U.S. GOVERNMENT PRINTING OFFICE

60–463 u WASHINGTON : 1999

ENFORCEMENT OF THE ENDANGERED SPECIES

ACT IN CALIFORNIA

FIELD HEARING

BEFORE THE

COMMITTEE ON RESOURCES

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

JULY 9, 1999, HEMET, CALIFORNIA

Serial No. 106–49

Printed for the use of the Committee on Resources

(

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

or

Committee address: http://www.house.gov/resources
(II)

COMMITTEE ON RESOURCES

DON YOUNG, Alaska, Chairman

W.J. (BILLY) TAUZIN, Louisiana

JAMES V. HANSEN, Utah

JIM SAXTON, New Jersey

ELTON GALLEGLY, California

JOHN J. DUNCAN, JR., Tennessee

JOEL HEFLEY, Colorado

JOHN T. DOOLITTLE, California

WAYNE T. GILCHREST, Maryland

KEN CALVERT, California

RICHARD W. POMBO, California

BARBARA CUBIN, Wyoming

HELEN CHENOWETH, Idaho

GEORGE P. RADANOVICH, California

WALTER B. JONES, JR., North Carolina

WILLIAM M. (MAC) THORNBERRY, Texas

CHRIS CANNON, Utah

KEVIN BRADY, Texas

JOHN PETERSON, Pennsylvania

RICK HILL, Montana

BOB SCHAFFER, Colorado

JIM GIBBONS, Nevada

MARK E. SOUDER, Indiana

GREG WALDEN, Oregon

DON SHERWOOD, Pennsylvania

ROBIN HAYES, North Carolina

MIKE SIMPSON, Idaho

THOMAS G. TANCREDO, Colorado

GEORGE MILLER, California

NICK J. RAHALL II, West Virginia

BRUCE F. VENTO, Minnesota

DALE E. KILDEE, Michigan

PETER A. DEFAZIO, Oregon

ENI F.H. FALEOMAVAEGA, American

Samoa

NEIL ABERCROMBIE, Hawaii

SOLOMON P. ORTIZ, Texas

OWEN B. PICKETT, Virginia

FRANK PALLONE, JR., New Jersey

CALVIN M. DOOLEY, California

CARLOS A. ROMERO-BARCELO ́, Puerto

Rico

ROBERT A. UNDERWOOD, Guam

PATRICK J. KENNEDY, Rhode Island

ADAM SMITH, Washington

CHRIS JOHN, Louisiana

DONNA MC CHRISTENSEN, Virgin Islands

RON KIND, Wisconsin

JAY INSLEE, Washington

GRACE F. NAPOLITANO, California

TOM UDALL, New Mexico

MARK UDALL, Colorado

JOSEPH CROWLEY, New York

RUSH D. HOLT, New Jersey

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 July 9, 1999 ....................................................................................... 1

Statement of Members:

Bono, Hon. Mary, a Representative in Congress from the State of California .............................................................................................................. 2

Calvert, Hon. Kenneth, a Representative in Congress from the State

of California ................................................................................................... 3

Chenoweth, Hon. Helen, a Representative in Congress from the State

of Idaho .......................................................................................................... 5

Hunter, Hon. Duncan, a Representative in Congress from the State of

California ....................................................................................................... 5

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

Pombo, Hon. Richard, a Representative in Congress from the State of

California ....................................................................................................... 1

Thomas, Hon. Bill, a Representative in Congress from the State of California, prepared statement of ...................................................................... 268

Young, Hon. Don, response to questions by Mr. Rogers, Acting Director,

Fish & Wildlife Service ................................................................................. 340

Young, Hon. Don, response to questions by Mr. Thomas O. Melius,

Assistant Director, Fish & Wildlife Service ......................................... 340

Statement of Witnesses:

Bragg, Mark, Palm Springs, California .......................................................... 13

Prepared statement of ............................................................................... 15

Evans, Doug, City Manager, City of Palm Springs ....................................... 211

Prepared statement of ............................................................................... 214

Fife, Don, National Association of Mining Districts ...................................... 248

Prepared statement of ............................................................................... 250

Fuentes, Lorrae, Vice President of Education, California Native Plant

Society ............................................................................................................ 252

Prepared statement of ............................................................................... 254

Hewitt, Hugh, Esq, Irvine, California ............................................................. 130

Prepared statement of ............................................................................... 133

Hollingsworth, Dennis, Riverside County Farm Bureau .............................. 188

Prepared statement of ............................................................................... 192

Kading, Randy, Field Superintendent, C&H Framing .................................. 255

Prepared statement of ............................................................................... 257

Libeu, Lawrence M., Director of Legislative Affairs, Eastern Municipal

Water District ............................................................................................... 8

Prepared statement of ............................................................................... 10

Moore-Kochlacs, Reverend Peter, Director, Environmental Ministries of

Southern California ...................................................................................... 31

Prepared statement of ............................................................................... 32

Moser, Dennis M., Vice President, Kelwood Development Company ........... 175

Prepared statement of ............................................................................... 178

Rosen, Judith I., President, Murrieta Valley Unified School District .......... 18

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

Sauls, Edwin G., The Sauls Company and Building Industry Association

of Southern California .................................................................................. 235

Prepared statement of ............................................................................... 237

Silver, Dan, M.D., Coordinator, Endangered Habitats League .................... 128

Prepared statement of ............................................................................... 129

Spear, Michael, Manager, California/Nevada Operations Office, Fish and

Wildlife Service, accompanied by Ken Berg, Field Supervisor, and Sean

Skaggs, Counsel to the Assistant Secretary ............................................... 143

Prepared statement of ............................................................................... 145
Page

IV

Statement of Witnesses—Continued

Tavaglione, John, Supervisor, Riverside County ........................................... 205

Prepared statement of ............................................................................... 208

Turecek, Bruce, Jacumba Valley Ranch ......................................................... 115

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

Woolfolk, Virgal, JMAW Environmental Service Group ............................... 34

Prepared statement of ............................................................................... 37

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

Flood Control and Water Conservation District ......................................... 167

Prepared statement of ............................................................................... 170

Additional material supplied:

Bear Valley Mining District, letter to Mr. Pombo ......................................... 332

Big Bear Valley Preserve News, extract ......................................................... 333

Brown, Howard, Pluess-Staufer (California) Inc., ‘‘Limestone Endemic’’ .... 310

California Legislature, letter to Mr. Babbitt .................................................. 327

Kern County Water Agency, prepared statement of ..................................... 323

Salt Water Contractors, letter to Mr. White from Steve Macaulay, General Manager ................................................................................................. 325

Shadowrock, Shadowrock Development Environmental History and Mitigation Proposal .............................................................................................. 270

State Water Contractors, San Luis & Delta-Mendota Water Authority,

letter to Mr. Babbit etc. ................................................................................ 329
(1)

ENFORCEMENT OF THE ENDANGERED

SPECIES ACT IN CALIFORNIA

FRIDAY, JULY 9, 1999

HOUSE OF REPRESENTATIVES, COMMITTEE ON RESOURCES, Hemet, California.

The Committee met, pursuant to call, at 9:39 a.m., in Room 305,

East Devonshire, Simpson Center, Hemet, California, the Hon.

Richard Pombo presiding.

Member present: Representative Pombo

Mr. POMBO. [presiding] Let’s get started. I would like to ask everybody to please fill in the seats. There are several seats up here

in the front, if I could have you come forward and fill in any of the

empty seats, please. We need to have everybody take a seat to the

extent possible. Even to the extent, take the witness seats up here

in the front row if need be.

STATEMENT OF HON. RICHARD POMBO, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. POMBO. Good morning. I want to welcome all of you to this

hearing of the House of Representatives Committee on Resources.

I am Congressman Richard Pombo from Tracy, California.

Chairman Don Young has asked me to chair this hearing today

on his behalf and sends his regrets that he could not be here.

I represent California’s Congressional District 11, and I am very

happy to be here at the invitation of my Southern California colleagues, Congresswoman Mary Bono, Congressman Ken Calvert,

Congressman Duncan Hunter, and Congressman Gary Miller.

Southern California is fortunate to have some of the most effective, hardest working Members of Congress.

We are also joined this morning by Congresswoman Helen

Chenoweth of Idaho, my colleague on the Resources Committee.

I particularly want to thank the good people of Hemet, California

for their hospitality in hosting this hearing and to the Simpson

Center for allowing us to use this wonderful facility.

The Committee on Resources is here today to receive testimony

from the citizens from Southern California who have experienced

first hand how the Endangered Species Act is enforced and implemented.

I have become increasingly concerned that the ESA is no longer

the national law that Congress intended it to be when it was originally enacted in 1973. Instead, it is increasingly used as a tool to

stop growth and economic development in only certain areas of the

country, particularly here in the West.
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We are seeing increasing evidence that this law is used very selectively, not to truly save endangered species or threatened species, but as a means to allow Federal agencies to dictate Federal

policies to local communities on everything from urban sprawl to

land use policies.

In some areas of the country species are protected and recovery

is achieved using cooperation and common sense. You just don’t

hear about conflict over the ESA in the Northeast or Midwest because Fish and Wildlife Service offices in those regions focus their

efforts on helping people protect wildlife using cooperation rather

than confrontation. They do not require the set-aside of thousands

of acres of private land or the payment of millions of dollars in

mitigation fees.

I believe that the ESA can achieve its goal without conflict and

confrontation and without infringing on the rights of private property owners. I believe that we can have an ESA that does not destroy jobs in local economies. I believe that a common sense approach that appeals to our national desire for a more beautiful

world can work.

However, as long as the real agenda is to stop growth, eliminate

jobs, and take private property for public use without payment of

just compensation, then both people and wildlife will continue to

suffer.

Again, I thank you for allowing this Committee to come to your

community and for your warm and courteous welcome.

I would like at this time to recognize my colleague from this district, Ms. Bono.

STATEMENT OF HON. MARY BONO, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF CALIFORNIA

Ms. BONO. Thank you, Mr. Chairman.

I would like to take this opportunity to welcome my colleagues

to the beautiful City of Hemet in the 44th Congressional District

in California. I really appreciate your giving up a part of your vacation time to be here.

One of our goals today is to come up with ideas on how to make

the Endangered Species Act work for everyone. For several years

Southern California has been at an impasse in terms of how to balance our growth and economic prosperity with saving the many

unique species residing here. To sacrifice one for the other is not

an option.

The Inland Empire is one of the fastest growing areas in the

United States. People want to live here because they can make a

good living and relish Southern California’s unrivaled surroundings. Right now our standard of living is in jeopardy because

we do not have a consistent method of applying the Endangered

Species Act.

I believe there is a willingness to comply by most property owners. All they ask for is some certainty to the process.

I hope the hearing will provide our constituents with an understanding of how they can comply with the law as it applies equally

to everyone.
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Mr. Chairman, before I close, I would also like to thank the City

of Hemet, the Hemet Police Department, and the Director of the

Simpson Center for giving us such a wonderful venue.

Thank you, and I yield back the balance of my time.

Mr. POMBO. Thank you.

I would like to recognize the gentleman who first approached me

about holding this hearing, Mr. Calvert.

STATEMENT OF HON. KENNETH CALVERT, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. CALVERT. Thank you, Mr. Chairman.

And I am happy to be here in Hemet. I have got to tell you a

quick story. My mother met my father here in Hemet. She was a

nurse at the Hemet Hospital, and my father had a rock and sand

business up in Idyllwild and got hurt, and if it was not for that,

I would not be here.

[Laughter.]

Mr. CALVERT. So some of you probably wish that never occurred,

but it did.

As many of you who are here today are aware, as the Fish and

Wildlife Service certainly is aware, I have recently become very

concerned about the implementation of the Endangered Species

Act, especially by the Fish and Wildlife Service’s Carlsbad office.

The impetus for my actions is the accelerated rise in the number

of complaints from my constituents. In the six years since I was

first elected to represent western Riverside County, the number of

complaints my office has received about the Carlsbad office and

their implementation of ESA has literally skyrocketed, and keep in

mind that is only counting the people who have been willing to

come forward.

Fish and Wildlife has been accused of creating an atmosphere of

intimidation in everyone, from landowners and developers to farmers and homeowners and public agencies.

In response to the rising number of complaints, I have requested

a GAO audit of the service operations with my friend and colleague

House Resources Chairman, Don Young, and I am happy to say

that all of the California members on this panel today have signed

that letter, along with a total of 26 members of the California delegation in support of this, both Republicans and Democrats.

The Carlsbad office frequently laments that they are under

staffed and under budget. An independent audit will hopefully determine where the problems are located.

A shared theme in all of the complaints I have received is that

the policies of the Carlsbad office lack common sense, and in my

opinion, the office has made themselves an easy target due to some

of the their demands.

For example, a hospital in San Bernardino moved 250 feet at a

cost of $4.5 million to save eight flies. A Fish and Wildlife biologist

recommended shutting down the I-10 freeway during August and

September, at least slowing it to 10 to 15 miles an hour so that

fewer flies got caught on windshields during the mating season.

[Laughter.]

Mr. CALVERT. I do not make this stuff up, folks.

[Laughter.]
4

Mr. CALVERT. Demanding retroactive mitigation for ongoing uses

that have taken place for 30 years, including trimming trees at the

end of the Corona airport runway, a safety measure that is mandated by the FAA. I think someone found out I used to be a pilot. Originally demanding $32 million in mitigation for a $20 million

interchange project because a biologist from the Carlsbad Fish and

Wildlife office apparently believed that a fly was located nearby,

but no one had ever seen one.

Producing a map that shows the Quino checkerspot butterfly

habitat in all but the most industrial areas of Southern California.

Now, those are just a few examples. I am sure that we will hear

many more, and if the ramifications were not so serious to property

owners and the endangered species alike, the statements coming

out of that office would almost seem laughable, and that is part of

the problem. These are just statements, not even policy.

If endangered and threatened species are going to be truly protected for future generations, our Federal agencies must have

credibility and deal in good faith with all citizens.

I am also extremely concerned about reprisals and intimidation.

Whether directly or indirectly through consultants against our witnesses today and others with whom this Committee will speak in

the future, this is something that will not be tolerated, and I will

monitor this situation closely, as I am sure the Chairman will and

the rest of this panel.

It is my hope and expectation that I do not hear any abuse of

power in the future.

That said, I have several goals I hope this hearing can accomplish.

One, any person who applies for a Section 7 or 10(a) permit will

have the trust and confidence that the Fish and Wildlife Service

keeps its commitments.

Two, mitigation must be done with equal habitat value per acre

as determined by the applicant survey biologist and the Fish and

Wildlife Service.

Three, only sound and legally obtained science can be used to obtain habitat.

Four, that the policies are consistent.

Five, that the office advocate alternative ways in which economic

development can go forward while going through the formal stages

of the permitting process.

My colleagues and I are here today because the Federal Government must find a way to logically and fairly address the situation

and reach a solution that does not put the rights of the species before the rights of people.

I want to emphasize I recognize Southern California is the most

densely populated region in the United States and one of the fastest growing, which has resulted in growing pains that include additional stress on habitat. Riverside County’s first encounter with

ESA problems was the fringe toed lizard. This was followed by the

Stephen’s Kangaroo Rat, which took eight years to complete at a

cost of $42 million.

But the Carlsbad employees have not consistently dealt with us

in good faith. When a deal is made, as in the case of San Diego

and the Fish and Wildlife office and its employees can no longer
5

be relied upon, the problem becomes that the community loses

trust in the agency and, in part, loses trust in the United States

Government, and that is not a good thing.

Southern California, especially Riverside, San Bernardino, San

Diego, and Orange Counties, have shown an enormous commitment, not only to protect endangered and threatened species, but

also to establish a strong working relationship with Fish and Wildlife and other conservation agencies.

I am hopeful that we can one time again return to a strong working relationship, and I look forward to hearing the testimony of today’s witnesses, Mr. Chairman.

And I thank you.

Mr. POMBO. Thank you.

[Applause.]

Mr. POMBO. I would like to recognize the gentle woman from

Idaho, Mrs. Chenoweth.

STATEMENT OF HON. HELEN CHENOWETH, A

REPRESENTATIVE IN CONGRESS FROM THE STATE OF IDAHO

Mrs. CHENOWETH. Thank you, Mr. Chairman.

I want to thank you and our hostess, Mary Bono, for this opportunity to delve into an issue, the Endangered Species Act, that obviously from the comments of Congressman Calvert and from our

knowledge in working back there in the Congress, the Endangered

Species Act has been totally misused.

It is an Act that has not succeeded in saving species, but has succeeded in dimming down the enthusiasm for a productive economy

and a vibrant and growing society that is growing in the right way,

not necessarily growing out as far as people are concerned, but the

continued vibrancy that really has built this country.

So, again, thank you very much for inviting me to the hearing,

and I look forward to hearing from the witnesses.

Mr. POMBO. Thank you.

I would like to recognize Mr. Hunter.

STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. HUNTER. Thank you, Mr. Chairman.

And I want to thank my colleagues, our host, Ken and Mary, for

hosting this hearing, and you for coming such a long way to make

it a reality, and Helen, of course, for her great contribution.

You know, Southern California used to be a place where you

could dream, where a young couple could get married, and they

could have children, and they could have a dream, and they could

pursue that dream, and in many cases achieve it.

And a centerpiece of that dream was home ownership, and my

reason, Mr. Chairman, for being here is because I think that that

dream is disappearing rapidly, and I can see it very clearly in the

facts and figures we’re going to put up in a few minutes when we

have testimony from some of our witnesses.

But, you know, the average home in San Diego County today is

$265,000, and the estimates are that as a result partly of Fish and

Wildlife in Carlsbad and other factors—there are other agencies

that are involved—that 265, $270,000 median priced home in San
6

Diego County is about 35 percent higher than it needs to be, and

that money does not go to profit for developers. It does not go to

the construction crews, the people that carry the lunch buckets and

build the homes. Those are actually fairly low costs. They are basically in line with the rest of the country.

Plywood and two-by-fours cost the same across the country, but

what makes our homes so expensive is the cost of regulation, and

so that dream is becoming unachievable. Today you have to make

about $70,000 a year to be able to qualify for the median priced

home in San Diego County, and that means that our young couples

are not able to buy homes.

And most of our growth now is coming from people who are having families in our districts. It is not coming from outside folks

coming into San Diego and Riverside Counties. So we have a real

problem. The American dream is slipping away.

And part of the answer is going to be brought about, I think, by

this hearing because we are going to listen to some people who

would have been able to have built those homes, and I think home

building is a very honorable profession, Mr. Chairman. They would

have been able to build those homes for a lot less money, sell them

for a lot less money, and that young couple would not have been

paying 7 or 71⁄2 percent interest on an additional 30 or $40,000 per

home for the next 30 years if government had acted reasonably.

And I have said this before, Mr. Chairman. This may be a little

strong, but I talked to one person who actually took a photograph

of one of the bumper strips on one of the Federal employee’s cars

at the Carlsbad office that said essentially, ‘‘Home Builders Can Go

to Hell.’’ Now, I thought about that.

What if you were a veteran and were going into the Veteran’s Affairs Office to try to get your veterans check and you saw the car,

happened to see the car of one of the people who was supposed to

wait on you and serve you, and it said, ‘‘Veterans Can Go to Hell.

That’s my attitude,’’ or what if you were a senior citizen going to

the Social Security Administration and you saw a bumper strip

that said, ‘‘Senior Citizens Can Go to Hell’’? What kind of service

would you expect when you walked in those doors?

Unfortunately, Mr. Chairman, I think that that attitude has

largely been manifested in real action by some members of the

Carlsbad Fish and Wildlife office. I’ve been admonished by Mary

Bono, a very reasonable and good person, that we should be optimistic that we can solve these problems, and I hope we can solve

them. I think some positive recommendations will come forth

today.

But let’s make this hearing contribute to that most important

goal for Southern California, and that is, once again, making the

dream of home ownership achievable.

Thank you, Mr. Chairman.

[The prepared statement of Mr. Hunter follows:]

STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF CALIFORNIA

Mr. Chairman, I appreciate the opportunity to be here in Hemet, California today

to participate with the House Resources Committee to discuss the operations of the

Carlsbad office of the U.S. Fish and Wildlife Service (CFWS). In addition, I would
7

like to commend our friend and colleague, Congresswoman Mary Bono, for convening this hearing to explore what I believe to be questionable behavior by CFWS.

Today, Mr. Chairman, this Committee will hear testimony by a wide array of witnesses, some of whom being just ordinary citizens, who will highlight a consistent

pattern by CFWS of misusing the Endangered Species Act (ESA). We will hear from

private developers, local officials and even a construction-site foreman, all of which

will detail how the misapplication of the ESA has impeded growth and development

in Southern California. I believe that it is important, however, to emphasize that

most of our witnesses will not necessarily be advocating the rescinding or minimizing of the ESA, but will instead only call for the appropriate implementation of

this law.

As all of us know, the ESA was passed to ensure that endangered or threatened

animals, plants and fish are protected from human activity so as to avoid their ultimate extinction. While I believe that the goal of this law is commendable and certainly well-intentioned, the overly broad discretionary powers it gives to the enforcers of the ESA, specifically CFWS, have created an atmosphere in Southern California where our landowners and developers are routinely forced to meet redundant,

time-consuming and very expensive ESA compliance requirements before any construction can begin. Mr. Chairman, it is my earnest hope that today’s hearing will

provide CFWS the insight and incentive to pursue a more compromise-oriented approach when administering the ESA.

Among other witnesses, this Committee will receive testimony from a number of

individuals from my home area of San Diego County. These good people represent

an even larger number of San Diegans who have absorbed the impacts associated

with burdensome and costly environmental compliance. The impacts that I have referenced, speak to the built-in, artificial expense factored into housing costs for home

buyers. In fact, in San Diego County, roughly 30 percent of the cost associated in

purchasing a home is the direct result of the developer having to finance the environmental compliance efforts. I think that everyone here will readily agree that inordinately high home costs were not the intent of Congress when the ESA was enacted into law.

As many of us are aware, San Diego County is expected to realize an increase

of 1.5 million new citizens within the next 10 years. Unfortunately, estimates show

that new housing construction is woefully behind in meeting this expected influx,

with many of our young, new families having to live in high density apartment and

condominium complexes. While I cannot overemphasize the importance of protecting

the environment for our future generations, this effort must be pursued in a reasonable and realistic fashion if we are to provide sufficient housing for the multitudes

of expected new residents.

Mr. Chairman, one of our initial witnesses will be Mr. Bruce Turecek, who is currently seeking to develop part of his property in eastern San Diego County. After

three years, thousands of dollars and numerous consultations, Mr. Turecek has conclusively determined that his property is devoid of any endangered species. Unfortunately, CFWS will not provide Mr. Turecek with a definitive plan to as to whether

or not his efforts will suffice and allow for the development of his property. Instead,

CFWS has repeatedly engaged in a practice of only providing critiques of his biological surveys and vague directions to Mr. Turecek. I would submit that this behavior

legitimately can be interpreted as a conscious effort to delay and ultimately derail

his project. Sadly, the circumstances surrounding Mr. Turecek’s situation are too

often the norm rather than the exception in our region of California. We must work

to rectify the situation before Mr. Turecek and others like him can no longer build

homes that average, working families can afford to buy.

Finally, I would remind the Committee and our audience that Southern California

used to be a place where one could work hard and save their money and achieve

the American dream of owning their own home. Unfortunately, because of the outrageous costs associated with exhaustive environmental compliance requirements,

this dream is rapidly becoming a thing of the past in our area. Recognizing that

this costly and burdensome practice has become the standard by which CFWS operates, I am hopeful this hearing will provide the insight and incentive necessary to

rectify the problems that I have already referenced.

Mr. POMBO. Thank you.

[Applause.]

Mr. POMBO. I would like to call up our first panel, Mr. Lawrence

Libeu, Mr. Mark Bragg, Ms. Judith Rosen, the Reverend Peter

Moore-Kochlacs, and Mr. Virgal Woolfolk.
8

If you would join us up here at the witness stand, and if you

could remain standing just momentarily. If I could have you raise

your right hand.

[Witnesses sworn.]

Mr. POMBO. Let the record show that they all answered in the

affirmative.

Please join us at the witness table.

Now, for those of you unfamiliar with the process, your entire

written statements will be included in the record. We like to keep

the oral testimony to five minutes. There is a light bar sitting at

the table there, and it is green, start; yellow, hurry up; and red

means stop, and just like a traffic light.

[Laughter.]

Mr. POMBO. We have a cop sitting in the back of the room. He’s

going to watch me drive out of here.

[Laughter.]

Mr. POMBO. But if you could try to keep your oral statements to

the five minutes, we do have a very long hearing. It would be appreciate by the Committee.

Mr. Libeu, if you are ready, you can begin.

STATEMENT OF LAWRENCE M. LIBEU, DIRECTOR OF LEGISLATIVE AFFAIRS, EASTERN MUNICIPAL WATER DISTRICT

Mr. LIBEU. Thank you, Mr. Chairman and members of the Committee, for allowing us this opportunity to be heard.

My name is Larry Libeu. I am Director of Legislative Affairs for

the Eastern Municipal Water District, known as EMWD, as well as

the California Director on the Natural Water Resources Association, known as NWRA, and I am the President of the Western Coalition of Arid States, known as WESCAS.

EMWD is a water and waste water agency serving about 420,000

people in a 555 square mile area of Riverside County where this

hearing is being held today. As you no doubt observed and probably

already surmised, much of our district is open space and potential

habitat.

As noted earlier, population is exploding in our region, and one

way we are able to stretch our available fresh water supply to meet

this burgeoning demand is through the extensive use of recycled

water from our five waste water treatment facilities and the responsible management of our local groundwater basins.

Other efforts we undertake to stretch our water supply include

aggressive and comprehensive conservation program, water harvesting, brackish desalination of groundwater basins, and rehabilitation of contaminated wells.

Despite all of these efforts, however, our success and the success

of other water agencies within this region will depend on our abilities to comply with the often too subjective, locally interpreted, and

increasingly complex and expensive environmental regulations at

the state and Federal level. Let me just offer a few examples.

Over the past eight years, EMWD has developed a seasonal storage and recovery project to recharge a vast groundwater basin underlying the San Jacinto River, which is an ephemeral stream. To

implement this project, we will utilize imported water, surplus imported water when it’s available.
9

The project is good for the environment and will reduce the demand for imported water in the future for this area, but the Fish

and Wildlife Service is insisting that we restore long disturbed portions of the river bed to their original condition, primarily for the

benefit of a recently listed subspecies known as the San Bernardino

kangaroo rat. The restoration requirement will require us to set

aside at least three times the land area of the recharge project, and

that land will have to be set aside for mitigation.

As a further price for the recharge project, we expect the Fish

and Wildlife Service will require us either to abandon or set aside

another large area of land upstream from the recharge project as

mitigation for maintenance of an upstream diversion which we

have had in operation for over 35 years.

Secondly, in order to reliably, even safely serve our customers,

we must maintain our facilities, including those that are in outlying areas. Fish and Wildlife has now begun referring to these

sites, many established for decades and devoid of endangered species, as degraded habitat, and we perceive their goal to be the requirement for further mitigation of lands.

Thirdly, the Santa Ana sucker is a fish that is about to be listed

as threatened, and I say about to be. During excessively wet weather, EMWD must occasionally discharge recycled water into the

Temescal wash, which is a tributary to the Santa Ana River. Past

experience indicates that Fish and Wildlife Service may well require year round flows in order to support the Santa Ana sucker.

Such a requirement would consume a huge portion of our recycled

water, thus defeating the reason for putting that water to beneficial use within our district.

We believe the following changes need to be made to the Endangered Species Act in order to achieve its expressed goals without

causing undue harm in other ways.

First, greater consistency and predictability are essential to administrating the Endangered Species Act. These values must be

based on not only greater objectivity in the rules and guidelines,

but on the regional economic impacts.

Second, a revolving loan fund should be established to help local

governments cope with the increasingly expensive requirements of

habit conservation plans.

Next, the no surprises policy must be codified to prevent imposition of additional mitigation after the fact.

Fourth, basic safety, maintenance, and repair work on existing

utility facilities serving the public must be exempted from ESA requirements.

And finally, the administration’s safe harbor policy should be expanded to include habitat created by either historical or prospective

water discharges.

In conclusion, Mr. Chairman, it must be noted that water in the

West is a valuable resource which is growing more scarce daily.

Continued parochial interpretation and implementation of ESA further exacerbates this situation.

We in the water industry in the regulatory arena need to come

together to foster working partnerships which will bring to closure

the uncertainty of this interpretation, as well as create positive results for both sides as we move into the 21st century.
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Thank you, Mr. Chairman.

[The prepared statement of Mr. Libeu follows:]

STATEMENT OF LAWRENCE M. LIBEU, DIRECTOR OF LEGISLATIVE AFFAIRS, EASTERN

MUNICIPAL WATER DISTRICT, DIRECTOR, NATIONAL WATER RESOURCES ASSOCIA- TION BOARD OF DIRECTORS, PRESIDENT, WESTERN COALITION OF ARID STATES

INTRODUCTION

Good Morning. I am pleased to be here today on behalf of Eastern Municipal

Water District (EMWD), to express its views with regard to implementation of the

Endangered Species Act (ESA) and to present recommendations for changes. In addition to being the Director of Legislative Affairs at EMWD, I am a director on the

National Water Resources Association Board of Directors, and president of the

Western Coalition of Arid States.

EMWD is a water and wastewater agency serving a population of 420,000 in a

555 square mile area. The District is located in Southern California in the western

part of Riverside County. Our service area includes the communities of Hemet, San

Jacinto, Moreno Valley, Perris, Sun City, Murrieta, and Temecula, portions of four

other cities, and unincorporated areas of Riverside County.

EMWD was formed during the 1950’s with the primary mission of delivering a

secure supply of supplemental water to this region. As time progressed, EMWD

added sewage collection and treatment and water recycling to the services offered

to its customers. EMWD is a member agency of the Metropolitan Water District of

Southern California (MWD), which supplies Southern California with imported

water from the Colorado River and from Northern California via the State Water

Project. EMWD currently purchases approximately 75 percent of its water supply

from MWD.

Development and population within EMWD’s service are increasing at a rapid

rate. Water demand by residents, businesses, agriculture, and other interests is

growing and is straining available water supplies, and the threat of future water

shortages is very real. Increased population and water use also bring along increased wastewater flows. EMWD’s goal is to reuse 100 percent of its wastewater

for agricultural, landscaping, and groundwater recharge uses.

EMWD will continue to depend upon imported water from MWD, but the availability of this water is dependent upon many factors. These factors include: environmental water demands at the point of origin, the structural adequacy of delivery

systems, competing needs for water in Southern California, and drought. To deal

with these challenges to the reliability of its imported water supply, EMWD is actively implementing programs to optimize the use of all available water resources

within its service area. These programs include: extensive use of recycled water,

comprehensive water conservation, water harvesting, brackish groundwater desalination, rehabilitation of contaminated wells, and proper management of local

ground water basins. The success of these programs, as well as other innovative

water management programs throughout California, depends upon the ability of

water agencies to comply with increasingly complex, expensive, often subjective, and

locally interpreted environmental regulations mandated by State and Federal agencies for the protection of threatened and endangered species. Unless modified, these

regulations could have a crippling impact on the ability of water agencies to meet

the future water supply needs of the citizens of this state. The result will be significantly restrictive growth rates for all urban communities of the state.

BACKGROUND

EMWD believes species conservation, like other issues such as clean water and

clean air, is necessary and vital for our lifestyles. However, meeting increased demands for water and finding ways to reuse the corresponding wastewater will challenge EMWD. First, by balancing future water demands, and second, by complying

with the ESA in its current form. Clearly, the ability to address water supply and

wastewater management problems in the future is hampered by the arbitrary interpretation and implementation of the ESA by the U.S. Fish and Wildlife Service

(FWS).

EMWD is a member of the National Water Resources Association, also known as

NWRA, a water industry association representing agricultural and urban water

agencies seeking to promote water supply reliability through its activities with Federal agencies and regional and national legislators. The NWRA is the oldest and

most active national association concerned with water resource policy and development. Its strength is a reflection of the tremendous ‘‘grassroots’’ participation it has

generated on virtually every national issue affecting western water conservation,

management, and development.
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EMWD is also a member of the Western Coalition of Arid States (WESTCAS), an

organization formed by a group of western water and wastewater agencies concerned about the manner in which water quality and water resource management

issues are being addressed in states throughout the arid and semi-arid West.

WESTCAS is dedicated to developing appropriate and practical water quality regulations, policies and laws that would be more responsive to the unique ecosystems

found in the arid and semiarid regions of the western states.

The West is a region of the country where many federally listed threatened or endangered species call home. NWRA and WESTCAS members are intimately involved in multiple facets of species identification and conservation including habitat

protection. It became clear, as NWRA and WESTCAS members shared species conservation experiences, that regulations and policies implementing the ESA are either restricting, or increasing the cost of water resource management strategies and

wastewater treatment operations without any substantial benefit to the species

those policies and regulations were designed to protect.

NWRA and WESTCAS members are experiencing substantial impacts as a result

of the listing of several terrestrial species. These include delays to projects, unclear

or unrealistic mitigation requirements, and significant additional costs borne by our

ratepayers. Listings of aquatic species and the involvement of FWS in the establishment of water quality criteria will impact our future. Examples of recent and future

impacts of the ESA on EMWD include:

San Jacinto Seasonal Storage and Recovery Project

EMWD has proposed a seasonal storage and recovery project to recharge the San

Jacinto River aquifer with up to 3,000 acre-feet of surplus water annually. The San

Jacinto River is an ephemeral stream that flows only in response to intense and prolonged rainfall. This project will benefit the environment by allowing storage of surplus water locally, thereby reducing demand on other sources of water from the Colorado River and the Bay Delta system in Northern California. The recharge site will

be constructed on about five acres in the disturbed portion of the San Jacinto riverbed. The FWS is concerned because it perceives indirect adverse impacts on the

habitat of the San Bernardino Kangaroo Rat (SBKR), a federally listed endangered

species.

The FWS initially required EMWD to develop mitigation actions for this project.

After submitting our recommendations, FWS has the discretionary power to accept

or reject EMWD’s proposals for arbitrary and capricious reasons. If they reject our

suggestions, we must submit new mitigation recommendations for approval. The

process of proposing and negotiating recommendations for mitigation may continue

for years, delaying implementation of this environmentally beneficial project.

During consultations with FWS on this project, it became clear to EMWD staff

that the goal of the FWS was to restore that portion of the San Jacinto River Basin

inhabited by the SBKR to its natural condition. The impression received was that

to get approval EMWD would have to allow another project, our groundwater recharge ponds located upstream, which has been operating for over 30 years, to revert to its natural state. We believe this is an unreasonable and unjustifiable request because of the significant loss of a local water supply to the San Jacinto Valley. It appears that this recommendation has little to do with whether the SBKR

will be ultimately helped and more to do with a particular biologists view of what

the San Jacinto River and its habitat should look like.

So far, this project has been delayed over a year resulting in a lost savings to our

customers of at least $300,000. As this project continues to be delayed, our lost savings will increase. Without this project, we will not be able to meet the groundwater

basin demands of the area and we will be forced to supplement our water supply

with lower quality water. This will reduce the quality of our wastewater and will

hinder our ability to meet our discharge limits mandated by the Regional Water

Quality Control Board.

It was also apparent that the FWS is looking for EMWD to become the agency

to take the lead in a Habitat Conservation Plan (HCP) for the entire San Jacinto

River Basin. EMWD has agreed to addressing mitigation actions relating directly

to its project and in our service area, in fact our Board of Directors 2 months ago

authorized the purchase of 87 acres in the San Jacinto River at a cost of $88,000

to enhance EMWD’s ability to provide future mitigation offsets in the river. However, for us to be held responsible for developing and managing habitat conservation

over the entire 1,000 acre range of the SBKR in the San Jacinto River, where we

do not have management responsibility, is clearly not appropriate for a public water

district. Letting the existing groundwater recharge ponds revert to their natural

state and taking the lead in HCP development is not equitable mitigation for this

type of project.
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Searl Tank

EMWD has 78 water storage tanks in its service area. As the population increases, either additional tanks must be built or existing tanks must be expanded

to provide adequate service to our customers. EMWD is currently expanding an existing tank site located in an area that is habitat for the California Gnatcatcher,

a federally listed endangered species. This project is located on a parcel of land that

is less than one acre in size. No gnatcatchers were actually detected onsite. EMWD

was informed that appropriate mitigation would be the purchase of land or credits

at a 3 to 1 ratio to mitigate our project. We do not argue with this requirement.

What we do argue, however, is during informal consultation FWS also indicated

EMWD would have to address the ‘‘growth inducing impacts’’ of the project. Such

a request is not within the intent of the ESA or the charter of the FWS. EMWD’s

mandate as a water agency is to provide existing and future customers with safe

and reliable water. EMWD has no control over land use development. That is the

purview of cities and counties. EMWD must provide service when it is needed.

Maintenance

Another problem we have with ESA implementation is the ongoing maintenance

of our water and wastewater facilities. These activities may involve the upkeep of

existing access roads to facilities, removal of encroaching vegetation, repairs, or

safety modifications to our facilities. These routine activities are necessary to ensure

smooth operation of our water and wastewater facilities, to provide safe drinking

water that is sufficient to meet our customers needs, and provide water quality to

meet the recycled water requirements within the service area. Because these facilities already exist, there are few, if any, impacts to species or their habitat. FWS

has begun referring pejoratively to some of these areas as ‘‘degraded habitat’’ with

a perceived goal of requiring mitigation for lands that have not been occupied by

any endangered species for many years. EMWD maintains that we should not be

mandated to mitigate on a retroactive basis or for routine maintenance activities.

Aquatic Species Impacts

The FWS is currently considering listing the Santa Ana Sucker, a small freshwater fish that feeds on algae, as a threatened species. This fish is native to several

Southern California rivers, including the Santa Ana River. EMWID’s goal is to recycle all of its treated wastewater, however there will be times during wet weather

when discharges will occur into the Temescal Creek, an ephemeral stream tributary

to the Santa Ana River. The listing of the Santa Ana Sucker will have significant

implications for dischargers like us. Past experience demonstrates that additional

water quality regulations could be required, but more importantly, water quantity

could be regulated. The flow might be required year-round instead of seasonally,

and at a higher level in order to support habitat for the Sucker. This could preclude

us from sending recycled water to other points of use for other beneficial uses including wildlife habitat enhancement and agricultural water supply—thus defeating

the reclamation purpose of the recycled water program in the first place. Forcing

the continued discharge of recycled water will create artificial habitat at the expense

of native habitat. Recycled water use offsets the need to export water from native

watersheds, leaving more water in the state’s rivers and streams. In the arid southwest, water recycling is vital to reducing demand for imported water. Mandating

wastewater flows removes much of the incentive for dischargers to contemplate environmentally beneficial recycled water projects while having far reaching regional

impacts on existing communities of these states.

