million, this in

spite of the fact that little or no work had been performed.

The maintenance work was halted for a period of 11 years, and

lands and homes were flooded that would not have been if the required work had been done. In addition to this damage, the Corps

of Engineers spent another $1 million locating and relocating the

fat pocketbook pearly mussel. $2 million was expended, 11 years

was wasted, and no flood control protection was provided.

The epilogue to this story is that work was resumed with individuals being paid to literally crawl on their hands and knees in front

of the dredge removing and relocating mussels. The irony is that

not only was the fat pocketbook pearly mussel subsequently found

in large numbers over a vast area, but it was evident that they

grew best in disturbed channels, in other words, channels that had

been previously dredged.

There are many stories that are as ridiculous and costly as the

experience with the fat pocketbook pearly mussel. We cannot afford

that type of thing any longer because of drastic cuts in the Corps

of Engineers civil works project.

If I may, sir, I would like to point out one thing that is of great

concern to us now, and that is the Fish and Wildlife’s designation

of critical habitat for endangered species. Just one example is a

proposal by the Service to designate a total of 3 million acres in

Louisiana and Mississippi as critical habitat for the conservation of

the Louisiana black bear.

No one wants to see harm come to the Louisiana black bear. But

if almost 5,000 square miles are designated as critical habitat, and

the Corps of Engineers’ 404 permitting program requires that the

issuance of a permit does not result in the adverse modification of

critical habitat, you can easily see that we and the Corps of Engineers are going to be hard-pressed to bring some 300 miles of deficit levees in Louisiana and Mississippi to the required grade and

section.

When those levees fail, and they will if not corrected, not only

will the Louisiana black bear be in immediate and critical danger,

but so will about 4 million people and their homes and property.

I must point out that this designation of critical habitat also has

a strong potential for imposing undue restrictions on the activities

of private landowners.

Briefly commenting on H.R. 478, that proposes certain exemptions from the Endangered Species Act for flood control projects.

We do not believe that flood control projects in their entirety

should be exempted from the requirements of the Endangered Spe-
45

cies Act as the Act itself has made positive contributions to our

quality of life in the United States.

What we are really asking for is tolerance for people and their

livelihood on the implementing rules of the Act. The Endangered

Species Act, because of the way it is formulated, requires the U.S.

Fish and Wildlife Service give total weight to the conservation of

the species regardless of the consequences to people, their property,

and their livelihoods.

The Act should be modified to reflect a balance, the weighing of

people’s needs against that of the species. We hope that the Congress will modify the Endangered Species Act to bring about that

balance, and thank you for your time.

[Statement of Mr. Grugett may be found at end of hearing.]

Mr. POMBO. Thank you, sir. If none of the members have any

questions of the witness, he can be excused at this time, and thank

you very much for your testimony.

Mr. GRUGETT. Thank you, Mr. Chairman.

Mr. POMBO. At this time, I will recognize Mr. John Garamendi,

Deputy Secretary, Department of Interior.

STATEMENT OF JOHN R. GARAMENDI, DEPUTY SECRETARY,

U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, DC

Mr. GARAMENDI. Mr. Chairman, I appreciate the opportunity to

be here today to discuss the recent and tragic flooding which has

taken place in California, the Northwest, the Midwest, and other

parts of this country. Our hearts go out to those who have suffered

losses from this series of devastating floods.

First, I would like to commend the U.S. Army Corps of Engineers, the Bureau of Reclamation, the Geological Survey, Fish and

Wildlife Service, as well as State and local floodfighting agencies.

While the extent of this year’s flooding was catastrophic, these

agencies have performed effectively and thereby avoided serious

additional damages and threats to life and property that would

have occurred had they not been working so effectively.

Mr. Chairman, my testimony is beyond the length of time available. I am going to in my comments shorten it. The written statement has been presented, and I would like you to put that in the

record. In January of 1997, the Fish and Wildlife Service implemented the disaster provisions of the Endangered Species Act, Section 7, consultation regulations in 48 California counties that were

declared disaster areas by the President. Rapid and effective response to damaged flood management systems was undertaken,

and that did result in the minimization of risk to life and property.

In addition, on February 19, 1997, the Director of the Fish and

Wildlife Service issued a policy statement further clarifying and articulating our flood emergency policy under the Endangered Species Act. A copy of that policy has been provided to the Committee,

and it is attached to my testimony.

The policy is that, essentially, during this flood season, the repair

and replacement of flood damaged flood control facilities may proceed unimpeded and without review as long as landowners and

government agencies plan to repair or replace the damaged facilities to substantially the same condition as existed before the flood.
46

I think we need to spend a great deal of our time looking at the

long-term restoration of the California and American flood systems.

The Department of Interior’s long-term flood management strategy

is to develop cost effective and economically sustainable approaches

to reducing future flood damages so that these systems are consistent with the need to protect and restore important environmental natural resource values that are inherent in the floodplain

and adjacent lands.

Our Department will continue to work cooperatively with Federal

and State agencies, local communities, water districts, and concerned citizens to examine the long-term flood damage reduction

measures. Our hope is to achieve a flood control system that is

based on reducing flood damages through these cost-effective and,

where appropriate, nonstructural alternatives while minimizing the

development in the floodplains.

If I might for a moment turn to the Endangered Species Act regulations and the flood protection measures. This Committee has

heard much today, and much has been said in the past about the

Endangered Species Act and the flood. Let me make it perfectly

clear that in our view, the Endangered Species Act has been

wrongly blamed for flood damages in California, particularly relating to the operation and maintenance of the levee systems along

the Sacramento and the San Joaquin Rivers.

The storm that hit northern California beginning just after

Christmas paralleled or exceeded the historic California storms of

the 20th century. For example, flooding on the San Joaquin River

ranked four times greater than 1986. Oroville Reservoir on the

Feather River experienced a record inflow of over 302,000 cubic

feet per second. That is over a 120-year event. And the outflows

were 20 percent greater than the previous record in 1986.

Mokelumne flows below the reservoirs peaked at close to 8,000

cfs, which is the highest flow recorded in over 80 years. On the

Cosumnes River, it experienced flows over 90,000 cubic feet per

second, which was twice as high as any recorded flows since 1906.

Certainly, the levee systems were simply overwhelmed by the magnitude of the January floods.

In addition, we are aware of no cases where it can be shown that

the implementation of the Endangered Species Act caused any

flooding and any flood control structures to fail. Nor has the presence of any listed species prevented the proper operation and maintenance of flood control facilities prior to the recent floods.

Now, I would like to take an opportunity to express my Department’s strong opposition to the Flood Prevention and Family Protection Act of 1997, H.R. 478. While the Department agrees with

the need to reduce flood damages and to protect residents living in

flood-prone areas, we do not believe this legislation will achieve

these goals.