Looming in the future is the involvement of FWS in the development of the Environmental Protection Agency’s (EPA) water quality criteria, state water quality

standards and permits, and Total Maximum Daily Loads. This will affect all wastewater dischargers, not just EMWD. Very briefly, under the Clean Water Act, EPA

has the authority to establish national water quality criteria, and it has done so for

the past 27 years. However, under the ESA, the EPA must consult with the National Marine Fisheries Service and the FWS before approving water quality standards to determine whether they might impact listed species. The FWS has no experience in this area. The opinions of FWS biologists regarding various water quality

constituents, including those on the national criteria list, are based on limited experience with a limited number of species under very limited circumstances. Consultation on the national criteria will provide FWS biologists with an opportunity to

broadly apply their limited data in order to overturn the scientific process for establishing national criteria which EPA has refined over a period of many years.

FWS involvement in these areas provides the opportunity for economic impacts

on wastewater discharge permit holders. These impacts may involve multi-year bio-
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logical studies and research, bioassessments, requirements for provision of habitat,

including water resources, etc. These measures are often very expensive.

ISSUES AND RECOMMENDATIONS

To remedy what we perceive as shortcomings to the current implementation of the

ESA, we provide the following list of issues and recommendations for your consideration.

ISSUE 1: The FWS has too much discretionary power and requires mitigation

based upon ill-defined or non-existent goals for habitat protection and species recovery.

RECOMMENDATION: In consultation with state and local governments, the

FWS should develop scientifically based procedures, guidelines, and criteria subject

to public review and comment to ensure consistency and predictability in the implementation of the ESA. This regulatory framework should include deadlines for FWS

to provide information and decisions and require mitigation ratios to be defined in

Habitat Conservation Plans (HCPs). Adequate funding must be provided to FWS to

develop these needed elements.

ISSUE 2: ESA implementation places an unfair economic burden on local governments.

RECOMMENDATION: A revolving loan fund should be established to help local

governments prepare regional HCPs that address both the habitat needs of species

and human development needs.

ISSUE 3: There is no assurance when developing an HCP that additional mitigation will not be required at a later date.

RECOMMENDATION: Codify the ‘‘No Surprises’’ policy for HCPs and expand it

to non-Federal parties participating in the implementation of recovery plans under

ESA section 7 consultations.

ISSUE 4: The ESA makes preventive or emergency maintenance extremely arduous.

RECOMMENDATION: Exempt preventive or emergency maintenance, repairs,

and safety modifications of existing water and wastewater projects from ESA requirements.

ISSUE 5: The ESA as currently implemented could remove the incentive for

wastewater dischargers to consider environmentally beneficial water recycling

projects.

RECOMMENDATION: Expand the ‘‘Safe Harbor’’ Policy that provides incentives

for non-Federal property owners to restore, enhance, or maintain habitats for listed

species to include habitat created by either historical or prospective discharges of

water or wastewater to otherwise dry or ephemeral streams or washes.

Conclusion

The implementation of the ESA must be based on scientifically derived data, that

provides for protection and recovery of endangered and threatened species while

fully recognizing the social and economic realities of implementation. Southern California and the and West are dynamic regions with vast and varied natural resources

and a rich biological diversity. The consequences of implementing the ESA are serious and significant. The consequences of implementing the ESA arbitrarily and capriciously are devastating. If these fundamental issues associated with ESA implementation are not resolved, the associated regulatory burdens threaten to outstrip

available financial resources and will impact public agencies’ ability to serve their

customers and severely impact the economic stability of Southern California. Thank

you.

Mr. POMBO. Thank you.

Mr. Bragg.

STATEMENT OF MARK BRAGG, PALM SPRINGS, CALIFORNIA

Mr. BRAGG. Mr. Chairman, members, the Endangered Species

Act is not about animals. The Endangered Species Act is about

money and power. It has given the U.S. Fish and Wildlife Service

unprecedented power to seize the private property of law abiding

American citizens, while also giving them the authority to extort

money from us.

Protecting endangered species is a laudable public goal, but if it’s

important to public policy, then it should be a public responsibility
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to preserve habitat. If a piece of private property is that important

to the preservation of the species, then condemn it and buy it.

Instead the ESA has made this public imperative into a nightmare for private property owners who have had our land seized by

power mad bureaucrats who also demand tribute to allow us to use

the remaining property. Ours is the case of Shadowrock Resort in

Palm Springs.

This project originally covered 1,100 acres. It is approved

through the city entitlement process and the California Environmental Quality Act for the construction of a golf course and a club

house, a hotel and adjoining town homes, and approximately 126

single family homes.

The project will create more than 600 construction period jobs, 300 permanent jobs, and approximately $10 million in annual state

and local tax revenue.

Our original intent was to cooperate with the various levels of

government in order to be responsible as developers. We voluntarily contributed all of our mountain land to permanent bighorn

sheep habitat, in case they come back one day, which reduced the

project from 1,100 acres to 358 acres.

Now comes the U.S. Fish and Wildlife Service in Carlsbad, along

with the Army Corps of Engineers and other governmental agencies that often work in tandem with each other. They demanded

that we reduce our project to 150 acres, and that we pay them

$500,000 for the right to use our remaining land.

We have refused. We will not allow them to seize our land, and

we have refused to pay their extortion demands. Unlike Slobodan

Milosovic, who sent in his army to seize the land of the Kosovars,

we believe this is America and the government cannot seize our

land through regulation or any other unlawful taking.

They also cannot take our money in order to give it to their

friends in the biological community who agree with them. By the

way, they do not give funds to people who disagree with them.

In addition, we do not believe it was ever the intent of Congress

to permit this kind of seizure and extortion. From the time of the

Magna Carta it has been the right of free men and women to use

their land productively without unreasonable interference from

government bureaucrats.

However, we also know that the only freedoms we can continue

to enjoy are those that we are willing to defend. We have, therefore, rejected the authority of the U.S. Fish and Wildlife Service to

impose such demands on us. If they insist on trying to take our

land and extort money, we will stand firm as the government

agents come to take us away in chains, but we will never ever give

up our rights to the power hungry bureaucrats.

I offer the attached letter. You will find it in the booklet that we

provided yesterday under Section 1, which we entitled ‘‘Demand for

Payment, Notice of Intent to Seize Property.’’ I offer the attached

letter as evidence of the high handed tactics of the United States

Government against its own taxpaying, law abiding citizens.

In the past, developers agreed to demands like this because it’s

simply too expensive to fight the U.S. Government. We have decided to fight.

[The prepared statement of Mr. Bragg follows:]
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STATEMENT OF MARK BRAGG, PALM SPRINGS, CALIFORNIA

The Endangered Species Act is about money and power. It has given the U.S. Fish

and Wildlife Service unprecedented power to seize the private property of law-abiding American citizens while also giving them the authority to extort money from us.

Protecting endangered species is a laudable public goal. But if it is important to

public policy, then it should be a public responsibility to preserve habitat. If a piece

of private property is that important to the preservation of a species, then condemn

it and buy it. Instead, the ESA has made this public imperative into a nightmare

for private property owners who have had our land seized by power-mad bureaucrats who also demand tribute to ‘‘allow’’ us to use our own property. Ours is the

case of Shadowrock Resort in Palm Springs. This project originally covered eleven

hundred acres. It is approved through the city entitlement process and the California Environmental Quality Act for the construction of a golf course and club

house, a hotel and adjoining townhomes and approximately 126 single family

homes. The project will create more than 600 construction-period jobs, 300 permanent jobs and approximately $10 million in state and local tax revenue.

Our original intent was to cooperate with various levels of government in order

to be a responsible developer. We voluntarily contributed all of our mountain land

to permanent bighorn sheep habitat in case they come back one day, which reduced

the project to 358 acres. Now comes the U.S. Fish & Wildlife Service Carlsbad office

along with Army Corps of Engineers and other government agencies that often work

in tandem with each other. They demand that we reduce the project to 150 acres

and that we pay them five hundred thousand dollars for the right to use our remaining land.

We have refused to allow them to seize our land and we have refused to pay their

extortion demands. Unlike Slobodan Milosovic who sent his Army to seize the land

of the Kosovars, we believe this is America, and the government cannot seize our

land through regulation or any other unlawful taking. They also cannot take our

money in order to give to their friends in the biological community who agree with

them. By the way, they don’t give funds to people who disagree with them.

In addition, we do not believe it was ever the intent of Congress to permit this

kind of seizure and extortion. From the time of the Magna Carta, it has been the

right of free men and women to use their land productively without unreasonable

interference from government bureaucrats. However, we also know that the only

freedoms we can continue to enjoy are those that we are willing to defend. We have,

therefore, rejected the authority of the U.S. Fish & Wildlife Service to impose such

demands upon us. If they insist on trying to take our land and extort money, we

will stand firm as the government agents come to take us away in chains. But we

will never, ever give up our rights to the power hungry bureaucrats. I offer the attached letter as evidence of the highhanded tactics of the United States government

against its own, taxpaying, law-abiding citizens. In the past developers agreed to demands like this because it is simply too expensive to fight the U.S. Government.

We have decided to fight.
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[Applause.]

Mr. POMBO. Thank you.

Ms. Rosen.

STATEMENT OF JUDITH I. ROSEN, PRESIDENT, MURRIETA

VALLEY UNIFIED SCHOOL DISTRICT

Ms. ROSEN. I am here today as the President of the Murrieta

Valley Unified School District.

School districts are unique among the participants here today because we do not create growth, but we are mandated to accommodate growth.

Our school district is a K-12 district. It is on 125 square miles.

In 1989, we had 500 students in a single school. Today we have

11,280 students. We have grown at a rate of 6 to 15 percent per

year since 1992, and our greatest growth is occurring at the high

school, the single high school we have, and our two middle schools.

This year we have added 200 new students to our high school.

It was built to accommodate 2,475 students. We have also added

16 portables, nine of them in the teachers’ parking lot.

It takes three to five years to build a high school. So the earliest

we can deliver the second high school is 2003. By that time we will

have probably 3,300 to 3,400 students at that school.

This exacerbates safety issues, and it is a very grave concern for

our community.

Our middle schools are also in very great need, and that is really

why I am here today.

The property that we have, that we can build a high school on,

that we have been looking at and working on within the community and was a key component to getting a GO bond passed in 1998

is owned by the City of Murrieta. It is part of a 250 acre site, and

one of the really wonderful things about it is that in purchasing

property, they were able to buy it for $15,000 an acre as opposed

to the $100,000 an acre we get charged with, or have our sites appraised for, in the rest of the district.

We need about 50 to 55 acres for a school site and 20 acres for

a middle school site.

In 1998 a survey was done on the site, and there were three

areas where Gnatcatchers were found, none of them where the

schools were proposed, and on three different occasions, ten butterflies, Quino checkerspot butterflies were seen. One butterfly was

seen near the boundary of the high school site.

The city and school district worked hard and finally were able on

March 25th of 1999 to meet with the Carlsbad office to talk to

them about the 250 acres because they want to do sports complex,

open space, et cetera; the service looked at it and said, even though

the biology report says that the species are limited in habitat to 70

to 80 acres, that they deemed the entire 250 acres as habitat.

Since that time, we have determined that the middle school site

is rendered almost unusable because of what we would have to go

through in order to build a school. We perhaps can get 40 acres

cleared for a high school site. We would have to go off site, buy an

additional 17 acres at $100,000 an acre from an owner who has a

commercial property next door, but that property hasn’t been surveyed for butterflies yet. It cannot be until next spring.
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So our dilemma really has several aspects. First of all, as a

school district, we are not in a position to take risks with time and

money. We are not in this for profit. The uncertainty of how long,

if ever, it may take to obtain approvals to develop the site makes

it extremely difficult for the district to proceed with planning and

designing a high school.

If the district purchases a school site without a clearance on environmental issues, the state does not have to reimburse the district its 50 percent share through the state school building program. The high school will cost about $45 million without a pool

or a stadium.

The district is not in the development business. Its focus is educating the children of Murrieta. This entire process is costly, filled

with land use risk, and beyond our area of expertise. We are very

good at working with the complex state school building program,

and we are a neophyte in the Federal arena. None of our consultants can tell us definitively if you do this, you can have a school.

School sites cannot go just anywhere. We are constrained by airports, traffic, utility availability. We ask the following: that the

U.S. Fish and Wildlife be mandated to recognize school projects as

a public priority, and that these projects be fast tracked with specific time lines for processing; that clear, concise information be

provided to school districts by the service to assist the districts in

obtaining approval to build schools; require that the Federal agencies offer solutions, provide options, and seek resolutions of identified problems during this fast tracking.

The Murrieta district must be assisted in obtaining environmental clearances to build a school on the city site. We want to use

55 acres and pay $15,000 an acre. We want to do one-to-one mitigation ratios or create a bank or buy land somewhere else.

Our district at build-out will have about 300 acres. We need

about 200 acres more. We would like to do a district-wide approach

to mitigation and work with the service. We want the service to be

mandated to work with us in a cost effective, timely fashion within

a six month process, and we want the entire site to be looked at

as a joint use land project for the city and the schools.

In closing, our values in our school district are learning, respect,

community, communication, and accountability. We would like to

think we could work with the Federal Government in the same

way.

Thank you.

[The prepared statement of Ms. Rosen follows:]
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Mr. POMBO. Thank you.

[Applause.]

Mr. POMBO. Reverend.

STATEMENT OF THE REVEREND PETER MOORE-KOCHLACS,

DIRECTOR, ENVIRONMENTAL MINISTRIES OF SOUTHERN

CALIFORNIA

Rev. MOORE-KOCHLACS. Hello. I am Peter Moore-Kochlacs, and I

am the Director of Environmental Ministries.

To begin with, I want to share a story from the Talmud. Two

men were fighting over a piece of land. Each claimed ownership

and had papers to prove their claims. To resolve their differences,

they agreed to put the case before the rabbi.

The rabbi listened, but could not come to a decision. Finally he

said, ‘‘Since I cannot decide to whom this land belongs, let us ask

the land.’’ He put his ear to the ground, and after a moment

straightened up. ‘‘Gentlemen, the land says it belongs to neither of

you, but that you belong to it.’’

We six billion humans, along with countless other species, belong

to the land, to the habitat, to the web of creation, to God. The

Psalmist is very clear. ‘‘The Earth is the Lord’s.’’ [Psalm 24.]

In our human arrogance, greed, lust for power, and desire for

ownership, we forget our divinely appointed role. This role is one

of trusteeship and stewardship. It is a call of a parent to serve and

protect the land, the garden, the planet we dwell upon and not oppress it.

Isaiah, the prophet, critiqued the oppressive ways of humans in

his time. He said, ‘‘Ah you, who join house to house, who add field

to field, until there is room, for no one, but you, and you are left,

to live alone, in the midst of the land.’’

Ezekiel pronounced, ‘‘Ah, you shepherds of Israel, who have been

feeding yourselves! Should not, shepherds, feed the sheep? . . . Is it

not enough for you to feed on the good pasture, but you must tread

down with your feet the rest of your pasture? When you drink of

clear water, must you foul the rest with your feet? And must my

sheep eat what you have trodden with your feet and drink what

you have fouled with your feet?’’

The question for us is: does our human heritage today have to

be so oppressive to other humans and to creation? My answer is

no.

As irony, or God’s great mystery of life would have it, next year

is the great Christian celebration Jubilee 2000, the 2000th anniversary of Jesus’ birth, as well as Earth Day 2000.

Recall Jesus’ announcement of the new Jubilee of freedom in

Luke 4:18. ‘‘The Spirit of the Lord is upon me because he has

anointed me to bring good news to the poor. He has sent me to proclaim release to the captives and recovery of sight to the blind, to

let the oppressed go free, to proclaim the year of the Lord’s favor.’’

Doesn’t this Jubilee remind you a little of our original 4th of July

experience?

Both religious and secular organizations have taken up the ethical call of Jubilee 2000. It is a call to grant debt relief to impoverished nations that they might be freed from the oppressive burden

of international debt.
32

These hearings that you are holding on the Endangered Species

Act give us a unique opportunity to take this Jubilee 2000 vision

a step further by incorporating it with the vision of the approaching Earth Day 2000, a vision to bring healing, wholeness, and

greater harmony to our planet, to God’s creation; a vision of freedom that calls a halt to and a Sabbath rest from the onslaught of

human unsustainable actions.

With Earth Day 2000, the 30th anniversary of Earth Day, falling

during Holy Week 2000, between Good Friday and Easter Sunday,

I wonder if God is asking us this question about the future of our

world. Do we want the earth to be a Good Friday world of crucifixion and death for our habitat, biosphere, endangered species,

and humans? Or do we seek for our home planet Jubilee, freedom,

resurrection, new life, restoration, and renewal?

The United Methodist Church in June of 1996, at Redlands, California, answered yes to the question of restoration of God’s creation. The question now for you Congressmen and women is: do

you have the faith and the moral courage to affirm the goodness

of the whole of God’s creation by truly focusing on species protection, or will you perpetuate a Good Friday world?

Thank you.

[The prepared statement of Rev. Moore-Kochlacs follows:]

STATEMENT OF REV. PETER MOORE-KOCHLACS, DIRECTOR–ENVIRONMENTAL

MINISTRIES

I want to thank you for the opportunity to participate in this hearing. I have been

an ordained United Methodist minister for 25 years. Currently I am appointed to

the position of Director of Environmental Ministries of Southern California. The network’s goal is to encourage congregations of faith to see that earthkeeping, habitat

and endangered species protection, and the public health threats caused by toxics

and pollution are, for all of us, real scriptural and moral concerns, concerns so important to God that they need to be among the highest missional priorities, the

church, and other religious communities have as we move into the new millennium.

A second priority we have is to educate, train, and advocate for public policies

that serve and protect God’s Good Creation. To begin, I want to share a story from

the Talmud, the collection of Jewish law and tradition dating back 1600 years ago.

‘‘Two men were fighting over a piece of land. Both claimed ownership and had papers to prove their claims. To resolve their differences, they agreed to put the case

before the Rabbi. The Rabbi listened but could not come to a decision. Finally he

said, ‘Since I cannot decide to whom this land belongs, let us ask the land.’ He put

his ear to the ground and after a moment straightened up. ‘Gentlemen, the land

says it belongs to neither of you—but that you belong to it.’ ’’

Yes, we six billion humans, along with countless other species, belong to the land,

to the habitat, to the web of life, to God. The Psalmist is very clear—‘‘The Earth

is the Lord’s’’ (Psalm 24:1). In our human arrogance, greed, lust for power, and desire for ownership we forget our divinely appointed role. This role is one of trusteeship and stewardship. It is a call, a vocation to serve and protect the land, the garden, the planet we dwell upon (Genesis 2:15).

Instead of earthkeeping we press and oppress other people, the land, water, and

air, and endanger all the other creatures who look to us for compassion and justice,

because they are without human voice and standing. The Metropolitan of the world

Christian Orthodox Churches recently labeled this unjust behavior sinful.

Isaiah the prophet critiqued our oppression in this way—‘‘Ah, you who join house

to house, who add field to field, until there is room for no one but you and you are

left to live alone in the midst of the land!’’ Jeremiah echoed, ‘‘I brought you into

a plentiful land, to eat its fruits and its good things, but when you entered you defiled my land and made my heritage an abomination.’’ (Jeremiah 2:7) And finally

Ezekiel pronounced, ‘‘Ah, you shepherds of Israel who have been feeding yourselves!

Should not shepherds feed the sheep? You eat the fat, you clothe yourselves with

the wool, you slaughter the fattlings, but you do not feed the sheep . . . . Is it not

enough for you to feed on the good pasture, but you must tread down with your feet

the rest of your pasture? When you drink of clear water, must you foul the rest with
33

your feet? And must my sheep eat what you have trodden with your feet and drink

what you have fouled with your feet?’’

The question is, does our human heritage today have to be so oppressive to other

humans and to creation? No!!!

As irony, or God’s great mystery of life would have it, next year is the great Christian celebration, Jubilee 2000—the 200th anniversary of Jesus’ birth—as well as

Earth Day 2000! Recall Jesus’ announcement of the new Jubilee of freedom in Luke

4-18 (based on Isaiah 61-2). ‘‘The Spirit of the Lord is upon me because he has

anointed me to bring good news to the poor. He has sent me to proclaim release

to the captives and recovery of sight to the blind, to let the oppressed go free, to

proclaim the year of the Lord’s favor!’’ Doesn’t this Jubilee remind you a little of

the original 4th of July experience?!

Both religious and secular organizations have taken up the ethical call of Jubilee

2000. In our time it is a call to grant debt relief for the impoverished nations that

they might be freed from the oppressive burden of international debt and enabled

to feed, educate, care for, employ their people, and hopefully care for their natural

environment.

These hearings that you are holding on the E.S.A. give us a unique opportunity

to take this Jubilee 2000 vision a step further, by incorporating with it the vision

of the approaching Earth Day 2000. A vision to bring healing, wholeness and greater harmony to our planet, to God’s Creation! A jubilee vision to call a halt to and

a sabbath’s rest from the onslaught of our human unsustainable activities and actions.

With Earth Day 2000, the 30th anniversary of Earth Day, falling during Holy

Week 2000 between Good Friday and Easter Sunday, I wonder if God is asking us

this question about the future of our world. Do we want the earth to be a Good Friday world of crucifixion and death for our habitat, biosphere, endangered species,

and humans? Or do we seek for our home planet Jubilee—freedom, resurrection,

new life, renewal, and restoration?

The United Methodist Church in June of 1996 at Redlands, California, not far

from here answered ‘‘yes’’ to the question of the restoration of God’s Creation. They

passed by a large majority vote a resolution asking you, the Congress, to reauthorize

a stronger, not a weaker, endangered species act. The resolution follows on the next

page.

CALIFORNIA-PACIFIC CONFERENCE 1996 UNITED METHODIST CHURCH

RESOLUTION #95

SUBJECT: Reauthorization of the Endangered Species Act of 1973

SUBMITTED BY: Conference Board of Church and Society

WHEREAS Noah was directed by God to save every kind of animal in order to keep

them alive (Genesis 6:19 and 20);

WHEREAS the Social Principles (Section 1 The Natural World) affirm the preservation of animals now threatened with extinction (par70C) and supports regulations

designed to protect plant life (par70A);

WHEREAS the Endangered Species Act (E.S.A.) of 1973 is will come before Congress to be in 1996 1996/1997;

WHEREAS the E.S.A. has been a successful tool in saving several endangered species, including the American Bald Eagle and the California Condor;

WHEREAS human health and welfare depends upon the gene pool of all species,

down to the single cell plankton, to preserve the balance of nature, so that it may

continue to sustain life;

THEREFORE, BE IT, RESOLVED that the California-Pacific Annual Conference

support the reauthorization of a strengthened version of the Endangered Species Act

of 1973 by forwarding this resolution to congressional representatives within the

bounds of the Annual Conference;

BE IT FURTHER RESOLVED that the churches of this Annual Conference continue their studies of the issues of biodiversity and the need to protect and steward

all of God’s Creation;

BE IT FURTHER RESOLVED that the California-Pacific Annual Conference inform

our California State legislatures that we support a strong California Endangered

Species Act.

Adopted by the Annual Conference as amended–Plenary 6-June 16, 1996

The question now for you Congressmen and Congresswomen is do you have the

faith and the moral courage to affirm the goodness of the whole of God’s Creation

by focusing on species protection or will you perpetuate a Good Friday World?!
34

Mr. POMBO. Thank you.

[Applause.]

Mr. POMBO. Mr. Woolfolk.

STATEMENT OF VIRGAL WOOLFOLK, JMAW ENVIRONMENTAL

SERVICE GROUP

Mr. WOOLFOLK. Good morning. My name is Virgal Woolfolk, and

I am the senior managing partner of JMAW Environmental Science

Group. We are a disabled veteran minority business.

Rather than read something to you, I am going to tell you a

story. A couple of months ago we were hired by a home builder

called Pacific Community, itself a minority owned business, to come

out and do an assessment on some property down in Murrieta to

determine if, in fact, based on the greater permits requirement

from the City of Murrieta, if they needed to do any additional

work.

We began the process. We did an assessment, and we found that,

in fact, there were three plants particularly an erected that was located in the southwest corner of the property. We reported this

back to our client, and we made up a plan to go and speak to Fish

and Wildlife Service to try to see what we needed to do to mitigate

the situation.

Now, before I started my own company, I worked at Easton

Water District. In fact, one of the projects that Mr. Libeu talked

about with the San Bernardino kangaroo rat, we had worked out

an agreement with Fish and Wildlife before I left. There was a

solid agreement, and then, in fact, they have broke that promise

now I find out as well.

So we went down; we talked to them; and we told them the assessment of the property; that, in fact, the habitat was of a low

grade; that, in fact, we believed that because we had kind of missed

the survey season because they had kind of kept the public off balance, they said that they might extend the survey period for the

Quino because the weather was kind of cool, and then all of a sudden they decided at the last moment not to.

So we went down, and we spoke to one of their representatives.

She met with us, said, ‘‘We agree with you the habitat is such that

we agree with your mitigations to kind of keep five acres around

the plant until we can find out what happens next year.’’

We thanked them. We left. We informed the city of the process.

We informed our client of that. I then sent a letter back to the city

seeing the Fish and Wildlife Service saying that all we agreed to.

Then about a week later I get a call from the City of Murrieta,

and they are saying, ‘‘Virg, we have got a problem, Fish and Wildlife Service saying everything you wrote here is not true.’’

I said, ‘‘Wait.’’

So I called down and nobody would return my call. So I finally

called again, and I spoke to this lady named Ms. Cramer who, in

fact, was the person who stopped it. She, in essence, told me that

because she was not at the meeting and she felt that she should
35

have been at the meeting, she had stopped the project, but they

never informed us of it.

I then began to ask her why she did this, and she said that,

again, she controlled what happened in the Murrieta area, quote,

unquote.

And so I said, ‘‘Well, in essence, lady, you have told me that what

I wrote was a lie here, and you put me in a bad position.’’

And she said, ‘‘Well, I do not have time to deal with you now,’’

in essence, and she hung up the phone.

And at that point, I basically said it is on now, and so I sat down,

and I started calling, and I started writing a letter, and I talked

to my partner, and I said, ‘‘If we do not fight these people and

stand up and fix the problem, we cannot operate any further, and

my business may be in jeopardy, but we need to do the right

thing.’’

So we took them on, and I went back down, and we began to talk

to them, and basically they kind of let me know that they are the

only game in town and that is just how it was going to be.

We even attempted to try to mitigate for the K. rat and pay a

fee and say, ‘‘Okay. We agree that it is on the property. Let’s do

that.’’

And they said, ‘‘No, there is just no way to mitigate it.’’

And then what was most important was that they refused to

come out to the site to help us make a decision. We wrote letters

giving them a five-day turnaround, asking them for their help. Nobody responded.

So I called Portland. At Portland, I spoke to a lady there named

Ms. Finn. She was very upset at what they did and basically said,

‘‘I am of the opinion that if Fish and Wildlife Service makes an

agreement, they should keep their word,’’ but then no one did.

We called Mike Spear, never got a return call. Six weeks later,

after I made some calls to Washington, DC, I got a call, and they

decided to come out on site, and we visited the site, and we have

it on video where one of the representatives said, ‘‘We do not believe that the Quino butterfly is on the property, but you still have

to do a study because we found a butterfly across the street. So because we found the butterfly across the street, you have to do this.’’

The problem that we have is that when we try to find solutions

to the problem and working with them, it just was not there, and

I have worked with Fish and Wildlife Service for over 15 years, and

what I have seen is a total degrading of their ability to work with

the public.

In fact, I had a conversation just the other week with Cheryl

Brown. She is the editor of Black Voice Newspaper. Many of you

know her, and she is also on the Planning Commission of San

Bernardino, and when I brought this issue up, she said, ‘‘Those

people are just rude to us no matter what we do.’’

So then we met with them the other week, and they said, ‘‘Well,

we will let you mitigate this. You have to go buy credits at a mitigation bank.’’

We tried to do that, and there is no program. So we are really
36

frustrated about this process and hope that this will kind of bring

some attention to it.

Thank you very much.

[The prepared statement of Mr. Woolfolk follows:]
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[Applause.]

Mr. POMBO. Thank you.

I would like to recognize Mr. Calvert for his questions.

Mr. CALVERT. Thank you, Mr. Chairman.

Ms. Rosen, I am certainly very interested in your testimony. Let

me get this straight. You acquired a 250 acre site in Murrieta to

build a high school site and another school site. Your biologists

looked over and found 70 to 80 acres of habitat, which you are apparently willing to give up, and Fish and Wildlife told you that

they wanted the entire 250 acres.

Ms. ROSEN. Yes, sir. The site was actually acquired by the City

of Murrieta. So it is a joint use project with the city and the school

district, and, yes, that is correct.

Mr. CALVERT. Did they give any reason why they wanted the 250

acres other than the fact that they believed that it was all apparently important habitat?

Ms. ROSEN. No. Basically it was that they deemed it to be all

habitat, and nothing else was forthcoming.

Mr. CALVERT. When you say ‘‘they,’’ when your biologists say 70

to 80 acres were suitable habitat, did they give you any scientific

information to prove——

Ms. ROSEN. The biologists?

Mr. CALVERT. I mean from their point of view, Fish and Wildlife’s

point of view. Did they give you any background information to

show why they wanted the entire 250 acres of property?

Ms. ROSEN. No, sir.

Mr. CALVERT. They just said they wanted the entire 250 acres?

Ms. ROSEN. Yes, sir.

Mr. CALVERT. Mr. Woolfolk.

Mr. WOOLFOLK. Yes, sir.

Mr. CALVERT. You have been dealing with Fish and Wildlife, you

say, for the last 15 years?

Mr. WOOLFOLK. I started out working with them when I was in

the Navy, working some projects for them back then in the 1980s.

Mr. CALVERT. Have you dealt primarily with the Carlsbad office

or did you deal with other offices?

Mr. WOOLFOLK. Well, back in those days when we first started,

their office was in Laguna Miguel.

Mr. CALVERT. Right, right.

Mr. WOOLFOLK. And then over the last couple of years, they are

now in Carlsbad.

Mr. CALVERT. But basically the same people.

Mr. WOOLFOLK. The same group.

Mr. CALVERT. So would you say that the operation has changed

over the last 10 years?

Mr. WOOLFOLK. Yes, sir. What I see is the folks that originally

used to be there, they looked at for hunting and fishing and kind

of looked at the whole environment overall.

Now we have a group of folks that are just these biologists that

want to protect these species, but what really concerns me most of

all is that it appears that environmental groups have manipulated

the system so that these people cannot make decisions, and their

relationships with them are so tight here that they are not open
103

minded and balanced about making these decisions for overall people.

I thought that when they picked the people who were on the

committee for this Quino butterfly, it was only picked by one guy

up in Sacramento. He picked basically all of these scientists that

they know.

My concern with that is as a business who is specializing in this

area, we as a disabled veteran business cannot bid on these jobs

because they pick folks who they want to do the contract. So if you

start looking at who do they give business to, you never see any

other people besides these certain people always getting the contracts.

Mr. CALVERT. You indicated, too, the attitude of the employees

that you are talking to.

Mr. WOOLFOLK. That is correct.

Mr. CALVERT. They are not treating you with any courtesy at the

desk or when you are on telephone calls.

Mr. WOOLFOLK. Their attitude is, ‘‘We will get to you when we

get to you.’’ You walk in there, and it is like, ‘‘Well, we will call

you later,’’ or they do not return phone calls. That is the biggest

issue. They just do not return phone calls.

And we are the American public. We pay their salaries. I think

that must be very, very, very clear, and right now we have the

President kind of walking around the country talking about that

we need to invest in minority communities and do things and that

aspect, but when we have this agency who is out there that can basically stop you from doing that, then how are we going to get this

turn-around? It is really important that be address this issue because it has great economic impacts.

I sit on the Work Force Development Board for Riverside County.

I was the assistant board on that, and one of the issues that we

tried to address was that issue. We cannot get a development here

in this area and new economic enterprises if they are going to be

stopped every time they start a project.

Mr. CALVERT. Thank you.

Thank you, Mr. Chairman.

Mr. POMBO. Ms. Chenoweth.

Mrs. CHENOWETH. Thank you very much.

I wanted to address some of my questions to the pastor or to the

Reverend.

Reverend, I was looking over your disclosure statement. Have

you pastored a church?

Rev. MOORE-KOCHLACS. Yes. In fact, I pastored the Redlands

United Methodist Church, and a couple of the water people here

were members of my congregation.

Mrs. CHENOWETH. And are you still pastoring that church?

Rev. MOORE-KOCHLACS. No. My wife is a district superintendent

for the San Diego district of the United Methodist Church. She

oversees about 50 churches in San Diego County and Imperial

County, and when she got the promotion, her husband followed

her.

Mrs. CHENOWETH. You are a real ’90s man, aren’t you? But I can

imagine you have a lot to talk about in your relationship. That is

commendable.
104

You are head of the Environmental Ministries of Southern California or Director?

Rev. MOORE-KOCHLACS. Yes, I am the Director, yes.

Mrs. CHENOWETH. And does the Methodist Church pay you for

that position or are you paid by someone else?

Rev. MOORE-KOCHLACS. No, the bishop appoints me without a

stipend, and so I have to raise my own funds for that position, and

I manage to come up with about $5,000 per year.

Mrs. CHENOWETH. And those funds usually come from?

Rev. MOORE-KOCHLACS. Individuals.

Mrs. CHENOWETH. From individuals?

Rev. MOORE-KOCHLACS. Right.

Mrs. CHENOWETH. I notice that they were not on your disclosure

statement, the funds.

Rev. MOORE-KOCHLACS. Well, when you get 50—I did not know

that for each 50 and $100 contribution I needed to put down who

those persons were who had contributed.

Mrs. CHENOWETH. You know, as a man of the cloth, you said

some pretty startling things, and one thing is that in our human

arrogance, greed, lust for power, and desire for ownership we forget

our divinely appointed role.

Rev. MOORE-KOCHLACS. Yes.

Mrs. CHENOWETH. And I wonder if you can help me understand

what you mean, our greed and lust and desire for power. Can you

give us more specifics?

Rev. MOORE-KOCHLACS. Sure. I think that as we focus on both

the development of the land and as we have become so focused on

our corporate development, those that lose out are those without a

voice, and the church has always been for those without a voice.

It seeks to speak for those.

And that part of our neighborhood, those neighbors of ours who

are without voice right now in the majority are the endangered

species, and so it is our sense of overlooking them; it is our sense

of being so anthropocentrically focused that we lose sight of the biocentric world that God has created and called good.

And so that is where the arrogance comes in. We become so species focused, so human focused that we lose our regard for those

species about us who are without voice.

Mrs. CHENOWETH. And did I hear you say that one of the purposes of the church is to speak for the species? Did I understand

that?

Rev. MOORE-KOCHLACS. Yes. Yes, you did.

Mrs. CHENOWETH. I see. Hum.

[Laughter.]

Rev. MOORE-KOCHLACS. If you would look at Genesis 2:15 you

would read that we are called to be stewards and protectors of the

garden, to till and to tend, which is the first commandment in a

sense that we find, and that call of to till and to tend means to protect and serve in Hebrew, and what are we called to protect and

serve? The bounty.

If you read Genesis, you find that at each point, each stage of

creation God looks out and calls it good, calls it blessed, calls us

to stewardship.
105

Mrs. CHENOWETH. I think he does call us to stewardship, and I

find it interesting, and in all due respect, if you look at Genesis 2:5,

it concludes God’s peopling of the earth and putting all of the animals and plants together and the herbs and so forth, and then the

last part of that verse says, ‘‘And there was no man to till the soil,

and then God created Adam from the dust of the earth.’’

I think that God did create us to be productive and that His creation is very orderly and that humans are part of that order, and,

Reverend Kochlacs, I would just love to invite you to come to Idaho

or the northwestern states and look at the forests that have become

utter natural disorder because of the management of the endangered species and management of our natural resources under the

Endangered Species.

The chaotic and catastrophic fires that occur I do not believe are

in God’s plan for order and productivity in this earth, and in all

due respect, I would love to be able to sit down and talk to you,

learn from you, and be able to share with you some of my concerns.

Thank you very much.

Rev. MOORE-KOCHLACS. I would be glad to do that.

[Applause.]

Mr. POMBO. Mr. Miller.

Mr. MILLER. Thank you.

Jesus said something interesting that is really refreshing to me

right now, that no prophet is a private interpretation of the Scriptures, and based on what you had presented in your comments

there actually baffles me because the Scriptures I read deals with

man’s relationship to God and how God created the earth, and basically man is in charge and oversight of that.

And when man moved away from God, it is amazing what God

did. He spoke to a man named Noah because of his anger, and he

told him to build an ark, and he told him to take two of each kind

of animals and more of others that they would eat and place them

on that ark. Then he caused rain to fall and killed everything, except he put man with some animals and moved them somewhere

else.

Now, if we had to go through that today, it would be a nightmare. I would like to read you a little cute story.

[Laughter.]

Mr. MILLER. And I would like you to listen to this, and if Noah

was alive today, just think of this.

And the Lord spoke to Noah and said, ‘‘In six months I am going

to make it rain until the whole earth is covered with water and all

of the evil people are destroyed, but I want to save a few good people and two of every kind of living thing on the planet. I am ordering you to build me an ark.’’

And in a flash of lightning, he delivered the specifications for the

ark. ‘‘Okay,’’ Noah said, trembling in fear and fumbling with the

blueprints.

Six months later and it starts to rain. Thundered the Lord, ‘‘You

had better have my ark completed or learn to swim for a very long

time.’’ And six months passed. The skies begin to cloud up. Rain

began to fall. The Lord saw that Noah was sitting in the front yard

weeping, and there was no ark.
106

‘‘Noah,’’ shouted the Lord, ‘‘where is my ark?’’ A lightning bolt

crashed to the ground next to Noah.

‘‘Lord, please forgive me,’’ begged Noah. ‘‘I did my best, but there

were big problems. First I had to get a building permit for the ark’s

construction project, and your plans did not meet code. So I had to

hire an engineer to redraw the plans. Then I got into a big fight

over whether or not the ark needed a fire sprinkler system.’’

[Laughter.]

Mr. MILLER. ‘‘My neighbors objected claiming I was violating zoning by building the ark in my front yard. So I had to get a variance

from the City Planning Commission. Then I had a big problem getting enough wood for the ark because there was a ban on cutting

trees because of the spotted owl. I had to convince U.S. Fish and

Wildlife that I needed the wood to save the owl, but they would not

let me catch any owls. So no owls.’’

[Laughter.]

Mr. MILLER. ‘‘Then the carpenters formed a union and went out

on strike. I had to negotiate a settlement with the National Labor

Relations Board before anyone could pick up a saw or hammer.

Now I have 16 carpenters going on the boat and still no owl.

‘‘Then I started gathering up animals and got sued by an animals rights group. They objected to me taking only two of each

kind. Just when I got the lawsuit dismissed, EPA notified me that

I could not complete the ark without filing an environmental impact statement on the proposed flood. They did not take kindly to

the idea that you had jurisdiction over your conduct and you were

the supreme being.

‘‘Then the Army Corps of Engineers wanted a map of the proposed new flood plain.’’

[Laughter.]

Mr. MILLER. ‘‘Right now I am still trying to resolve a complaint

from the Equal Employment Opportunity Commission over how

many Croatians I am supposed to hire, and the IRS has seized all

of my assets claiming I am trying to avoid paying taxes by leaving

the country, and I just got a notice from the state about owing

some kind of use tax. I really do not think I can finish your ark

for at least another five years,’’ Noah wailed.

Then the skies began to clear. The sun began to shine. The rainbow arched across the sky, and Noah looked up with a smile. ‘‘You

mean you are not going to destroy the earth?’’ Noah asked hopefully.

‘‘No,’’ said the Lord sadly. ‘‘The government already has.’’

[Laughter and applause.]

Mr. MILLER. You know, the individual to the right of me——

Rev. MOORE-KOCHLACS. Do I have a chance to respond?

Mr. MILLER. No, you do not. I heard enough of your hypocrisy on

the use of the Scriptures.

Rev. MOORE-KOCHLACS. Well, that is not true because the endangered——

Mr. MILLER. I believe I have the floor.

[Applause.]

Rev. MOORE-KOCHACS. Because the Noah story is the first——

Mr. MILLER. This individual to your right—Mr. Chairman, I——
107

Rev. MOORE-KOCHLACS. [continuing] Endangered Species Act,

and every creature was protected by that rainbow.

Mr. MILLER. I do not believe anybody——

Rev. MOORE-KOCHLACS. And so your presentation of the

story——

Mr. MILLER. Sir.

Rev. MOORE-KOCHLACS. [continuing] is a distortion of the biblical

story.

Mr. MILLER. I do not believe anybody interrupted you when you

were making your presentation. Please be a gentleman and allow

me the same courtesy.

This individual to your right, or you left, my right, is the one

who is impacted because of your desires. In fact, I am submitting

a bill, and I hope my colleagues will support me, that says if the

Federal Government desires to list an endangered species on the

list, that the government should buy the property of those that are

impacted because they want to set aside habitat for endangered

species, not put the burden on the property ownership or somebody

who inherited the property just because a species decided to move

there.

If government wants to preserve habitat, I think that is good, but

government should bear the burden, and agencies of the government should not——

[Applause.]

Mr. MILLER. [continuing] lose sight of what the intent is, and

that is to represent the people of the United States who vote us

into office and to hire them to serve for their betterment.

And it is a shame that government has got so far out of control.

The original Constitution in its draft said ‘‘live, liberty and property.’’ Now, because of slavery, it was changed to ‘‘live, liberty and

the pursuit of happiness,’’ because the Founding Fathers in their

wisdom realized that they did not want the southern states to start

thinking of the concept that black people were property and they

had a constitutional right to own them. That was a wise move on

their part.

However, in the process, the concept of property rights and the

rights of individuals owning property and the kind of government

now placing his will and his wants on those property owners was

lost and has been lost over the years, and it is really sad.

It is a worthwhile endeavor to say we need to preserve those that

are endangered, but I was reading an article yesterday, and it talks

about some dinosaur bones they are still digging up, and I do not

believe humans had anything to do with their extinction. In fact,

we know very little about them.

But we need to do what we can to protect endangered species.

I do not argue that, but in our effort, we should not create an unfunded mandate that is placed on property owners and private citizens that they should bear the cost of that preservation.

God, in His wisdom, had the intelligence to pick those animals

up and move them, and when we talk about doing that, people

think we are mean and mean spirited.

The burden should never fall on the individual who cannot defend himself from government. Government is supposed to create

an environment where the individual is defended, and I think that
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is what we are trying to do, and some government agencies are out

of control, placing an intent on individual property owners as a

burden and a mandate, and they have gone far beyond, far beyond

what we consider reasonable.

And I believe many of us are here today to discuss that and to

talk about issues that are important, and I hear this constant saying of separation of church and state when it comes to prayer, but

then you want to beat property owners over the head with the

Bible when it comes to saving endangered species, and you should

be ashamed of yourself.

[Applause and boos.]

Mr. POMBO. I am going to have to ask the audience to please refrain from responding to the statements, if possible.

Mr. Hunter.

Mr. HUNTER. Thank you, Mr. Chairman.

Mr. Chairman, one point that has come out that I would like to

pursue is the ratio of taking, and I do not know, Mr. Bragg or Mr.

Woolfolk, if you have comments on this, but one thing that bothered me is that we have a mixture, obviously, as all counties do in

San Diego County of public and private property, and we have got

huge national forests. The Cleveland comes down almost to the

Mexican border in my district and also state reserves, state parks,

tens of thousands of acres of military land that will never be developed, and it for practical purposes amounts to a refuge for species.

And then mixed in among that we have private property, and

every time I talk to somebody who wants to use their property and

they will say, ‘‘I finally got permission from Fish and Wildlife to

use three acres, but in return for that, I had to go out and buy nine

acres,’’ a ratio of three to one, or, ‘‘I had to buy 50 acres,’’ and the

ratio is always skewed in favor of government. If government lets

private people use one acre of their own land, they always get a

multiple of that for government use.

And one thing that I am concerned about is the amount of money

or the amount of land that is being acquired by government, taken

over by government as a result of this mitigation.

So I would like to ask Mr. Bragg and Mr. Woolfolk could you

comment on that, on the ratios of taking or of exchange.

Mr. BRAGG. I will defer to Mr. Woolfolk.

Mr. WOOLFOLK. Yes, sir, if I may. There have been at least five

different projects that I have worked on, but this particular project,

we met with Fish and Wildlife this week to try to come up with

some mitigation for this, and they referred us to this mitigation

banking, those three options that they gave us.

One of them was BLM land that they have that is being operated

through the county of Riverside. So I went up and spoke to Brian

Low yesterday, and he is the Director of the Multi-species Plan,

and Brian has 40 acres on BLM land that we might be able to purchase and then be able to degrade our 40 acres here, but it is one

to one.

But during my time working at Easton, I have worked on some

projects where Fish and Wildlife wanted eight to one, 12 to one in

one case for the Senihoy Spotted Flower. So really when you start

trying to equate the species and get some information, it is kind

of hard.
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One of the things that always concerned me is when we look at

governmental land that is available, they never want to look at

that land. No studies, to my knowledge, have been done like we do

on private property to go out and see if there is the same species

or habitat on these government lands and these parts in the BLM

land that can be used to kind of offset this. So that is one of the

issues that I have with it.

Mr. HUNTER. Okay. Mr. Libeu, you may have a comment on that

or Mr. Bragg also with respect to the ratios. So you have seen ratios as high as eight to one.

Mr. WOOLFOLK. And 12 to one.

Mr. HUNTER. Eight to one and 12 to one. Mr. Libeu and Mr.

Bragg, do you have any comments on that?

Mr. LIBEU. Earlier in this decade in the ’90s we had projects that

Mr. Woolfolk could talk about where the ratio was between 11 and

12 to one for vernal pool and this spotted horn flower that he’s

talking about.

The project that I identified today in my testimony, we do not

know the exact set-aside, but we know the minimum is going to be

at least three to one. Our project encompasses about 50 acres. That

means Fish and Wildlife, the U.S. Government, will need at least

150 acres to mitigate the project, and again, that is just an open

door right now. We do not know the exact answer, and that is one

of the problems that all of us here at this table face, is that there

is an open ended uncertainty to the actual finality of whatever the

Fish and Wildlife is going to decide.

Mr. HUNTER. Is there any relationship—go ahead, Mr. Bragg,

and then I will ask a follow-up question.

Mr. BRAGG. Well, in our instance, we started out with 1,100

acres, and we voluntarily contributed close to 600 of those acres to

permanent open space habitat, and the authority of the Fish and

Wildlife Service here, by the way, you should recognize comes from

the identification of this property as waters of the United States.

Mr. HUNTER. Maybe a staff member could hold that where everybody can see that, including the panel and the audience, Mr. Chairman.

Mr. BRAGG. Waters of the United States, as defined in the Clean

Water Act, is what triggered the Section 7 consultation around endangered species. Now, unfortunately it is not highlighted very well

there, but the area in blue, and by the way, it is in Section 5 of

the book that we provided to everybody; in that map, you can see

the area outlined in blue was our original property, and the area

outlined in yellow on this map is what the Fish and Wildlife Service has designated as the reasonable and prudent alternative.

The problem is about 50 acres of that does not even belong to us.

So it has got to be eliminated. It reduces us down to about 150

acres, and that——

Mr. HUNTER. So you started with 1,100 acres, and when they are

finished paring you down, you will have 150 usable acres?

Mr. BRAGG. Well, we cannot build the project on 150 acres. It is

not reasonable or prudent, but the multiple is correct. We have got

about maybe 12 percent of our original land remaining in the

project.
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Now, the Reverend—I would like to refer to part of what was

said there. My father used to always tell me that broad generalizations are always bad, including this one. However, the broad generalization that was presumed here is that all corporate development

is bad somehow, and I just do not agree with that.

We are attempting to do a responsible, reasonable development

that benefits humans and in the process benefits the bighorn sheep

that were federally listed in the middle of our project, and as a consequence, we are not out there being motivated by greed and corruption. We are being motivated by producing a positive result for

everybody concerned.

Mr. HUNTER. I agree with that totally. In fact, there was a gentleman who is a fairly central character in the Bible who did a little home building himself. He is referred to on occasion.

You know, I think the Reverend would agree with this. You

know, I do not think anybody agrees with the idea that you do not

return phone calls. I do not think anybody agrees with the idea

that you tell people that you are the boss, and if you were not in

a meeting even though your office issued a particular position, that

position is revoked because you were not there.

And to go back to the multiple, the fact that to get to be able

to use an acre of your own land you have to give either in fee and

give a deed in this mitigation or you have to perpetuate it as open

space, which for practical purposes is giving it to the government,

although you get the right to pay taxes on it for the rest of your

life; the idea that that is always a multiple that accrues to the benefit of the government bothers me. It is always three to one, four

to one, ten to one.

You cannot go on doing that forever. I have seen a lot of the private land now in San Diego county that is now owned by Uncle

Sugar, even though Uncle Sam has 25,000 acres in Miramar. He

has got millions of acres in the national forest that extend from the

Mexican border north. They are taking that private property, and

it is always in a large multiple.

So I wanted to ask you one other question, Mr. Woolfolk, Mr.

Bragg, and Mr. Libeu, and then I will move on, but simply when

the determination is given that you have to give a ten to one or

a 12 to one or a three to one, do you get to appeal that? How does

that work?

Mr. WOOLFOLK. Sir, that is one of the things that I wrote in my

letter, that there is no appeal, and here is an example of how this

works. If we can accept Mr. Chen, who is back there, if you can

stand for a second, we attempted to get some biologists to come out

and say that the mitigation that we had established, which was basically five acres around these plants, were adequate.

So then I went up, and I spoke to professors at UCR that I have

known ten years, biologists that I have worked with for ten years,

and nobody would come out and do this survey because they were

afraid that if they did, Fish and Wildlife would not give them their

certification next year, and they would not be able to work.

So, therefore, there is no way to appeal this. Even if we went out

and tried to get experts to come and say this mitigation is out of

line of three to one, eight to one, 12 to one, but for the Quino but-
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terfly, particularly, then everybody is afraid to do it because they

may not get their certification next year.

So there is no way to appeal this system. It is really, in my view,

a very corrupt and this process is very corrupt, and it is thievery.

This is thievery, and though I am not a minister, but I guess I

hand around Jesse Jackson enough to be one. There is a Scripture

that says the birds have their nest, right? You know, the sinner

man has nowhere to lay his head.

Clearly, this property is to build homes for people who can afford

them, and also I want the pastor here to know that I work on

church development projects. We have a project in San Diego in

your area where a church bought property. We are talking about

$2 million, and went out and was getting ready to build, and the

Fish and Wildlife came in and said they could not. Now the church

is in holy—everybody has left, they cannot build, and they have got

a $2 million bill.

So this is how this is happening in church communities. I want

him to know that as well. I do that. So we really have a problem

here.

Mr. HUNTER. Okay.

Mr. BRAGG. There is no rationale in the demand made of us for

$500,000 to use our land. It was going someplace where we knew

not. We do not have a clue where they are going to take $500,000,

what they are going to do with it. So the accountability for the,

quote, mitigation, unquote, needs to be addressed.

We have asked the Inspector General of the Department of the

Interior to audit where that mitigation, so-called, goes and to whom

it is paid and probably more importantly, to whom it is not paid

because selective benefactoring of biologists who agree with the

Fish and Wildlife Service we think is rampant.

Mr. POMBO. Thank you.

I would like to recognize Ms. Bono.

Ms. BONO. Thank you, Mr. Chairman.

Before I start, I would first like to thank all of the witnesses who

are here before us and remind us all that each and every one of

them is here because they are respected by their peers. I think

they have something to add to this, and I just want to say I appreciate your being here.

But with that my first three or four questions are for the Reverend, and if I could ask for a simple yes or no in the sake of brevity, I would appreciate it.

In the third paragraph of your statement, you say, ‘‘In our

human arrogance, greed, lust for power, and desire for ownership,

we forget out divinely appointed role.’’

So in reference to that, a simple yes or no, please. Again, do you

own a home?

Rev. MOORE-KOCHLACS. No.

Ms. BONO. You do not own a home.

Rev. MOORE-KOCHLACS. No.

Ms. BONO. So you rent a home?

Rev. MOORE-KOCHLACS. Yes. In a sense, yes.

Ms. BONO. Does your wife own a home?

Rev. MOORE-KOCHLACS. No. It comes with the job.
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Ms. BONO. It comes with the job. Okay. Do you use public utilities?

Rev. MOORE-KOCHLACS. Oh, yes.

Ms. BONO. And you use public transportation, public roads to get

here?

Rev. MOORE-KOCHLACS. Yes.

Ms. BONO. Thank you. I know it’s a simple question, but big to

me.

Moving on to Mark Bragg, I have to be truthful with the audience. I know this developer quite well. He is in my district. I have

driven by this project for 15 years now, and it is something that

when Sonny ran for mayor in 1988, he believed wholeheartedly was

going to be the salvation of Palm Springs. Realizing that tourism

is the number one economic base in the City of Palm Springs, this

gateway to Palm Springs was of vital importance to the continued

growth and, if you would, even rebirth of Palm Springs.

So this is something that I have been interested in watching for

a number of years, and I want to let you all know that beforehand.

This is something that I believe in.

I want to ask Mr. Bragg: excluding the land, how much has this

process cost you?

Mr. BRAGG. Excluding the cost of the land, about six and a half

million dollars.

Ms. BONO. Six and a half million dollars on what?

Mr. BRAGG. Well, we have been dealing with the Fish and Wildlife Service since 1992. We approached them early on in the process

to try and find out what it was that would make sense in our relationship because it was our interest, and it was in our interest, we

thought, to be cooperative with government agencies.

Of course my opinion of that and my advice to other developers

has changed dramatically in the last seven years, but between legal

fees, carrying costs, the cost of continuing our operation, the cost

of redesigning this project four times to satisfy the Fish and Wildlife Service is a significant cost.

We were told in 1996 that if we would eliminate some of the

upper holes on the project that the service would then allow us to

go forward. We went back and spent three months and about

$170,000 redesigning the project and came back to the next meeting with the Fish and Wildlife Service, and they said they had

changed their minds.

So the waste of our resources and the indifference to what the

costs, we have approximately 2,000 small, small investors, many of

whom have their life savings involved in this project, and to have

them treated with such disdain has just been difficult, but that is

the cost to this group of people.

Ms. BONO. Thank you.

Just a simple question. In Palm Springs, throughout the

Coachella Valley, I think we use the symbol, the statue of the bighorn sheep throughout. I think we use it to promote tourism. We

know that it is something that only enhances our area.

Do you believe that if actually there were a proliferation of the

bighorn sheep near your project that it would actually help your

project?
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Mr. BRAGG. Sure. We have done everything we can think of to

do to try and encourage the rebirth, the reemergence of bighorn

sheep as a viable population.

Unfortunately there are so many factors working against them

that have nothing to do with us that we have not done anything.

So it does not have anything to do with us that the population has

declined.

It probably has declined to the point where it may not be salvageable, but that really is not for us. I think that is probably for

the Lord to decide.

Ms. BONO. Thank you.

Thank you.

Mr. POMBO. Mr. Bragg, I reviewed with some interest your letter

that you presented as part of your testimony from Fish and Wildlife Service. We had testimony I believe it was about two months

ago at a hearing in Washington, DC, where Fish and Wildlife Service testified and Department of Interior testified that HCPs and

mitigation were voluntary and that it was the official position of

Fish and Wildlife Service that——

Mr. BRAGG. Is this the U.S. Fish and Wildlife?

Mr. POMBO. Yes.

[Laughter.]

Mr. POMBO. I was somewhat surprised at the time during the

hearing when they testified to that, but it is their official position

that these agreements are voluntary and that individual property

owners, school districts, cities, water districts that enter into these,

voluntarily entering into that, that it is not an extortion, but it is

a voluntary payment.

And in reviewing this particular letter, it appears that they outline how much land you will have to give up, and it also appears

that they give you a range of between a half a million and three

quarters of a million dollars that you will have to pay to them in

order to use your property.

You began to answer this earlier, and I would just like for clarification. Do you know what they were going to do with the half a

million dollars that you would pay them?

Mr. BRAGG. Nothing that I would approve of.

[Laughter.]

Mr. POMBO. What would they do? Do you have any idea?

Mr. BRAGG. I have no idea, sir. This was an arbitrary number

that was arrived at through a mysterious process, and I have no

clue where they were going to send that money.

But if it was voluntary, I respectfully decline.

[Laughter.]

Mr. POMBO. Are you aware of other developments within your

area that have paid similar fees?

Mr. BRAGG. Yes, I am.

Mr. POMBO. Do you know what they have done with that money?

Mr. BRAGG. I have no idea.

Mr. POMBO. Is there anything apparent in terms of activity that

is occurring in your area that would bring the bighorn sheep back

or you have seen them putting in a lot of guzzlers or doing propagation?

Mr. BRAGG. No, absolutely not.
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Mr. POMBO. Or doing anything that is bringing the sheep back?

Mr. BRAGG. Nothing at all.

Mr. POMBO. I am somewhat familiar with the area. I have not

seen your project specifically. I am somewhat familiar with that

area. I do know that a very large percentage of the land in that

surrounding area is government owned currently.

In fact, for the record, over 50 percent of the State of California

is owned by the government, and most of that land is set aside

with a conservation easement of some type under Federal law,

whether that be wilderness, national park, conservation areas. The

vast majority of that land is set aside in some kind of conservation

status, as is most of the land within this entire region.

And it is somewhat troubling that we are here discussing endangered species and you are testifying that you have seen very little,

if any, activity to bring back endangered species.

Mr. BRAGG. There is activity. I do not mean to say that there is

no activity at all. There just is no activity on the part of the U.S.

Fish and Wildlife Service that I am aware of.

Mr. POMBO. Well, that is specifically what I am talking about, is

on the part of Fish and Wildlife.

Mr. BRAGG. From Palm Springs to the Mexican border there is

approximately 10,000 square miles of bighorn sheep habitat that is

largely unpopulated by anyone, including bighorn sheep. There are

only 280 animals remaining of the herd.

Our science says that there is no genetic difference between this

allegedly endangered species that has caused all of this difficulty

now. There is no difference between them and the species that

thrives in other areas of the Southwest.

So this particular herd has been designated as an endangered

herd. It is not an entirely endangered species.

Mr. POMBO. It is a subspecies?

Mr. BRAGG. Well, according to our information and the science

that we have seen, which I think the Fish and Wildlife Service has

chosen not to look at, it is basically the same species, genetically

identical to the rest of the species in the Southwest, perhaps not

all of the Southwest, and there are other species of bighorn sheep

in the Southwest, but this particular one is not literally an endangered species. It is an endangered herd.

Mr. POMBO. That is the word I was looking for, distinct population safety.

Has that information been provided to Fish and Wildlife Service?

Mr. BRAGG. Many times, yes.

Mr. POMBO. Well, thank you.

My time has expired. I want to thank this panel for your testimony, all of you for your testimony. Particularly I would like to

thank those of you that have projects before Fish and Wildlife

Service for your courage of coming forward. I know that it was a

difficult decision for many of you and many of our witnesses that

we will have today whether or not to make the effort to come forward, and I do appreciate you having the courage to come forward

and share your experiences with us.

I am going to dismiss this panel and call up the second page.

Thank you very much.
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Our second panel, Mr. Bruce Turecek, Dr. Dan Silver, Mr. Hugh

Hewitt, and Mr. Michael Spear.

Thank you for joining us. If I could have you all stand and take

the oath. For those of you who are testifying, if you could raise

your right hand.

[Witnesses sworn.]

Mr. POMBO. Let the record show they all answered in the affirmative.

Thank you for joining us today. I think you all heard the explanation of timing and process. Your entire statements will be included in the record.

Mr. Turecek, we will begin with you. Pull the mike right up to

you there. Thank you.

STATEMENT OF BRUCE TURECEK, JACUMBA VALLEY RANCH

Mr. TURECEK. Thank you, Mr. Chairman and members of the

Committee.

I appreciate this opportunity to——

Mr. POMBO. You need to pull it a little bit closer.

Mr. TURECEK. A little closer, yes, sir.

Anyway, thank you for having me here today.

I hope all of you have a copy of the statement that I prepared.

Mr. POMBO. We do.

Mr. TURECEK. First, I did want to mention that it was very difficult for me to be here today because I have been in fear of reprisals and repercussions because my project is still pending, and it

was a choice that I had to make because there are problems, and

I want to see something made right, and that is the reason I am

here, because there are difficulties that do need to be corrected.

I am going to dive right on into a couple of statements that were

made in the documentation of the Fish and Wildlife Service letters

that they have done in response to the environmental impact report that we have prepared, and I want to try to get a point of clarification.

Number one of those statements, in a letter from 1997 is the proposed Jacumba—oh, by the way, I represent the Jacumba Valley

Ranch. I am not a consultant. I am not an attorney. Basically I am

a business manager. Straightforwardly and directly, I am a rancher. I have a 1,250 acre ranch out in the southeast corner of San

Diego County.

One of the first comment letters from Fish and Wildlife Service

is the proposed Jacumba Valley Ranch project will result in the direct loss of native wildlife and their habitats on nearly all of the

1,250 acre site, with likely significant indirect and cumulative adverse impacts to the surrounding area. That was the letter from

1997.

The more recent letter from 1999, the statement is included. The

proposed Jacumba Valley Ranch project will directly impact and

eliminate all of the habitat on site except for the 229.9 acres proposed of natural open space.

In rebuttal to that particular statement, I want to explain exactly what this habitat that they are talking about is, and I did

bring an aerial photograph that I would like to have you have a

look at. I have got a better copy of it here. I did include a short,
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small one in the portfolio that I put together for the members of

the panel.

This is the habitat that they are discussing, and if you will notice, those are plowed agricultural fields.

[Laughter.]

Mr. TURECEK. Okay. Similarly, these are the same fields, 1940.

This is a photograph of the entire ranch, again, era about 1940.

This particular was originally put together as a dairy and constructed in 1927.

Once again, a photograph of 1940. This property has been in

ranching or agriculture. I have been able to date it all the way

back to about 1927, with what crops were grown on which fields

all that period of time.

That is basically what I wanted to point out, back to the statement of we are going to eliminate 1,250 acres of natural habitat.

Mr. HUNTER. Was the entire acreage under farming?

Mr. TURECEK. No, part of it was under grazing. It is probably

600, 650 acres that can be tilled and raise crops. The rest of it is

pasture land. In that it originally was a dairy, there were 500 cows

being milked continuously. Traditionally or historically it was

known as the Mountain Meadows Dairy.

Congressman Hunter kind of beat me to the punch a little bit

earlier, but I did want to point out one other important aspect of

this, and this is the generalized ownership map that was prepared

by SANDAG, San Diego Association of Governments, and what is

reflected is if it has got a color on it, it already belongs to the government or is already controlled by the government.

And what you are seeing here is essentially two thirds of the

eastern half of San Diego County is already controlled by the government.

Now, if you will turn it back around for me one second, I wanted

to point out to the panel my ranch is this little part right here. I

have got the Anzo Borego Desert here. I have got the national forest over here. I have got government lands all around me.

Finally, there is a map or an aerial photograph that I have got

that was actually taken by the Mexican government, and it is an

excellent aerial photograph, and it shows how much natural habitat actually surrounds. All of this is natural habitat. There is my

ranch.

So that is the first problem I have got, is the Fish and Wildlife

Service has mislabeled what my project is. If you are to read their

letter, it sounds like I am going to go out and cut down the Redlands or something like that. I am going to eliminate habitat.

The letters, the way they have put them together, are basically

designed to confuse the issue and weaken the text of the documents that I have submitted, and by weakening it, it makes it

more subject to legal challenge, and I do want to address that aspect of it.

Specifically, and I have included it in my notes, the word that

they have used in their letters of comment, and I have got to find

it myself, is often the word ‘‘inadequate,’’ but they never say what

is inadequate. How many hundreds of hours does it take surveying

this property before it has been adequately done?
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‘‘Likely.’’ They say it likely contains species. However, and this

is a very important point, to date with all of the biological surveys

that have been done on our property, we have no endangered species on our property whatsoever. Therefore, the Fish and Wildlife

Service, if I am not mistaken, has no authority to control us, but

they do not ever acknowledge that. It is keep working; do another

survey. All right. You did a survey for a toad. Well, we have got

new information. They have actually said that: well, there is new

information. We want you to do another survey for a frog or for the

toad. I almost got to the frog. I will get to the frog.

The endangered California red legged frog species was taken

from the vicinity of the ranch back in 1928.

Mr. POMBO. Sir, your time has expired, if you could wrap it up,

please.

Mr. TURECEK. Sure. From the Federal Register, it appears that

the frog is not there. The same thing with other species, yet they

still have not acknowledged that, and they have not acknowledged

that any of the what I feel a qualified biologist who has done this

work is acceptable; yet these biologists are experts in their field.

Thank you.

[The prepared statement of Mr. Turecek follows:]
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Mr. POMBO. Thank you.

Dr. Silver.

STATEMENT OF DAN SILVER, M.D., COORDINATOR,

ENDANGERED HABITATS LEAGUE

Dr. SILVER. Thank you. Good morning, honorable members.

Since 1991, the Endangered Habitats League has been a stakeholder in efforts to protect endangered species and resolve economic

conflicts in Los Angeles, Riverside, San Bernardino, San Diego, and

Orange Counties.

Early on, it became clear to us that project by project application

of the Endangered Species Act, like you have been hearing today

in all of these examples, was ineffective for species conservation

and costly and inefficient for landowners.

We saw this with the California gantcatcher in San Diego, and

we see it today, for example, with the Delhi Sands fly in San

Bernardino. Given the number of threatened species in Southern

California, there has to be a better way, and indeed, there is.

Large scale, multiple species plans, comprehensive habitat plans

are in place today in Orange and San Diego Counties. They are

working reasonably well. Riverside County is moving forward with

theirs.

The benefits to wildlife is obvious. With local government as a

partner, implementation comes much easier. Furthermore, and this

is crucial, these programs allow the public at large to contribute its

fair share to the process.

The benefits to landowners are summed up by the concept of

streamlining. There is one stop shopping for local ordinances, California laws, and the Endangered Species Act. Certainty is an important byproduct.

From the local government perspective, based on the San Diego

experience, the effects of such planning on the overall supply of

housing, commercial, and industrial land is not significant.

Planning is not easy though. Scientific credibility is difficult to

obtain, and negotiation on an individual project basis is unfortunately still necessary for those projects which are well advanced.

Please do not underestimate the difficult of the job the U.S. Fish

and Wildlife Service faces in these instances. Because local governments often have neglected the mandates of the California Environmental Quality Act, the need to avoid or mitigate impacts to

habitat often does come up very late in the process, regrettably so.

And in the absence of ready acquisition funds, the service from our

point of view often tries too hard to strike a balance and errs

against the species and gives away too much.

Environmentalists have been highly critical of the results of

many projects. San Joaquin Hills tollroad, Dana Point Headlands,

Las Montanas, Carmel Mountain, Forster Ranch. I could go on, but

we have found the agency steadfast in these outcomes, despite the

results.

Nevertheless, we recognize the commitment the service has made

to the success of multiple species planning, and my organization

shares that commitment. This is, indeed, the best hope for endangered species, and it also achieves other community goals.
129

Consider Riverside County where we are today. If natural open

space can be maintained between communities, what makes Riverside County beautiful and unique and attractive to residents and

businesses alike will be maintained as future growth occurs. Thus,

from the long term perspective, if we can get over these initial hurdles, there really is no conflict between the Endangered Species

Act, human communities, and economic competitiveness, but indeed, there is a symbiosis.

How can we do better? My first recommendation is for all parties

to emphasize accurate and unambiguous communication. I am

struck by the frequency and seriousness of misunderstandings.

Secondly, the Federal Government, and indeed, it is Congress

that holds the purse strings, the Federal Government needs to step

forward with funding for both agency, staff, and for land acquisition. Substantial acquisition funding early in the process is essential, and leverage is state and local contributions, as well as reasonable private mitigation.

This funding is the single most important thing that you can do

to make preserve creation equitable and successful.

I would like to close by thanking many members of the Committee for your past record of support for habitat planning, for

making these programs in Southern California work. It not only

solves problems, but it is part of the foundation for a high quality

of life in the future.

Thank you very much.

[The prepared statement of Dr. Silver follows:]

STATEMENT OF DAN SILVER, M.D., COORDINATOR, ENDANGERED HABITATS LEAGUE

Honorable Chair and Committee Members: The Endangered Habitats League is

dedicated to ecosystem protection, improved land use planning, and collaborative

conflict resolution. Since 1991, we have been stakeholders in efforts to protect endangered species and resolve economic conflicts in Los Angeles, Riverside, San

Bernardino, San Diego, and Orange Counties.

Early on, it became clear to us that project-by-project application of the Endangered Species Act was ineffective for species conservation and costly and inefficient

for landowners. If one’s goal is to create win-win solutions, such solutions are often

impossible one parcel at a time. We saw this with the California gnatcatcher in San

Diego, and we see it today with the Delhi Sands flower-loving fly in San Bernardino

and Riverside Counties. Given the number of threatened species in Southern California, there has to be a better way.

Large scale multiple species plans, often called Natural Community Conservation

Plans, are in place in Orange and San Diego Counties. Riverside County is moving

forward on theirs. The benefits to wildlife are obvious, as the larger scale of planning allows consolidation of large blocks of habitat and the maintenance of

connectivity. With local government as a partner, implementation becomes far easier. Furthermore, and this is crucial, these programs allow the public at large to contribute its fair share to the process.

The benefits to landowners are summed up by the concept of streamlining. ‘‘One

stop shopping’’ is produced for local ordinances, the California Environmental Quality Act, and state and Federal Endangered Species Acts. Certainty is an important

by-product. From the local government perspective, if the San Diego experience continues, the effects of such planning on the overall supply of housing, commercial,

and industrial land is not significant.

Planning is not easy, though. Not only is scientific credibility challenging to attain, but negotiation on an individual project basis is still necessary for those

projects which are already well-advanced. Do not underestimate the difficulty of the

job the U.S. Fish and Wildlife Service faces in these instances. Because local governments may have neglected the mandates of the California Environmental Quality

Act, the need to avoid or mitigate impacts to habitat comes up late in the process.

In the absence of ready acquisition funds, the Service often tries too hard to strike

a balance, erring against the species. Environmentalists have been highly critical
130

of the results of many projects. To name a few: San Joaquin Hills tollroad, FoothillEastern tollroad, Dana Point Headlands, Fanita Ranch, Las Montaflas, Carillo

Ranch, Carmel Mountain, Forster Ranch. We have found the agencies steadfast in

these outcomes, despite the results.

Nevertheless, we recognize the commitment of the Service to the success of multiple species planning in Southern California, a commitment my organization

shares. Not only is this the best hope for endangered species, but it achieves other

community goals. Consider Riverside County, where we are today. If natural open

space can be maintained between communities, then what makes Riverside County

beautiful and unique, and attractive to residents and business alike, will be maintained as growth occurs. Thus, from the long-term perspective, there is no conflict

between the ESA, human communities, and economic competitiveness, but a symbiosis.

How to do better! My first recommendation is for all parties—business interests,

agency staff, local officials—to emphasize accurate and unambiguous communication. I am struck by frequency and seriousness of misunderstandings. Second, the

Federal Government needs to step forward with funding for adequate agency staff

and for land acquisition. Substantial acquisition funding early in the process is essential, and leverages local and state contributions. This is the single most important thing you can do to make preserve creation equitable and successful.

I would like to close by expressing my appreciation for your record of support for

Southern California habitat planning. It not only solves problems but it is part of

the foundation a high quality future for this region. Thank you.

[Applause.]

Mr. POMBO. Thank you.

Mr. Hewitt.

STATEMENT OF HUGH HEWITT, ESQ, IRVINE, CALIFORNIA

Mr. HEWITT. Thank you, Mr. Chairman and members of the

Committee.

My name is Hugh Hewitt. I am a partner in the law firm of Hewitt & McGuire, with offices in Irvine, California, and Portland, Oregon.

At the outset I would like to thank you for your interest in this

issue. I would also like to recognize and thank you for the efforts

of your staff, which have been professional and thorough, especially

Congressman Calvert’s staff, Linda and Dave, both here in the district and back in Washington. Ms. Meginson, as well, Chief Counsel

to the Committee, has been an extraordinary help to landowners

who are buffeted by the Carlsbad office.

For the past ten years I have practiced in the area of endangered

species law in California, Nevada, and Hawaii. Prior to that time,

I served for nearly six years in the Reagan Administration in a variety of posts, including Assistant Counsel in the White House;

Deputy Director and General Counsel of the National Office of Personnel Management; and General Counsel of the National Endowment for the Humanities.

I have served as a member of the Administrative Conference of

the United States, and I teach at Chapman Law School in the area

of constitutional law and Federal administrative law.

I reference this experience to assure the Committee that I am

not inexperienced in the operation of Federal agencies and the requirements of Federal administrative law. In fact, my frustration

with the Carlsbad office of the U.S. Fish and Wildlife Service grows

out of my understanding of the Federal Administrative Procedures

Act and my belief that Federal agencies are obliged to always act

in accord with its guarantees of openness and procedural fair play.
131

I appear today to urge the Committee to press ahead with its request on the General Accounting Office to understand a systematic

and thorough review of the services of the Carlsbad office. If GAO

undertakes the audit that you have requested, I believe that the

record it compiles will prompt the Congress to address systemic

problems in the administration of the Endangered Species Act.

I would specifically urge you to ask the GAO to consider four

things, among many.

First, the refusal of the Carlsbad office to conduct Section 7 consultation in accord with the ESA regulations promulgated pursuant

to the ESA. The Carlsbad office routinely refuses to initiate Section

7 consultation citing incomplete information. This novel interpretation of law allows the service to deny landowners rapid consideration of the merits of their proposed land uses, while at the same

time placing them in a legal limbo that courts will be hesitant to

review due to the doctrine of the failure to exhaust administrative

remedies.

Second, the promulgation of species, survey guidelines, and protocols without any notice and comment rulemaking. The most recent example of such illegal, and it is illegal, rulemaking is the promulgation of the Quino checkerspot butterfly survey protocols.

Number three, the increasing tendency of the Carlsbad office to

require biologists surveying for listed species in noninvasive ways,

that is, naturally harming, harassing, or touching the species, first

obtain a Section 10(a)(1) permit from the Carlsbad office. These

permits are written so as to require that all survey data generated

on private property be turned over to the service, and they are also

written so as to enable the Carlsbad office to revoke or not renew

the permits of biologists without appropriate judicial safeguards or

checks upon this power. It is the equivalent of an administrative

star chamber, for those of you who are familiar with legal history.

Finally, and just for emphasis purposes—this list could go on for

quite some time—the refusal to process Section 10(a) permit applications in a timely fashion. Lockheed Martin Corporation, for example, a client of mine, filed such an application on May 8th, 1996.

More than three years later, the service has taken no action on this

permit application. It has not responded to repeated phone calls

and letters requesting that it simply process it to a finality even

if that were to be denial. That would perfect our administrative

record.

Now, we all know congressional hearings are useful in generating interest. I have spent some uncomfortable hours in front of

you in various capacities when I was in the Federal Government.

Congressman Sikorsky looms in my mind from the old days, but

genuine reform requires painstaking work of data collection, review, and analysis.

I can recall quite clearly the seriousness and the efficiency with

which the GAO went about its work at OPM when I was its Deputy

Director. I can only hope that the Congress will consider the Southern California region of the service as sufficiently important to

warrant the allocation of major GAO resources here.

As Samuel Johnson said, it concentrates the mind wonderfully

when the prospect of hanging is in front of you.
132

I have some additional materials to submit for your review, and

I have provided copies to the Committee. I am providing only one

specific file, one that my colleague Andrew Hartzell has been handling for a number of years, but that is very illustrative of the

many, many, and I underscore ‘‘many,’’ horror stories concerning

operation of the Carlsbad office.

We believe that it is vital that the GAO be allowed to investigate

carefully such accounts. This one concerns Lauren Development.