In fact, legislation has the potential to worsen the problems it

seeks to address. Legislation proposes broad exemptions from the

Endangered Species Act which would encompass a majority of Federal and nonFederal water resources projects. There are thousands

of Federal and nonFederal projects that have flood control as one

of their functions.
47

You might include the Hoover Dam, or the Grand Coulee, or the

Shasta Dam in this list, and certainly most every hydropower facility would be included. We believe this bill, as written, would exempt virtually all Federal and nonFederal water resource projects

and flood projects from compliance with the Endangered Species

Act.

Amending the ESA in this fashion will not enhance anyone’s

ability to operate or maintain flood control facilities. If assumptions

that floods can be prevented solely by structural means, by eliminating the Endangered Species Act, that would allow businesses

and residences to live and to work in areas that are subject to frequent flooding. As a result, some communities will become immune

to small and medium-sized floods, only to be devastated by larger

and more intense floods that will inevitably occur.

The bill will contribute to a false sense of security and may encourage further development in flood-prone areas, thereby increasing future flood damages. It doesn’t solve the flood problem. It

doesn’t solve flood damages or lost lives and property. We believe

it will make things worse.

We also recognize that there are several endangered species living along the levee system in the Sacramento and San Joaquin Rivers, and we have, therefore, developed cooperative agreements with

Federal and State agencies, water management districts, and others to reconcile the needs of the listed species. We have many examples of how these coordinated and cooperative programmatic

consultations have sped projects and caused them to be undertaken

in a more timely manner.

I will not go into all of those details. But, in conclusion, all of

us must recognize that this is not the last natural disaster that will

affect lives and properties. Therefore, all of us must be committed

to continually improving our capability to respond. We can do this

by designing our systems so as to recognize that Old Man River

will have his way eventually. We must design our systems to accommodate the river. That is the conclusion of my testimony. The

written version is available to you, and I would hope you would put

that in the record. I would be happy to respond to questions.

[Statement of Mr. Garamendi may be found at end of hearing.]

Mr. POMBO. Thank you. Your full written statement will be included in the record. Mr. Michael Davis.

STATEMENT OF MICHAEL L. DAVIS, DEPUTY ASSISTANT SECRETARY OF THE ARMY (CIVIL WORKS) POLICY AND LEGISLATION, ACCOMPANIED BY SUSAN L. RAMOS, CHIEF OF THE

ENVIRONMENTAL BRANCH, CORPS OF ENGINEERS, SACRAMENTO DISTRICT, MICHAEL F. NOLAN, CHIEF, CIVIL

BRANCH, PROGRAMS AND PROJECT MANAGEMENT, SACRAMENTO DISTRICT, AND THOMAS S. COE, REGULATORY

BRANCH, DEPARTMENT OF THE ARMY, WASHINGTON, D.C.

Mr. DAVIS. Mr. Pombo and members of the Committee, thank

you for the opportunity to be here this afternoon to testify on the

impacts of the Endangered Species Act on the ability of Federal,

State, and local government agencies to provide flood protection.

I am Michael Davis, the Deputy Assistant Secretary of the Army

for Civil Works. I work for one of your former colleagues, Martin
48

Lancaster. With me today are representatives from the Corps Sacramento District and a representative from the Corps’ headquarters Emergency Management Office. Mr. Pombo, I too will

summarize my statement, and with your permission, submit the

full written text for the record.

While my statement today focuses on activities in the California

Central Valley and its recent devastating floods, the basic tools

used by the Army Corps of Engineers to address flood protection

and environmental issues apply across the nation.

Let me say upfront that we believe that implementation of the

Endangered Species Act is not inconsistent with the need to build,

maintain, and operate flood control infrastructure. We know today

that it is not only vital to protect human safety and property, it is

also important to protect our natural resources.

Using existing regulatory provisions under the Endangered Species Act and the Clean Water Act, we are able to maintain the important balance between flood protection and natural resource protection. In fact, with existing exemptions, emergency provisions,

and general permits, it is rare that a detailed Federal evaluation

is required for maintenance and repair of flood protection levees.

For example, in January of 1997, the Sacramento District issued

a general permit for those nonexempt emergency flood repair activities. Since that time, that district has issued over 30 permits for

specific activities with the average turnaround time anywhere from

two hours to two days.

The Corps enjoys a solid working relationship with Federal and

State resource agencies. We work together to ensure that flood control projects go forward in a timely manner with minimal adverse

effects on the environment. A good example of this working relationship is the emergency floodfighting work that was done following the New Year’s storm in California.

As soon as the Corps became involved with fighting levee breaks,

we coordinated with the Fish and Wildlife Service and the State of

California Fish and Game to obtain guidance on endangered species consultation. Both agencies stated that an initial consultation

was not necessary to initiate emergency levee repairs during

floodwide conditions. Instead, concerns or requirements for endangered species mitigation would be addressed once the floodfight

ended. The emergency work went forward without delays for environmental consultation.

And now that the Corps is in the rehabilitation phase of levee

reconstruction, the Fish and Wildlife Service continues to work

closely with our Sacramento District so that we may expedite the

site evaluation process and, ultimately, the final levee rehabilitation before the next flood season.

The Fish and Wildlife Service and the State Fish and Game representatives accompanied the Corps team as they conduct site visits. A determination is made on-site of any ESA, NEPA, or California Environmental Quality Act concerns or habitat mitigation

requirements.

After the Corps and the Fish and Wildlife Service have determined what mitigation measures can be reasonably and practicably

implemented to protect endangered and threatened species and

other environmental values, those measures are implemented as
49

the rehabilitation and reconstruction work proceeds, or as soon

thereafter as is practicable.

It is our strong belief within the Department of the Army that

both human needs and our natural environment can be given appropriate consideration, and the decisions regarding flood protection and development issues should reflect both sets of considerations.

The Corps recognizes that environmental laws such as the Endangered Species Act and the Clean Water Act are essential to ensure the protection of our nation’s resources. While it is true that

at times construction schedules and practices have been modified

to address environmental concerns and requirements, this does not

interfere with our ability to provide the design level of flood protection. We continue to work with the other agencies to improve these

programs and to further reduce delays where possible.

In the Chairman’s letter of invitation, they asked for comments

on H.R. 478. Let me express the Department of the Army’s strong

opposition to H.R. 478. We do not believe that it is necessary to

allow us to deal with flood protection or flood emergencies. Moreover, its broad approach will result in unnecessary impacts to

threatened and endangered species.

The recent floods in the Northwest and central California, the

Ohio Valley, and now in the upper Midwest have caused substantial damage to property. They have cost taxpayers billions of dollars, and, most importantly, they have cost human lives. No agency

is more sensitive to this devastation than the Army Corps of Engineers. Our dedicated field staff witnesses firsthand the destruction

and the fears of landowners.