The details will shock you.

There are many other similar stories. I compliment you for your

interest, and I thank you for your time.

[The prepared statement of Mr. Hewitt follows:]
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[Applause.]

Mr. POMBO. Thank you.

Mr. Spear.

STATEMENT OF MICHAEL SPEAR, MANAGER, CALIFORNIA/NEVADA OPERATIONS OFFICE, FISH AND WILDLIFE SERVICE,

ACCOMPANIED BY KEN BERG, FIELD SUPERVISOR, AND

SEAN SKAGGS, COUNSEL TO THE ASSISTANT SECRETARY

Mr. SPEAR. Mr. Chairman, members of the Committee, I appreciate this opportunity to discuss how the Fish and Wildlife Service

implements the Endangered Species Act across the country and

specifically in Southern California.

I am joined by Sean Skaggs, Special Counsel to Secretary Don

Berry, and Ken Berg, supervisor of the Carlsbad office.

Let me first reiterate the major point Director Jamie Clark stated at the May 26th hearing in Washington on this issue. The service is working aggressively to improve the efficiency and effectiveness of ESA. The bold reforms we instituted in recent years can

serve the species and provide flexibility and certainty to business

and private landowners.

The service is committed to streamlining and improving the consultation and habitat conservation planning components of the Federal endangered species program throughout the country. We are

working with many partners to develop recovery plans for listed

species.

In addition, we have instituted 256 incidental take permits to

habitat conservation plans and more than 200 HCPs are in some

stage of development. Of these, 55 HCPs are in California ranging

from San Diego, MSCP in Southern California to Pacific Lumber or

Headwaters HCP in Northern California.

Just as we are providing certainty for species and landowners,

we are also insuring that development does not stop because of endangered species. The U.S. economy has never been stronger, and

this is particularly true in Southern California. The American public has demonstrated they want to preserve our natural heritage

while allowing economic development to continue. We are achieving

that goal through the ESA.

To continue making progress in implementation of the ESA, an

increase in funding for an endangered species program is necessary. As of June 30th, 1999, there are 1,186 domestic species on

the list of endangered and threatened species. This represents a 30

percent increase in just five years.

For California, the listed species numbers have doubled in five

years. Consultations, HCPs, recovery work loads increased tremendously as a result of these new listings, and that is specifically true

in California.

The service anticipates that approximately 500 HCPs will be in

some stage of development or implementation by fiscal year 2000.

More than 40,000 Federal projects will be reviewed under Section

7 in fiscal year 2000.

The service’s capability to meet the demand is critical to completing reviews in a timely manner.

The President’s fiscal 2000 budget request for endangered species

is essential to allow the service to provide greater technical assist-
144

ance to private landowners and to expedite consultation and permitting actions throughout the nation.

In California, the need for more resources to provide a timely response to landowners is great. One of the biggest complaints we

hear from constituents, and we have heard it this morning, when

we serve is that the time it takes to get an approved permit is too

long. Time is money for applicants.

We appreciate their needs and try our best to fulfill the growing

demand for technical assistance, permit approval, and information.

However, without increased funding in California and across the

country, people will continue to be frustrated by our inability to respond quickly to their needs.

I urge Congress to adopt the President’s budget request for endangered species for fiscal 2000. The House and Senate Appropriations Committees last week passed Fish and Wildlife Service’s

budget and included some increase for endangered species program

above 1999 levels, but did not provide the increases we requested

in the President’s budget to fully address increased work load demands and the land acquisition needs that are essential for HCPs.

In our May 26th testimony, Director Clark gave a detailed explanation of how the service implements sections 7 and 10 of the ESA

throughout the country. I would like to refer you to my written

statement for a summary of these remarks and examples from

around the country of how we are implementing the law.

I would like to focus the remainder of my time on the Committee’s concerns about California. As of June 30th, 1999, California

is currently home to 260 listed, 18 proposed, and 11 candidate species, many of which are narrow endemics restricted to small remnants of their former range.

The needs of the rapidly expanding human population in California created many resource conflicts. These conflicts are magnified by the booming economy and resulting development pressures.

The service does not believe that conservation of imperiled species and a healthy economy are mutually exclusive. However, the

successful meshing of these two objectives will require the service

to continue working with the business community to develop solutions.

Our hard working service staff in California, particularly Carlsbad, works also closely with the California Fish and Game to provide one stop shopping to the extent possible.

The nature and extent of resource conflict in California challenge

our ability to make the ESA work. It is especially difficult in offices

like Carlsbad where we do not have the staff to meet the demands.

There are many entities seeking immediate assistance in project

planning related to listed species, wetlands, and other resource

issues.

The demands for information and assistance in Carlsbad are

high and likely to increase. We believe that in Carlsbad, as well as

in the rest of California, the only hope is for county-wide type landscape level multiple species plans. Working with local land use authorities, we can do the most for species while local entities deal

with project by project development under a multiple species

framework.
145

In addition to this, the Carlsbad staff is responsible for overseeing the implementation of 20 already approved HCPs covering

1.4 billion acres. In other words, our work has not stopped just in

signing that habitat conservation plan. This involves dedicated

staff working with local jurisdictions to insure timely implementation.

Despite this challenging task, we administer the ESA to the best

of our ability, focusing conservation of the species, but providing for

development.

The Director and I have spoken many times about the concerns

raised by the Committee that we in California administer the ESA

differently than other parts of the country. We have provided testimony and answered questions about this issue many times in the

past and will continue to work with the Committee to clarify and

address your concerns.

I want to reiterate what the Director testified to on May 26th.

The service is intent on administering ESA fairly and consistently

throughout the country. Different needs dictate different solutions.

However, we have a nationwide program, and we intend to implement it in that fashion.

Mr. Chairman, that concludes my prepared testimony. I will be

pleased to respond to any questions.

[The prepared statement of Mr. Spear follows:]

STATEMENT OF MIKE SPEAR, MANAGER OF THE CALIFORNIA AND NEVADA OPERATIONS

OFFICE, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR

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

discuss how the U.S. Fish and Wildlife Service implements the Endangered Species

Act (ESA) across the country and to address the Committee’s concerns that we implement the law differently in California than in other parts of the country.

Introduction

Let me first reiterate the major points Director Jamie Clark stated at the May

26 hearing in Washington, DC on this issue. The Service is working aggressively

to improve the efficiency and effectiveness of the ESA. The bold reforms we instituted in recent years conserve species and provide flexibility and certainty to businesses and private landowners. The Service is committed to streamlining and improving the consultation and permitting components of the Federal endangered species program throughout the country. We are working harder than ever to achieve

species conservation and recovery. We are also improving our efforts to promote and

achieve cooperation, rather than confrontation, when working with the many entities that have a vital role in species recovery.

Over the past 7 years, we have developed partnerships with the States, tribal governments, local communities and individual landowners to provide flexibility and

certainty in the way we administer the ESA. Our reforms are paying off. We are

working with many partners to develop recovery plans for listed species. In addition,

we have issued 256 incidental take permits through 246 Habitat Conservation Plans

(HCPs) and more than 200 HCPs are in some stage of development. Of these, 55

HCPs (65 permits) are in California ranging from the San Diego MSCP in southern

California to the Pacific Lumber HCP in northern California. HCPs are a tool under

the law to provide certainty to landowners while managing species conservation for

the long term. We provided a list of all the approved HCPs to the Committee when

Director Clark testified on May 26.

Just as we are providing certainty for species and landowners, we are also ensuring that development does not stop because of endangered species. The U.S. economy has never been stronger. At the same time, more species are being protected

and recovered than ever before. The American public has demonstrated that they

want to preserve our natural heritage while allowing economic development to continue. We are achieving that goal through the ESA.
146

FY 2000 Budget Request

To continue making progress on implementation of the ESA, an increase in funding for our endangered species program is necessary. As of June 30, 1999, there are

1,186 domestic species on the List of Endangered and Threatened Species; this represents a 30 percent increase in just 5 years. Consultations, HCPs and recovery

workloads have increased tremendously at the same time that the Administration

has been working to streamline and expedite the consultation and HCP processes.

The Service anticipates that approximately 500 HCPs will be in some stage of development or implementation by fiscal year 2000. More than 40,500 Federal projects

will be reviewed in fiscal year 2000. The Service’s capability to meet the demand

is critical to completing reviews in a timely manner. Furthermore, the interest

among private landowners in two new conservation tools, Safe Harbor Agreements

and Candidate Conservation Agreements with Assurances, is already great and is

expected to grow. The demand for these new types of voluntary conservation agreements and the tremendous growth in the number of HCPs has combined to generate

a significant increase in workload pressures.

While trying to deliver all of the Administration’s reforms and to respond to this

increased workload, the Endangered Species Program’s budget experienced a decrease in fiscal year 1996 and only modest increases in fiscal years 1997, 1998 and

1999. The Administration recognizes that increased funding support is essential to

continue our successful record of reform. The President’s fiscal year 2000 budget request for endangered species is essential to allow the Service to provide greater

technical assistance to private landowners and to expedite consultation and permitting actions throughout the nation.

In California, the need for more resources to provide a timely response to individual landowners is great. One of the biggest complaints we hear from the constituents whom we serve is that the time it takes to get an approved permit from us

is too long. Time is money for many applicants. We appreciate their needs and try

our best to fulfill the growing demand for technical assistance, permit approval and

information. However, without increased funding in California and across the country, people will continue to be frustrated by our inability to respond quickly to their

needs. At the May 26 hearing, a common theme from a number of the witnesses

who testified was the need for the Service to have more money to provide better

service.

I urge the Committee to address the needs of your constituents and urge Congress

to adopt the President’s budget request for the Endangered Species program for fiscal year 2000. The House and Senate Appropriations Committees last week passed

the Fish and Wildlife Service’s budget and included general increases for the Endangered Species program above 1999 levels but did not provide the increases we requested in the President’s budget to fully address increased workload demands.

In her May 26 testimony, Director Clark gave a detailed explanation of how the

Service implements Section 7 and 10 of the ESA throughout the country. Let me

summarize her remarks and provide examples.

Section 10

Section 10(a)(2)(A) of the ESA requires an applicant for an incidental take permit

to submit a Habitat Conservation Plan (HCP) that specifies, among other things,

the impacts that are likely to result from the project and the measures the permit

applicant will undertake to minimize and mitigate such impacts. One of the statutory requirements for obtaining an incidental take permit is that applicants minimize and mitigate the effects of their actions to the maximum extent practicable.

Section 10(a)(1)(B) of the ESA outlines the other criteria and process for issuance

of incidental take permits to non-Federal parties.

Minimization and mitigation requirements can take many forms depending on the

habitat needs and status of the species, and the size and scope of the project. Because applicants come to us with many types of projects that vary in size, scope and

impact, and because we try to be flexible in meeting the needs of applicants, we

don’t use a cookie cutter approach in developing HCPs. The law does not specify

HCP minimization or mitigation standards but gives the Service the flexibility to

work with applicants to develop the best plan appropriate to the project. Minimization and mitigation can include restoration and creation of habitat, preservation of

habitat, research, and/or public education programs.

For example, part of the mitigation associated with the Washington County, Utah

HCP includes fees to acquire and manage land and implement an education program regarding desert tortoise conservation. The Service uses the best scientific information available during the development, review, and monitoring of HCPs and

ensures that the minimization and mitigation strategies of a plan are as effective

as possible. This is reflected in the Service’s new 5-point policy proposal for HCPs
147

that improves the process even further. Our purpose is to help the applicants comply with the law and conserve listed species while allowing development to occur.

We’ve done that successfully throughout the country.

There are a number of tools or strategies that landowners may use to minimize

and mitigate the impacts of their actions. In the southeast, International Paper is

establishing a mitigation bank as part of their red-cockaded woodpecker HCP. International Paper will actively manage approximately 5,300 acres of habitat for the

red-cockaded woodpecker and has established a target population of 25–30 redcockaded woodpecker family clusters. If the number of family clusters exceeds the

number necessary for implementation of the HCP, International Paper will use

those family clusters to support a private mitigation bank.

Individual HCPs for the Florida scrub jay in Brevard County, Florida typically

contribute to a larger preserve strategy and a management endowment based on the

scope of the proposed project area. By providing applicants with this type of option

of contributing to a large preserve strategy, the effort into developing and implementing their HCP is greatly simplified, without on-going responsibility for habitat

maintenance.

The Service provides assistance and support to applicants who are seeking an incidental take permit under the ESA. In many instances, the Service helps the applicant identify the actions that the applicant needs to undertake to reduce or offset

adverse effects of a proposed activity on the species covered by the HCP. The Service encourages applicants to discuss their applications at the earliest time possible,

so that we can help them design an HCP that will meet the permit issuance criteria

and advise them on the permitting process. However, regardless of the extent to

which an application incorporates Service input, if the application meets the

issuance criteria, we will issue a permit.

Section 7

Section 7(a)(2) requires Federal agencies to consult with the Service to ensure proposed Federal activities are not likely to jeopardize the continued existence of listed

species or result in destruction or adverse modification of critical habitat. The Service encourages Federal action agencies to work with us early in the project development phase to ensure that discussions about the potential impacts of a Federal

project or permit on listed species are addressed. In this way, we are able to identify

potential problems and solutions without delaying projects unnecessarily. The action

agency is responsible for determining the effects of a proposed action. If they determine that the action is not likely to adversely affect threatened and endangered species and the Service concurs in that determination, the section 7 obligation is fulfilled. In fact, during fiscal year 1998, 97.2 percent of the consultations across the

country were completed at the informal stage (i.e., the proposed project was determined to have no effect or not likely to adversely affect).

When a proposed project is likely to adversely affect listed species or critical habitat, the Service and an action agency enter formal consultation. During formal consultation, the action agency and the Service may work together to identify what

steps may be incorporated into a proposed project or into the biological opinion to

minimize effects on listed species or critical habitat. These steps are often minor adaptations to the project that the action agency and the applicant are willing to undertake in order to reduce the harmful effects, and in some cases provide benefits,

to listed species. Action agencies and applicants often refer to these modifications

as ‘‘mitigation.’’ This is especially true when agencies and applicants are also complying with other statutes, such as the Clean Water Act and the National Environmental Policy Act, where mitigation is a key requirement. In this context, the term

‘‘mitigation’’ is broadly applied to include avoidance and minimization of adverse effects to listed species or critical habitat. Unfortunately, this has led to confusion

over the difference between minimization and mitigation under section 7 of the

ESA.

Mr. Chairman, let me clarify for the Committee that when working through the

formal consultation process with the action agency and the applicant it may appear

that the project will jeopardize a listed species early in the talks. When this occurs,

we work with the action agency and applicant to identify changes to the proposed

project that would avoid jeopardy. Alternatively, the action agency or applicant may

develop their own measures to avoid jeopardy. If these or other appropriate changes

are incorporated into the project, we then issue a non-jeopardy opinion. In most

cases this process works well and is the best approach to ensure that the project

proceeds in a timely manner and without significant adverse effects on the species.

For example, the Prairie Du Chien consultation in Region 3 analyzed the proposed

maintenance and on-going operation of the east channel of the Mississippi River (a

side channel used for commercial barge traffic). Due to those impacts, we deter-
148

mined that the indirect effect of commercial barge-traffic would result in jeopardy.

The Army Corps of Engineers and their applicant were involved with developing

project changes, and as a result, the project was modified such that jeopardy was

avoided. The Army Corps of Engineers and applicant were supportive of the results.

When preparing a biological opinion, the Service is required by the ESA and its

implementing regulations to include an incidental take statement that specifies reasonable and prudent measures and implementing terms and conditions to minimize

the impacts of incidental take. Our Interagency Consultation Handbook clarifies

that reasonable and prudent measures and implementing terms and conditions

must minimize effects to the specific individuals that we anticipate will be incidentally taken and must not involve mitigation for the impacts of any anticipated take.

The Service is committed to ensuring that we follow the policy direction in our

handbook.

Demands in California

Already the most populous state with over 36 million residents, or one out of

every eight people in the United States, California continues to grow at an unprecedented rate. Reasonable estimates expect an additional 18 million residents by 2025.

Much of the growth is expected to occur in southern California, which now has five

of the six most populous counties in the nation, four of which are also the fastest

growing. As one of the most ecologically diverse areas in the country, California is

also home to a high number of unique species. Twenty percent of all federally listed

species are found in California, more than any other state except Hawaii. Conserving California’s natural resources, while accommodating the projected population growth, will require planning and cooperation.

As of June 30, 1999, California is currently home to 260 listed, 18 proposed, and

11 candidate species, many of which are narrow endemics restricted to small remnants of their former range. The needs of the rapidly expanding human population

in California have created many resource conflicts. These conflicts are magnified by

the booming economy and resulting development pressures. The Service does not believe that conservation of imperiled species and a healthy economy are mutually exclusive. However, the successful meshing of these two objectives will require the

Service to continue working with the business community to develop creative solutions. Our hardworking Service staff in California work closely with California Fish

and Game to expedite the permitting process to the extent possible and have approved an assortment of conservation programs and banking agreements that ensure conservation of listed species while allowing development projects to proceed.

The nature and extent of resource conflicts in California challenge the Service’s

ability to make the ESA work. This challenge is especially difficult in offices like

Carlsbad where we do not have the staff to address the demands from the many

entities seeking immediate assistance in project planning related to listed species,

wetlands and other resource issues. The demands for information and assistance in

the Carlsbad office are high and continue to increase. For example, in 1998, the

Carlsbad office worked on 57 formal consultations; provided 205 informal consultations/technical assistance responses; prepared documents for the listing of 7 species

(6 plants and 1 mammal); issued 3 incidental take permits; finalized 6 candidate

conservation agreements; and prepared draft recovery plans for southern maritime

chaparral species, peninsular bighorn sheep, carbonate endemic plants, Stephen’s

kangaroo rat, and alluvial fan scrub species. In addition, Carlsbad staff are responsible for overseeing the implementation of 20 approved HCPs covering 1,367,946

acres. This involves dedicating staff to work with local jurisdictions to ensure timely

implementation of the HCP. Despite this challenging task, we administer the ESA

to the best of our ability, focusing on conservation of species but providing for development to go forward.

The Director and I have spoken many times about the concerns raised by the

Committee that we in California administer the ESA differently than in other parts

of the country. We have provided testimony and answered questions about this issue

many times in the past and will continue to work with the Committee to clarify and

address your concerns. I want to reiterate what the Director testified to at the May

26 hearing; the Service is intent on administering the ESA fairly and consistently

throughout the country. Different needs dictate different solutions; however, we

have nationwide ESA implementation policies and we intend to implement them

fairly nationwide.

We regret that we may have inadvertently and inappropriately confused members

of the Committee or the public by using terms like ‘‘mitigation’’ in the context of

ESA when we should have used the narrower definition of minimization which is

required under Section 7 of the law. Again, this confusion may be the result of the

Service working closely with the State of California and other Federal agencies to
149

provide a streamlined process for applicants to receive Federal and State permits

where other Federal and State laws requiring different standards and actions apply.

These various Federal laws, such as the Clean Water Act and the National Environmental Policy Act (NEPA), often use the word ‘‘mitigation’’ and involve review and

coordination from the Service. We appreciate that addressing the various requirements of the Clean Water Act, NEPA, and ESA can be complicated and be a source

of misunderstanding between applicants and the Service. For example, wetland

mitigation under section 404 of the Clean Water Act may also provide conservation

benefits for listed species that occupy wetlands. Regardless of the reasons for our

use of the wrong term, let me assure the Committee that we will redouble our efforts to be more accurate in our use of the correct terminology and to ensure that

we do our part to provide the fair and consistent implementation of the ESA that

the Director has promised.

In closing, Mr. Chairman, the Service is making great efforts, with limited resources, to ensure that implementation of the ESA is scientifically sound, flexibly

applied, and consistently enforced throughout the country. The Service, under this

Administration, has endeavored to fairly protect landowners’ interests in their land,

while providing incentives to manage their lands in ways that benefit endangered

species. The Service is fully committed to finding this balance between economic development and endangered species protection. Finding that balance requires early,

open discussions between all parties involved in order to mesh the two needs, either

through section 7 or section 10. I am confident that with full implementation of the

Administration’s reforms, the Endangered Species Act will continue to protect the

most vulnerable biological resources of the Nation without imposing undue burdens

on individual citizens.

Mr. Chairman, this concludes my prepared testimony. I would be pleased to respond to any questions you might have.

Mr. POMBO. Thank you.

Mr. Calvert.

Mr. CALVERT. Thank you, Mr. Chairman.

Mr. Spear, we have heard from a lot of witnesses today, and we

are going to hear from a few more, and I think you can tell from

the diverse nature of these folks, public agencies, school boards, developers, elected officials, it seems they all have a problem with the

Carlsbad office.

Do you believe there is a problem there? Do you think there is

a pervasive problem with the policies and practices of that office?

Mr. SPEAR. No, I do not believe there is a pervasive problem with

the policies and practice of the office.

Mr. CALVERT. So it would be your opinion that the witnesses that

are here today, both public and private, and the scores of others

who are not here, are just exceptions to the rule?

Mr. SPEAR. No, I think they have raised concerns that I think we

must be attentive to, but what I am saying is that it does not represent some sort of pervasive problem. The Carlsbad office works

hard to deal with the issues with the resources it has, and there

is no doubt that within all it is difficult to administer the Endangered Species Act, that it affects private property; that these kinds

of issues are going to surface. There is going to be disagreements

over science. There are differences over terms of process.

Mr. CALVERT. Just regaining my time, let’s talk about science. If

you notice in the panel we have here today, we do not have any

biologists. We could not get one biologist to agree to testify today.

We asked a number of biologists. I do not know. The Chairman

may have a number in mind, seven, eight, nine. I don’t know. A

number which would have liked to testify. They claimed that they

had a fear of retaliation as one of the main reasons why they would

not testify at today’s hearing.
150

Do you think there is a retaliation problem in the Carlsbad office?

Mr. SPEAR. Absolutely not, and frankly——

[Laughter.]

Mr. SPEAR. [continuing] one of the comments that concerns me

the most, and I, frankly, welcome the Committee in their comment

this morning that said they would continue to be observant in this

fashion, and so will I, and if it is ever detected, it will be dealt

with.

Mr. CALVERT. And I am an old employer, in business most of my

life. I like to think any phone call I get I return it the same day.

It is just something my father taught me when I was in business.

If I did not do it, he would probably fire me, even though he is my

own father, and I would like to think that with my own employees.

You know, if somebody calls, you return the phone call, even if you

are going to get back to them the next day and you do not have

a lot of time, but you return the phone call.

And you treat people courteously, especially if we are a Federal

agency. This is something that really bothers me. If that is a problem in that office, that ought to get fixed because when I heard

that from one of the witnesses today, and I have heard that before,

Mr. Spear, so I think you ought to look into that and make sure

that the taxpayers and constituents of all of us are not being treated unfairly or without all due courtesy.

Mr. SPEAR. That is a very fair comment, Mr. Calvert, and I am

guilty of that I know at times, and I take that as very appropriate

and something we will work on.

Mr. CALVERT. Now, you heard the testimony of the previous witness here today, Ms. Rosen, about the school site there in Murrieta,

and Murrieta is a city that I represent, and obviously I am very

concerned about Murrieta, about 250 acres of land. They get a biologist. They say 70, 80 acres is habitat, and Fish and Wildlife wants

the entire 250 acres of property. Do you think that is reasonable?

Mr. SPEAR. I do not think it is reasonable, and I do not think

that is what we said. I got a briefing on this yesterday. There is

no doubt that this school site is in an area which is an important,

as far as a corridor, but I——

Mr. CALVERT. Okay. Are you saying—Ms. Rosen is here today,

made a comment, and I asked her. She made her testimony, and

I asked the question again. Is 250 acres required? And she said

yes. Are you saying that Ms. Rosen is not being truthful to this

Committee?

Mr. SPEAR. I do not understand exactly what happened or the

context.

Mr. CALVERT. I would say at the very least we have a communication problem here.

Mr. SPEAR. I would say that is true. This is under negotiation

now. My people were telling me yesterday how they are trying to

work out. Clearly, the original plan that was presented was one

that our people thought contained too much development on that

site, but it is not my impression now from discussions I had yesterday that our people are seeking the whole 250 acres.

Mr. CALVERT. Well, how much do you want? Do you want 200

acres?
151

Mr. SPEAR. I do not know the exact number. They are trying to

work out so we can have the school site. I am not here to have that

level of detail to know exactly what that number is. I mean, my

staff is dedicated——

Mr. CALVERT. Just between you and I——

[Laughter.]

Mr. CALVERT. [continuing] do you think 200 acres is unreasonable?

Mr. SPEAR. I do not think this is a good place to negotiate numbers.

[Laughter.]

Mr. CALVERT. Thank you, Mr. Chairman.

Mr. POMBO. Ms. Chenoweth.

Mrs. CHENOWETH. Thank you.

Mr. Spear, by law Fish and Wildlife Service has 90 days to respond to petitions to list or de-list a species; isn’t that correct?

Mr. SPEAR. Yes, it is.

Mrs. CHENOWETH. Well, Riverside County Farm Bureau filed a

petition to de-list the kangaroo rat in 1995. They received absolutely no response on that, and you are sitting here telling this

body of Congressmen there is no problem, and this is just one example.

What do you have to say for yourself?

Mr. SPEAR. We have a listing priority guidance which we follow.

Mrs. CHENOWETH. I thought the law said 90 days.

Mr. SPEAR. Well, we have established the listed priority guidance.

Mrs. CHENOWETH. So your listing priority guidance overrules the

law?

Mr. SPEAR. I will let the people in Washington who deal with the

regulatory process determine exactly how that worked out, but

there is a listing priority guidance that we have established

through the regulatory process that sets the standards. We work

with the courts as to how when we have limited funds we will work

through the listing process.

Mrs. CHENOWETH. Limited funds? Comes on now. I mean, there

is a major disconnect here, Mr. Spear, and you have heard startling

testimony just as we have. I came into this hearing feeling fairly

sanguine that this would be like any other of the number of hearings Mr. Pombo has held on the Endangered Species Act.

As I sat here and listened to the testimony, I became utterly

frustrated and shocked at what I am hearing. You heard the same

thing.

[Applause.]

Mrs. CHENOWETH. Do not give this body an answer that you need

more money. What about the 43 biologists, some of whom may be

having bumper stickers on their cars that say, ‘‘Developers Can Go

to Hell’’? What do you have to say about that kind of activity on

government property? Mr. Spear?

Mr. SPEAR. I do not know that the allegation indicated that that

was on a government vehicle, but——

Mrs. CHENOWETH. Then you did not hear Congressman Hunter

then.
152

Mr. SPEAR. I did not hear him say it was on a government vehicle. I do not.

Mr. HUNTER. Would the gentle lady yield?

Mrs. CHENOWETH. Yes, I will yield.

Mr. HUNTER. The photo that was taken of that bumper strip,

that was on one of the government employees who works in the

Carlsbad office on their car that they drive to work. So my point

was if you are a veteran and you are going into the Veterans’ Administration and you see Joe Smith’s car and he is going to be your

case worker and he has got a bumper strip that says ‘‘Veterans

Can Go to Hell,’’ you probably cannot expect great service from

that particular individual.

And so if the gentle lady would yield, do you think that is a proper attitude for a government employee whose job is to process these

permits?

Mr. SPEAR. I will answer the question. I just wanted to clarify

that I did not think that was on a government vehicle, but——

Mr. HUNTER. No, it was on a private car of a government worker.

Mr. SPEAR. I will get to the specific question and answer your

question. No, I do not think it is proper in terms of the image it

sends and for exactly the reasons you have outlined.

I am not sure what I can do about it other than pass on to the

fact that it is inappropriate because of people’s, you know, private

rights.

Mr. HUNTER. Well, we did not offer it for the purpose of getting

rid of the bumper strip. They took it off when they saw that somebody had photographed it and was taking a record of it.

The point is the attitude that it represents is something that I

think, Mr. Spear, you do not acknowledge exists, and you might

look a little deeper.

Mr. SPEAR. I think it is improper, and I will—I agree with you

on that.

Mrs. CHENOWETH. Reclaiming my time, Mr. Spear, you asked us

for more dollars, but let me say it does not take more dollars to

return a telephone call, and I think you have a major mess on your

hands in this Carlsbad office. It is peopled by people——

[Applause.]

Mrs. CHENOWETH. [continuing] like the 43 biologists who have no

respect for not only the rule of law, but the people that they are

entrusted to work with, no respect, no common sense, and what we

are seeing come out of this office is chaotic.

I do want to say, Mr. Chairman, if I might just ask for a couple

of minutes, unanimous consent for an additional two minutes.

Mr. POMBO. Without objection, the gentle lady requests two additional minutes.

Mrs. CHENOWETH. In some correspondence from Jamie Clark,

April 10th, 1998, out of concern that we have had all along for the

mitigation that the Fish and Wildlife Service has been involved in,

that letter from your Director states, ‘‘While it has been the policy

of the Service that it is not appropriate to require mitigation to offset incidental take, it was not explicitly stated in the 1994 Section

7 consultation handbook. Because the Service is aware that there

occasionally has been an inconsistent application of this policy, it

clarified the policy in its recently approved endangered species con-
153

sultant handbook. The Service’s new handbook clearly states that

it is not appropriate to require mitigation for the impacts of incidental take.’’

And incidental take takes many forms, setting aside lands or restricting activities, and so forth, but also in a Supreme Court decision that came out of Oregon, Dolen v. Tiger, the Supreme Court

held that governmental authority to exact such a condition as taking from developers was circumscribed by the Fifth and 14th

Amendment.

Under the well settled doctrine of unconstitutional conditions the

government may not require a person to give up a constitutional

right, here the right to receive just compensation when property is

taken for a public use in exchange for a discretionary benefit conferred by the government, where the property sought has little or

no relationship in its benefit.

And now we have moved from 1998 to 1999, where in this office

alone, they are imposing 31 regional HCPs, and one of the reasons

that they are imposing the HCPs is to serve as a mechanism to address over arching social concerns, such as urban sprawl, transportation congestion, and open space planning, while enabling jurisdictions to keep their ESA obligations.

It seems to me that this agency has suddenly taken upon itself

to become the nation’s land use planners, and this authority was

never conferred on this agency by Congress.

Yes, there is a major disconnect, and my major concern is that

in spite of what the Constitution says, in spite of what even your

handbook says, your agency continues to impact good, sound development with unreasonable requirements and requiring them to

give up land in exchange, in mitigation.

Henry Hyde said in his closing debate in the impeachment debate on the floor of the House that when we disregard the rule of

law, it is a national tragedy, and it is up to us to catch that falling

flag in time before we have utter tyranny and chaos.

And, Mr. Spear, these agencies are running this country without

a rule of law, and we are going to be running in to tyranny and

chaos, and I do not think you want to end your long and distinguished career with that kind of legacy.

We would ask that you get connected to what is happening in

your Carlsbad office and make the necessary corrections in spite of

what may be the politically correct thing of the day. The Fish and

Wildlife Service and the relationship of agencies to the people need

to go on in a manner that is productive and not destructive.

Thank you.

[Applause.]

Mr. POMBO. Mr. Miller.

Mr. MILLER. No questions.

Mr. POMBO. Mr. Hunter.

Mr. HUNTER. Thank you, Mr. Chairman.

Mr. Spear, thank you for being with us, and I think it is good

that you are appearing on the panel with some of our folks that

have had some of the problems because it allows for a real connection.

First, when we last had a meeting in Washington, DC, you told

me that this butterfly breeding season for the Quino checkerspot
154

butterfly would serve as a model for that particular survey protocol. Has that direction been given to the local folks?

Mr. SPEAR. I am not sure I quite understand the question.

Mr. HUNTER. Well, remember you explained to you and you said

there was concern in the field that at that time there had not been

enough rain up by the March or April time, for this to serve as a

model for the breeding season for the checkerspot butterfly, but

that your determination was that it was.

In fact, we had had some rain recently when we were meeting

here, and that was that this would be the model. They would not

have to wait for another year before they could do a survey.

Mr. SPEAR. When we spoke back then, it was at the beginning

of the season. The question back then was not whether or not it

was going to be the only year, but whether or not you would count

this year, and, yes, we did.

Mr. HUNTER. Yes.

Mr. SPEAR. We were able to get a year in this year. We did have

the appropriate seasonal conditions and were able to do the surveys this year, yes.

Mr. HUNTER. Okay. Let me ask you a couple of questions with

respect to Mr. Turecek’s project because I think it is representative.

The information I have here is that he, and, Bruce, break in if

I am wrong here, but you have done three separate biological surveys now that were required by the Fish and Wildlife Service. Do

I take it you did those with people who were well credentialed and

qualified biologists to do the surveys?

Mr. TURECEK. All of them permitted biologists.

Mr. HUNTER. How much did you spend on those surveys?

Mr. TURECEK. Up until 1996, the surveying took about $50,000

specifically just for the biologists.

Mr. HUNTER. Okay. Now, when you did those surveys, the last

survey you did was the result of an eight page critique of the survey before that by Fish and Wildlife. So they did a critique of the

survey and said, ‘‘Here are the additional things we want you to

look at’’; is that right?

Mr. TURECEK. Unfortunately they did not do a critique. We requested a critique. All they gave was another three page complaint

letter.

Mr. HUNTER. Okay.

Mr. TURECEK. However, I did have another biology firm that

went out for approximately another $13,000 to resurvey the property. Following that, it required also an additional survey for the

Quino checkerspot butterfly. That was an additional $18,000 on top

of all the rest of that.

Mr. HUNTER. Okay. Have they ever found any endangered species on that property?

Mr. TURECEK. Never. I do have the butterfly adjacent to the

property next door, and I do have a food source for the larvae on

the property that I have dedicated off into open space. We planned

for that to be an open space from the beginning.

But as far as endangered species on the property, no.

Mr. HUNTER. Okay. Mr. Spear, I think this is one of our problems. Here you have got a landowner. He is a rancher. He has got,

I presume, a limited amount of capital. He has put out a lot of
155

cash, $50,000, to do three surveys, each of which is rejected by Fish

and Wildlife even though they are done by credentialed biologists.

They have never found any endangered species, and you tell us you

need more money.

Well, they have apparently spent a lot of staff time figuring out

reasons to reject Mr. Turecek’s request, and don’t you feel that we

are not bringing these cases to closure in a reasonable way? I mean

that would be my instinctive reaction to listening to this chronology

of surveys.

And, Mr. Berg, if you can enlighten us, please jump in, too. We

are not restricting it to Mr. Spear to answer the questions, but do

you see what we are talking about here?

Mr. SPEAR. Mr. Hunter, I think this is a good example we need

to spend a couple of minutes on because whether or not this is a

failure of communications as brought out earlier, there is a real

misunderstanding of exactly what has happened so far in this

project.

First of all, there have been no Federal permits applied for at

this stage. What has happened is the state and Federal resource

agencies, Fish and Game and Fish and Wildlife Service, provided

joint comments like we try to do so that we get up front a comment

about what it is we believe needs to be stated in the documents to

provide us the information to make the decisions. Okay? So that is

where we are.

Nobody has said that this was—let me read something in here

that talks to something that was brought up by Mr. Turecek.

Mr. HUNTER. But first on that point, let’s get this straight. Mr.

Turecek wants to develop his land. So if he is doing these things

gratuitously and he could just start building homes, I am sure he

would love to do it.

Mr. SPEAR. Oh, he is doing the right thing.

Mr. HUNTER. All right.

Mr. SPEAR. But this is—let me just go——

Mr. HUNTER. But let me hold you up here because this is an important point. People being able to in an affordable way develop

their property is an important factor here. You are saying he has

spent 50 grand so far doing three surveys, and he has to do it before he can make the applications. I presume this guy is not made

out of money, and my instincts are he probably will not have the

legs or the financial endurance to get through this process, and I

think part of your job is to make this process a reasonable one

where average people with some money—I mean he has gone out

and borrowed 50 grand and gotten it from someplace just to start

the project—where average Americans can get through this process

without being bankrupted.

We never intended, we never said in the Endangered Species Act

we want you to set up a regulatory process that will bankrupt the

average citizen before he can get through. You agree with that.

That is not part of the law.

Mr. SPEAR. I agree.

Mr. HUNTER. And I think that part of the problem that we have

here is that we have not made this thing user friendly where average folks can get through it. Don’t you agree with that?
156

Mr. SPEAR. Well, we have to have the information to be able to

make a determination about the species that are listed.

Mr. HUNTER. But he has made three surveys.

Mr. SPEAR. Yes.

Mr. HUNTER. And each one has been rejected.

Mr. SPEAR. I do not think that is the case that we have rejected

them.

Mr. HUNTER. But why has he——

Mr. SPEAR. I guess I will let Mr. Berg speak at this stage about

the details of that. I would like to get back to a couple of other

points.

Mr. HUNTER. Okay.

Mr. BERG. My name is Ken Berg. I am the field supervisor for

the Carlsbad Fish and Wildlife office.

It is my understanding that Mr. Turecek is applying through the

county for a development permit that requires that he also prepare

an environmental impact report under the California Environmental Quality Act. Our comments and the comments of the California Department of Fish and Game have been provided to the

county so they can do the environmental disclosure through the

California Environmental Quality Act.

One of the issues that needs to be addressed under the California

Environmental Quality Act is the presence of endangered species

habitat. So our technical assistance has been trying to assist Mr.

Turecek and the county in assuring that the environmental documentation is adequate to disclose the potential environmental effect of his proposed development on endangered species.

And one of the things that is necessary to do a thorough job so

that Mr. Turecek and the county is not vulnerable to citizen lawsuits about failure to comply with the California Environmental

Quality Act is that he does adequate surveys for endangered species to determine whether or not they are present.

Mr. HUNTER. Mr. Chairman, I know we are going over our time,

but this is the only case I am going to want to direct my comments

to. Could I ask for a couple more minutes here just to follow this

up and get to the bottom line here?

Mr. POMBO. Without objection.

Mr. HUNTER. Thank you.

Mr. Berg, as I understand it, he has got to get a basically clean

bill of health, if you will, from Fish and Wildlife, and, Bruce, jump

in if you want to here, in order to get permission to build from the

state subdivision, which is the county; is that right? In other

words, he is not doing this for fun. He is——

Mr. BERG. We give advice to the county. The county does not

have to follow our advice.

Mr. HUNTER. But they do.

[Laughter.]