It is time that we seriously reexamine our floodplains and our

floodplain policies. We must ask if our current approach is sustainable in terms of flood protection, in terms of the fiscal investment

required, and the impact on our natural resources. Our short-term

objective must be to help communities recover from the devastation. However, our long-term objectives must be one that includes

a serious look at all options, not just an automatic return to structural solutions that may no longer be appropriate or effective. If we

carefully evaluate all options, we can demonstrate that we do not

have to choose between flood protection and environmental protection. Mr. Chairman, that concludes my statement.

[Statement of Mr. Davis may be found at end of hearing.]

Mr. POMBO. Thank you. Mr. Michael Rausch.

STATEMENT OF MICHAEL RAUSCH, UPPER MISSISSIPPI, ILLINOIS, AND MISSOURI RIVERS ASSOCIATION, QUINCY, ILLINOIS

Mr. RAUSCH. Thank you, Mr. Chairman, and members of the

Committee. I am Michael Rausch. I am Treasurer of the Upper

Mississippi, Illinois and Missouri Rivers Association. My testimony

is presented on behalf of our Association.

Our Association was created in 1954 and has been expanding,

particularly since the great flood of 1993. Our membership includes

individuals, businesses, and municipalities which are all interested

in the continuing improvement of flood control, navigation, eco-
50

nomic development, and habitat protection along the rivers of the

Midwest.

The United States Army Corps of Engineers has transformed

these great natural resources into the essential centerpiece of our

Midwest economy. In the 1930’s, the navigation system was modernized, and our great transportation infrastructure advantage was

established. Today, however, that infrastructure’s advantage is

quickly deteriorating, and our state-of-the-art system is in imminent danger of being inferior to numerous other areas of the world.

Those in the Midwest who provide the resources to keep our economic engine running have been pleading for improvements. Many

environmental interest groups have been lobbying to block those efforts or any other improvement in flood control systems on the incorrect presumption that improvements to navigation or flood control will harm fragile ecosystems or habitat.

The Midwest economy and environment can prosper together.

This will not occur if a proper balance and consideration for flood

control, economic development, and recreation is not quickly implemented. The instability of a poorly maintained flood control system

prevents economic growth and stable recreation, while causing erratic food production and a less efficient navigation system.

The greatest threat to river transportation and wildlife habitat

is the accumulation of sediment in the rivers. The Corps, during

the past 35 years, has seldom removed dredge material from the

floodway in the upper valley. The material have been placed within

the floodway on islands, beaches, or in deep water where it is deposited back in the navigation channel or upon wildlife habitat at

the next time of high water. This practice should be stopped and

the dredged material placed outside the floodway immediately.

Efforts to remedy this problem of sedimentation are being delayed and prevented by those who wish to turn the great resource

of our Midwest rivers into a quasi-national park. Government programs are even funding placement of millions of tons of rock in the

rivers and building structures and islands in the river. Current action and inaction is increasing the risk of flooding and increasing

the inefficiencies of navigation.

In the meantime, if a city, industry, or community wants to improve their economic base by improving flood control, the idea is

declared either economically impossible by the current cost benefit

formulas or alleged to be environmentally damaging, immediately

making it politically imputable and, thereby, impossible to implement.

We do not really know the full impact of the Endangered Species

Act on the ability of the government to provide adequate flood protection. We do know that the fear of the Act and the related costs

and delays associated with threatened environmental issues rising

under the veil of the Act have caused serious compromise to most

flood control activities in our area.

Maintenance of levees has been prevented or delayed due to alleged critical habitat of the Indiana bat. Dredging to repair levees

was delayed due to concerns for mussel beds and the Higgins eye

clam. During the 1993 flood, levee districts that had been flooded

could not be intentionally breached to let water out until Federal

and State agencies were satisfied that habitat surveys were com-
51

pleted which caused much additional damage to the particular district during the delay.

Another specific case involves a pecan grove that was killed on

the Illinois River during the 1993 flood. The local office of the Federal Soil Conservation Service had approved a plan for removal of

the dead trees and replanting of such in October 1994.

In January 1995, the Corps of Engineers notified the owner that

his actions might require a Section 404 permit. One week later, the

Corps issued a cease and desist order threatening a $75,000 per

day fine and possible imprisonment to restore the area to its previous condition.

After one-and-one-half years of red tape, a Section 404 permit finally allowed restoration work but nearly was denied because of

concern regarding the endangered Indiana bat. This was the official action and position even though the Corps of Engineer personnel indicated there had never been a bat sighted in the area,

but that there was a possibility that one could stray into the dead

pecan grove.

The Section 404 permit was subject to two pages of conditions,

which I have attached to my testimony in the written record, including the restriction against it doing any work between May 1

and September 1, obviously the best, most cost-effective time to do

this type of work, to protect these nonexistent Indiana bats.

The Corps of Engineers is facing the issue of altering the water

flows of the Missouri River in part to accommodate the presumed

needs of the piping plover, a lesser tern, and the pallid sturgeon.

This seems to be totally influenced by the Endangered Species Act

concern with very little concern about the communities, businesses,

and property owners on the downstream reaches of the river.

Additional attachments to our testimony have been submitted to

the Committee for your reference. They expand upon the use of the

plover and tern as instruments to prevent flood control development. Most interesting might be the attachment with excerpts indicating how people are instructed on ways to use the Endangered

Species Act as a tool to prevent other activity they wish to stop.

This strongly indicates that the ESA is primarily being used to implement an agenda to prevent growth and respect for human

needs, concerns, and rights.

Mr. Chairman and members of the Committee, we certainly

thank you for the opportunity to make our statement before you.

You are dealing with a very critical issue that affects our part of

the country, as well as every other area of the country. We strongly

support the amendment being considered and referred to as the

Flood Prevention and Family Protection Act of 1997.

We certainly need this common sense improvement in a body of

administrative regulation that has reduced human incentive, prevented improved flood control, and delayed or prevented efficient

economic development. We must establish a legislative priority and

administrative system to maintain and improve our infrastructure

including flood control structures and human concerns. Thank you

very much.

[Statement of Mr. Rausch may be found at end of hearing.]

Mr. POMBO. Thank you. Mr. Guenther.
52

STATEMENT OF HERB GUENTHER, WELLTON-MOHAWK

IRRIGATION AND DRAINAGE DISTRICT, WELLTON, ARIZONA

Mr. GUENTHER. Thank you, Mr. Chairman, and members of the

Committee. My name is Herb Guenther. I am the Executive Assistant with the Wellton-Mohawk Irrigation and Drainage District in

Wellton, Arizona, which is located along the Gila River in southwestern Arizona, about 50 miles east of Yuma.

The district that I represent provides Colorado River water to

about 62,500 acres of prime agricultural land, and we are also responsible for flood protection along 60 miles of the lower Gila

River. The lower Gila River is normally a dry river. In early 1993,

however, we did experience a 500 year flood event, one that filled

and spilled all the reservoirs on the Gila and Salt River upstream

in the Phoenix area.