Mr. HUNTER. But my point is as a practical thing, he has to get

a clean bill of health from you guys before the county—the counties

will put as a condition you have got to pass the environmental or

Endangered Species Act requirements before they are going to give

him a permit.

He is not spending this 50 grand because he wants to. He is

doing it because he has to, right?
157

Mr. BERG. He is doing it because the county is requiring that

provide——

Mr. HUNTER. I understand.

Mr. BERG. [continuing] further documents.

Mr. POMBO. If the gentleman would yield, that is not exactly accurate. According to a Supreme Court case, the county can be held

liable if they do not follow the advice of Fish and Wildlife Service.

So for you to say that they are not——

[Applause.]

Mr. POMBO. And furthermore, if this gentleman has no endangered species present on his property, he does not need a Section

10 permit. What he needs to do is do the biological survey to determine whether or not he has endangered species on that. It is your

responsibility to review those biological assessments, determine

whether or not they are adequate. If they are adequate, then you

give him a clean bill of health and say he does not have endangered species on his property, and he does not need a Section 10

permit.

So you cannot use the law and use the county and use everything

that is put in front of you to delay a project and put this gentleman

in the position where he spends millions of dollars in order to meet

your criteria and then stand back and put your hands up and tell

this Committee that you had nothing to do with it.

[Applause.]

Mr. HUNTER. Well, now, Bruce, where are you right now on this

thing?

Mr. TURECEK. By the way, I wanted to clarify. The first survey

was $50,000, and there is at least another $25,000 beyond that.

The problem I have is that the letters and the communication I

get back always uses words ‘‘inadequate,’’ and never tells me why

it is inadequate. If it is inadequate because of minimum number

of hours or qualifications of my biologist, whatever makes it inadequate, my question is I want to find out why. I want to get to a

completion. They never allow me to get to that completion.

Mr. HUNTER. Okay. Now, Mr. Spear, because I want this to be

a constructive session, and I know you do, too, here is the problem.

We have got an average citizen of the United States. He is not a

big corporation which a lot of the environmental folks talk about.

He is just a guy that has got some land out there in his county,

and he has got a right to use his land. Presumably he has paid

taxes on it. He has paid his mortgages. He has gone through rough

economic times. He has got a piece of property in America, and he

wants to use it.

We have a structure that is built up so that he has not even gotten into the initial permitting process yet, and he has already

spent $75,000. So what you are saying is we have built a structure

that the average person cannot afford. That is not right.

And what is not right, I think there is some fault here, Mr. Berg.

If you have a system where an average guy cannot walk in and

say, ‘‘Tell me what I need. Tell me what I need. Sit down with me.

Show me what I have got to do,’’ and you cannot show him in a

streamlined fashion, and this obviously is not an endangered species rich piece of property because you have never found a single
158

one out there, but if you cannot show him for less than 75 grand

what he needs to know, then the system is broken.

If that was your aunt and she had willed this property to you or her resources to you and she only had $75,000 in her pocket and

you walked out and said, ‘‘Aunt, how is my inheritance going?’’ and

she said, ‘‘Mr. Berg, I just gave it all to the biologists and yet we

are not even a third of the way through the reports,’’ you would be

as mad as heck.

And so I think, Mr. Spear, we have to develop a system that is

user friendly for average Americans who own property to go down

and learn in common language what they have to do and have the

system a reasonable enough system so that you can get through it

without having to make multiple reports, especially when you do

not have the first endangered species found.

Don’t you agree with that?

Mr. SPEAR. Mr. Chairman, we——

[Applause.]

Mr. SPEAR. Mr. Hunter, we do need to make it, and we certainly

owe applicants not only the issue of what is needed in a survey,

but also when something is provided and we have a problem, to be

able to explain to him how to fix it. That technical assistance function is clearly ours, and we need to do it.

There is a cost to being able to go through the survey processes

in an endangered species rich area like Southern California. There

is a cost to get this kind of information. I do not want to indicate

to you today that we can figure out how to eliminate those costs.

We need to make them as efficient as possible, et cetera, but in the

environment we have down here, there is a certain amount of information that we need to get, and we need to figure out how to help

people get that as easy as possible.

Mr. HUNTER. Well, I understand. I agree, but in this case, we

have not found a single one of those species on his property. So it

is not——

Mr. SPEAR. Well, a survey is to determine that.

Mr. HUNTER. Well, Mr. Berg, can we make another stab at this

Mr. Turecek’s operation here? I would like to——

Mr. BERG. It is my understanding that we had explained to him

the kind of surveys that would be adequate, but if he—if we have

not done that adequately, we will get back.

Mr. HUNTER. I would just ask that you engage with my constituent and give him the time and the attention so that he as an

average citizen can learn how to walk through this process without

bankrupting his family. If you could do that, I would appreciate it.

Thank you, Mr. Chairman.

Mr. LIBEU. Mr. Chairman, may I have just one minute? Just one

minute.

Mr. POMBO. I will give you a minute of my time. Go ahead.

Mr. LIBEU. The problem that I have with the way that they have

responded to my letters is now their letters have been used by others to generate comments letters to put me literally at suit, to sue

me. In other words, now others are taking their letters as a basis

and attempting to setting up the preliminary steps to put me at

legal challenge. That is the problem I have with their letters.

Mr. POMBO. Mr. Spear, would you respond to that, please?
159

Mr. SPEAR. Yes, Mr. Chairman. This is a real Catch-22.

[Laughter.]

Mr. SPEAR. If we provide clear technical assistance and letters in

response, try to give the information and provide them the assistance with the kind of detail and support, then you get the kind of

problem perhaps that he is talking about.

If you make them fuzzy so that they are unusable, then they are

not helpful to him, et cetera. So I think this is a letter early on

in the process, not a Federal process, under a state process, where

we join with the state to provide the information as early as possible so that we are not coming around later and doing it at a later

time.

I mean, how to communicate clearly, officially, here is what we

see, here is what we think is needed, without others being able to

say, ‘‘All right. I will use it one way or the other,’’ I am not sure

how we do that. I understand the dilemma, but I think we are also

calling for clear communication.

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

Mr. MILLER. I mean this in a positive way, but I am listening to

what you say, and it is like an individual going to court, putting

themselves in the proper position, and you are assumed guilty until

you can in some way prove you are innocent.

I mean you used the words of ‘‘endangered species rich environment’’ of the entire State of California, and Mr. Turecek, I know

exactly what he is saying. I have been involved in real estate for

about 30 years now, and I have done a lot of the EIRs, and I have

read many of your responses, and I have read many of your responses to EIRs that I know that have just been proposed, and you

use words like ‘‘it appears,’’ the study, ‘‘to be inadequate,’’ ‘‘it appears that this was not taken into consideration,’’ even when a full

EIR has been prepared and circulated, and you are to come back

with comments. Your comments do not relate to what the study

said that was generated in the EIR. You come back with words like

‘‘it appears,’’ which the individual here is correct. Then an individual will take that letter to court and say, ‘‘Obviously something

was not done because the letter clearly says it appears.’’

And your responses in many cases, and I would like you to think

about this because I think it is only fair, are based on your assumption that something is there even though there is no evidence

before you that that exists, and that is the problem I have.

And it angers people, and when you see individuals, and Congressman Hunter is exactly right. I have witnessed a lot of people

lose property because they could not afford to carry it any longer

because the lender would not extend the loan because it had been

too long. It had taken too long for the process to occur for the individual to get entitlements on their piece of property, and they could

no longer afford the process. They had indebted themselves trying

to perform the process that we believe they are supposed to go

through to insure that we are protecting the environment.

And I believe this applicant here has done that. He has tried to

insure that he has protected the environment. He has done what

we require him to do based on what we believed should have been

done when laws are passed. The problem is it is taken to a dif-
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ferent degree when it is being applied, and we use words like ‘‘appears.’’

And when you say ‘‘appears,’’ you have no basis for that because

if there was an inadequacy in the EIR, you should say the EIR did

not address these given areas, and they should address them.

Now, you do that occasionally, yes. When you see an EIR has not

adequately addressed an issue, you will state that, but then the response goes on with other language like ‘‘the study appears to not

address,’’ and you have no evidence that it did not address it. It

was not taken into consideration by the biologist, but that type of

vague, ambiguous language creates a Catch-22 you spoke of earlier,

and it puts that property owner in the situation where if he does

finally get an entitlement, then he could end up in court because

of your letter saying ‘‘it appears.’’

Now, if the county decides, well, you say ‘‘appears,’’ but we see

no evidence that that is the situation and they go ahead with the

entitlement, he is stuck in the situation where any individual or

group that can afford an attorney can tie that individual property

owner up in court for years, and that is the problem I have.

When I built my house, I bought a lot and I graded it, and there

was not a tree on my lot, and I planted 250 of them because I like

the environment. I like trees. I like living with nature, but if I

want to go out and cut some of those trees down on my hillsides

and use them in my fireplace, I also want a right to do that, and

I do not want to have to get a permit to do it.

But I think we need to start looking at property owners and saying that is the person we work for, not them working for us, and

if there is some inadequacy in an EIR, then address it and ask that

they respond to it.

But when we continue to use words like ‘‘appears’’ and ‘‘it might

be’’ and ‘‘could be,’’ those are vague and ambiguous, and it puts the

property owner in a situation where it could be very litigious in the

long run, and I do not think we are serving anybody by doing that.

[Applause.]

Mr. POMBO. Ms. Bono.

Ms. BONO. Thank you, Mr. Chairman.

Boy, what a mess. I do not know where else to begin. Mr. Spear,

you spoke about the necessity for clear communication, I think,

being paramount here. You and I discussed this in Washington personally. Are you aware of one of your employees saying to one of

my developers after I spent an entire morning with Mr. Berg in the

Carlsbad office going over projects, discussing projects with you;

are you aware that my developer was told, ‘‘Going to your Congresswoman will not help you’’?

Mr. SPEAR. I have heard that allegation. I have not been able to

confirm it.

Ms. BONO. Mr. Berg, are you aware of that comment?

Mr. BERG. No, I am not.

Ms. BONO. I think that it has been pretty widely substantiated.

You would have to agree with me you heard it; I heard it. I mean,

everybody heard it.

Ken, how much did Bighorn Golf Development give for mitigation

efforts, $500,000, $750,000?

Mr. BERG. I am not sure which project you are referring to.
161

Ms. BONO. The Bighorn golf course, not the development.

Mr. BERG. I think it was 500.

Ms. BONO. Five hundred thousand dollars. So when they work

with you and they get to the point of total frustration, throwing up

there hands, having nowhere to go other than to their Congresswoman, and then they are told going to your Congresswoman will

not help $500,000 later, is that not an extremely sad state of affairs here?

Mr. BERG. Ms. Bono, I believe the $500,000 is part of the state

process, not the Federal permit. I do not think that was a result

of our——

Ms. BONO. Okay. So the Federal bighorn sheep and the state bighorn sheep, I guess they know, I mean?

Mr. BERG. No, but I am just saying——

[Laughter.]

Ms. BONO. I mean, you know, that has been part of my frustration, that project. We have talked about it and talked about it, you

know, again, the state requiring Bighorn Golf Development to put

up a five foot fence, and then we were told a five foot fence was

inadequate. They need to remove it and put up an eight foot fence.

Yes, the state did not talk to the Federal Government. There is no

question there. The developer was the one who was stuck with the

bill.

But when they are that frustrated, when they come to me and

then they are told in my view they are threatened, going to me will

not help them, that is a very, very sad state, and I want to know.

You are hearing it. You are hearing it behind you. We have heard

it. We have talked about it. In my one year of tenure, you and I

have talked about this before.

What have you done to make changes so far in your office with

personnel? And I think this goes back to the question. It is not the

bumper sticker itself. It is obviously the personality of the bumper

sticker. What have you done in that Carlsbad office over the course

of time to make these changes, to know that these people are actually serving the people in their best interest?

Mr. SPEAR. Well, I have spent more time working with—perhaps

the word ‘‘on’’ is appropriate—the Carlsbad office since 1995 when

I got a call from Molly Bater, then Director, who had just talked

to the Secretary, and he said something like Mike Spear needs to

get to Southern California quick.

Okay. Since 1995, I have been working with the Carlsbad office.

We have made major changes in structure. Specifically we have

aligned our staffs geographically oriented. We used to have one

part of a staff that would do the endangered species part. Then in

that same area another group would look at the wetlands, and then

the two might not have talked well enough together or somebody

else was doing listing.

Now, they are all aligned geographically so that when we have

an issue in Riverside County or Coachella Valley, one set of people

who work on all aspects of that issue. We have brought in new

staff, changed the structure, brought in leadership like Ken, whom

I’m very proud of, and there has been a major effort.

And also we have brought resources. I have allocated lots of additional resources within what I have received to the office.
162

What I want to indicate to you is I have personally spent more

time trying to get the Carlsbad office to a point where it can deal

with the issues, the tremendous pressures of Southern California

than I have in any other office either when I was Regional Director

or now that I am just in California and Nevada. I am very proud

of where they have arrived. I am very proud of the individuals, the

organization, and the direction that they are taking, their ability

to try to work on the solutions, try to get away from the project

by project, look at the big picture.

So we will continue to work on it. I will; Ken will, and to respond

to the kind of concerns that you are bringing out at this hearing.

I understand it is there. The pressures are enormous on everyone.

Ms. BONO. All right. Let me reclaim my time here. First of all,

I want to give you a little credit here, and Mr. Berg as well. I do

know that the process can work. But I think you guys ask for an

awful lot of blood to be drawn in the process to get there. I think

the success of the Ritz Carls and I think we found a reasonable,

I guess, agreement there, and I am excited. I am happy it is going

to go forward. So I know it can be done.

So I do not want to beat up on you guys because I think, yes,

I know it can happen. Maybe I am the only believer maybe in this

room, but I know you are capable of doing it, but what you are

hearing here is people are really begging you, please, you know. It

is time now to get it together.

And my last thing, if I could indulge the Chairman just for a

minute, back to the bumper sticker, and it is not, again, the bumper sticker. It is the messenger. Director Jamie Rappaport Clark,

again in her statement that Mrs. Chenoweth referred to, said they

are currently 31 regional HCPs, and then goes on to say they serve

as a mechanism to address over arching social concerns, such as

urban sprawl, transportation congestion, and open space planning,

while enabling jurisdictions to meet their ESA obligations.

Is that not meaning that all of these people are subjected to the

guy with the bumper sticker on his car?

Mr. SPEAR. I think what was being referred to in that statement

is that this mechanism is a local mechanism. It is not a Fish and

Wildlife Service mechanism.

Ms. BONO. That is your interpretation of that?

Mr. SPEAR. It is our ability to work with local communities within the HCP context to provide the biological context for larger planning purposes.

What we have here in Riverside County, and western Riverside

County is a good example, is close cooperation with the supervisors.

They have just put out a brochure, questions and answers about

the Riverside County integrated plan where they have put together

a land use plan, multiple species plan, a transportation plan to be

done over the next two to three years.

Ms. BONO. And on that plan, and I will give back my time, but

on that plan how in the world do you expect us to have any good

faith in you or the Carlsbad office, knowing that we go through this

plan, we give you what you want, and the next day you guys come

around and say, you know, a mile down the road here is the latest
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species and this is what we have to do now rather than put up a

sign ‘‘Your habitat is that way. Go find it’’?

Mr. SPEAR. I think that that allegation concerns me greatly, this

notion of there is no deal is a deal. As we have been saying and

the Secretary has been saying all the way along, a deal is a deal.

The deal is as written. The Quino example in San Diego County

is a good example. It gets thrown back at us. You changed the deal.

We did not change the deal. The Quino was not a covered species, and people knew that. Mayor Golding made that statement.

We knew it was not a covered species. We provided money to San

Diego County to go in and add that to the covered species list, but

we have not changed the deal that was signed.

And that same commitment goes to western Riverside County.

People will know what they get. That deal will be lived up to. On

both sides it must be lived up to.

Ms. BONO. But I believe, and then I will yield back, that if a deal

were a deal, we would not be here today.

So with that, I yield back.

Mr. POMBO. Mr. Calvert.

Mr. CALVERT. I want to give the other witnesses an opportunity

real quickly, and the subject of HCP has been brought up. As you

know, Mr. Spear, I have been trying to work out some of these

things over the years.

Dr. Silver made a comment about HCPs as potentially the only

reasonable way to work out some of these problems, and, Mr. Hewitt, I know you have been involved in negotiating with development

companies over the years. You made a comment that a deal is a

deal and that Fish and Wildlife keeps their commitments.

I would question, for instance, on the Agua Mansa industrial

area where they had a letter stating they were clear of species and

then you had a new species come up, and then they had, in essence, an in jeopardy property, and that property was not able to

be developed.

I would also say that it is impossible, and I would think you

would agree with this, to know what species may come down the

line when you are negotiating these HCPs. I would like to hear

from Dr. Silver especially on this.

Don’t you think that when landowners in good faith or counties

in good faith, whether it is Orange County or San Diego County,

sit down and negotiate an HCP and they put up the money and

they put up the land, with the implied agreement that they will be

able to go ahead and use what land is left to develop, don’t you

think that is the implication of that agreement or do you think it

is something different than that?

Dr. SILVER. I would agree with you.

Mr. CALVERT. You would agree. Now, I will tell you, to be very

candid, and I think you know this. I really got energized when the

Quino listing, as you well know.

Mr. SPEAR. I know.

Mr. CALVERT. As you well know, Mr. Spear, and we chatted that

very day, I think.

Mr. SPEAR. Yes.

Mr. CALVERT. Because I felt that map—when I saw that map for

the first time, I was in Riverside, and I was, as a matter of fact,
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sitting with a bunch of folks that were really concerned about that

map. You know, how on the earth did somebody come up with that

map that basically shows the entire area of Southern California

with the exception of downtown Los Angeles and a few other exceptions?

That, in my opinion, and I think a lot of biologists would have

been here today if they did not feel threatened, I guess, to comment, but that was not a very scientifically derived map. Wouldn’t

you agree with that?

Mr. SPEAR. I would not agree that it is not scientifically derived.

What I will certainly agree with, if I ever have a chance to do it

over again, is that we will do a lot better job of explaining what

our intentions are. I will not call that one of our great public relations successes.

Mr. CALVERT. But this is an important point here. We are attempting to potentially enter into an HCP here in Riverside County, and what happened to San Diego County is a big concern to this

area, and it is a big concern to other areas in the state.

I know I have heard testimony from other counties throughout

the state, both from the north and the south and other areas of this

country. Why should they enter into an HCP if there is no agreement in effect?

I mean, you say a deal is a deal, but you will admit that if a species is not initially agreed to and on this list of species that are in

that HCP, that there is nothing you can do. Isn’t that correct that

that is exactly what has happened with the Quino Checkerspot

Butterfly?

Mr. SPEAR. In the way you explained it, that is correct, but what

is on the deal is a list of species that are covered.

Mr. CALVERT. But how about if something comes up? If a biologist somewhere out there wants to find a species and get it listed,

what is to stop them?

Mr. SPEAR. Well, if the biology is there and the science is there,

it would get listed.

Mr. CALVERT. That is correct.

Any other comments? And I know my time has expired. Mr.

Hewitt, do you have a comment? Doctor?

Dr. SILVER. I was just going to say that the way the San Diego

plan works is that there are procedures in the plan so that if a species that was not initially covered becomes listed in the future,

there are procedures in the plan so that each of the parties knows

what their responsibilities will be, kind of trying to divide up the

responsibilities in the event that happens.

So the plan makes an effort to deal with that problem.

Mr. CALVERT. Well, do you think they dealt with it in San Diego

very well?

Dr. SILVER. I think that there are—my understanding is that

there are procedures now being worked on to add the Quino to the

list. I cannot tell you what those are in detail, but I think that that

is simply part of what was anticipated, that if a species was not

on the list, then people would go back to the document and——

Mr. CALVERT. My time has expired, but don’t you agree that

there is a problem here in communication between Fish and Wild-
165

life, the counties, all of the participants; that this could have an effect on negotiating future HCPs?

Dr. SILVER. I think there has to be this level of trust. I just have

to say I have not seen a case where there has been a commitment

in an HCP that the service has not kept, and from our point of

view, there have been a lot of commitments that we have not liked,

but again, you know, I just have not seen a case where they have

not kept them.

Mr. CALVERT. Thank you, Mr. Chairman.

Mr. POMBO. Dr. Silver, I appreciate your testimony, and from

what I have been able to learn about you and your organization,

I really do believe that your effort is to protect endangered species

and that that is what you are trying to do, and I appreciate that

because I believe that there are many others that have a different

agenda, and they have been able to use the Endangered Species

Act to achieve that agenda, and it has very little, if anything, to

do with protecting endangered species.

When we look at a case like Mr. Turecek or one of the others

that testified earlier today and those, in fact, that we are going to

hear from, I think that we begin to see what is really wrong with

the implementation of the Endangered Species Act and not the Act

itself, but the implementation of that Act.

As has been said, I have held these hearings all over the country,

and I have had the opportunity to hear people in every region of

our country and what their problems are with the Endangered Species Act. It has always struck me that in some regions of the country they do not seem to have these problems, and it is not because

they do not have endangered species. It is not because they do not

have destruction of habitat.

It is because there is a very different attitude when it comes to

the implementation of the Act, and when I talk to Congressmen

from different parts of the country and they say, ‘‘Well, what is the

problem? Why don’t you sit down with Fish and Wildlife and work

this out?’’ we do not have that option out here. We do not sit down

with Fish and Wildlife and work things out.

And if you want to know why, it is because you are unreasonable. It is because——

[Applause.]

Mr. POMBO. Please, please. Mr. Turecek, can you hold up that

picture from 1940 or whatever you had? That one with the corn.

Mr. TURECEK. Yes, sir.

Mr. POMBO. Now, this is not natural habitat. It may have been

at some point in time that this was natural habitat for species. It

has become habitat for other species now, and I can guarantee you

that if you go through this place, you’ll find species. Some may be

endangered, may not be endangered. I do not know because I am

not familiar with this, but this is not natural habitat.

And when your biologists or your people go to this guy and say

this is natural habitat, what is he supposed to do? How is he supposed to get out of that?

Now, what we have ended up with, at least in the implementation of endangered species here in California, and this is probably

the most frustrating thing for me, is we do almost nothing to protect endangered species. There is almost zero being done to protect
166

endangered species. We are doing a hell of a lot to control water,

to control growth, to control, timber, to control mining, to control

grazing. We are doing a lot on that, and we are using the Endangered Species Act to achieve that goal.

But when it comes to protecting endangered species, there is almost nothing you guys can hold up and say, ‘‘This is our success.

These are the increased numbers that we have had. This is what

we have done.’’

Now, you talk about money. Now, Fish and Wildlife Service re- quested almost $111 million in the President’s budget for endangered species, and there is one very interesting thing about this,

is that you requested a cut—$114 million; excuse me—you requested a cut in your recovery budget.

Now, the reason that you do that is because this guy is going to pay for it. That is who is going to pay for it. Now, this $114 million

that you requested does not include all of the other Federal agencies. It includes Fish and Wildlife Service. The money that our Defense Department puts up for recovery, the money that Ag. Department, the money that all the other Federal agencies put up for endangered species is not included in this, and that is just a minuscule amount of the money that is spent on endangered species in

this country.

The bulk of the money is coming out of guys like this that are

writing 50, 100. We had testimony earlier of several million dollars

to recover endangered species, and we are not doing anything with

it.

Now, the people that are here that consider themselves environmentalists, who consider themselves conservationists, who care

about endangered species, if they had any idea how much money

we spend on endangered species recovery in this country and how

dismal a record we have of recovery, how dismal a record we have

of actually doing anything about endangered species at the same

time that we have gentlemen like this who are about to lose their

property, who are spending everything they have got to hang onto

it, who are disrupting their lives; when I have got people in my district who are out of work because of the actions that your department takes and the suicides and the poverty and everything that

is attached to that because of the actions that your department

takes, I would say this has been a complete failure.

We are doing nothing to protect endangered species or almost

nothing to protect endangered species and recover those species. At

the same time, the social and economic dislocation that has occurred in the State of California because of the actions of your

agencies is immense, and we can do a better job.

And I will agree with Mary on this. We can do a better job, and

a lot of that comes down to communication, but the first thing you

have got to decide is that your job is to protect endangered species.

It is not to stop him from building, and there is a huge difference.

Figure out a way to protect endangered species so that economic

activity can go on.

Now, I know that you have had a long and distinguished career,

Mr. Spear, and I respect you, and on a personal level, I think you

are a pretty decent guy, but you have got to get a hold of the people that are working in these different agencies and these different
167

departments, these different offices that are under your control,

and I will tell you: use Mr. Hunter’s example. If somebody showed

up at Veteran’s Affairs with a bumper sticker that said ‘‘Veterans

Can Go to Hell,’’ they would be fired that day. There is no question.

[Applause.]

Mr. POMBO. Society would demand it.

And whether somebody is a developer or a realtor, they are no

less an American than anybody else, and they should not be allowed to be treated differently by the agency.

I appreciate the testimony of this panel. Mr. Spear, I appreciate

you being here and answering the questions. I know that myself

and the other members of the Resources Committee, the other

Members of Congress look forward to working with you and hope

that we can get a lot of these problems straightened out in a timely

manner.

And, Mr. Berg, to you I will tell you that not only will the representatives of this area be watching closely as to how the people

that had the courage to come forward and testify are treated in the

future. I will closely be watching how those people are treated because I had several people that I requested testify at this hearing

that at the last minute told me no because they were terrified of

the reprisals that may occur because of their testifying here today.

Now, I know that you would never allow that to happen within

your agency, but I will be looking closely to make sure that it does

not, and I thank you for being here.

I will dismiss this panel.

[Applause.]

Mr. POMBO. Our third panel will be made up of Mr. David Zappe,

Mr. Dennis Moser, Mr. Dennis Hollingsworth, Mr. John

Tavaglione, and Mr. Doug Evans. If you could join us at the witness table, please.

I would like to ask the audience we do have a very long hearing

today and we are trying to stay on time if possible. If the gentlemen will join me up front at the witness table.

Do we have all of the witnesses present? Gentlemen, if I could

have you raise your right hands.

[Witnesses sworn.]

Mr. POMBO. Let the record show they all answered in the affirmative.

You can join us at the witness table.

Is it Zappe?

Mr. ZAPPE. Correct.

Mr. POMBO. Mr. Zappe, you may begin.

STATEMENT OF DAVID P. ZAPPE, GENERAL MANAGER-CHIEF

ENGINEERING, RIVERSIDE COUNTY FLOOD CONTROL AND

WATER CONSERVATION DISTRICT

Mr. ZAPPE. Mr. Chairman, members of the Committee, we appreciate you being here in our county.

Mr. POMBO. Go ahead and pull that mike right up close.

Mr. ZAPPE. Okay.

Mr. POMBO. Thank you.

Mr. ZAPPE. We appreciate you being here and allowing us this

opportunity to relate to you some of our district’s more recent expe-
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riences with Fish and Wildlife Service and their enforcement of the

Endangered Species Act.

Development practices in the early days of this county were such

that today we find many areas subject to extreme flood hazards

and the public’s health and safety put at risk every time it rains.

While much of the need for drainage facilities is brought about by

new development, the construction program administered by our

district focuses mainly on the need to protect existing development.

Accordingly, our mission is very simple and very straightforward:

to protect life and property from flooding through responsible and

efficient storm water management. Over the past 50 years the district has developed an extensive flood control system that requires

timely maintenance to insure the continued protection of our residents.

However, over the past several years, our efforts have been hampered through the regulatory activities of the U.S. Fish and Wildlife Service, the Army Corps of Engineers, and the Environmental

Protection Agency. These agencies have veto power over local flood

control construction and maintenance activities by virtue of regulations promulgated under the Endangered Species Act and the

Clean Water Act.

Although these laws have been on the books for many years,

their impacts have become more burdensome as Federal agencies

have issued new and more stringent regulations, often without the

authority of new law and sometimes as a means to negotiate settlement of environmental lawsuits of questionable merit.

Specifically, recent dealings with the Fish and Wildlife Service

have proven to be particularly frustrating. In some cases, negotiations with the service drag on for no apparent reason other than

for the sole purpose of delaying a project. Other cases involve the

attempt to impose unwarranted and illegal requirements on a

project.

I would like to relate two specific cases which I believe illustrate

my points. In the first example, the district performed a general biological assessment of the area that would be impacted by a proposed project. An independent biologist concluded that the proposed

project had no potential of impacting the recently listed Quino

checkerspot butterfly. This determination was based on the highly

disturbed nature of the project area and the extremely low potential for the presence of any of the butterfly’s host plants.

Forty days after receiving a copy of the biological assessment, the

service decided that the assessment had not been performed at the

appropriate time of year and, therefore, a focused habitat assessment was required. This was in direct contradiction to the service’s

own survey protocol of January 1999, which states, in part, that

general biological assessments may occur throughout the year.

Only if the potential for the host plant exists should focused

habitat assessments be conducted. The district questioned this

finding in a second letter and asked the service to justify its position in writing. This time the service did determine that focused

surveys were not required after all.

I should point out that the district’s second letter was copied to

Congressmen Calvert and Pombo and Senators Boxer and Feinstein.
169

I believe that the notification of these congressional members

caused the service to more honestly consider the district’s position

and its own protocol and to arrive at an appropriate conclusion, a

conclusion that should have been properly reached earlier without

hesitation by the service, a conclusion which I fully believe would

not have been reached without vigilant oversight of our district and

the notification of the congressional delegation.

The second example I would like to cite involves the flooding of

the City of Temecula from overflow in 1993 from Murrieta Creek.

Over $10 million in damages to businesses and residences resulted

from the refusal of Federal officials to allow mechanical clearing of

the vegetation and removal of accumulated sediment from the

creek partially due to alleged concerns for the endangered least

Bell’s vireo, though none had been found in the creek.

To avoid repetition of this tragic event in 1997, the District requested the Corps of Engineers to prepare a flood plain maintenance plan for Murrieta Creek. Several coordination meetings involving the Corps, the service, and other Federal and state agencies were held. As a result, a baseline which struck a delicate balance between proper maintenance and environmental concerns was

established and agreed to by all parties, including the service.

Upon finalization of the plan last April, the district commenced

a considerable effort to obtain the required Section 404 permit. A

month later in May, the service suddenly decided that they were

not in agreement with the baseline and wanted it redone.

When confronted with the fact that they did not express this displeasure during the many coordination meetings and, in fact, had

agreed to the baseline, they simply stated they did not recall agreeing to the baseline.

The district and the Corps in good faith have each expended over $100,000 toward the implementation of this plan, and now the

service tells us they would like to start over because they do not

recall any commitment, and even if they did, they have now

changed their mind.

Survival of endangered or threatened species was not at stake in

either of the cases that I have cited, but rather inflexibility built

into the Endangered Species Act.

Our citizens rely on existing flood control systems and upon their

timely maintenance to protect them and their homes and businesses. It is the responsibility of all of us to insure that their safety

is not compromised.

Thank you.

[The prepared statement of Mr. Zappe follows:]
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Mr. POMBO. Thank you.

Mr. Moser.

STATEMENT OF DENNIS M. MOSER, VICE PRESIDENT,

KELWOOD DEVELOPMENT COMPANY

Mr. MOSER. Good afternoon, Mr. Chairman, members, and

guests. My name is Dennis Moser. I am Vice President of Kelwood

Development Company, managers of the 4S Kelwood General Partnership.

4S Kelwood is the owner and developer of the 4S Ranch property

in north central San Diego County. The 4S Ranch is a 3,500 acre

master plan community which has generally been recognized as a

model for smart growth through its transit oriented bikable community design with emphasis on habitat conservation, parks, and

public facilities, and its commitment to regional transportation.

We have also been at the forefront of multiple species conservation planning in Southern California over the last decade. Indeed,

former California Secretary of Resources, Douglas Wheeler, wrote

that the 4S Ranch ‘‘offers tangible, on-the-ground proof that the

NCCP program goal of creating a network of wildlife corridor spanning five counties can succeed.’’

Along with Dr. Silver and many other distinguished people, I

personally served on the MSCP city advisory board, the country advisory board, the MHCP advisory board, and am the co-author of

a document called ‘‘Habitat Transaction Method,’’ which is a market based financing program for HCPs.

Our leadership was recognized in a certificate of appreciation

from Secretary of the Interior, Bruce Babbitt and also from Congressman Brian Bilbray and State Senator David Kelly.

Now, I give you all of this only to establish our credentials as a

participant and a facilitator on the regional conservation planning

efforts over the last 10 years. I believe it is a fair statement to say

that the 4S Ranch and our personal involvement, you know, is generally recognized as a poster child for how the process is supposed

to work, and we are probably one of the success stories; we may

be the only success story that you are going to hear today simply

because we have been through the process and have been permitted.

We support multiple species conservation planning. We support

HCPs. We have in the past, and we will continue to do so in the

future.

Now, having said all of that, the issues of implementation credibility, in my view, seriously threaten to destroy what amounts to

a decade of thousands of hours of intense efforts and negotiations

by a cast of hundreds that have resulted in MSCP.

You know, I wrote sort of a marginal note. To me the HCPs, the

whole multiple species process was always intended to be a very

democratic process, and I use the term ‘‘democratic’’ because to me

it was based on three fundamentals: those of representation, those

of compromise, and those of trust.

Clearly, everyone had a seat at the table. Clearly, nobody got everything they wanted in the MSCP, not anyone. But, fundamentally, it was based on trust that at the end of the day, as was said
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earlier, a deal was a deal, and that was it. And whatever the decision was, we would move forward on that basis.

Now, I have two cases or two examples where I think this concept is being jeopardized, and the first one is failure to issue a take

authorization, a Section 10(a) permit for the complete list of covered species subject to incidental take.

This document is the implementing agreement which was signed

by the jurisdictions and the wildlife agencies and represents, if you

will, the contract where all of these assurances were set forward

of how the process was to be implemented.

The implementing agreement is unambiguous. It is clear. It is

obvious. Its language is unambiguous. It is a legal, binding kind of

document, and relative to the issuance of the permits, the implementing agreement says, ‘‘Concurrent with the effective date, the

U.S. Fish and Wildlife Service will issue Section 10(a) permits to

the county for authorizing take of the complete list of covered species subject to incidental take,’’ some 82 species.

This is the actual permit that was issued to the county, and in

the permit that was issued, a total of 29 species were not covered.

They were removed from the permit itself. These are wetland dependent species, if you will. There was no qualification in the implementing agreement that dealt with not issuing coverage for all

of them, but coverage has not been issued to all of them, and the

actual permit says that coverage for those 29 will be subject to a

further process.

Now, I see that as a breach in the trust of a deal is a deal and

that the coverage would be as stated.

There was also some testimony that you heard relative to the

listing of the Quino checkerspot, and Dr. Silver referenced a process by which new species were to be considered in the MSCP, and

I would like to quote a number of passages from the implementing

agreement of what was supposed to occur.

Prior to the listing of any noncovered species Fish and Wildlife

was to, first, ‘‘use their best efforts to identify the conservation

measures within six months of a proposed listing which would be

necessary to adequately protect the species.’’

And then, two, to ‘‘determine whether those measures were already contained in the MSCP document.’’

The species has been now listed for two and a half years. As far

as I am aware, I have not seen, nor do I know of anyone who has

seen any documentation that that assessment was actually completed.

Now, if the determination was that the conservation measures

were not adequate, then there was a priority established of what

Fish and Wildlife Service was supposed to do, and those priorities

went or additional conservation measures went as follows.

First, habitat management practices and enhancement opportunities were to be assessed using existing management resources.

If that was not enough, habitat acquisition through reallocation

of Federal, state, and/or regional funds was to be examined.

And then, only after all of those things had been analyzed and

determined there were still inadequate measures to consider the

species, only at that point were additional conservation measures

to be looked at, and then with this qualification, that preference
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would be given by U.S. Fish and Wildlife Service and the California

Department of Fish and Game to additional conservation measures

that do not require additional mitigation or dedication of land.

So additional mitigation or dedication of land would come as the

absolute last resort. I think what we have seen over the last two

years, two and a half years is actually quite the opposite. The individual projects are being required to dedicate, to mitigate and to

dedicate, in land and in money to mitigate for the Quino

checkerspot.

Let me just, I guess, offer one other thing. I see my time has run

out. We do have in our groups that I am a part of numbers of recommendations on some management activities that we believe

would help in solving some of the issues that you have heard raised

today, and I would be happy to go into those at the end of today,

or however you would like to address them.

Thank you.

[The prepared statement of Mr. Moser follows:]
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Mr. POMBO. Thank you.

Mr. Hollingsworth.

STATEMENT OF DENNIS HOLLINGSWORTH, RIVERSIDE

COUNTY FARM BUREAU

Mr. HOLLINGSWORTH. Thank you, Mr. Chairman, for the opportunity to speak with your Committee today.

I also want to thank Congressman Calvert and Congressman

Bono for bringing the Committee to Riverside county so all of you

can hear from the people who are living every day under the laws

that Congress passes and the regulations the Federal agencies implement.

I am the Legislative Director of Riverside County Farm Bureau,

and the Farm Bureau represents over 1,700 member families

throughout Riverside County. My testimony today will tell you

about the Farm Bureau’s experiences with the Carlsbad office of

the Fish and Wildlife Service and the Endangered Species Act. I

will highlight several experiences that expose the decade long history of abuses and systematic misrepresentations of fact by the

Fish and Wildlife Service in Southern California.

Finally, I will discuss the inability of the public to invest any

amount of trust in the Fish and Wildlife Service due to their blatant disregard for their written commitments.

As you know, the endangered listings of the Stephen’s kangaroo

rat caused severe problems in our county. Since its listing in 1988,

farm families suffered economic loss, restrictions on the normal use

of their properties, and diminution in their land values.

You are well aware of the injustices that were done to the

Domenigoni family and the destruction of 29 homes caused by a

wildfire, the damage exacerbated by Stephen’s kangaroo rat restrictions in the Winchester area in 1993.

In 1992, I was hired by the Farm Bureau to investigate and prepare a de-listing petition asking for the Fish and Wildlife Service

to remove the species from the list, and this is where we come in

with the issue that the Fish and Wildlife Service impedes the

public’s right to know and openly violates the Freedom of Information Act.

The first item of business in preparing a de-listing petition is to

find out what was known about the species and why it was listed.

Well, to find this out, we had to file a Freedom of Information Act

request.