Painted Rock Reservoir, which is a Corps of Engineers flood control facility, is located about 70 miles upstream of our district. Our

flood control facilities were designed to handle a 10,000 cubic feet

per second release from Painted Rock Dam, and were about 98 percent complete at the time of the ’93 flood.

The Painted Rock Dam filled and spilled. Again, it was a 500-

year event, and the peak uncontrolled releases reached almost

26,000 cubic feet per second. So, obviously, with a 10,000 cubic foot

per second project design, we had problems.

The damage to the public facilities in our irrigation district ex- ceeded $100 million. That is to only public facilities. So, of course,

we needed disaster recovery assistance, and it was a federally declared disaster so we applied for that assistance under the Stafford

Act.

Shortly thereafter, we were notified by the Corps of Engineers

and the Federal Emergency Management Agency that we would be

required to obtain a 404 Clean Water Act permit, for those areas

of our project restoration that were located within waters of the

U.S., and we would have to get a NEPA, National Environmental

Policy Act, clearance for the remainder of the area.

Now, those requirements by themselves, the NEPA requirement

and the Clean Water Act requirement, opened up the other cans

of worms, if you will. It opened up the Endangered Species Act, the

National Historic Preservation Act, Section 106, the Executive

Order on Floodplains 11988, and the Executive Order on Wetlands

11990.

That leads us to the second problem, and that was that before

we could restore the flood protection that we had enjoyed prior to

the flood event, we had to go back through a full-blown environmental compliance process.

I am a fish and wildlife biologist by training. I have spent 26

years either working with or for the Federal Government in environmental compliance. I cut my teeth on the Endangered Species

Act and the National Environmental Policy Act, and I have never,

ever been involved in anything as nightmarish as the last four

years in trying to get environmental compliance to restore the flood

protection system that was destroyed by a 500 year flood event disaster.

In this instance, the Endangered Species Act did not prove to be

a real problem. That was primarily because the Fish and Wildlife
53

Service in our area used common sense, that the ‘‘moonscape’’ that

existed following the flood would not support the Yuma clapper rail

or other endangered species that might be found. I mean, there

was no habitat left. It was gone. It was denuded.

So the ESA was not a major problem. However, it did lead to a

Notice of Intent to Sue by some environmental groups which is still

pending. It was a 60 day notice letter. Our major problem revolved

around the environmental compliance including the Clean Water

Act, both Section 404 and 401, as well as the NEPA requirements

for the environmental assessment and the National Historic Preservation Act, Section 106, and as I have mentioned, the executive

orders.

We had to prepare the environmental assessment. We had to do

a wetlands analysis. We had to do the 404 reports, the 404 justification plan, the 401 substrate analysis, and develop a total mitigation plan which was negotiated with the Fish and Wildlife Service and the local State game and fish agency.

Also involved in the negotiations was, of course, the Corps of Engineers, from whom we sought the 404 permit, and the U.S. Fish

and Wildlife Service, from whom we had obtained the Section 7

finding of no effect.

We also had to prepare and negotiate a 106, National Historic

Preservation Act treatment plan, on a previously 106 certified rock

quarry. Now, the EA which was very controversial, led to the Corps

of Engineers finding of no significant impact which was based upon

a fully mitigated restoration project.

However, EPA continued to demand the preparation of a complete environmental impact statement. And, again, we are just trying to put the thing back the way it was and to restore the flood

protection. This is not a new project. It is not a different project.

The controversy over the environmental assessment led to litigation on behalf of some environmental groups, and that litigation is

continuing as we speak. We currently are in the 9th Circuit Court

of Appeals where the Plaintiffs are appealing a judgment of the

District Court. Also, it led to FEMA denying funding and looking

for another agency, namely, the Corps of Engineer, to fund it under

their P.L. 84–99 program.

But now the bottom line is, we are four years after the disaster.

We are still trying to complete the environmental clearance. We

are still trying to secure funding. We are still without flood protection for the area, and the $43 million Federal, State, and local investment in nonflood infrastructure restoration remains in jeopardy.

And, lastly, we are still involved in the frivolous litigation which

has already cost us over $160,000 in legal fees. We support the

House Resolution 478. However, we feel it doesn’t go quite far

enough. We feel a bigger umbrella for compliance relief, such as the

ESA and NEPA, is justified. While we don’t necessarily need an exemption, we think there should at least be a process whereby we

can expedite the reviews that are necessary following federally declared disasters and the recovery therefrom.

I thank you for the opportunity to testify here today, and I have

submitted my written comments and ask that they be made a part

of the record.
54

[Statement of Mr. Guenther may be found at end of hearing.]

Mr. POMBO. Thank you very much. Ms. Cunniff.

STATEMENT OF SHANNON CUNNIFF, DEPUTY EXECUTIVE DIRECTOR, FLOODPLAIN MANAGEMENT REVIEW COMMITTEE,

WASHINGTON, DC

Ms. CUNNIFF. Thank you, Chairman, and Committee members

for giving me the opportunity to testify before the House Resources

Committee on the findings of the Floodplain Management Review

Committee on the 1993 Midwest floods. With your permission, I too

would like to summarize my prepared remarks.

In 1993, the Midwest was hit by disastrous flooding. It was a disaster that led many to question how the Nation manages its

floodplains. The Review Committee was created to independently

review the causes and consequences of the ’93 flood and to review

the recovery efforts. I served as its deputy director.

Our report’s recommendations are those of the Review Committee’s and not the agencies who supplied staff. Our report, which I

have brought with me, is based on research and extensive interviews with State and local officials, nongovernmental organizations, and numerous private citizens.

The Midwest flood of ’93 was basically a flood of record or several

floods of record and demonstrated that people and property remain

at risk. Activities in floodplains even with levee protection continued to remain at risk. The one important lesson of the ’93 flood is

that the Nation needs to do more to minimize the risk of damage

from floods. The difficulty is that no single action will suddenly reduce the vulnerability of those at risk or prevent others from becoming at risk or being put in the same position.

We found that the basin contained an uncoordinated collection of

agricultural levees constructed by different agencies and individuals at various times and under various programs. The majority of

levee breaches were caused by overtopping. We found that the primary factors contributing to levee breaks were, first and

unsurprisingly, a great deal of water for a long time. And, second,

the placement and design of construction of the levees themselves.

Poorly sited levees can be expected to fail again. We identified

inadequate levee maintenance as a possible factor contributing to

levee breaks. We did not find, nor were we told of, any situations

where environmental protection statutes were the reason for inadequate maintenance.

Protection and recovery of endangered species did not adversely

affect scheduled levee repairs. Measures to avoid and reduce the

risks of flooding can be compatible with environmental protection.

In fact, protection and restoration of the natural and beneficial

functions and values of floodplains are crucial elements of any plan

to reduce risk and damage from floods.

The Review Committee proposed a better way to manage flood

risk. The historical focus primarily on structural ‘‘flood control’’ solutions should be replaced with a sequential strategy of avoidance,

minimization, and mitigation. Where the risk cannot be avoided,

damage minimization approaches should be carried out but only

when they can be integrated into an overall basinwide systems approach to flood damage reduction.
55

To enhance floodplain management, attention to the environment

during Federal operations and maintenance and disaster recovery

activities needs to be increased. Existing authorities to acquire

lands from willing sellers should be funded and expanded. And legislative authority to increase post-disaster flexibility is needed to

assist relocation efforts.

Full consideration needs to be given to all of the possible alternatives for vulnerability reduction. Vulnerable population centers

and risks to critical infrastructure should be reduced through the

use of floodplain and watershed management activities where appropriate. States should be responsible for siting, design, and assuring maintenance of non-Federal levees.

Now, before I conclude my remarks, I would like to emphasize

that while the flood of ’93 was an unprecedented

hydrometeorological event, floods of this magnitude can happen

again. Although we can’t predict or stop floods, we can adopt a new

approach to floodplain management that will lessen our vulnerability to the costly damages caused by floods. I would be pleased

to answer any of the Committee’s questions.

[Statement of Ms. Cunniff may be found at end of hearing.]

Mr. POMBO. Thank you very much. Mr. Davis, you said in your

testimony that a January ’97 exemption was given that allowed the

floodfight to begin or the repair of the levees—that process—to

begin. And I don’t think anyone who worked through that system

that we went through between the 1st of January and today can

criticize the actions that the Corps took. I think that they did an

exemplary job of fighting the flood to begin with and then immediately trying to patch the holes as quickly as they can.

But the problem was not what happened between January and

today, the problem was that we went through 15 years of delays

on maintenance and routine maintenance of the system before we

ever got to the point that we had this catastrophic event. And how

do you go back now and say what mistakes did we make before

January happened, and how do we improve those?

Mr. DAVIS. Mr. Pombo, let me say that we are always looking at

our programs and looking for ways to improve them because we

certainly can do that. But when I mentioned the January ’97 permit, I think it is important to put that in the proper context. That

was a permit that was issued to complement existing relief mechanisms that have been in place for some time.

For example, we have had a general permit in place—a nationwide general permit for the maintenance and repair of levees and

flood control structures for many, many years going back I believe

into the late 70’s perhaps. That has been in place. We have had

other general permits in place. There are some statutory exemptions that have been in place that the Congress provided in ’77. So

this January permit was to complement some existing things that

were not already covered by this so it has provided some additional

relief.

Mr. POMBO. Excuse me, but with all due respect, everything that

we have heard—that I have heard over the past several years has

been that there is a problem, that, you know, you get a permit. You

call in Army Corps, and you put in your application for a permit
56

to do maintenance work. And you begin that process that you are

going through.

And because of Section 7 consultation, you bring in Fish and

Wildlife as well and what other Federal agencies in that become involved in that process. And you end up with an extremely cumbersome process that it has to go through, and you have heard testimony earlier today, I am sure, that you are personally aware of

situations where projects were delayed for several years.

You have two people that are on the panel with you that have

testified about delay in projects because of the regulations and the

way they are currently being implemented. How can you then go

back and say that ESA is no problem, that it hasn’t caused a problem even though all of these people have testified, with your own

personal involvement with this?

I know for a fact that you have personally been involved with

some of these cases of regulatory problems that have come up over

the years. How can you then justify saying it is no problem? Isn’t

that shortsighted? Should not it be a question of these are the

problems that we actually did have. Here is our suggestion from

Army Corps of how to fix it so it doesn’t give us a problem in the

future?

Mr. DAVIS. Again, we are always open to suggestions, and I think

that we can always find cases where we have examples of where

the system didn’t work as efficiently as it should have, and we

ought to look at those. But on balance, when you look across the

spectrum of things that are going on out there, we think it works

pretty well, and things are generally going forward with minimal

requirements and, in many cases, absolutely no requirements.

The vast majority of the actions under the 404 program, for example—83 percent plus are covered by a general permit. They get

a decision in 16 to 20 days on average. You can always pick a few

cases where it didn’t work as well as it should have, but on balance

I continue to believe that it works pretty good.

Mr. POMBO. Well, sir, you say that you are always open to suggestions, and you are interested in hearing different ideas. The response that we have received from the Administration at this point

has not been, ‘‘These are the things that we would change about

the legislation. These are the problem areas that we have seen

come up.’’ The only response that I am aware of to this point is,

‘‘The Endangered Species Act hasn’t been a problem, and we don’t

think anything needs to be changed.’’

I mean, if this is going to be a dialog, if we are going to work

toward solving some of these problems—and believe me, the people

that have testified truly believe that the Endangered Species Act

is a problem. They truly believed that the delays sometimes for

years in maintenance projects were caused by the implementation

of the Endangered Species Act.

They truly believe that, and I tend to believe that maybe those

that are working firsthand on this, the levee district managers, the

reclamation district managers, may have a close idea of how the

Act is being implemented out there, how it is happening actually

in the field. And when they come in and say, ‘‘This is a problem.

We need to fix it,’’ I don’t think our response should be, ‘‘No, it is

not. We are not going to fix it.’’
57

So how do we go about making those changes? How do we get

your agency, for example, to actually look at the legislation and

say, ‘‘These are the changes that we would accept. These are the

things that we would not’’?

Mr. DAVIS. This Administration has been very effective, in my

opinion, about taking on problems with the Clean Water Act, Wetlands Program, and the Endangered Species Act Program, and I

will let Secretary Garamendi comment on the ESA part of this.

But we have taken very aggressive and substantive steps over

the last three or four years to address legitimate problems. We may

not be all the way there yet, but we are still working on it. We will

engage in a dialog with the Congress to discuss these issues. What

we will not do is engage in a dialog that substantially rolls back

any environmental protection.

Mr. POMBO. Mr. Garamendi, in your statement—and I don’t believe it was in your written statement, I believe it was just in your

testimony—you said that if H.R. 478 were adopted that it would

encourage development in the floodplain, that it would encourage

further development of floodplain. Does the Endangered Species

Act currently prevent development in the floodplain?

Mr. GARAMENDI. It could depending upon the nature of the habitat or the creatures that are in the floodplain. If there are endangered species in a particular section of the floodplain, it could prevent development in that area.

Mr. POMBO. So, currently, the Endangered Species Act is preventing development in the floodplain, am I to understand you correctly?

Mr. GARAMENDI. In certain areas there are——

Mr. POMBO. In certain areas it is preventing?

Mr. GARAMENDI. In certain areas where there are endangered

species, there may be prohibitions from some kinds of development.