Well, the service heavily censored those reports, and they were

essentially useless. The service did not want the public to have the

right to judge the adequacy and the accuracy of the science backing

up their assertion that the K. rat was endangered. So they withheld this information, even though there are only two allowed exemptions from disclosure found in the Freedom of Information Act.

One is for national security reasons, and the other is protect the

privacy of personnel files.

Their response to our pointing out the inconsistency of their actions with the law? They told us to sue them.

One stated reason for not releasing the exact location of the K.

rats was their fear that we might go out and destroy the kangaroo

rats if we learned of their locations. Well, this is carrying national
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security concerns to new heights. It also points out that the inherent problem with the ESA itself is that people do not want to have

species on their property.

Two, the listing of the Stephen’s kangaroo rat is based on fraudulent misrepresentation of scientific facts. The service sought to prevent the public from knowing the information in their files because

the public would rightly judge that the listing of the Stephen’s kangaroo rat as endangered is a fraud. The Fish and Wildlife Service

blatantly disregarded important facts and misrepresented others.

Among many other things, they even went so far as to claim the

species was extinct in areas that are now preserves for the species

that contain thousands of acres of occupied habitat.

Third, the Fish and Wildlife Service abuses the discretion Congress gives the agency. As you know, Congress has given the Fish

and Wildlife Service the discretion to decide whether a species is

threatened or endangered. Would you like for me to read for you

the entire analysis that the Fish and Wildlife Service completed in

determining to list the species as endangered rather than threatened? It will not take long.

‘‘Ron called and asked some questions about the kangaroo rat

package. He said that in general, I had presented a good case. He

wanted the acreage figures clarified and some place names clarified

as well. He wanted to know how much habitat is left as best as

I could come up with some acreages. We then discussed whether

threatened or endangered status would be more appropriate. We

decided upon endangered.’’

That is the record of a phone conversation that we found through

the Freedom of Information Act.

The Fish and Wildlife Service ignores our de-listing petition despite the legal requirement to respond within 90 days.

You are well aware of the impact of the Endangered Species Act

on the Domenigoni family and their loss of over $400,000 in income

and expenditures in order to try and get their 800 acres, which was

shut down by the Fish and Wildlife Service after they were illegally

trespassed on by a biologist.

Then the U.S. Fish and Wildlife Service smears Endangered Species Act victims who speak out. In 1995, the Domenigonis found out

that they had been targeted in a smear campaign waged by the

Fish and Wildlife Service against individuals who had spoken

about the injury they had suffered from the implementation of the

Act. They received a document entitled ‘‘Facts about the Endangered Species Act.’’ One whole chapter in it is devoted to casting

the Domenigonis and other ESA victims as liars.

Yet nowhere in that portion of that story is there anything attributing it to any contact people, any telephone numbers, no authors or attribution anywhere, and it is not published on government letterhead.

The Fish and Wildlife Service fails to adhere to their written

commitments to Riverside County. This, I am sure, has been discussed with you as Congress members, and I am sure it will be discussed more with subsequent witnesses today, but let me just point

out that there was a planning agreement signed in 1997 where the

Fish and Wildlife Service agreed to provide rough conservation re-
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quirements so that we would know what we were getting into if we

were to get into a multi-species plan.

However, after signing that agreement, they blatantly failed to

comply with that agreement.

Well, how do we rein in the Fish and Wildlife Service’s abuses?

I have to tell you that at this point in the controversy, this is a

point we have been at several times before, and it is very predictable. The service does something that is egregious, and the Board

of Supervisors objects, and the Regional Director comes down from

Portland to smooth things over.

I have even been to these parties back when it was Marv Leonard who was coming down, and today it is Mike Spear.

When the service does something a little more outrageous, Washington, DC gets involved, and we get to meet Assistant Secretary

John Garamendi, who then smooth out the ruffled feathers, and

today this job has been handed to David Hayes.

But when they really, really do something bad, well, all of you

are here. Well, they are really, really doing something bad, and I

hope that this hearing and the legislative process subsequent to

this will break this cycle.

Well, how do we change this? First, we need to change the burden of proof requirement.

Second, only to the unconstitutional takings of private property

that occur with the ESA is the travesty that private citizens have

to prove to the government that they will not violate the ESA. As

you mentioned, Congressman Hunter, it is as though you are proving that you are not guilty. You are proving that you are not.

Legislatively change the judicial deference given to agency regulations to a de novo review.

Require that the judicial branch looks at regulations from the

agencies fresh without the deference that has been given to them.

Limit standing in the courts in ESA challenges to persons who

are actually impacted by the Act.

Legislate a Federal version of California’s permit streamlining

Act. They get one chance to bite at the apple, and that is it, and

if they do not tell you how they are going to bite at the apple completely, they do not get to come back for more.

Legislate that there are definite consequences to the agency for

not acting.

Prohibit the use of information obtained by trespass.

All of these things, if successful, might help to curtail many of

the abuses we have seen in Southern California. Yet even the passage of all of these reforms would only be half measures. That is

because none of them remove the disincentives for property owners

to have species on their land.

In fact, what is needed is an Endangered Species Act that can

serve species by allowing and encouraging landowners, farmers,

and ranchers to be good stewards of the land. It should be an Act

that is so simple as to be immune from the bureaucratic evils that

so often do not become apparent until years after the bill has left

Congress and become law.

In order to have a law in which the agencies can no longer twist,

ignore, subvert, and use both the scientific evidence and the statutory process to further a political or ideological agenda, it must be
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a law that is simple, incentive based, and unregulatory. Our experience has shown that given the regulatory power and the historically wide latitude of discretion given by the courts, agencies will

be sure to misconstrue and ignore the intent of Congress. I see

your challenge is to make a law that is both successful for conservation of wildlife and upholds the rights and freedoms of the

people it affects.

Thank you.

[The prepared statement of Mr. Hollingsworth follows:]
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Mr. POMBO. Thank you.

[Applause.]

Mr. POMBO. Mr. Tavaglione.

STATEMENT OF JOHN TAVAGLIONE, SUPERVISOR, RIVERSIDE

COUNTY

Mr. TAVAGLIONE. Thank you, Mr. Chair.

I want to thank you all for allowing us to be here today. You

have taken on a great task, as we all know.

My colleague, Supervisor Jim Venable, who represents this area,

also wants to welcome you to the beautiful Town of Hemet, and I

also want to thank our good friends, Congressman Bono and Congressman Calvert for their leadership in dealing with this very,

very difficult Act.

I first became aware of the problems, the severe problems, with

the Endangered Species Act sitting as a city council member on the

City of Riverside reading a biological report for a property owner

who held a family property for a number of years, 20 acres. They

wanted to develop it into eight lots, yet he was told he could not

do it because he may have a lizard, an endangered lizard on that

property, and since they do not know, they wanted him to put radio

controlled collars around lizards that were found and monitor them

for five years.

[Laughter.]

Mr. TAVAGLIONE. It was at that point I realized that something

was very wrong, and this is eight years ago.

As you all know, Riverside County has been one of the first

throughout the nation to embark upon dealing with this Endangered Species Act in a very positive way. We first started with the

fringe toed lizard back in 1984, the habitat conservation plan; the

short term Stephen’s kangaroo rat plan in 1992, followed by the

long term kangaroo rat plan in 1997. It only took eight and a half

years to get through a kangaroo rat habitat conservation plan, and

they say things are done in a timely manner. Only eight and a half

years and $125 million to deal with the Stephen’s kangaroo rat.

As we speak today, we have engineers, consultants, private property owners, state resource agencies, Federal resource agencies and

the country working on a very commendable process called the integrated planning process. Some of you have already heard of that.

That is where we are embarking upon a program here in Riverside

County to deal with a three tiered program: land use planning,

general plan, multi-species planning, and corridor planning to deal

with our congested corridors, recognizing that all three or at least

the land use and the general plan corridors or—excuse me—the

transportation corridors will require some mitigation efforts for endangered species.

We have already set aside $22 million to deal just with the initial planning of that. I as one colleague on board have reluctantly

supported that, recognizing that if we get three years down the

road, the chances of having an agreement by Fish and Wildlife

Service or the chances of having agreement change during that

three-year process are extremely high.

Landowners, farmers, building organizations, public/private enterprises have given you comments today on the frustrations they
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have had. You have heard from our flood control Chief Engineer

and General Manager, Mr. Zappe, about the problems in the

Murrieta Creek and the inability to clear the way of that creek so

that the water could flow. Tens of millions of dollars of property

that were lost back in 1993.

What Mr. Zappe did not tell you is that because of that flood, a

family, an entire family was lost trying to cross a creek. So we are

not just talking about property damage. We are talking about lives.

Today we have in Congressman Calvert’s district a river that is

at risk and has been at risk for well over six years because of the

lack of or the inability to clear the sediment. We have a plan in

place to deal with that. We have the funds to deal with that. Yet

Fish and Wildlife Service wants to increase the mitigation, double

the mitigation which is going to double the cost from $8 million to

at least $16 million and possibly $20 million.

We have back in 1993 or—excuse me—1995 a fly. Now, this is

not the Delhi Sands fly that I am going to talk about in a second.

We had a Mediterranean fruitfly in the City of Corona, western

Riverside County. It was very much endangering our citrus orchards.

As you probably know, we have a $1 billion industry in Riverside

County with regard to our orchards, agriculture.

The State Agriculture Commissioner decided that it was the time

to do the aerial spraying on most of western Riverside County in

a series of evenings over about three weeks. They were going to

spray the insecticide over homes, backyards, school grounds, playground equipment, and it was okay to do that.

Yet Fish and Wildlife Service representatives from Carlsbad said,

‘‘No, you cannot do that over endangered species area because we

are in fear that the least Bell’s vireo or we are in fear that the Stephen’s kangaroo rat might die because the spraying may occur on

their endangered habitat.’’

It seemed awfully odd that we could spray over school grounds

but not over endangered species area. It makes you wonder if our

kids are endangered in the eyes of many of these biologists.

In my district, I happen to have the Delhi Sands flower-loving

fly, and this is an endangered species. Myself and Supervisor Jerry

East from San Bernardino County are known as the parents of the

Delhi Sands flower-loving fly, and we are very proud of that I want

you to know.

You have heard the story of San Bernardino County’s regional

medical center that was soon to get under construction about four

years ago. They were put to a complete stop because Fish and

Wildlife biologists determined that there may be flies on a particular site, on a portion of the site where this hospital is going to

go.

Not a problem, they said. Move the hospital over to the tune of

about $2 million, and we will let you have your hospital.

Well, they did that because they needed to get their hospital

built to serve the indigent who need the care, the medical care, but

they also have a multi-million dollar hospital, a $150 million hospital and a $3 million fly park now sitting next to it, something for

the patients to observe and get well with.
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In my county, in Riverside County, about 10 miles to the west

of this particular hospital we had a developer. This is the most active economic development area in the State of California as we

speak. It is in an area called Harupa Valley, Maraloma. Most of

you are aware of it. A tremendous amount of business growth occurring, job production, people being put off of welfare because of

the new jobs that are being incurred here.

One developer wanted to build a 750,000 warehouse distribution

facility for one of the country’s leading computer manufacturers.

This is a former dairy land where manure was very prevalent, and

there had been no real farming on this site for many, many years.

Yet Fish and Wildlife biologists felt it might be a good site for the

Delhi Sands flower-loving fly, and they felt that it could have been

there at one point in time.

They required us to do a study. We did a study for the habitat,

found that there was marginal habitat, if any at all, the Delhi

Sands sand, and we also did a study to determine whether the fly

was there.

No, there was no fly there. You could only do the study during

September and August, August and September of each year because the rest of the time the flies burrow under the sand.

There wasn’t a fly, but an intern biologist from UCLA thought

that he heard the fly.

[Laughter.]

Mr. TAVAGLIONE. Now, when the fly was heard, and that letter

was provided to the representatives of the Carlsbad office of the

Fish and Wildlife Service, and the subsequent hearing came before

my board to decide whether this project should be built, the comments by Fish and Wildlife Service, ‘‘We believe that the fly is

there because we have letters that the fly was heard.’’

Well, board approved that project, did not listen. It is still in litigation, continues to be in litigation by environmentalists who work

hand in hand with the Fish and Wildlife Service. If anyone tells

you they are not, that is not true. But yet the project is still under

delay and will continue to be under delay while environmentalists

continue to challenge it because of a fly being heard.

One that is closest to me is the interchange because of all of the

industrial and business activity, and Congressman Calvert is well

aware of this. We have needed to build a new interchange on the

15 corridor to deal with traffic congestion, but also to deal with all

of the trucks that are coming from the new industry. We are trying

to be proactive in doing so. We tried to move the project along as

quickly as possible to eliminate the congestion.

We sat down with Fish and Wildlife. This was two years ago, to

work out a plan that we could move forward and assume that the

project was inhabited. We had to do that because it was the Federal nexus that is being provided here because it is a Federal highways project.

And because we did not want to go through the two years of

study and delay it two years further or a total of four years, we

had to assume habitation or occupation of the property.

In the end it was determined that we could probably get by, even

though there was no occupation by flies, very little soil if any; we
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determined that we could get by with either to 10 acres of mitigation.

I attended personally this meeting when we were ready to move

forward and hopefully strike a deal when members of the Fish and

Wildlife Service looked me straight in the face and said, ‘‘Well, we

have changed our mind. The eight to ten acres is not sufficient. We

want 200 acres.’’

Now, that is when I blew my stack. I have to be honest with you.

That is when I realized that something was wrong. That is when

I called my Congressman, Congressman Calvert, and said, ‘‘We

need your help again, Ken,’’ and he was very helpful.

We have, to the credit of many and to the credit of Fish and

Wildlife Service, we have reached an agreement. It is not eight to

ten acres. It is 40 acres. It is about 10, 15 miles away from the site

where the interchange will occur, and the agreement is tentative

at this point.

And I have to tell you as others have today; I tell you this story

knowing the risk that could occur, that this is a tentative deal, and

that things may not transpire because of certain testimony that occurs today. But I have to put the faith in Mr. Spear and Mr. Berg

that they are going to take the bull by the horns and make some

change.

We have a few suggestions for you in terms of how you can

change.

Mr. POMBO. I have to ask you to wrap it up.

Mr. TAVAGLIONE. I am going to wrap it up. I was just going to

say we have four suggestions here, Mr. Pombo, and they are in my

written testimony. We ask that you take those very seriously.

After working very closely with the Fish and Wildlife Service, as

county staff has done, we feel that this is the only way that some

sense is going to come into this law.

Thank you very much.

[The prepared statement of Mr. Tavaglione follows:]

STATEMENT OF JOHN F. TAVAGLIONE, SUPERVISOR, RIVERSIDE COUNTY BOARD OF

SUPERVISORS

Honorable Chairman and members of the Committee, my name is John

Tavaglione, member of the Riverside County Board of Supervisors, and on behalf

of my colleagues and all the citizens of our fine county, I want to welcome you here

today. I’ve been asked by my colleague, Supervisor Jim Venable to especially welcome you to his beautiful hometown of Hemet.

First, I would like to personally thank all of you for providing the leadership

which is so desperately needed to bring some sensibility and reasonableness to the

Federal Endangered Species Act (ESA). I especially want to thank my good friend

Congressman Calvert, who has spent countless hours listening to the concerns of

local government agencies, private property owners, and professional organizations;

and for his leadership in introducing new legislation in hope of establishing some

‘‘common sense’’ reform to the Endangered Species Act (ESA).

As you may know, Riverside County was one of the first in the U.S., to take the

lead in formulating a Habitat Conservation Plan (HCP)—first with the Fringe-Toed

Lizard HCP in 1984, followed by the ‘‘Short-Term’’ Stephens’ Kangaroo Rat (SKR)

HCP in 1992, and subsequent ‘‘Long-Term’’ SKR in 1997. As well, since the early

90’s, our County has put into place two (2) Multi-Species Habitat Conservation

Plans (MSHCP) in cooperation with the Metropolitan Water District. And, as we

speak, County agencies, along with professional engineers, consultants, and both the

State & Federal resource agencies are working closely together to establish the

country’s first multi-tiered approach to habitat conservation, growth management/

land-use planning, and the planning & designation of major transportation corridors. This extremely aggressive but worthwhile program is known as the Inte-
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grated Planning Process, which was given the nod of approval by our board a little

less than a year ago, with the charge of adopting, within a 3 year period a countywide multi-species plan, a new general land-use plan, and the identification of new,

major transportation corridors. All of you, I’m sure, know, that Riverside County

(along with our neighboring San Bernardino County) is one of the fastest growing

regions in the country; has some of the most congested freeways in the U.S.; and,

as many of us believe and feel, we are looked at by Federal Resource Agencies and

environmental groups as the prime target (because of our growth) for insuring that

a very worthy, but extremely flawed Federal Act is adhered to.

As you can see, our County has not just sat back and tried to push the envelope

with the regulatory agencies in dealing with the ESA—quite the opposite—we are

one of the few local jurisdictions in the U.S. to take the lead, and are quite proud

of our ‘‘attempt’’ to be a strong team player with the U.S. Fish & Wildlife Service

in conforming with the ESA. Unfortunately, many will believe as I do, that such

attempts at working cooperatively have, in too many cases, only worked against us,

causing very costly delays in important and critical public and private projects

throughout the region.

Today you will hear (or have already heard) testimony from private landowners,

farmers, professional building organizations, and other public and private entities,

who will share with you the frustrations each have encountered while dealing with

the ESA and the local Carlsbad Field Office. Later today, you will hear from the

General Manager and Chief Engineer of our County Flood Control and Water Conservation District, who will share with you the difficulties his agency has had in

dealing with the permitting of local flood ‘‘safety’’ projects——projects, that because

of delays in permitting, resulted in severe damage to property, and the loss of life.

And I too, would like to share with you some examples that we, as a local government organization have been challenged with.

Let me start by saying that we in Riverside County and the Inland Empire Region

have nearly 200 species that have been identified as ‘‘endangered’’ or ‘‘threatened.’’

While not all of these species have caused us heartache yet, a few of the more notable ones (which you have already, or likely heard of) have—such as the kangaroo

rat, the Fairy Shrimp, the Quino Checkeredspot Butterfly, and my favorite—the one

that I’m most familiar with—the Delhi Sands Flower-Loving Fly. First, I would like

to share with you a couple of stories that truly give the meaning and original nature

of the Endangered Species Act a bad name, and ones that border on the area of

being ridiculous, sometimes funny, and unfortunately very tragic. I’ll start with the

tragic and end with the funny. In 1993, heavy rains were experienced throughout

the region. Specifically, in the southwestern part of the county, in the city of

Temecula, the banks of the Murrieta Creek overflowed causing much of the lowerlying areas of the city to flood, causing severe damages (in the millions of dollars)

to businesses and residential neighborhoods. One entire family was lost when they

attempted to cross a flood road in their family vehicle. Should they have attempted

to cross? Probably not! Could all of this been avoided? Yes, simply by being given

the proper emergency permits to maintain and clear sediment from the creek—yet

this was not possible due to concerns for the endangered least Bell’s vireo. The same

bird has prevented us from clearing accumulated sediment in the Santa Ana River

which runs through San Bernardino, Riverside, and Orange Counties. Extensive

damage has been caused to one specific bridge crossing this river, which, with some

reasonable cooperation from the local Carlsbad office, could be replaced the with

funds already allocated. Yet because of the personal agendas and indecisive nature

of some in that office, coupled with the bureaucratic maze, costs have tripled, and

the replacement bridge may never get built.

I’m sure you have also heard about the Mediterranean Fruit Fly. No, thankfully

it is not endangered. In fact, it poses quite a threat to our abundance of fruit orchards here in Riverside County. In 1994, the fruit fly posed such a severe threat

that the State Agriculture Commissioner ordered the aerial spraying of insecticides

over a major portion of the inhabited cities of our western county. School yards and

their play equipment along with the residential neighborhoods were sprayed on a

series of evenings over a month-long period. While it was o.k. for children and their

play areas to be subjected to this spraying, representatives of the U.S. Fish & Wildlife Service ordered no spraying to occur over areas that were inhabited by the least

Bell’s vireo and the Stephens’ Kangaroo Rat.

I’ve saved what I consider to be the best for last—the Delhi Sands Flower-Loving

Fly (DSF). This is the same species that prompted members of the Carlsbad office

to determine that a specific area in southern San Bernardino County, was heavily

inhabited by the fly and needed to be preserved. Unfortunately, it happened to be

(partially) the site which was soon to be the new home of their county’s new regional

medical center. Not a problem, according to U.S. Fish & Wildlife Service representa-
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tives, ‘‘move the hospital a few hundred feet and we’ll be o.k.’’—o.k. to the tune of

over 2 million ‘‘taxpayer’’ dollars! Down the road about 10 miles West of this location, in the regions most active economic development area, which also happens to

be my direct responsibility, a developer desired to build a 750,000 square foot warehouse/distribution facility for one of our country’s leading computer manufacturers.

U.S. Fish & Wildlife Service representatives contacted the developer and my office,

indicating the need to do a survey on the property to determine the presence of the

fly, since, in their opinion, the property had the prime Delhi Sands soil by which

the fly tended to inhabit. We instructed the developer to do those surveys——one

to determine the quality of the soil and vegetation, which can be done at any time

of the year, and which was found in this case, to be marginal at best. The second

survey was to determine the presence of the fly, and could only be done during the

actual ‘‘fly’’ season—as the Delhi Sands Fly only shows it’s wings during the months

of August & September—burrowing in the sand the remaining 10 months of the

year. Biologists permitted by the Carlsbad office spent approximately 8 weeks (at

times sitting in chairs on the site for 8 hours—observing) surveying and watching

for the fly. While none were ever observed by the biologists conducting the actual

study, a biologist ‘‘intern’’ from the University of California, Los Angeles (UCLA),

just happened to be observing the same site during a field observation trip. The intern claimed that, he too, did not see any flies on the site, but heard one as it flew

by. This second hand information, brought forward by the intern’s professor in biology (and fly expert) caused representatives of the local Carlsbad office to make an

appearance before me and my colleagues, urging us to deny the approval of the

project, and delay the economic progress of the region. Despite the unsubstantiated

concerns raised by the Carlsbad office, our Board approved the project. However, a

regional environmental group subsequently sued the county and the developer, and

has delayed the project and continues to delay the project for nearly a year and a

half. To date, the courts found absolutely no flaw in the surveys conducted. Not less

than a mile directly to the south of this particular area, and due to the active industrial development of the region, a new freeway interchange, along Interstate 15, was

deemed necessary in order to address the corresponding existing, and increased

truck traffic to the area. Congressman Calvert gave us great assistance by securing

partial Federal funding for the project, and with this in hand we began to expedite

the design and construction in order to stay ahead of the congestion curve. Since

there was a Federal nexus with the project, we were required to consult with the

U.S. Fish & Wildlife Service on this project. Recognizing that the particular area

of the new interchange was not prime for habitat, or a known ‘‘flight’’ area for the

Delhi Sands Fly, County staff sat down with members of the Carlsbad office, where

they all agreed that in order to expedite the project, they would ‘‘assume’’ some

amount of occupation by the fly (even though none have ever been observed there)

and provide for a reasonable level of mitigation. This process would allow us to keep

the project moving without having to conduct the normal 2 year protocol observation

(during August and September) for the fly. The process moves along in a fairly decent time frame, with Federal requirements adhered to, and a reasonable level of

fly mitigation provided—setting the stage for consultation (prior to Federal Highway

approval) with the local Carlsbad office of U.S. Federal Fish & Wildlife Service.

After 2 years of discusssions, representatives from Carlsbad indicated that the 8–

10 acres of low-value, non-occupied mitigation for the fly ‘‘is not sufficient, as due

to the abundance of industrial development occurring in the area, the interchange

project causes cumulative impacts, and will likely require approximately 200 acres

of mitigation.’’ Quite frankly, Mr. Chairman and members of the Committee, it was

at this point in time, in my 6 years in dealing with the Endangered Species Act,

and the local Carlsbad office, that I, personally, blew my stack!

It was at this meeting, where I realized that agreements—hand shakes, verbal,

written, or otherwise, meant nothing to certain members of the Carlsbad office. Too

often, decisions are arbitrary in nature, with little or no thought, basis, or real

science behind them. At times it appears as if decisions are made strictly by ones

own personal beliefs or agendas, and often times, only for the purpose of delaying

a project, with the ultimate hope of stopping growth and economic productivity.

Now, to the credit of certain members of the Carlsbad office, we have recently

reached a tentative agreement on this particular interchange which will require not

the 8-10 acres of mitigation, but 40 acres with a substantial buffer area for protection of the habitat. The project should have and could have been under construction

by now. Instead, we will be fortunate to see its construction commence in under 12

months.

While I know I’ve been somewhat lengthy in expressing some examples and the

concerns we in Riverside County have with the ESA and the Carlsbad office, I

thought it would help you in your review.
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Mr. Chairman, I’d like to close by offering some recommendations for reform to

the Carlsbad Field Office, and the Endangered Species Act:

(1) Standardized mitigation and survey requirements should be developed and adhered to. The U.S. Federal Fish & Wildlife Service, should immediately establish reasonable, uniform, and standard mitigation and survey requirements for all currently listed species. It does not appear reasonable that

when certain species can only be observed seasonally, or during 2 months out

of the year, that a 2 year survey should be required, potentially delaying economic productivity. Such mitigation and survey requirements should also be developed prior to the listing of the species in order to limit further delays after

listing, and only upon adequate and detailed science to back-up the protocol.

(2) Consultations conducted pursuant to Section 7 of the ESA should be

completed within the time period mandated by Federal regulations.

Section 7 now requires the consultation to be completed within 150 days of the

submittal to the local field office. In the case of Riverside County’s Stephens’

Kangaroo Rat ‘‘Short-Term’’ Habitat Plan (HCP), the U.S. Fish & Wildlife Service took well over 18 months to consult, and there are other similar examples.

(3) A time period for processing an application for an incidental take

permit issued pursuant to Section 10(a) of the ESA and approval of a

Habitat Conservation Plan should be established by Federal regulation

and complied with.

(4) The lack of consistency with respect to commitments and agreements, both verbal and written, must be addressed. The U.S. Fish & Wildlife Service representatives must honor all of its obligations under the ESA and

must fulfill all commitments made in agreements with local governments. Senior management of the service must hold their personnel accountable for failure

to adhere to requirements of law and interagency agreements. Clear and concise

policy direction concerning goals and objections must be provided to field staff

by management and policymakers. It is the perception of the regulated community that there continues to be a lack of management and oversight of field

staff.

Honorable Chairman and Committee members, thank you for giving us the opportunity to address you—we in Riverside County very much appreciate the leadership

you are all providing to bring a level of reasonableness to this important Act of protecting certain species.

Mr. POMBO. Thank you.

Mr. Evans.

STATEMENT OF DOUG EVANS, CITY MANAGER, CITY OF PALM

SPRINGS

Mr. EVANS. Thank you very much.

My name is Doug Evans. I am Director of Planning and Building

for the City of Palm Springs, and I would like to thank the Chair,

members of the Resources Committee, and also Congresswoman

Bono for having this opportunity to address you.

The City of Palm Springs has had a long term commitment to

resources. We feel we have a lot of success stories to talk about,

and I am going to talk about what we think is a success story that

has not been acknowledged.

Now, the City of Palm Springs and many property owners have

been frustrated by the service and how they have implemented the

Endangered Species Act. Since 1993, the city council has approved

three major projects, and currently all three are being delayed by

the Fish and Wildlife Service. In all three instances, the service

has required significant modifications, revisions, or other mitigation measures which make the projects economically unfeasible and

have contributed to the city’s financial challenges.

In order to augment city resources or revenues, the city council

has had to cut programs and has had to impose a local utility tax

to maintain essential public services.
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The delays caused by Fish and Wildlife Service have kept the

city from expanding its primary industry, tourism, while neighboring jurisdictions in the Coachella Valley have expanded and developed resorts in similar terrain and with similar biological resources.

For the past 25 years, the City of Palm Springs has been a leader in environmental protection and acquisition of sensitive habitats. The city’s general plan designates 33,000 acres for conservation, open space, parks, recreation and water course. That is 66

percent of the land in the City of Palm Springs.

Our general plan and zoning ordinance requirements are very restrictive. We have never been complimented as a city that is easy

to develop in, although I have been charged with trying to change

that. To show its commitment, the city council has acquired

through purchases, trades, dedications 3,400 acres of prime bighorn

sheep habitat. These lands form an almost continuous no development boundary along the base of the San Jacinto Mountains.

The exhibit to my left with the bright green on it shows all of

the city owned lands, and in the areas outlined in blue—it does not

show up very well—show two of the three development projects I

am going to speak about today. The area in purple shows the areas

that were disputed with the agency or the service.

The city council has offered to place additional deed restrictions

on these lands or possibly even dedicate these lands to the state

or Federal Government if these properties can be developed that I

am going to speak about.

Let me put it in context as far as acreage. There is over 33,000

acres of bighorn sheep habitat in the San Jacinto Mountains on

that map. We are asking if we can develop the last 500 acres to

fill out the western edge of our city. The rest of the area available

is either owned by the city or undevelopable because of the size of

the mountain, the steepness of the mountain, and the other environmental factors.

You have heard a lot about the Shadowrock development. Mr.

Bragg has worked very hard. I have worked personally with him

15 years on that project.

He did not tell you the first position from Fish and Wildlife Service, and this position was stated in initial meetings. It was also

stated in a settlement agreement meeting with California Fish and

Game over a lawsuit.

Fish and Wildlife staff’s initial position was for the owner to call

the Nature Conservancy because he would never be able to develop

his land. Mr. Bragg outlined what is left, 150 acres from 1,100.

Mountain Falls Golf Resort, a very similar story. Fish and Wildlife Service reduced the area from development from 120 acres to

60 acres, enough land to develop a seven to nine hole golf course.

This is just a golf course project with 20 condominiums. It is not

a big project. There is no other land to move the golf course to

around the property.

Every time the Mountain Falls developer has met with Fish and

Game or Fish and Wildlife Service, they have been asked to move

the golf course down the mountain. They did. They moved the line,

and we submitted in our information where they put the line.
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They have taken 120 acres, made it 60. You can barely do nine

holes of golf. That is not a project.

Canyon Hotel and Resort, this project was approved by the city

back in 1993 and was a direct result of the vision from former

Mayor and Congressmen Bono. This is a project that Fish and

Wildlife Service scared a development team, a very notable development team, in a hotel operation that we would love to have in

our community by claiming that an existing golf course, an existing

street, an existing bridge, and an existing flood control channel

formed a significant bighorn sheep corridor, this in spite of the fact

that there is a tribal park a half mile away that cost the state $17

million, and the county just added several million dollars to that,

that has a wonderful corridor through it. It is about five to eight

miles wide.

After three or four subsequent meetings, Fish and Game and

Fish and Wildlife Service changed their mind. That area is not a

corridor.

Well, the developer is gone. The project still is undeveloped, and

the tribal council which owns the land is struggling with how do

you make the project work with all of these restrictions.

One of the things that we have run into is the availability of information from the service when we look at projects. I am going to

give you an example.

The city asked for detailed information for approximately two

years to prepare an EIR. Fish and Wildlife Service, and now working in conjunction with Fish and Game, did not provide any on site

data. In fact, today on another project they tell me they do not

need field surveys because they know where the habitat is.

Then at the eleventh hour, the Sierra Club or the Bighorn Institute submits data, sometimes with Fish and Wildlife Service titles

on it, into the record with the intent of trying to disrupt the project

at the last public hearing.

In our experience, we found the staff to be accessible. We tend

to be able to have meetings, but we do not feel that they consider

all of the available information. We do not believe that they participate effectively in consultations and public meetings. We also believe that they clearly extend beyond their legal authority to discourage development at the very, very beginning.

We have listed some questions. I note my time is up. They are

suggestions. One of the items we would like you to try to push is

the release of the recovery plan. We have been asking for the bighorn sheep recovery plan for a long time. We are told that this will

help resolve problems, and it is probably over a year late.

Thank you very much. We need your help, and I appreciate the

opportunity to address you today.

[The prepared statement of Mr. Evans follows:]
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Mr. POMBO. Thank you very much.

Mr. Calvert.

[Applause.]

Mr. CALVERT. Thank you, Mr. Chairman.

Supervisor Tavaglione, obviously we have a common interest

with the Galena Exchange, and I would just like you to get into

potentially more detail to the Committee on how the 40 acre mitigation agreement was reached when the Fish and Wildlife Service

initially wanted 200 acres.

Mr. TAVAGLIONE. Mr. Calvert, there are three recovery areas for

the fly, one in the Algomanza Colton area that has been mentioned

earlier, one in the Herupa area, and the one in Ontario, the Ontario recovery area. This particular interchange is in the Ontario

recovery area, though it is in Riverside county, and very little habitat remains in that recovery area.

Yet because this is a Federal project and there is little habitat

remaining or at least anything to really force certain properties to

be brought into habitat, it was mentioned that the 200 acres could

provide mitigation for the entire recovery area, Ontario recovery

area.

Mr. CALVERT. Just for the Committee’s information, 200 acres in

that area would cost per acre how much would you estimate?

Mr. TAVAGLIONE. Two hundred acres today would cost $100,000

an acre minimum.

Mr. CALVERT. Hundred thousand dollars an acre for 200 acres,

and what was the cost of the entire Galena project?

Mr. TAVAGLIONE. The cost of the entire Galena project is $15 million.

Mr. CALVERT. So the cost of the initial mitigation exceeded the

cost of the entire project?

Mr. TAVAGLIONE. That is correct. That is correct.

Now, the 40 acres, since there is little land remaining or little

recovery area remaining for this fly in the recovery area, yet we

have a need to keep this project moving. I volunteered the ability

to, if they would give us the ability to, mitigate outside the recovery area, which they agreed to do, 40 acres of prime habitat which

is going to be well beyond 40 acres after we include some buffer

area for protection of the fly. This is above the Stringfellow acid

pits, which I think many of you are aware of, which is a state infrastructure or a superstructure fund property.

Forty acres is being provided. To date I have not seen any real

science that leads to either the 200 acres, the eight to ten acres

that we originally wanted to provide for mitigation, nor has there

been any real science for the 40 acres other than that the fly has

been observed in abundance.

Mr. CALVERT. Thank you.

Mr. TAVAGLIONE. Yes, sir.

Mr. CALVERT. Mr. Zappe, what would you consider to be the most

frustrating issue when you deal with the Carlsbad office, in your

opinion?

Mr. ZAPPE. Well, I guess I would have to say that at least on the

part of some of the staff, the lack of integrity and our inability to

trust what we hear very often.
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Mr. CALVERT. That is a pretty powerful statement. You head up

one of the largest agencies in Riverside County. Obviously you, I

guess, would be considered a bureaucrat, work for the government,

and you believe that there is a lack of integrity, that you question

in fact whether or not a deal is a deal per se in that office?

Mr. ZAPPE. I think our experience tells us that a deal is not a

deal. Unfortunately very often it is difficult to get a commitment

out of staff. It is even rarer that you can get a written commitment

from staff, and when we do, we pursue that particular course of action only to find later a change of heart, a change of mind, and

someone saying on staff, ‘‘Let’s do it a different way.’’

So we invest a lot of time and money going down a particular

path only to be told we do not think that is going to work. Let’s

go another direction.

Mr. CALVERT. Now, you deal with issues that obviously are involving public health and safety. Your requirement and your job is

to make sure that the public’s health and safety is protected. Do

you think that the Fish and Wildlife Service puts any consideration

in the health and safety of the people that you are mandated to

help?

Mr. ZAPPE. I have not seen much evidence of that. I think that

the service seems to have a fairly myopic, environmentally biased

view, we feel, our experience with them. I think that as Mr.

Woolfolk mentioned much earlier today, I think there is tremendous influence from the environmental community upon the staff

at Carlsbad.

The bumper sticker example has been cited. We have heard that.

We fully believe that. I think we know who that is from our own

experience in working with some of the field staff.

We see the purpose of the staff to be, one, to fairly and dispassionately administer the law with, you know, a neutral bias,

with no bias, being neutral with regard to projects that are brought

forward. We do not feel that that is the case.

Their mission certainly appears to be at cross-purposes with our

own which you mentioned, and that is to provide public health and

safety. Our purpose is certainly to keep humans off the endangered

species list.

Mr. CALVERT. I appreciate your testimony.

Thank you, Mr. Chairman.

Mr. POMBO. Mr. Hunter.

Mr. HUNTER. Thank you, Mr. Chairman.

Mr. Chairman, I am sure my colleagues feel the same way. We

want to really thank you as this hearing goes on for the great direction you have given us and leadership.

Mr. Moser, one of the rewards for being one of the few in the

bold who are willing to take the witness table here is that you get

to make recommendations, as a number of our people have. You

have put together, along with a number of other folks in San Diego

County, some recommendations, constructive recommendations to

make this relationship between Fish and Wildlife and the consumer a better relationship, and could you tell us about some of

your major proposals here?

Mr. MOSER. Well, let me just touch on a few. There are also some

boards, I think, over to the side perhaps somebody can put up.
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I think one is simply to promote success, and the one way of

doing that is to actually budget the de-listing process. I think, Congressman Pombo, you noted that the success rate has not been

what Congress had intended. Perhaps as part of your appropriations, you should look at a specific budget that goes strictly and

solely to de-listing species which would provide an incentive to actually make the program work.

On more of perhaps an administrative level, one of the things

that is, I think, unique in these multi-species conversation programs is that they are not just about biology. They are an attempt

to balance biology, economics, development, a whole host of things.

They are, indeed, a compromise solution.

So what we would recommend is that they be staffed with people

that come from a varied background, not just biologists. You know,

you could have an economist who works at Fish and Wildlife Service. Even a builder might be nice, you know, maybe one.

But beyond that, the establishment of performance goals, and by

performance I do not mean performance in the sense of how many

projects can be delayed or how many species can be listed, but really performance in the sense of how quickly you can respond to the

varied administrative tasks that one has, and certainly we do that

in business all the time.

You are given an assignment. You have a time period in which

to respond, and you are evaluated on whether you respond within

that time frame, and perhaps one of the ways of tracking that is

really an application tracking system. I know the County of San

Diego has initiated that. They can tell you on any given instant

that you call them by pulling it up on the computer where your application is or where your letter is or whatever it is, where it is in

the process.

You cannot get that from Fish and Wildlife Service today. So

those are a few. We are happy to provide you with additional ones.