Mr. POMBO. In your written testimony, you say that the presence

of any listed species prevented the proper—nor has the presence of

any listed species prevented the proper operation and maintenance

of flood control facilities prior to the recent floods. In light of some

of the testimony that we have heard here today, how would you answer some of the people that have testified that the current implementation of the Act has delayed the proper maintenance of some

of these facilities?

Mr. GARAMENDI. Perhaps you could refer me to specific testimony

that you are referring to? As I listened to the testimony, Mr. Lee’s

testimony, for example, he spoke of the Thornton area. The maintenance at the Thornton levees was prior to 1986 and was not an

issue of the Endangered Species Act at all but rather funding

issues and general maintenance. That levee broke in 1986. It did

not break subsequent in this year and in intervening floods.

He said that the levee had to be set back six feet. I suppose we

should all be thankful that it did have to be set back six feet because that increased the channel capacity by that six feet. It is

hard to say what would happen if they were allowed to build the

levee six feet closer to the river. My guess is it may have gone over

the top this time. It was, in fact, a funding issue that delayed for

five years that particular levee maintenance in Thornton.
58

I think we heard testimony from Mr. Guenther here from Arizona that the Endangered Species Act was not an issue in the

question—in his particular area. We find all kinds of specific

issues. We must deal with the specificity.

In Mr. Herger’s case, it was not the Endangered Species Act that

caused the delay of 10 years. The first four years was a study by

the Army Corps of Engineers, and there were several years of—a

couple of years of that delay were caused by congressional debate

over the amount of money and which areas were to be studied first.

The Endangered Species Act did not cause a delay in the maintenance in the area where the levee broke, and you heard testimony

to that effect. So it is not the Endangered Species Act that is causing this. It is a factor, along with many other factors, in the general design of levees, in the maintenance, and in the reconstruction—not in the reconstruction, but in the construction of new levees. And it is a factor that we must take into account.

You have also heard testimony today that we must rethink how

we design and protect ourselves from floods. The design of the flood

system in the Central Valley is to build the levees as close to the

river as possible, which inevitably means that those levees will fail

and they have.

We have to rethink that, and that is our policy—to rethink, to

redesign, to set back the levees to allow the river more room so

that there will be more channel capacity. And in doing that, we will

also create better opportunities to protect all of the species whether

they are endangered or not.

Mr. POMBO. My staff came across a memo that was issued in

1985 by the Department of Interior, and it talks about a project of

bank stabilization project for the Chico Landing to Red Bluff in the

Butte basin section of the upper Sacramento River.

Project proposed by U.S. Army Corps of Engineers, and included

in this memo was a press release that was sent out by a then member of the Assembly that includes the statement, ‘‘The project’s

death blow was recently delivered when the U.S. Fish and Wildlife

Service invoked the Endangered Species Act earlier this month to

halt a riprap project.’’

This is not something that just occurred in the last two years.

This is something that I think most of the reclamation district

managers will testify to has been ongoing. It is something that has

been a problem, that has built up over the years.

If we would have had this kind of a flood event in 1985, we probably wouldn’t have had the kind of breaks that we did this year.

But after several years of delays of projects—of work that should

have been done that was not done, we ended up with a situation

where the system could not handle as much water as it could have

otherwise.

That is not to say that we would have no flooding in the absence

of this. I don’t think myself or Mr. Herger has said that we would

have had no flooding. But we would have had less, and the system

would have done the job it was designed to do.

I have just one final question to Mr. Rausch. Is it your opinion

that the Endangered Species Act has played no role in the delay

of the routine maintenance and proper operation of any of the flood

control systems that are in your area?
59

Mr. RAUSCH. No. To the contrary, I mean, we have had instances

where levee districts have been precluded from gaining efficient access to their levees for maintenance by the most direct route and

things like that under the guise that there was some habitat that

might have been compromised.

Certainly, the repair after the flood was very directly affected

from our perspective in terms of the delays precipitated. As I mentioned, one situation in my levee district that was completely under

water, a 20,000-acre lake.

The only fashion that we could get the water off of there was to

gravity drain it through the lowest portion of the levee by effecting

an artificial breach in that levee. And it was delayed many weeks

by studies of the track that the water would take as it left the district across a government swatch of land about 3 or 400 feet wide.

Mr. POMBO. Thank you. My time has expired. Mr. Herger, do you

have any questions at this point?

Mr. HERGER. Thank you, Mr. Chairman. And I want to welcome

Mr. Garamendi here in your position as Secretary. It has been

some years ago that we served together in the State legislature;

you in the Senate and myself in the Assembly at that time.

I do find quite alarming some statements that both you, Mr.

Garamendi and Mr. Davis, are making. I find it just incredible,

near unbelievable, how the Administration can claim that there

aren’t any delays. We have example after example after example

of how the Endangered Species Act has delayed levee repairs, and

we have had breaks afterwards. I really find it difficult to understand how you can sit there and say it isn’t.

And, Mr. Garamendi, you are asking for a specific. I would like

to once again quote a specific and have both you and our Corps of

Engineer, Mr. Davis, comment on this on how you can say that the

Endangered Species Act did not prevent this levee repair.

And let me just go over again—and why it is so serious is three

Californians—constituents of mine, constituents of yours, Mr.

Garamendi—lost their lives here on the 2nd of January. They lost

their lives right in front of a levee that broke, that was identified

to be repaired—and maybe you didn’t hear this testimony—maybe

you haven’t looked at this. This is an example. I don’t know how

we could find a more glaring example. I don’t know how you can

ignore this and deny this.

The reclamation district identified a problem in 1986. That is almost 11 years ago. Because of the Endangered Species Act specifically, they needed a study. The Corps wouldn’t repair it until they

had studied it. Four years later, the Corps finally finished studying

this—in 1990.

In 1990, your people, Mr. Davis—your people wrote, and let me

quote again—this is a quote from your people, the Corps of Engineers, ‘‘Loss of human life is expected.’’ Loss of human life. Now,

we are trying to protect the elderberry beetle, but, ‘‘Loss of human

life is expected under existing conditions without remedial repairs

for major flood events.’’

Well, we didn’t repair that levee in 1990 when we found it, when

you stated that four years after the reclamation district stated that

their engineers noticed it. They didn’t repair it in ’91, didn’t repair

it in ’92, ’93, ’94, ’95, ’96; they didn’t repair it.
60

Finally, in spring of ’97, just coming up, the Corps, because of

the ESA, because of studies that were required, because of mitigation that was required, some 11 years later, it is finally getting

around to repair a levee. What the law of averages are—and I am

not a gambler, but if you roll the dice enough times, sooner or later

it is going to break, and it did break, and three people lost their

lives.

Now, I am curious. How can either of you with a straight face

sit there and tell me that the ESA had nothing to do with this?

Would you answer that please?

Mr. DAVIS. Congressman, I will go first here.

Mr. HERGER. Thank you.

Mr. DAVIS. And let me just say that, obviously, there is nothing

I can say that mitigates the loss of life and the tragedy that occurred there. But I think it is important to understand all of the

issues that resulted in the delays, and perhaps the Endangered

Species contributed.

But there were other substantial and perhaps even more significant contributing factors in the delay there, like the difficulties in

purchasing a right-of-way, like the modifications to contracts that

were made at the project sponsor’s request. There are other things

in the list here that contributed to the delays here. If the Endangered Species contributed, perhaps it did. It certainly wasn’t—it

was in a long list of other things that also played a major role in

this problem.

Mr. HERGER. Now, let me ask you something, Mr. Davis. If the

legislation which I have introduced, whose purpose is not to build

more dams, even though I believe we need more reservoirs, and I

believe years like this show that we do, and drought years also

show it—that is not the purpose of this legislation.

I am more than willing to amend it where it does not include the

building of that if that is the concern of the Administration or anyone else. The sole purpose of this legislation is to go in and be able

to do shortly after 1986 when it is identified by people who are experts that a levee needs to be repaired to protect loss of life and

property that we be able to do it.

Now, let me ask you something, and I want you to answer this—

not that you wouldn’t, but I want to state it anyway—I want you

to answer it truthfully, if there were not the Endangered Species

Act, how soon do you think we could have gotten in there and repaired that levee?

And let me ask you this. Do you think we could have done it in

eight years without the Endangered Species Act? Now, sure, there

were some, some delay, but very little in the areas that you are

talking about—maybe a year or two or something.

But do you think they would have been repaired within eight

years? Because if they were, three people’s lives who lived directly

in front of that break would have been alive today. What is your

opinion? Would they have been repaired within eight years or less?

Mr. DAVIS. Well, Congressman, let me say that I would

certainly——

Mr. HERGER. Nine years and they are still not repaired.

Mr. DAVIS. Let me say that, first, I would certainly always answer truthfully. I cannot give you an answer in terms of the incre-
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mental increase in time associated with any factor here, but, again,

there were funding problems. There were other problems. We will

certainly be glad to try to analyze this for you and get back to you

for the record.

Mr. HERGER. Well, that is not an adequate answer.

Mr. DAVIS. Well, my second——

Mr. HERGER. And that is not a truthful answer. The fact is it

would have probably been done within a few years. There were $3

million that were put up by the Federal Government earlier on to

repair this. We had money there. We have spent $9 million just on

mitigation on a repair that would have only cost $3 million. And

if we can’t repair a levee in less than 11 years after it is identified,

we need some major changes with the Corps of Engineers.

Do you have a comment, Mr. Garamendi, on how the Administration can defend the loss of three lives and the stalling of 11 years

directly because of the ESA or at least the vast majority of that?

Mr. GARAMENDI. Mr. Herger, we, like you, are grieved and concerned by the loss of human life. And this Administration and the

Federal employees, State employees, and local employees made extraordinary efforts to protect human life.

The project to which you are referring is a long-term rehabilitation project of a major stretch of California river. It is a phased

project, phased over many years principally because money is not

available in any given year to do the entire project. You know this.

You also know very good and well that this particular project is

one that began with the 1986 floods. A study was commissioned by

Congress which took a while for Congress to get the study together,

to get the legislation, to get the funding. That study took a couple

of years to complete. In 1990, the study was completed.

Obviously, there was danger in here because this levee in this

area failed—a levee in this area failed in 1986. It was well known

that these were dangerous levees. There is no surprise about that.

There is nobody debating that.

But these projects do take time. They take time because Congress takes time, because you don’t have the money. The American

public doesn’t have the money to do these things initially. It is incorrect to say that the Endangered Species Act is the sole cause for

the delay of this project. It is not. It is not the cause. It is not the

only reason.

There is also the well-known fact that the specific project in this

area was not completed in 1996 because of a contractual dispute

that took place. That is reality. It is terribly unfortunate that the

project was not going forward as it was expected to go forward.

Now, we have to consider where do we go from here? If we are

going to look to the Endangered Species Act as being the cause of

the problem, we are being foolish. There are many, many factors

that need to be taken into account in designing a flood system that

protects California.

If we continue to build the levees right up next to the river, we

will never have the money to build them high enough because

there will be another storm that will overtop or cause some levee

to fail. We need to be wise.

We need to take into account the information that was developed

in the Galloway report and apply it to California. That is where our
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effort needs to be. We need to apply our intelligence, our creativity,

and our time and effort to designing a system that accounts for

very large floods.

We need to set back some of these levees. We need to maintain

and we need to improve other levees, and we ought to be about

that business. That is what this Administration is trying to accomplish in changing national policy so that we have a system that accommodates the fact that major storms occur.

I have been in the flood business for 25 years. I live in an area

that is subject to flooding, and every year there is another storm

that exceeds anything that had ever been imagined. So we had better get wise here and prepare for storms that exceed our imagination. And, in part, that is restoration and reconstruction. In part,

it is designing a different system than we presently have.

Mr. HERGER. Well, thank you, Mr. Garamendi. And we are in

partial agreement. I couldn’t agree more with you on the fact that

we have to begin looking at the entire watershed system from the

mountains where the snow falls to the ocean where the levee system travels. We can’t just patchwork our system as we have in the

past——

Mr. GARAMENDI. To an ocean that is also rising.

Mr. HERGER. To that extent, I agree with you very much, but,

again, to somehow state that it should take from after the study

is completed in 1990 to beyond 1997 where they found the elderberry beetle, and because of the elderberry beetle there was litigation going on, and there was actually a wetland that was created

inside the levee system that was dug below where the bottom of

the levee was, which allowed for seepage—which many feel and

some engineers feel further contributed because of endangered species litigation—directly because of that, that we have a major problem. And I believe that if the Administration continues to ignore

this and try to excuse somehow that seven years with it still not

repaired, and let me just for the last time quote——

Mr. GARAMENDI. Mr. Herger, it is——

Mr. HERGER. Now, I am speaking now. I will let you finish

speaking—where the Corps of Engineers themselves says that,

‘‘Loss of human life is expected under existing conditions.’’ That is

in 1990—that we can go until 1997 and still not repair that is

wrong.

Mr. GARAMENDI. Mr. Herger, the project is a multiyear project.

Work has been ongoing for several years on this project beginning

first with a comprehensive study of the area to be protected. It

takes a couple years. I think it took three years to complete the engineering studies to determine how to repair the levees, which ones

needed to be improved, and repaired.

And then work began, funding cycles—you are very much aware

of the funding cycles here in Congress. You don’t fund the entire

stretch of river. You fund sections in multiyear projects. This

project has been underway for some years. It is not fair to say—

it is incorrect to say that nothing has been done in this area.