Mr. HUNTER. Okay, and, Mr. Chairman, with your permission, if

we could ask Mr. Moser’s recommendations to be made a part of

the record, and, Mike, maybe you folks could review them and take

a look at them and maybe make a comment on them for Mr. Speak,

if you would do that.

Mr. POMBO. Without objection, they will be included.

Mr. HUNTER. Let me just throw a couple of things out that I

think would expedite the process and make it more fair. You have

obviously got a lot of entities and obviously several Federal entities

that are interested in the same issues, the Fish and Wildlife, the

environment, the Corps of Engineers, and then you have got your

state subdivisions, the counties, cities, et cetera.

As I understand, one of the frustrations that I have heard about,

and, Dennis, maybe you could speak to this, is that we seem to

have a consecutive situation here you will first have where the

agencies will sometimes string out their participation. So you do

not have a coming together of all of the affected entities who sit

down and say, ‘‘Let’s have the environmental planning meeting,

and let’s figure out what we are going to do with this particular

stream that goes through the affected property.’’

And then you could get Fish and Wildlife to comment on it. You

could get Corps of Engineers to comment on it. You could get the
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local government and, if applicable, the state government to comment and to put together a plan with respect to that aspect of that

particular piece of property.

Instead, and tell me if I am wrong, what I understand is one

agency will make their scrub, and they will say, ‘‘We want so many

acres in mitigation, and here is out plan,’’ and when that gets finished, the next agency will say, ‘‘Now, we will take a look at it after

the other guy is finished, and we will make our scrub.’’

Is that an accurate description of what happens?

Mr. MOSER. Well, it is accurate, but in fairness to the agencies,

I would say that, you know, the bringing together of everybody at

the table is a difficult process because Army Corps is working

under one set of legislative mandates and so forth, and Fish and

Wildlife and EPA under others.

So I do not think that there is a lack of desire to do that, but

there is a lot of hindrances to the process, and certainly there is

a need to bring everybody to the table at one time.

Mr. HUNTER. Okay. I just had a meeting with the Corps on this.

They said they would be happy to sit down. You know, Mike, you

were talking about lack of resources. Being able to sit down at the

same meeting with all of the agencies and review the aspects that

you are all going to look over so that you do not have to reinvent

the wheel for each individual agency I think has an efficiency aspect.

So I would like to make a recommendation, Mr. Chairman, and

maybe put it into writing at some point here that we have a memorandum of understanding between Federal and state subdivisions

and the Fish and Wildlife and the Corps that provides for some

joint meetings early on in the process.

And, Dennis, maybe you could give us some input there.

And so thank you, Mr. Chairman. Just the last thing I would

ask, Mr. Berg, if you can, I know my constituent who drove up here

from Jacumba, Mr. Turecek, is going to be around for a while, and

I ask if you could re-engage with him and try to help him walk

through this process, and if you could take a minute with him before the meeting is over, I would sure appreciate it. Thank you.

Thank you, Mr. Chairman. I appreciate it.

Mr. POMBO. Ms. Bono.

Ms. BONO. Thank you, Mr. Chairman.

It is a pleasure to have Doug Evans here before me. It is kind

of ironic that he is here. Just on a personal note, he is one of the

reasons Sonny got into politics in the beginning, working at City

Hall, and Sonny ran into you and bureaucracy and decided to run

for mayor and became your boss.

Mr. EVANS. Because he wouldn’t give him the permit?

Ms. BONO. No, he is the guy who replaced the guy who would

not give him his permit.

Mr. EVANS. Thank you very much for that clarification.

[Applause.]

Ms. BONO. There is hope. My question is for you, Doug.

Do you believe that the agencies, among them the U.S. Fish and

Wildlife Service, California Department of Fish and Game, Bighorn

Institute, and the Sierra Club, or local employees of the agencies
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have worked together against the City of Palm Springs or project

proponents to stop development?

Mr. EVANS. Well, there is very, very little doubt there. I mean

we have sat down with the agencies, asked for information, very

specifically for information, told we would receive it. We would not

receive it.

And then on the Shadowrock project, the Sierra Club walked in

with a document with Fish and Wildlife Service letterhead on it

showing location of sheep sightings. It is actually a part of the information on this exhibit.

On another project more recently, Mountain Falls, we have been

trying to get sheep information, actually where do they exist in the

mountains, and at the last public hearing, probably after midnight,

the Bighorn Institute walked up and handed the information to us.

It was GIS coordinate level information. So it looked like a scientific formula. You couldn’t read it that night and make a decision.

We waited. The council continued the hearing so we could plot

the information, and the ironic thing is it was confirming every bit

of the information we had in our environmental impact report, and

yet the agencies were standing there telling us that the information was not accurate. They had better information.

Once we got that information, it confirmed that we had good information and that council acted with good information.

Ms. BONO. You deal with an awful lot of, I think, different governmental agencies obviously with your job. Can I ask for your unbiased opinion with the Carlsbad office here, and your frustrations

with it?

Mr. EVANS. I think, you know, one of the things that they need

to do and something that we have worked with our staff on is to

encourage them to be less afraid of making a decision and then

having the supervisors accept the decisions of the staff and empower the staff to work with people.

What we run into is you work with a field biologist and you get

right up to where you think you’re going somewhere, and then they

say, ‘‘Well, the decision is really my supervisor. Well, it is really

the assistant field supervisor,’’ and I think what you have heard

today, it is really Mr. Spear.

And it is a very cumbersome process to work up the chain that

far to deal with issues that really are business decision. They are

business for Fish and Wildlife Service. They are business for the

city. They are business for property owners, and it is very frustrating to never be able to meet with a decision maker that will

sit at the table and say, ‘‘I can make a decision on this.’’

Ms. BONO. Thank you.

Is there any scientific data that the City of Palm Springs has

been provided by the U.S. Fish and Wildlife Service that supports

the conclusion that the Mountain Falls Golf Preserve project will

cause a take of the peninsular bighorn sheep?

Mr. EVANS. We have received very lengthy letters basically criticizing the information in the public record, but the service has not

provided any site specific information. That information came on

that particular project either through the Sierra Club or the Bighorn Institute, a nonprofit organization in the Coachella Valley.
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Agencies tend to say when you ask, ‘‘Well, where is data?’’ Fish

and Wildlife and Fish and Game tend to respond, ‘‘The data is collected by the Bighorn Institute. They are a nonprofit corporation.

We cannot share their data.’’

Well, we believe most of their data is collected with public

money, and if the agencies are using it for a decision, we should

be able to look at the same information, have it analyzed, present

it to our decision makers who have to make tough decisions.

And we submitted the mitigation outlines for two of the projects

to you in your materials. Our council is tough. It required off site

mitigation. They have required relocation projects. So the council

has tried to work in a balanced situation and has taken some tough

positions.

I know Mr. Bragg and the Mountain Falls people have not been

happy with all of those decisions. It would help us if we had the

information up front as opposed to after midnight the last night

city council is going to consider a project.

Ms. BONO. Thank you.

My time has expired, Mr. Chairman. Thank you.

Mr. POMBO. Mr. Evans, I would like to just follow up with something you were just saying. I am a little curious. You are saying

that you believe that the biological data is gathered by a private

organization.

Mr. EVANS. The data that we typically receive, and what we’re

typically looking for is we can go out and evaluate the quality of

habitat by the technical surveys and have professionals do that.

What we always need is where are the sheep. Where do they spend

most of their time? What are the lambing areas, you know? What

are the corridors? Where are the water sources, things of that nature?

And where we have trouble is the entity that seems to collect

that information is the nonprofit, but they share the information

with the agencies, and then the agencies consider it confidential

and will not share it with the city, and we have to kind of wait

until the last——

Mr. POMBO. Do they base their decision on that information?

Mr. EVANS. Fish and Wildlife Service?

Mr. POMBO. Yes.

Mr. EVANS. It is my belief that they do. That is the only data

that is available. The data represented on that map, the sheep

sighting information is the best information the city council could

get after two years of working with the agencies, and we did not

get it from Fish and Wildlife Service. We got it from either the Sierra Club or the Bighorn Institute, and almost always at the last

possible minute.

And the agencies know the information is there. They know what

it is, and all they have to do is probably make a phone call and

say, ‘‘I think it is time to share the information.’’

You as decision makers know that if you have good information,

if you have time to consider it, you make better decisions. Evidently the service, Cal. Fish and Game do not believe in that at

the local level. That is my experience.

Mr. POMBO. All right. I may want to follow up with you on this.

I have some questions I need to go over with staff on exactly the
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way this should work, but I may want to follow up, and I may provide questions in writing for you after the hearing.

Mr. Hollingsworth, you are here representing the Farm Bureau.

I know my experience typically. The farmers and ranchers are not

the best friends with the developers. They are not typically on the

same side of most issues, and yet your testimony brings out many

of the complaints, many of the concerns that we have heard from

those in the development community.

In your experience, has the agency been that difficult to deal

with in terms of the farmers that are out there? They are not developing. It is the guys who are out there farming. Have they had

the same kind of difficulties?

Mr. HOLLINGSWORTH. Well, you have to, and I am sure you do,

understand the unique situation that agriculture is in in dealing

with the Endangered Species Act. Agriculture does not have the

ability to say you are going to go out and farm some grain or you

are going to put in a new orchard. They do not have the ability to

take their property and put half of it aside and hand it over to the

government as mitigation in order to get an endangered species

permit.

So what usually happens, if somebody is planning an agricultural

activity on the property and the Fish and Wildlife Service stops

them because there is a species there, it just does not happen. The

agriculture does not happen. That is exactly what has happened

with the Stephen’s kangaroo rat in most instances in the county,

and I am afraid that is what is going to happen with a number of

species elsewhere in the country.

And you are right. We have been able to work very closely with

the builders in this county. We have formed what I think is a very

valuable coalition with the builders and the property owners association, along with the Farm Bureau, in dealing with these issues,

and we have put forth what we think is a workable solution under

the existing Endangered Species Act that protects what we all have

in common, and that is protection of our private property rights,

but deals with the ESA in the situation that we have today.

Mr. POMBO. Let me ask you a question about mitigation lands.

I know in my area, typically when it is decided that we are going

to set aside land for habitat conservation plans, that it is typically

farmland that ends up, whether it is grazing land or land that is

being farmed.

And I know that a lot of farmers in my area are not real comfortable with them ending up being permanent habitat and in compensation levels that are talking about are not necessarily in line

with what it means being permanent habitat.

How do the farmers and ranchers in this area feel about becoming permanent open space?

Mr. HOLLINGSWORTH. Well, again, I think it goes back to their

private property rights. If they are not forced to, I think they have

a right to do that with their property if that is their own individual

decision without pressure from government regulatory agencies.

Mr. POMBO. So as long as it is their choice and if they are choosing to sell part of their property right, part of their bundle of property rights, you think they are okay with that?
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Mr. HOLLINGSWORTH. I think if the individual wants to do that

and he is not pressured unduly by a regulatory situation or by, you

know, a neighboring government ownership of property that keeps

harassing him in his activities and where he just gives up and has

to sell or sell a conservation easement, but I think there is a larger

issue there.

Where does that stop? You know, there is a difference between

agricultural preservation and continuing agricultural viability. Agricultural preservation is what you end up with with most green

belts, is a museum piece that is not productive. It is not producing

food for the country or anybody else, and it is not producing income

for the person who owns that property.

What we need are ideas that make agriculture viable and able

to change to the marketplace and able to stay in places like Southern California that are rapidly growing, with a change in agricultural marketplace.

I mean, people think that Riverside County is just an urbanizing

county, and as Supervisor Tavaglione correctly pointed out, we are

still one of the top agricultural counties in the state and in the

country with over $1.2 billion in agricultural receipts last year, and

that went up $100 million from the year before.

So agriculture just has to have that ability to remain viable. In

order to have that ability, it needs to be able to change and adapt.

Mr. POMBO. Well, thank you.

I thank the panel for your testimony. I am going to excuse this

panel and call up our fourth panel.

Mr. Edwin Sauls, Mr. Don Fife, Ms. Lorrae Fuentes, and Mr.

Randy Kading.

Thank you. Now that you sat down, if I could have you stand up

for just a second and raise your right hand.

[Witnesses sworn.]

Mr. POMBO. Let the record show they all answered in the affirmative.

Thank you very much for joining us.

Mr. Sauls, you can begin.

STATEMENT OF EDWIN G. SAULS, THE SAULS COMPANY AND

BUILDING INDUSTRY ASSOCIATION OF SOUTHERN CALIFORNIA

Mr. SAULS. Thank you, Mr. Chairman, members of the Committee.

Good afternoon. My name is Ed Sauls. I am speaking here to

share with you my experiences as Chairman of the Endangered

Species Task Force for Building Industry Association of Southern

California, also as a land developer, and as a consultant in resolving conflicts between endangered species and development.

Let me give an overview here. From the development perspective, the purpose, the purpose of the Endangered Species Act is a

very good one. As an industry, we value species protection. We also

value good planning. In fact, Building Industry Association has

joined with many others and taken a leadership role in advocating

good planning for western Riverside County and other areas of

Southern California, good planning that includes the production

and conservation of sensitive habitat and species.
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Such planning can create a balance between development and

conservation. It can create highly desirable communities. However,

effective conservation requires a cooperative effort with U.S. Fish

and Wildlife Service and those whom they regulate. It requires

trust, communication, and close cooperation.

Now, let me step back a moment and share with you that two

years ago I was particularly frustrated in my dealings with the

Carlsbad office of Fish and Wildlife Service, and I thought, well,

maybe this is something that is personal. Maybe I am the wrong

guy to be doing this, and so I conducted an informal survey.

Now, this was a survey, as I said, that was informal. It was

mainly with other people in the development industry, but it was

with people that had a continuing experience, an ongoing experience with U.S. Fish and Wildlife Service.

And the results of that concluded that there is substantial frustration among most applicants that deal with Fish and Wildlife

Service. Now, the findings of this survey were reviewed with upper

management of the Carlsbad office and Mr. Spear. They were reviewed in 1997 and again in 1998 when Mr. Berg took over management of that office.

Some things have changed since then, but I tell you the trust,

communication, and close cooperation needed to accomplish effective wildlife conservation is not adequate. Implementing the Endangered Species Act in Southern California is in sore need of improvement.

Today there continues to be a lack of trust between the Carlsbad

office and many of the landowners they regulate. Projects continue

to be stalled because conflicts are not resolved. There are no

predefined time frames for actions regarding Section 10 permits. In

fact, many people have been told habitat conservation plans are not

going to be processed.

And if you are operating under a Section 7 consultation where

there are time frames established, you have heard today that there

are delays in getting the process started.

The authority and limits of authority of Fish and Wildlife Service

under the ESA is not consistently applied and can vary depending

on the individual that you work with.

Incentives to conserve sensitive habitat, such as conservation

banking, are ineffectively implemented.

You know, landowners who are experienced in working with the

Endangered Species Act are not motivated in these circumstances

to conserve habitat. In their dealings with the service, their incentive is not to be proactive in conservation.

To offer a more complete perspective, let me say that I have

worked closely with the Carlsbad office since 1991. The staff is

hard working and committed to the protection of endangered species. Together we have solved problems on more than a dozen incidental take permits, adopted new Federal policies, created three

conservation banks, and addressed many other landowners’ issues.

So as Congresswoman Bono told us earlier, there are some successes, and I confirm those successes. I have seen Mike Spear work

to improve the HCP process and restructure the Carlsbad organization. Ken Berg, Jim Bartell and Sherry Barrett are senior man-
237

agers that regularly meet with the building industry to facilitate

communication. These are good things.

But I tell you problems do persist, and there is much room for

improvement.

Now, let me share with you something, an action that has been

taken this year that I think epitomizes the problem. You have

heard about the—I will make it brief—you have heard about the

multiple species plan for western Riverside County. Mr. Spear referred to it as a good example. This is supposed to be the solution

for all the conflict that we face. This is what occurred.

We have a planning agreement that sets forth obligations of the

Fish and Wildlife Service. That planning agreement said that Fish

and Wildlife Service will provide some information to us and be cooperative in the process.

The reality is Fish and Wildlife Service reneged on their commitment. They refused to provide and refused to provide without apology the information they were supposed to provide. I do not think

this is a good example, as Mr. Spear indicated, of how we solve

these problems.

In my testimony I offered further clarification of the problems. I

think this describes it. I have offered further clarification of the solutions. Mr. Moser has a pretty comprehensive list, and mine would

only complement his.

Let me conclude by saying that Southern California is a hotbed

of conflict between population growth and endangered species conservation. More than 13 million people live here. In areas such as

western Riverside County, the population is expected to double by

the year 2010. A housing shortage exists, and it is a major struggle

to produce affordable housing.

This is also one of the most biologically diverse areas. We must

do a better job of resolving these conflicts. We must constantly seek

to improve the working relationship between the service and the

regulated community.

I believe we are at a turning point. We must either take an affirmative action now and take action. I believe words are no longer

adequate. Action must be taken to rebuild the trust, and trust

would be accomplished by doing some of the things presented here

and presented in my testimony.

If we do not, we will fail to accomplish the quality of communities we desire to build. We will fail to accomplish meaningful

wildlife conservation. Improve or fail, this is our choice.

Thank you.

[The prepared statement of Mr. Sauls follows:]

STATEMENT OF EDWIN G. SAULS, CHAIRMAN, ENDANGERED SPECIES TASK FORCE, BUILDING INDUSTRY ASSOCIATION OF SOUTHERN CALIFORNIA

Mr. Chairman and Members of the Committee:

Good morning, my name is Ed Sauls. I am pleased to have the opportunity to

share with you some of my experience in implementing the Endangered Species Act

in Southern California as Chairman of the Endangered Species Task Force for the

Building Industry Association of Southern California, and as a developer and consultant to landowners specializing in resolving endangered species issues.

OVERVIEW

The purpose of the Endangered Species Act is very good. As an industry, we value

protection of species and their habitat. We value good planning. In fact, the Building

Industry Association has taken a leadership role in advocating multispecies plan-
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ning to promote wildlife conservation and balance it with housing demand. Such

planning can create highly desirable communities. However, effective conservation

requires a cooperative effort between the U.S Fish and Wildlife Service (FWS) and

those whom they regulate. It requires trust, communication and close cooperation.

Two years ago, I was particularly concerned about my personal frustrations in

working with the FWS Carlsbad Field Office. I was interested to know if my experience was unique and I wanted to learn how we might improve the relationship between FWS and the people they regulate. Accordingly, I conducted an informal survey of people who were experienced in working with the Carlsbad Field Office. The

results of this survey concluded that there is substantial frustration among most applicants interviewed. The findings of this survey and resulting recommendations to

improve industry and agency relations were presented to FWS management in 1997

and again in September 1998 after Ken Berg became Field Office Supervisor.

Since then, some improvements have taken place. For example, the office has reorganized and the current chain of command is much more clearly defined. However, frustrations remain very high and many improvements are needed. The trust,

communication and close cooperation needed to accomplish effective wildlife conservation in Southern California is not adequate. Implementing the Endangered

Species Act (ESA) in Southern California is sorely in need of improvement.

•There continues to exist a lack of trust between the Carlsbad Field Office and

many of the landowners that they regulate.

• Survey protocols vary yearly as to how and when landowners are required to

survey for listed species.

•Projects continue to be stalled because conflicts are not resolved.

• Scientific information, used as the basis of permit decisions, is limited and

often inadequate. Better information is needed and FWS should openly encourage the exchange of information from outside sources, including consulting biologists.

•The cost of complying with the ESA is difficult to predict. Mitigation requirements can vary dramatically between neighboring properties. In many instances, mitigation demands by FWS are excessive.

•The authority, and limits of authority, of FWS under the ESA is not consistently applied and can vary depending upon the individual staff member assigned to a project.

•Landowners who require Endangered Species Take permits can be delayed

one, two, three years or more.

•There are no predefined timeframes for actions regarding Section 10 permits.

Section 7 consultations, that are supposed to have timeframes, are continually

delayed.

• Enforcement of ESA violations are confusing, limited and ineffective.

• Incentives to conserve sensitive habitat such as Conservation Banking are ineffectively implemented.

•Landowners who are experienced in working with the Endangered Species Act

are not motivated to proactively conserve habitat. Instead, current policy encourages compliance with only the minimum requirements of the law. Sometimes landowners are encouraged to destroy habitat when the gray areas of the

law allow them to do so.

To offer a more complete perspective, let me say that I have worked closely with

the Carlsbad office since May 1991. Without exception, the staff is very hard working and strongly committed to the protection of endangered species. Together, we

have solved problems on more than a dozen incidental take permits, adopted new

Federal policies, created three conservation banks and addressed many other landowner issues. For example, I have seen Mike Spear work to improve the HCP process and restructure the Carlsbad organization. Ken Berg, Jim Bartel and Sherry

Barrett meet regularly with the Building Industry Association to facilitate communication. Many other examples of good working relationships exist with individual

employees of FWS. During the last eight years, we have had successes and there

are a lot of very good people at the Carlsbad Field Office. But problems do persist,

and there is much room for improvement.

RECENT ACTIONS

Some recent actions of FWS will help articulate the current relationship with

FWS. On March 4, 1999, approximately 40 people participated in a meeting to plan

the Multiple Species Habitat Conservation Plan (MSHCP) for Western Riverside

County. If successful, this plan will change the future of Western Riverside County.

This plan has the expectation of solving the inherent problems between population

growth and wildlife conservation. It presents the single best opportunity to reconcile

the conflicts over an individual’s right to the use of their property on one hand and
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a community goal of assuring wildlife conservation on the other. This plan can also

be the solution to solving the individual permit problems and horror stories we hear

about. Through the plan, we also expect to protect more than one hundred species

when (or if) this plan is implemented.

Equally important, it is possible this plan can serve as a new prototype for other

parts of our nation looking to solve their endangered species problems. To say that

a lot is riding on this plan is an understatement.

A Planning Agreement, executed on August 28, 1997 by Michael Spear, Regional

Director, sets forth the ground rules of the planning process for the MSHCP including the obligations of FWS. This document took more than 2 years to carefully negotiate with FWS and representatives of various stakeholder interests. The executed

agreement called for FWS to provide a ‘‘rough cut’’ of the requirements necessary

to obtain approval of the MSHCP. It also called for a cooperative process among the

participants including stakeholders and the U.S. Fish and Wildlife Service.

Delivery of this information was promised more than a year earlier, but was finally scheduled for March 4, of this year. FWS did present considerable, impressive

information at the meeting, but the ‘‘rough cut’’ information was not delivered!

More than five representatives from a broad spectrum of interests including biologists, environmental groups, farming and landowner interests agreed and clearly

stated that the FWS had failed to provide the long awaited information.

Many of the attendees felt insulted that FWS tried to pass off the other information they presented as fulfilling their commitment to provide the ‘‘rough cut.’’ FWS

was challenged to provide the promised information. Without apology, FWS unilaterally decided to renege on their promise as set forth in the Planning Agreement

and signed by the Regional Director.

At a subsequent MSHCP planning meeting, the issue was raised again. It was

agreed that FWS clearly reneged on their promise. Many participants responses

were, ‘‘So what else is new from FWS? They do this type of thing all the time.’’ (See

attachments).

PROBLEMS:

This conduct and other ongoing actions on the part of FWS create major problems

in implementing the ESA in Southern California. It leads landowners and local government agencies to conclude that:

•FWS does not live up to its commitments even when they are in writing.

•Their prior decisions cannot be relied on.

• Information known to FWS, and which is critical to permit decisions, is withheld.

•FWS’ commitment to cooperatively participate in a stakeholder process is not

reliable.

•Trust has clearly been broken by FWS.

•Landowners are not benefited by meeting with FWS early in development approvals.

• Decisions and formal processing of projects are often delayed unnecessarily.

• Meetings with FWS staff members occur without resolution of project conflicts.

• Interpretations regarding the limits and authorities of the FWS vary with individual staff members.

• No clearly delineated understanding exists regarding the authority or lack of

authority of FWS.

• Staff members do not regularly present reasonable and prudent solutions to

address endangered species impacts.

• Mitigation varies with each project and it is extremely expensive.

• When disagreements occur, project proponents are concerned that elevating

the problem will result in retributions in getting permits processed.

SOLUTIONS:

Is there room for improved management of the FWS? Absolutely yes! This is why

we are here today. This is not a witch-hunt. We are not here to burn anyone. We

are here to recognize a problem and provide our collective best efforts to resolve it.

We are looking for better ways to facilitate communication, to resolve conflicts, reestablish an overall trust relationship and to provide that the process maintains mutual respect.

Major changes are urgently needed now to correct the degraded relationship between FWS and those they regulate. Accordingly, FWS should:

•Provide improved management including closer supervision, more active participation by senior managers and better accessibility of management to resolve

conflicts.
240

• Establish the position of an ombudsman who reports to an authority other

than FWS. This position should be created to actively facilitate communication,

processing, interagency communication and problem solving.

• Conduct substantive, pre-project processing meetings with senior management

in attendance.

• Assign staff members to projects according to their experience level.

• Set standards for conflict resolution and milestones associated with project

processing including reasonable time lines. Track and report performance according to these standards.

• Clearly articulate the authority and limits of staff authority as provided in the

ESA.

• Stress the importance that needless delays do not benefit species protection

and present unacceptable costs to private landowners.

• Require staff members to respect stakeholders and understand the importance

of their role in multispecies plans as team members working to a common goal.

• More proactively provide applicants the information they need.

• Encourage staff to provide applicants reasonable and prudent measures consistent with the goals and purposes of the proposed project. (similar to that

which is required in Section 7 jeopardy opinions, but provided early in the consultation process)

• Create positive incentives for personnel to improve relations with those they

regulate.

•Provide a climate that encourages landowners to consult early with the FWS.

Most importantly, FWS should take action now that rebuilds trust. If it is rebuilt,

particularly through implementation of recommendations such as described above,

we can accomplish a lot.

CONCLUSION:

Southern California is a hotbed of conflict between population growth and endangered species conservation. More than 13 million people live here. In areas such as

Western Riverside County, the population is expected to double by the year 2010.

A housing shortage exists and it is a major struggle to produce housing affordable

to this growing population. Concurrently, Southern California is one of the most biologically diverse regions in the world. We must do a better job of resolving conflicts

between endangered species and growth. We must constantly seek to improve the

working relationship between the U.S. Fish and Wildlife Service and those they regulate.

We are at a turning point in implementing the ESA in Southern California. We

must either make an affirmative commitment and take immediate action to improve

relations between the Southern California office of FWS and those they regulate, or

we will fail. We will fail to accomplish the quality of communities we desire to build.

We will fail to accomplish meaningful wildlife conservation. Improve, or fail. This

is our choice.
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Mr. POMBO. Thank you.

Mr. Fife.

STATEMENT OF DON FIFE, NATIONAL ASSOCIATION OF

MINING DISTRICTS

Mr. FIFE. Mr. Chairman, members of the task force, I am Donald

Fife. I am a professional scientist specializing in environmental

mining and engineering geology for more than 20 years in both

government and private industry. My experience deals with environmental aspects of land use planning, natural resources planning

at both the state and Federal levels.

I have worked with the state clearing house as a reviewer for

EISes and EIRs. I am a former Government Employees Union

Local president for the Antelope Valley region. I belong to numerous professional societies, Geological Society, and even Sierra Club

and the Native Plant Society.

My education includes a Bachelor’s degree in paleontology, stratigraphy, and geology from San Diego State University and additional studies at University of California, Riverside; University of

Dayton; and University of the Philippines in the Republic of the

Philippines.

I currently serve as Chairman of the Nonrenewable Resources

Committee of the American Land Rights Association. I chair the

National Association of Mining Districts, and as a Director of Holcomb Valley Mining District, I work with prospectors and small

miners and with large mining corporations. Our largest member is

the Cushenbury Mine Trust, which is the trustee for the employees

that lost their jobs at the Kaiser steel mill and mine in Fontana

and Eagle Mountain in the early 1980s.

In the bankruptcy of Kaiser Steel, there was a trust created by

agreement with the former Kaiser company, Kaiser Steel, and the

United Steelworkers of America, AFL–CIO. Royalties from their interest go to pay for vision insurance, dental insurance, and death

benefits; they would expand these benefits if they were allowed to

to mine their other reserves. They sell high-grade limestone to

more major mining companies than probably any other group:

Mitsubishi, Omya, Specialty Minerals, and several cement plants

in the Lucerne Valley-Victorville area.

This district is an extremely important resource in California.

The yearly production is $200 million FOB mine. This generates

more than $1 billion per year and probably closer to $2 billion per

year to the local economy, and creates thousands of jobs in Southern California.

It is all now at risk because we have listed endangered weeds.

The U.S. Fish and Wildlife Service has listed five allegedly carbonate or limestone endemic weeds have put thousands of jobs at

risk. The plants have been used by the Forest Service to propose

a withdrawal of 30,000 acres of the highest mineral potential in the

San Bernardino Mountains.

The State of California has zoned the minerals to protect them

from incompatible land uses. This proven mineral resource is currently proposed and may be listed as an emergency closure to mineral entry by the Bureau of Land Management. The Forest Service
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supervisor, Gene Zimmerman, has made that request. It could be

published in the Federal Register at any time.

It is our concern that there has been virtually no real science or

justification for the listing of these plants by the U.S. Fish and

Wildlife. We try to get reports through the Freedom of Information

process. We get reports that come back censored with black felt pen

marks.

I am currently co-owner with the trust of one of the large mines

there, and we have great concern that we are going to be put out

of business. This 30,000 acres includes properties that are about to

be permitted as well. In this area, the Parton Mine was put completely out of business, destroying that asset to the community, the

jobs, and the tax base. This was done with so-called endangered

plants, such as the Cushenbury buckwheat, which the literature

actually shows is not restricted to the San Bernardino Mountains

and is not endangered. The exact same variety is used all over the

western United States, according to University of British Columbia, Professor Brooks, as a geochemical indicator for prospecting for

base metals.

We submitted factual information on the listing when the process

was going on. Talking to the U.S. Fish and Wildlife Service is like

talking to a brick wall. These plants are dependent on disturbance,

such as mining, fire breaks, and wildland fire for habitat expansion. They totally ignored this. This is non-science. They will not

even let us use the plants for mitigation when we are reclaiming

quarries, even though they will naturally revegetate there.

The Forest Service blew up a road in 1991 and started a

wildland fire to re-wild the area for Senator Feinstein’s Desert to

Wilderness Bill. The next year in an area where there were virtually no endangered plants, two such weeds, Parish’s daisy and a

locoweed, (incidentally, a toxic, noxious weed that is against the

law to knowingly grow on your property) came back in the rebuilt

road thriving there and in the wildland fire area—absolute proof

that these weeds are dependent on fire and disturbance for habitat

expansion.

In Lone Valley, the Forest Service’s own quarry has filled naturally in the abandoned portions with this Cushenbury buckwheat.

In fact, in November 16th, 1997, the Forest Service parked 20 vehicles from the State Off Road Commissioner’s field trip right on top

of the endangered weeds. These are inadvertent species that go

into open areas. They need open, disturbed spaces.

We are totally disappointed with their kind of ‘‘science,’’ if you

want to call it that. There is nothing that I have seen published

in a scientific journal that says or proves these plants are actually

limestone endemic and/or threatened or endangered. Yet we have

$1 billion of our economy threatened with these allegedly limestone

endemic weeds. We know they grow in granite and sandstone and

other mixtures.

So anyway, I will end there and entertain any questions that the

Committee might have.

[The prepared statement of Mr. Fife follows:]
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STATEMENT OF DONALD L. FIFE, DIRECTOR, HOLCOMB VALLEY MINING DISTRICT, &

CHAIRMAN, NATIONAL ASSOCIATION OF MINING DISTRICTS, TUSTIN, CALIFORNIA

Chairman Pombo and Members of the Committee:

I am a professional scientist, specializing in Environmental, Mining, and Engineering Geology for more than 20 years. My experience includes geotechnical, surface-ground water, and environmental aspects of land-use planning and natural resource planning at local, state and Federal levels. While with the state of California

I was technical reviewer for the Department of Real Estate and Office of Architecture and Construction and also for the State Clearinghouse for EIR/EIS documents.

While a government employee, I served as the President of the State Employees

Union (CSEA) for the Antelope Valley Region. During the past decade I have belonged to numerous scientific or professional societies, such as the Geologic Society

of America, Society of Mining Engineers, South Coast Geologic Society, Association

of Engineering Geologists, American Institute of Professional Geologists, and also

the Sierra Club and California Native Plant Society.

My education includes San Diego State University, Bachelor and Masters Degrees

in Paleontology-Stratigraphy and Geology with additional studies in Pharmacy at

the U.S. Air Force, School of Aviation, Gunter AFB, Alabama, University of California at Los Angeles and Riverside, and University of Dayton, Dayton, Ohio and

University of the Philippines, Republic of the Philippines. My state professional licenses include Certified Engineering Geologist, Registered Geologist, and a Lifetime

Earth Science Teaching Credential. From 1981 to 1989 I served four Secretaries of

the Interior as their appointee/advisor on geology, energy and minerals for the 25

million-acre California Desert Conservation Area.

Currently I serve as Chairman of the Non-Renewal Resource Committee of the

American Land Rights Association and Chairman of the National Association of

Mining Districts. As a Director of the Holcomb Valley Mining District I work with

mom and pop miners and prospectors as well as large corporate miners. Our largest

member is the Cushenbury Mine Trust, Vision Insurance Fund for the United Steel

Workers of America (AFL–CIO). These are the union workers who lost their jobs

when the Kaiser Steel Mill in Fontana and the Eagle Mountain Iron Mine were

closed by overzealous environmental regulations and Japanese dumping of steel in

the late 1970’s and early 1980’s. The union workers pensions and health insurance

were not well funded, so in the bankruptcy of Kaiser, they acquired all the limestone-mining claims of Kaiser in the San Bernardino Mountains for their Vision Insurance Fund. They sell limestone to most of the operating mines and processing

plants. Mining income goes to several thousand beneficiaries for eye exams, eyeglasses, eye surgery, and services for blind union members and their dependants.

I am co-owner of the White Ridge/White Knob Calcite (limestone) Mine with the Vision Insurance Fund.

The Holcomb Valley Mining District was established in 1860 after William F. Holcomb discovered gold in this valley on May 4, 1860. More than $100 million in gold

has been mined since that time and numerous gold deposits still exist in the district. Since 1947 and the discovery of the Lucerne Valley Limestone Province, highgrade limestone production has over-shadowed gold production. Presently the district is the largest producer of cement and other limestone products in the western

United States. There are only five high-grade limestone districts in the entire

United States. Local production is more than 5 million tons per year worth more

than $200 million dollars per year FOB mine. This raw material supports several

thousand jobs in California and neighboring states. The value added to the economy

is greater than a billion dollars per year.

Calcite, the mineral that makes up limestone is considered the ‘‘cement of modern

civilization’’ and per capita consumption is about 1,000 lbs per year per person.

Limestone makes up about 80 percent of Portland cement, and is used a white pigment and filler-extender in rubber, plastics, paints, putties, crayons, and other commodities. It is essential in making steel, glass, and refining sugar. It’s used in chewing gum and tooth paste as an abrasive and acid neutralizer to prevent cavities. It

is used in food and pharmaceuticals. ‘‘Tums’’ the antacid, is ninety-percent calcite

or limestone. It is essential in water purification and air pollution control. McDonalds is test marketing ‘‘Earth Shell’’ a biodegradable product made of potato starch,

limestone, and binder. This product has the potential to replace Styrofoam and

paper in the fast food industry.

The California State Board of Mines and Geology has spent several years identifying, classifying and zoning mineral deposits in the San Bernardino Mountains.

Under the State Mine Reclamation Act (SMARA) they are charged with protecting

valuable mineral deposits from incompatible land uses that would preclude society

access to these raw materials. Under the National Environmental Policy Act
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(NEPA) Federal agencies are required to include these local government planning

documents in Federal land use plans such as the San Bernardino National Forest

(SBNF) Plan. However, the San Bernardino National Forest in league with the U.S.

Fish and Wildlife Service appear to have ‘‘invented’’ several ‘‘endangered’’ plants

that only grow on limestone, the mineral that we are mining!

This has been a twenty year process, starting with so called ‘‘Cushenbury Buckwheat’’ or Eriogonium ovalifolium, vareity vineum in mid-1970’s. District Ranger

Jerry Mitchell told me while reviewing a proposed plan of operation for the White

Knob Calcite Mine, that the ‘‘only place in the world that this plant was found’’ was

on the one acre of limestone we proposed to mine. He said the SBNF had this plant

on their sensitive plant list and they had to treat it as if it was endangered.

I went home that day and looked the plant up in Edmond Yeager’s 1940 Desert

Wildflower book and found he reported it (including the variety vineum-Latin for

wine colored) as occurring from the Sierra Nevada Range to the Laguna Mountains

in San Diego County and even as far as Arizona or New Mexico. Ranger Mitchell

suggested we hire and ex-forest service biologist buddy of his, Tim Krantz, who

could write us a ‘‘dispensation’’ so we could mine. I believe we paid this biologist

about $11,000 dollars for his report. Since that times the SBNF put together a listing package for five alleged ‘‘Limestone Endemic Plants,’’ and submitted it to U.S.

Fish and Wildlife Service for listing under the ESA. USFWS ignored the industry

objections that there was little or no scientific data to support these plants as being

limestone endemic or even restricted to the San Bernardino Mountains.

Talking to USFWS was like talking to a brick wall, they ignored the fact that all

the reports submitted by the SBNF were in house unpublished reports on government letterhead or environment subcontractors. None of these reports in my opinion

as a scientist could be published in a professional scientific journal. Normally real

scientists are proud of their work and seek to have it published in a peer review

journal.

USFWS ignored the fact that Eriogonium ovalifolium; var. vineum was reported

as occurring in the literature (Munz, 1974 California Flora and Hickman, 1993. The

Jepson Manual of Higher Plants of California, 1993) as being found all over western

North America. Professor R.R. Brooks of the University of British Columbia, in his

1993 paper Biological Methods in Geochemical Prospecting, indicates this same species is being use all over the western region of north America as a prospecting tool

to find base metals. The flower apparently turns wine colored, if a few parts per

million base metals are present in the soil or rock substrate.

The five ESA listed plants are invader species, or, as laymen would call them,

‘‘weeds.’’ Such plants are nature’s first step in restoring the ‘‘climax vegetation’’ in

open space for a given geographic area. In my experience they require soil disturbance through clearing the chaparral or forest canopy. They grow in areas such as

firebreaks, abandoned roads, mines and mine dumps, or in areas cleared by

wildland fire. The Coyote Flat fire in July 1976 at the White Ridge/White Knob created a population explosion in Erogonium ovalifolium, var. vineum in the newly

built firebreaks and in the burned areas.