This particular stretch was supposed to be done in 1996. It was

delayed for the reasons I stated earlier. Now, it also happens to be

that that language that you read is in most every Corps of Engineers report as accurate justification for the project.
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Mr. HERGER. Now, I have a memo here that says that the EIS

had scheduled to commence in the spring of ’93—we can talk back

and forth, and let me just conclude with this, Mr. Garamendi. And,

again, I do thank you. If I seem a bit upset, it is because there is

a number of families who I represent that are very upset.

Mr. GARAMENDI. I understand.

Mr. HERGER. There is a number of families I represent throughout the Sacramento Valley, and I really believe I am speaking for

the entire nation, who live around rivers, who have built homes,

who have maybe had family farms, and I know your family has, for

several generations that deserve to have their property and their

lives protected.

And any system that allows us to go and litigate for seven years

because of a study that indicated that there was an elderberry beetle there is wrong and needs to be corrected. And let me just conclude with that, and I thank you for your testimony.

Mr. POMBO. Thank you. Before we conclude, there was a statement made earlier that this bill would contribute to a false sense

of security amongst the people that live in floodplains. I think people have an assumption that the levee system was designed and

built to give them that sense of security. And I think that we as

policymakers have the responsibility of ensuring that that assumption is carried out.

When the Chairman asked the local Army Corps of Engineers in

Sacramento to answer a list of questions after this occurred, the

one question that was asked was whether or not the Endangered

Species Act had delayed any of the projects, and the answer came

back that, yes, it had delayed projects in the Sacramento area.

One in specific was a project in Reclamation District 1500 that

was delayed because of various factors, one of which included potential impacts to the giant garter snake, a threatened species. Additionally, work on the Sacramento River Bank Protection Project

continues to be delayed in an effort to reach consensus with Fish

and Wildlife Service on requisite mitigation for impacts.

So to say that it has had no impact I think is a misstatement.

To say that—I guess blindly put your head in the sand and say

that we are not going to change anything, that we are just going

to pretend none of this happened and that the Endangered Species

Act played no role I think is a mistake.

I don’t think that Mr. Herger or myself have ever made the

statement that the Endangered Species Act was the sole reason for

flooding. I don’t think that either one of us has ever made the

statement that if this legislation had been adopted, we would not

have flooded.

I think, more accurately, the Endangered Species Act has played

a role, in some cases a significant role, but a role in contributing

to the levee system, the flood control system not being able to handle as much water which resulted in some of the floods. And I

think that that is the problem that we are trying to correct. I think

it is a very serious problem.

I think that the legislation that Mr. Herger and myself introduced earlier this year was an attempt to go down the road to solving that one particular problem that both of us have heard quite

extensively about from our districts.
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If the Administration has recommendations for ways that we can

fix this, of other ways that we can do this, I know that myself, and

I am sure Mr. Herger, are more than happy to listen to any suggestions that you may have of ways that we could fix that. Yes, sir?

Mr. GARAMENDI. If I might, Mr. Chairman, specifically for the

Central Valley of California, we have at hand an opportunity to

achieve the goal you just stated. We can make major progress in

fixing the flood system and flood control system in the Central Valley of California.

The Bay-Delta Program, together with the supplemental appropriation legislation that is presently before Congress, provides us

with that opportunity. Embodied in the Bay-Delta Program and

Proposition 204, which was supported by the people of California

last November, is a major flood control component.

There is a substantial amount of money available for the reconstruction design of the levee systems in the Sacramento-San Joaquin basin so as to provide improved habitat, some of which would

be valuable for endangered species, and at the same time increase

the capacity of the system to handle these extraordinary floods that

we have had.

We are all—this Administration and this Congress has that opportunity in the next several months to pass that legislation, to appropriate the necessary money. If that occurs, then we all—State,

Federal, all stakeholders—can move rapidly forward to not only improve the levees that Mr. Herger is so concerned about, and correctly so, but also to set back levees to create meander zones,

floodways, bypasses, surge areas, and other kinds of very important

flood control facilities, and at the same time habitat facilities. We

can do two things at one time.

My concern with this legislation is that it takes us off target, and

it does, in my view, provide a false sense of security, and it doesn’t

really solve the problem. I did not mean to imply that the Endangered Species Act is never an issue.

We do not see it as an issue in the flooding that occurred in California this year, but we do have this very positive opportunity to

move forward. And I know that this Congress will be dealing with

this, and we certainly would hope that we can work together to accomplish that.

Mr. POMBO. Well, I appreciate your comments, Mr. Garamendi,

but I think that with the simple fact that the proposals that you

talk about—set back levees, flood areas, and such—under current

law would not be exempt from these same regulations either.

Mr. GARAMENDI. No, they shouldn’t be.

Mr. POMBO. And we would be talking about several years of

delay and studies. I mean, Mr. Herger talks about a case where we

have got 10 years of studies to determine something—maybe longterm—oh, that some of those ideas will work. And you heard testimony earlier today about people advocating doing that and saying

that they thought it was a good idea.

But having said that, I do think that this legislation is necessary.

I think that a change in the law in order to accomplish some of

these things is necessary. We may not be able to agree on that.

Mr. GARAMENDI. Well, it is not a matter of agreement. It is a

matter of the facts as they are being developed in California today.
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The Bay-Delta Program will this summer be moving forward with

its environmental impact statement, both for the State and the

Federal Government. That study will authorize the construction of

these kinds of projects.

It is feasible today under the current laws, including the Endangered Species Act, to take immediate action now, this day, and in

the days in the immediate future to initiate and to construct the

kind of projects that allow levees to be set back and the river to

have room; specifically, in your own district, sir.

The lower San Joaquin—we are working on projects in that area

today that would allow the levees to be set back, would increase

the flood capacity substantially, not by several magnitudes, and at

the same time create habitat, reducing the endangered species

issues for the entire area because the habitat is provided within

the river zone itself. That is going on in the lower San Joaquin,

Stanislaus, San Joaquin County, and in the counties to the south.

We are in the process. It is not going to be a multiyear. If we

get the appropriation that the President has asked for, we will be

moving forward immediately within the current year and on into

’98 and ’99. So, you know, the issue is before this Congress. It is

this Congress’s opportunity to move forward on the flood protection

that I have just described.

Mr. POMBO. Well, I appreciate the gentleman’s comments. I am

quite well aware of the activities that are going on in my district,

and it is—I won’t go there. I want to thank the panel for their testimony. I, again, want to apologize to this panel for the delay in

getting you up here, but I do appreciate a great deal your testimony and your traveling here—those of you that did.

And, again, there may be questions that will be submitted by

members who were not able to ask those questions. If you could answer those in a timely manner, it would be greatly appreciated.

Thank you very much. Oh, I thank the people in Sacramento that

helped set this up as well. Thank you.

[Whereupon, at 3:50 p.m., the Committee was adjourned; and the

following was submitted for the record:]
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