However, an even more dramatic example was the September 14, 1991 destruction of the historic Horse Thief Flats Cabin and SBNF Road 3NO3A. Forest Supervisor Gene Zimmerman, brought the Marines in to blast the historic cabin and road

out of existence. The Marines were told they were destroying these to keep drug

lords out of the area. The real reason was to manufacture wilderness for the Feinstein’s ‘‘Desert Closure Act,’’ S-21 (see testimony before The Committee on Resources, June 18, 1996—The Bighorn Mtn. Wilderness, CA: A Case Study in Federal

Land Use Planning: Abuse of Authority, Fraud, Waste, and Violation of the Public

Trust to ‘‘Manufacture Wilderness to Deceive Congress as to Wilderness Suitability’’. . .).

They blasted the road in four places, the last blast vaporized about forty tons on

my family property and sprayed hot shrapnel into the tinder dry forest. The Forest

Service staff and the Marines went home and dozens of small fires burned all night

and into the next day—for 18 hours these fires were coalescing into a single

wildland fire. A citizen reported smoke, and SBNF and California Division of Forestry (CDF) fire fighters came in and put the fire out. The Road 3NO3A was rebuilt

after several congressmen contacted the SBNF. December 11, 1991, District Ranger

Rebecca Aus sent out a letter of apology for the fire and destruction of the road.

Fortunately the Santa Ana winds stopped the day before or the 16,000 down-wind

residents of Bear Valley would have had a dangerous wildland fire on their doorsteps. About $200,000 was spent to put the fire out and rebuild the road.

The next spring I noticed that two of the alleged endangered species, Cushenbury

milk-vetch (Astragalus albens) and Parish’s daisy (Eriogeron parishii) were thriving

in the disturbed ground of the rebuilt road and the area destroyed by the wildland
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fire. Astragalus albens has the cute name milk vetch, but in consulting the scientific

literature, I found it is a noxious poisonous weed, called locoweed. It can cause delusions, blindness, or even death if eaten by browsing animals or humans. The San

Bernardino County weed abatement tells me it is against local laws and ordinances

to knowingly propagate it on your property. You can be fined for not removing it,

but it is now federally listed as endangered and it is a felony to remove it from your

pasture or property!

Another good example of these weeds needing disturbed or cleared ground for

habitat expansion is the SBNF own road material quarry at the east end of Lone

Valley near Rose Mine, where 3NO3 and 2NO2 join. Several acres have been cleared

down to bedrock for barrow material during the last few decades. As the SBNF road

crews abandon portions of their quarry about 10 percent to 20 percent of the naturally invading species are Eriogonium ovalifolium var. vineum! On Saturday November 16, 1996 SBNF staffers Ruth Wenstrom, Gail Van Der Bie and John

Wimbaugh unknowingly directed about 20 vehicles, some of them state OHV Commissioners, to park right on top of the ‘‘endangered’’ buckwheat. They announced

that the SBNF had just spent thousands of dollars of State Greensticker funds to

prove there were no ESA listed weeds growing there! This is probably the best and

healthiest population of this species in the entire SBNF. Thus, the USFS proved

that these species could be used to reclaim mined areas.

It is very obvious that facts don’t count with USFWS and SBNF. They appear to

be out to shut down mining in the SBNF. Science doesn’t support listing of these

weeds under the ESA. One of the four large mines in our area, the Partin Limestone

Mine, was driven out of business by way of using these weeds to stop mining. Over

the last decade I have testified that this was going on to both House and Senate

Resource Committees. It is now a fact the Partin mine with millions of dollars in

reserves is dead. These weeds are just another ‘‘surrogate’’ used to shut mining

down. In a secret June 10, 1999 meeting (not open to the public in violation of the

Federal Administrative Procedures Act) Forest Supervisor Gene Zimmerman distributed an April 28, 1999 letter he wrote on SBNF letterhead to the Pacific SW Forester and BLM requesting that these phony USFWS ESA listed ‘‘carbonate endemic’’

weeds be used to close about 30,000 acres of the highest mineral valued lands, mostly zoned by the state under SMARA classification and zoning to remain open to mining. These plans to close the region to mineral entry are now being implemented.

This action will destroy the union Dental, Vision, and Life Insurance Fund and

other mineral rights holder’s mineral assets. This Zimmerman request could be published in the Federal Register at any time.

As part of my written testimony I am incorporating a published paper by Howard

Brown (1994) in Murbach and Baldwin (editors), Mojave Desert, South Coast Geologic Society, Annual Guidebook #22, pp. 458470. His paper documents many of the

abuses of USFWS in the listing of the alleged limestone endemic weeds.

Many botanists and biologists that have worked on these weeds privately doubt

that they are really thretened or endangered. However, everyone who told me this

said they were afraid of retaliation, and would be black-listed and never work again,

if they openly opposed USFWS or USFS conclusions that these weeds are threatened or endangered.

If the USFWS listing stands, the SBNF will close one of the nations richest mining districts to mineral entry and the few existing mines will be depleted and die

a slow death. Two of the major mines are already looking for other deposits in Arizona or other areas, in case they can’t utilize the remaining reserves in the San

Bernardino Mountains. We request the Committee on Resources take action to stop

this closure to mineral entry ASAP.

We would like to invite the Committee and staff to visit Forest Supervisor Gene

Zimmerman’s proposed 30,000 acre ‘‘endangered weed sanctuary’’ in the near future.

Thanks for the opportunity to appear before your Committee.

Mr. POMBO. Thank you.

Ms. Fuentes.

STATEMENT OF LORRAE FUENTES, VICE PRESIDENT OF

EDUCATION, CALIFORNIA NATIVE PLANT SOCIETY

Ms. FUENTES. Chairman and Committee members, it is a pleasure for me to be here today to testify before you. My name is

Lorrae Fuentes, and I am a native to Southern California. I have

lived here all my life. I am currently a resident in Riverside and

a homeowner.
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I have a degree in biological sciences at one of our local universities. I have been an educator for 20 years both in the classroom

teaching science to children, and am currently an educator in informal science institutions.

I also still hold my teaching credential active.

I am a representative today of the California Native Plant Society. I serve in that organization on the executive council as Vice

President for Education.

California Native Plant Society is dedicated to the preservation

of California native flora and is an organization of laymen and professionals united by an interest in the plants of California.

The work of the society is done mostly by volunteers who, along

with staff members, work to promote awareness of California’s

unique flora.

The California Native Plant Society is a science based organization and is the primary scientific repository of information on rare

plants of California.

California is, indeed, blessed with a wealth of plant life that reflects the diversity of its natural landscape. California has over

6,000 native species of plants. One third of those are endemic to

the state, that is, they are found nowhere else in the world, and

over 1,700 of those have some kind of listing, rare, threatened or

uncommon.

In general principle, CNPS, the California Native Plant Society,

supports the current Federal Endangered Species Act. If allowed to

be implemented and enforced properly, it serves species well and

is a useful tool for protecting biodiversity the plants, animals, habitats, and ecosystems in California and nationwide.

It is not that the law will never need improvement. On the contrary, new scientific knowledge and knowledge of what works best

in both practical and political terms can lead conservationists and

politicians alike to seek improvement in the law.

Any law, of course, is only as good as its consistent, effective implementation and reliable enforcement. It is here that CNPS takes

issue in regards to the Federal Endangered Species Act. The two

previous administrations but especially the current one failed to

live up to the responsibilities to fulfill the intent of the Endangered

Species Act, that is, to recover imperiled species.

Resources to conduct good scientific studies to support listings,

development of recovery plans, designation of critical habitat, and

protection of species on private and public lands has not been allocated sufficiently. Without listing species receive little protection.

Yet review of almost all listing petitions has ceased.

Habitat conservation plans are conceptually a good tool and popular with the public because it protects habitat. However, inadequate habitat conservation plans are being developed and approved. Scientists have identified numerous deficiencies with pending and approved conservation agreements and raised serious questions about habitat conservation plans and their credibility.

The administration has refused furthermore to designate critical

habitat aimed at helping species and get them off the endangered

species list. The majority of landowners affected by endangered

species regulations are willing to and want to comply, but instead
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become increasingly frustrated with slow permitting and habitat

conservation planning process.

Furthermore, there are landowners willing to sell land and to

protect species, but, again, the resources are not available for land

acquisition.

I would like to point out again that the Federal Endangered Species Act is fundamentally good. The implementation and enforcement needs improvement. Congress only needs to provide adequate

funding to establish necessary support mechanisms mainly in gathering of adequate scientific data, then good habitat conservation

plans can be crafted listing of species and designation of critical

habitat can proceed and land acquisition, where possible, can occur.

The Sierra Club, Audubon Society, groups deal largely with a variety of environmental issues, but only the California Native Plant

Society is focused specifically on the needs of plant species in communities. Few people realize that the Federal Endangered Species

Act provides almost no protection to most currently endangered,

threatened plants, and in fact, the Federal Endangered Species Act

protects animals everywhere but allows unlimited destruction of

federally listed and threatened endangered plant species outside of

Federal land where more than 80 percent of the federally listed

plants are found in California.

This outdated policy flies in the face of biological reality, and we

wish that the Endangered Species Act would be amended to give

plants equal protection.

Thank you very much.

[The prepared statement of Ms. Fuentes follows:]

STATEMENT OF LORRAE CAROL FUENTES, VICE PRESIDENT OF EDUCATION,

CALIFORNIA NATIVE PLANT SOCIETY

Good morning. My name is Lorrae Fuentes and I am here as a representative of

the California Native Plant Society to present testimony to this Committee. It is a

pleasure to be here and to provide you with this important input into the issues

regarding the implementation and enforcement of the Federal Endangered Species

Act.

The California Native Plant Society is dedicated to the preservation of the California native flora and is an organization of laymen and professionals united by an

interest in the plants of California. The work of the society is done mostly by volunteers who, along with staff members, work to promote awareness of California’s

unique flora so that a more knowledgeable public will insist on the preservation of

native plants and their habitats for future generations. The California Native Plant

Society is a science-based organization and is the primary scientific repository of information on rare plants of California.

California is blessed with a wealth of plant life that reflects the diversity of its

natural landscape. I work with the general public in my role as educator. People

of all ages clearly grasp the concept of biodiversity. On a global scale, people understand that human beings depend on the functioning of ecosystems absolutely. The

ecosystems that we manage in order to produce food and other essentials—farm

field, rangelands, and forests—are intimately connected with the global ecology and

are not immune from the detrimental effects of the loss of biodiversity. On a regional basis, people clearly understand that the economic wealth of California is an

expression of its natural diversity, and that when economic prosperity is manufactured from natural diversity, as it has been in California change in landscape and

loss of diversity is inevitable.

In general principle, CNPS supports the current Federal Endangered Species Act.

If allowed to be implemented and enforced properly, it serves species well and is

a useful tool for protecting biodiversity—the plants, animals, habitats and ecosystems in California and nationwide. Furthermore, the Federal ESA has and continues to serve as a model for global protection of biodiversity. It is not that the

law will never need improvement. On the contrary, new scientific knowledge and
255

knowledge of what works best in practical and political terms can lead conservationists and politicians alike to seek improvement in the law. Any law of course is only

as good as its consistent effective implementation and reliable enforcement. It is

here that CNPS takes issue in regards to the Federal Endangered Species Act.

The two previous Admnistrations but especially the Clinton Administration have

failed to live up to its responsibilities to fulfill the intent of the ESA—that is to recover imperiled species. Sufficient resources to conduct good scientific studies to support listings, development of recovery plants, designation of critical habitat and protection of species on private and public lands has not been allocated.

Without listing, species receive little protection. Yet, review of almost all listing

petitions has ceased. Inadequate Habitat Conservation Plans are being developed

and approved. Scientists have identified numerous deficiencies with pending and approved conservation agreements and raised serious questions about HCPs credibility. Too often HCPs data on species populations and habitat requirements are incomplete or missing, assessments of impacts to species are inadequate, resources to

monitor the plan’s impacts are meager, and plans frequently rely on unproven management prescriptions.

This Administration has refused to designate critical habitat aimed at helping

species to recover and get species off the endangered species list even though the

ESA makes it clear that critical habitat is a primary mechanism for species recovery. As a practical matter, designating critical habitat helps agencies and individuals understand the areas that need to be protected to maintain a species’ viability.

Unfortunately, the Federal Government’s reluctance to designate critical habitat has

severely hampered species recovery efforts. To date, less than 10 percent of all species listed in the U.S. have official critical habitat.

The majority of landowners affected by ESA regulations are willing to and want

to comply, but instead, become increasingly frustrated with the slow permitting and

HCP process. Furthermore, there are landowners willing to sell land to protect species. But again, the resources are not available for land acquisition.

I would like to point out once again that the Federal Endangered Species Act is

fundamentally good. It is the implementation and enforcement that needs improvement.

Congress needs only to provide adequate funding to establish the necessary support mechanisms, mainly the gathering of adequate scientific data so that good

Habitat Conservation Plans can be crafted, listing of species, and designation of critical habitat can proceed and land acquisition, where possible can occur.

There are inadequacies in the ESA of concern to the California Native Plant Society that I would like to address. The Sierra Club, Audubon Society and groups deal

with a large variety of environmental issues but only the California Native Plant

Society is focused specifically on the needs of plant species and communities. Few

people realize that the Federal Endangered Species Act provides almost no protection to most federally endangered and threatened plants. In fact, although FESA

protects federally listed animals everywhere, it allows nearly unlimited destruction

of federally listed threatened and endangered plants outside Federal lands, where

more than 80 percent of federally listed plants are found in California.

This outdated policy flies in the face of biological reality. Science tells us that

plants and animals are inextricably intertwined and contribute equally to the health

and survival of the ecosystems that sustain us all. If we are to conserve healthy ecosystems and biological diversity, we cannot pick some species to save and ignore

others.

The California Native Plant Society would like to see the Federal Endangered

Species Act amended where necessary to protect plants with the same protections

that are currently provided to animals.

Finally, even though this is not linked directly to the issue of the Federal Endangered Species Act, we would like to be included in the growing number of groups

commending the sponsors of H.R. 701, H.R. 798, S. 25 and S. 446 which is sound

legislation to provide dedicated funding for land and resource conservation.

Thank You.

Mr. POMBO. Thank you.

Mr. Kading.

STATEMENT OF RANDY KADING, FIELD SUPERINTENDENT,

C&H FRAMING

Mr. KADING. Good afternoon, Mr. Chairman and members of the

Committee. My name is Randy Kading. I am a field superintendent
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for C&H Framing, a contracting firm working in Southern California.

Currently I am working on a residential housing project on the

north coast of San Diego County in the City of Encinitas. The company subcontracts with builders after a piece of land has been completely entitled and permitted.

I have worked in most of the western states since the date of

1971.

By way of additional background, back in 1958, my parents purchased this little two bedroom house in Wichita, Kansas. What was

unique about this house is along the front and down the side approximately 100 feet was this fence that had three rails on it, and

by the time I was seven years old, I could walk this fence without

falling down. My mother hated the idea.

Little did I know that in 1971 I would be hired to do the same

thing by building houses, single story and two story houses. I was

being paid at that time three times minimum wage being a first

period apprentice. I fell in love with the trade, could not believe I

was being paid to have this much fun.

Two years later, I walked into my first recession experience when

OPEC decided to become a world player and flex their muscles. The

construction industry was affected, and because of this I was forced

to, well, walk away from everything I had acquired at that time,

stuck my thumb out, and ended up in New Mexico where I lived

on a ranch for two years, and these people were small time developers, and I was able to increase my assets by learning how to not

just frame houses, but to stucco and lay tile, floor covering, and

roof.

During that time nearly everyone I knew was thrown out of

work, and it was not just the trades people on the job site. It was

the folks who supplied the products, the truck drivers, the loggers,

the delivery people. I learned very early on that a recession can

have a profound impact on people’s lives and their families.

Now, generally the life of a framer or anyone else on the job site

can be very nomadic, as I have moved around a lot. In the last 28

years, I myself have worked all over the western United States, including Texas and Louisiana. Basically you go from job site to job

site, depending on where the work is.

In the past, as I have alluded to previously, our ability to get

work has been related to economic cycles. I now have been through

three of these recessions. The last one, which was the most devastating, was the one in the 1980s and the early 1990s. It took a

while to overcome that one.

In working with my guys, what generally happens is they either

toughen up and survive by moving on, which only works with the

single guys. The ones with wives are usually forced to take lower

paying jobs, but one that has more of a consistent paycheck, whether it be driving a Wonder Bread truck or maybe working at the

postal system.

This is especially hard for me to watch because I see their love

for the trade on their faces on a daily basis, and when one of these

recessions hits, which will happen pretty soon, as an apprentice,

they do not have a lot of assets. Even though they have spent a

lot of their money buying their equipment, they have not acquired
257

the skill to stick around or to be kept around when it gets real

tight, when there is not a lot of work to keep them busy.

And so you can see that they are going to be forced to take jobs

that will put food on the table, and they will just look back on their

experience as a carpenter or as a builder, as a person in the trade

as one of just something that let them down.

And, frankly, it is the fear of the recession that all of us think

about most of the time. Not a day goes by when I do not wonder

about when work is going to end. I have made my own self recession proof because what I learned in the last one that I experienced

was do not acquire anything anymore. The only thing I do now is

save all the money I can so that I can survive the one or two year

cycle that happens to put me out of work because there was a couple that I did not do that, and it was a real struggle.

So in essence, our ability to maintain a consistent work load and,

therefore, to receive a consistent paycheck is directly related to the

landowner’s ability to get required permits from all jurisdictions,

including what I understand can be the most difficult, the Federal

Government.

In Southern California, I have noticed by the ebb and flow of

work the difficulty landowners have in securing these permits so

we can do our jobs and earn a paycheck and put food on the table.

I want to make something clear. I am not opposed to protecting our

environment, but it seems to me that when people who are supposed to be protecting the environment seem more interested in

just stopping growth that there must be a problem.

Oftentimes the focus in on the builder and developer when it

comes to these environmental issues and concerns. I am here

today, however, to make it clear that they are not the only ones

impacted by unreasonable and arbitrary decisions aimed at stopping growth, and I must say it pains me to know that when my

guys are—what they are in for in the next recession hits. No matter what the cost, frankly, recession caused by economy, albeit unfortunate, is easier to understand than one caused by well meaning

but misguided and poorly interpreted environmental regulations.

What we need is balance. We need fairness. There needs to be

a bipartisan committee established between Carlsbad and the

building industry and the developers, who I consider to be the good

stewards of putting these projects together because what I want in

the future is not the boom we are in now. I want controlled growth

because that is better than no growth, and that is what takes the

hope out of most of the people that are out there in the trade now,

is the fact that within just the next couple of years they will be in

the midst of their first and my fourth, and it becomes a desperate

situation for all of us.

Thank you.

[The prepared statement of Mr. Kading follows:]

STATEMENT OF RANDY KADING, FIELD SUPERINTENDENT, C&H FRAMING

Good Afternoon Mr. Chairman and Members of the Committee, my name is

Randy Kading. I am a field superintendent for C&H Framing, a contracting firm

working in Southern California. Currently, I am working on a residential housing

project on the north coast of San Diego County in the city of Encinitas. Our company sub-contracts with builders after a piece of land has been completely entitled

and permitted. I have been working in all seven southwestern states since 1971.
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By way of additional background, my family purchased a modest 2-bedroom house

in Wichita, Kansas. It was growing up in this house where I first gained an appreciation and love for the art of carpentry. As I learned the trade, I remember thinking why can’t everyone have this much fun. I realized shortly thereafter, in the summer of 1973, that the fun can quickly come to an end. What happened? Well, that’s

when OPEC decided to flex its muscle and threw the United States into a deep recession. One of the first industries to be impacted was the construction industry.

Because of this, I was forced to move to New Mexico for the better part of 2 years

just to survive.

During that time, nearly everyone I knew was thrown out of work. And it wasn’t

just the trades’ people on the job site. It was all of the folks who supplied the products for construction, the delivery people and anyone else even tangentially related

to the industry. I learned very early that a recession can have a profound impact

on people’s lives and their families.

Generally, the life of a framer (or any one else on the job site) can be very nomadic. In the last 28 years, I myself have worked all over the southwestern United

States. Basically, you go from job site to job site depending on where the work is.

In the past, as I alluded to previously, our ability to get work has been related to

economic cycles. As you can imagine, the most recent recession of the late 80’s and

early 90’s made this profession again very difficult.

In working with my guys, what generally happens is they either tough it out and

survive by moving around (which really only works for the single guys), or their

wives force them to take lower paying but more stable job in a different line work.

This is especially hard for me to watch because I see their faces on a daily basis

and I know how much they enjoy their jobs. It breaks my heart to know that they

don’t want to leave, but will have to because they won’t be able to weather the next

recession.

Frankly, it is the fear of recession that all of us think about most of the time.

Not a day goes by when I wonder when the work is going to end. Now, even in these

very good economic conditions, it seems that the demand in the market for new

housing can not be met because of the difficulty of getting land entitled. Recession

is the thing that will ruin our lives. And recession, whether caused by a down economy or environmental concerns, is still a recession. And rest assured, many of us,

as working class, regular folks, will lose their jobs, their incomes, their possessions

and some will even lose their very families.

In essence, our ability to maintain a consistent workload and therefore, to receive

a consistent paycheck is directly related to a landowners ability to get the required

permits from all jurisdictions including, what I understand can be the most difficult,

the Federal Government.

In Southern California, I have noticed, by the ebb and flow of work, the difficulty

landowners have in securing these permits so we can do our jobs, earn a paycheck

and put food on the table of our families.

I want to make a something clear. I am not opposed to protecting our environment. But it seems to me when people who are supposed to be protecting the environment seem more interested in just stopping growth that there must be a problem. To be blunt, which I am, I do not want arbitrary political decisions to stop our

ability to build houses and earn a living.

Protecting the environment and providing housing are NOT mutually exclusive,

in my opinion.

Often times, the focus is on the builder and developer when it comes to these environmental issues and concerns. I am here today, however, to make it clear that

they are not the only ones impacted by unreasonable and arbitrary decisions aimed

at stopping growth.

I am the face of the working person in the field whose job depends upon builders

being able to supply housing.

I am a mirror of the guys in the field who work for me.

And, I must say, it pains me to know what my guys are in for when the next

recession hits, no matter what the cause. Frankly, recession caused by the economy,

albeit unfortunate, is easier to understand than one caused by well meaning but

misguided and poorly interpreted environmental regulations.

You can imagine, as a framer in Southern California, what I must think about

these articles condemning growth and the support no-growthers seem to get from

the environmental agencies. I remember the coastal initiatives of the 70’s. Lately

there’s been the fairy shrimp on the coast and the kangaroo rat in Riverside. And

now we have butterflies again blocking the folks we work for from getting their permits. You may think it’s just the landowners that know about this stuff, but we pay

attention because it effects us so directly.
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I myself am even an avid back-packer who has hiked the Pacific Crest Trail from

Baja to Washington State. I enjoy the environment, whether on foot in the mountains, or in the ocean on my surfboard. Some may scoff, but it is the truth. I say

this only because it is automatically assumed that folks in our industry don’t care

about the environment. But we do. We also care about providing shelter for families.

A quality product, which I think many in this room may take for granted. Well, I’m

saying you just shouldn’t.

Our guys come from all over the political spectrum. Their top concern is making

sure we have work to sustain our families. Previously, many were unable to make

their opinions known, let alone gather information about important issues like

these. Fortunately, with the internet, we’re now able to not only learn more about

these issues and better educate ourselves, we are also better able to communicate

with other people in the trade and also better able to make our voices heard.

And I guarantee, we will be heard!

The other side of the equation for trades’ people in the field is being able to find

housing we can afford. The closest we’ll get to the houses we’re helping build are

the days we spend framing. You don’t need to ask why when the average new home

in San Diego County will soon exceed $300,000. There’s not a housing project my

guys work on that where they’ll be able to afford a unit . . . that is unless they hit

the lottery. Many of these guys live with their parents or find other ways to improvise and survive.

I see a big problem with the American Dream in Southern California and I know

some of it has to do with all the environmental regulations forced down the throat

of the landowner and paid for by the blood, sweat and tears of working men and

women throughout Southern California. With my butchered hands, I have built

these homes the new buyer comes home to after work. When I’m gone, they’ll still

have their jobs. But that does not mean we cannot fight for what’s right.

In closing, there is probably a myriad of solutions to make the situation better.

Any solution should assure a much-needed supply of land to house people

affordably, at all income levels and I don’t just mean in apartments either. We, the

people who build these houses, know the value of homeownership. I think it’s pretty

ironic that many of us can’t afford to but one and live the American dream.

What do we need? We need balance. We need fairness. We need someone working

on behalf of the working men and women whose daily existence depends upon their

job, not just their net worth.

I want to be able to tell my guys that something is being done to preserve their

ability to earn money and care for their families. I hope I can leave here today with

that message. Please help me provide them with the security I so desperately want

to provide my guys.

Thank you for this opportunity. I’m not accustomed to this kind of setting for airing my concerns, but I’m glad that you all traveled from your districts to hear what

we had to say.

Mr. POMBO. Thank you.

Mr. Calvert.

Mr. CALVERT. Thank you, Mr. Chairman.

Mr. Sauls, why would biologists and private landowners be reluctant to testify at a hearing like this one that you are participating

in today?

Mr. SAULS. Congressman Calvert, I think the answer in its shortest form is fear of retribution. I cannot tell you that that retribution is reality. I have heard that it is. I have heard that permitted

biologists are denied permits.

You understand clearly that Fish and Wildlife Service has the

ability to issue those permits, and I have heard directly from biologists that they are, in fact, reluctant to testify for that reason.

The same thing is true for landowners. They have unresolved

issues with the agencies, and they are concerned that their speaking out will draw further attention to them or problems with them.

Mr. CALVERT. And how would an agency such as this do that?

Just not process the application? Just continue it?
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Mr. SAULS. Well, for biologists, they have to receive their permits. That is one way. That would be to deny or delay their permits for conducting their business.

For a landowner, the habitat conservation plans are deemed to

be a discretionary permit process. You take the plan, put it on the

back shelf, and there is little or no recourse. If you’re lucky enough

to have a Section 7 permit you might have some time frames, but

as we have shared with you, there are ways to ask continually for

more information such that the Section 7 process is not initiated.

Mr. CALVERT. Well, I have yet to see a time frame that has been

met yet in the experience I have had lately with Fish and Wildlife,

but moving on, a witness on an earlier panel, the Reverend—I cannot pronounce his last name—testified about his beliefs regarding

the loss of species habitat and his belief that it is tied to overpopulation, too many people.

How do you feel about that, since you represent the building industry?

Mr. SAULS. I do not create all of those people. I have my own

children, and I happen to love them dearly.

[Laughter.]

Mr. SAULS. I do want to agree with one thing that the good Reverend communicated, and that is that we are to be stewards of the

world we live in. I think it is a gift from God, but I think God also

told us to love your neighbor. In fact, I think that was the second

most important commandment that Christ communicated, and part

of loving your neighbor is an element of respect, and I believe that

that is the issue that many people are bringing before you here

today, that that respect is either lacking or needs dramatic improvement.

Mr. CALVERT. Thank you.

Mr. Fife: I used to be Chairman of the Mining and Resource

Committee a few years ago and before I took on a different subcommittee. I spent a lot of time on issues regarding mining, and

mining I have always considered one of the base industries. As our

Chairman, Don Young, would say, everything there is is either

mined or farmed, you know, and those are the basic industries in

this country, what is derived from those industries.

How much of the mining that is taking place, from your background, has been exported outside of the United States lately, the

last few years? What is just your own feeling about that?

Mr. FIFE. Just the exploration and development money is in the

billions of dollars. We have actually exported hundreds of thousands of jobs. The United States in many cases has become a Third

World country. If you can mine something, you cannot process it

here because of the enormous environmental hurdles you have to

get over.

Mr. CALVERT. And many people, as yourself, are aware of the

value added jobs that go along with mining and the importance of

the mining industry in providing for those. By the way, I believe

probably some of the best paid blue collar jobs in the country, primarily union jobs, and an industry that has probably been as devastated as any industry and continues to be devastated even in this

recovery.
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So I just wanted to point that out, Mr. Chairman, and I know

my time has expired.

Mr. POMBO. Mr. Hunter.

Mr. HUNTER. Thank you, Mr. Chairman.

Mr. Kading, you build homes.

Mr. KADING. Yes, sir.

Mr. HUNTER. And I think that is a very honorable profession.

You know, my dad built homes for many years and said at one

point the thing he was proudest of was the fact that he was able

to make a payroll every Friday. That is a tough thing to do, and

I know that you are concerned also about the people who work with

you, working folks, and their ability to buy the homes that they are

building.

We led this hearing off; at least that was my statement. I know

my friend Mike Spear was not in the audience at that time, and

Mike mentioned later the relative prosperity that we are experiencing right now, but one of my points was in San Diego County

the average home, and I believe it is about $270,000. In fact, we

can have one of our staff folks hold that up. I think it is 265.

You see, Richie is shopping for a house in San Diego County. It

is 265. The median home is $265,000. That requires with today’s

interest rates about a $70,000 paycheck, annual paycheck, and that

requirement has placed the ability to buy a home in San Diego

County beyond the means of many of the working folks who work

in the building industry.

But are there many of your folks who can afford to build the median home in San Diego County?

Mr. KADING. No, not at all.

Mr. HUNTER. Beyond that, the information that I have, and I

have talked to some builders, for example, one builder, for example,

that built a $185,000 home was making $10,000 profit per unit, but

the hard cost of building the home was only $59,000 out of the remaining $175,000, and I said, ‘‘What is the rest of it?’’

He said, ‘‘Land and land use regulation.’’ He said all of the consultants you have to hire, the biologists you have to hire, the time

you have got to spend working with the Federal agencies and state

and local government, which also have their own level of bureaucracy.

So the rest of that, that almost $60,000 out of $175,000 is not

building the home at all. It’s that little piece of land that it is on

and the land use regulation, and the estimates that I have seen is

that we could avoid or lower costs of housing by almost 35 percent

in San Diego County if we offset or took away the cost of regulation, land use regulation.

So I guess my second question is in the old days at least, when

we were building homes up in Arupa Hills up in Riverside, we built

homes for a lot of working people. I mean, in fact, a lot of the folks

working on our homes ended up buying our homes. They were good

homes, good 1,500, 1,600 square foot homes.

You do not see that. Do you see many working people being able

to purchase their homes in San Diego County now?

Mr. KADING. No. Actually most of the people that purchase or

work in San Diego County that I am familiar with live in Riverside
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County. They are forced to commute because it is cheaper up in

Riverside County.

Mr. HUNTER. So they are driving how far?

Mr. KADING. Oh, one way, 60 miles, 70 miles, more.

Mr. HUNTER. Okay.

Mr. KADING. Some are working as far south as Chula Vista.

Mr. HUNTER. And isn’t that the area out north of March Air

Force Base? A lot of the folks there work, in fact, in Orange County

and Los Angeles County from what I understand.

Mr. KADING. That is correct.

Mr. HUNTER. I think that shows some of the misguided policies,

and, Mr. Chairman, I think this falls on our back as well as those

of the Administrators. In this effort that is to protect the environment and the perversion that I think we have made of some of the

regulations, we have actually damaged the environment. We have

massive traffic jams that are a result of people not being able to

afford homes in the areas where they work.

One reason they cannot afford homes is because we are protecting their environment in the communities where they work. So

we have them put out tons of smog on the freeway to get 60 miles

away where they can afford a home.

So I think that working America has a real stake in seeing to

it that we pull back regulation, make it more reasonable and make

it more applicable to folks like the gentleman who was in here, Mr.

Turecek. I do not know if you saw him, but average people that

have pieces of land that they want to develop, to give them a fighting chance at it.

Mr. Kading, I appreciate all of the witnesses, but I especially appreciate you being here and laying out the perspective of a working

man.

Mr. KADING. Thank you.

Mr. HUNTER. Thank you.

[Applause.]

Mr. POMBO. Ms. Bono.

Ms. BONO. Thank you, Mr. Chairman.

I really just want to thank the panelists. I think their testimony

was extremely straightforward, and I have no questions. I would

yield back the balance of my time.

Mr. POMBO. Thank you.

Mr. Fife, I know that you have spent a lot of time. You and I

have had the opportunity to talk in the past, and you have spent

a lot of time on the issues that you have testified about. One of the

questions that I have for you is how is it that you have such a difficult time and others have such a difficult time when it comes to

the science and getting Fish and Wildlife to look at that science?

You know, it would seem to me that it would be natural that

they would go to the people that are living and working in an area

and say, you know, in your example, an endangered plant, ‘‘Where

do these grow? Where do you see them?’’

Why is it so difficult to put that information together and give

it to Fish and Wildlife and have them do something with it?

Mr. FIFE. Well, I think probably it is either incompetence or actually the desire to get as many things listed and build as big an
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empire and get as much authority over the private sector as possible. I do not know how to explain it.

There is virtually nothing published in the scientific literature

that supports these plants, for instance, as being restricted to the

San Bernardino Mountains or endangered. In fact, there is information to the contrary that is right out there for anybody.

I mean I am a paleontologist, and my specialty is in micro

plants, but I mean, it does not take much effort for me to find these

things in the literature.

And where are these people coming from? It is either incompetence or it is an intention to seize some kind of power. What happens is you get the listing package for the Forest Service for these

five plants. One of the plants does not even grow on limestone. We

have never been able to find it on limestone. I mean, how could it

be limestone endemic? It grows on granite.

It is just amazing how they get away with this. The listing package the Forest Service sent to Fish and Wildlife was totally inadequate. They went out and counted 3,721 of these plants, ‘‘known

in the world.’’

I come out with my botanist, and of course, I have been dealing

with these for over 20 years, and we can count that many in a day

just walking around.

And then we find other things going on, such as I was hoping

to bring a gentleman here today to introduce you to, a former Forest Service employee who contacted me to apologize for the fact

that the Forest Service had bought a seed spreader and was

spreading seeds on my property to prevent me from mining, and

sure enough, we have been held up since August 1990 to get a permit on that property.

Mr. POMBO. Now, wait a minute.

[Laughter.]

Mr. POMBO. They are doing what? They are spreading seeds?

Mr. FIFE. They are collecting the seeds from these allegedly endangered plants and they are spreading them on my roads and

other roads with a seed spreader. I took one of the gentlemen who

was on the witness list that did not come in today, a botanist, a

local guy; took him out, and we walked a newly built off road vehicle trail, and we were amazed at the endangered locoweed. It

looked like lawn on each side of it, like somebody—we did not

think at the time it could have been planted, but that explains why

this stuff is growing there.

And I had this not from just this ranger that told me, and he

said he is willing to testify in court or wherever. I was told before

that by volunteers that worked as volunteers for the Forest Service

on off road vehicle road restoration projects. Two couples said that

the Forest Service was doing this. I really did not believe it until

this forest ranger actually told me about it.

And I would certainly like to have the GAO investigators depose

this guy or interview him. He is willing to do it. We have name,

rank, serial number, time. I mean I even have the records, the time

cards of when these people were out there doing this, and we do

have evidence.
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Mr. POMBO. It is my understanding of the Endangered Species

Act, and I will have to ask Mr. Spear about this later, but that

would be illegal.

[Laughter.]

Mr. FIFE. I think it is called habitat manipulation. I think that

is what the Act calls it, and I believe if you are going to do it, you

have to go through the legal process within at least an EA to do

this, but I guess maybe NEPA does not apply to the Endangered

Species Act.

Mr. POMBO. Yes, we are going to have a series of questions for

you, Mr. Fife, because if you do have evidence that this is occurring, I think the Committee needs to investigate that further, and

the Committee hearing will be left open for you to provide additional information on that.

Ms. Fuentes, a question of you. In your prepared statement, even

though you and Mr. Fife come from a little bit different angle on

this, unfortunately it appears that your complaints are very similar

to his, and they may be coming from different ends of the spectrum, so to speak, but you have a real problem with the science

that is being used as well and do not feel that it is adequate or

that the efforts that are being made are adequate.

Would you like to respond to what you have heard here?

Ms. FUENTES. I cannot respond to——

Mr. POMBO. Not that specifically.

Ms. FUENTES. Okay. Thank you.

Mr. POMBO. I would not do that to you.

[Laughter.]

Mr. POMBO. But I mean just in terms of the science end of it. You

were not out spreading seeds out there, were you?

[Laughter.]

Ms. FUENTES. No. I do not believe I would comply with the law

if I did that.

I think our main point here coming from the Native Plant Society is that there has been an incredible backlog in the listing of endangered species, especially endangered plants, and designation of

critical habitat. Habitat conservation plans that are put together,

although conceptually I think they are a good tool but inadequate

for plants, which means there is not enough of good science based

information.

And I think the agencies involved just have been under-resourced

for over a decade, and that there is not enough good scientific information for people to come together for good negotiations, and sit

down with, you know, just common sense and come up with a plan

to protect species.

You have to have them listed. They cannot be protected unless

they are listed, and there is just this huge backlog of listing, and

they do have recovery plans in place for them, but I think what we

are coming at if ‘‘inadequate science’’ is that there is just not

enough of it. You have to have the resources available to go out

there and get the good baseline information that you need to make

good decisions.

Mr. POMBO. Mr. Kading, I know my time has expired. I just

wanted to end with you.
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The houses that you are working on now, where are you working

in San Diego County?

Mr. KADING. Just west of La Casta Resort, Interstate 5 and La

Casta Avenue up on the bluff there.

Mr. POMBO. Approximately what size houses are going up in that

area?

Mr. KADING. The present project I am on, the smallest home is

3,820. The biggest one is 5,000 square feet.

Mr. POMBO. This is, I think, the real problem that we face, and

I am seeing this in my own community. The more expensive you

make land, the more expensive you make the process to go

through. The only thing the developer can do at that point is build

a bigger house and sell it to the higher end of the market.

Mr. KADING. Yes.

Mr. POMBO. And what we are seeing in my area, and I would like

you to comment on this, is that we have seen the two bedroom

starter home disappear from the market. We do not have houses

that a young couple, just married couple that is starting out can

move into. We have got a lot of houses that are 350, $400,000, but

in the starter home area you either have to end up in an apartment somewhere or you are out of luck.

And is that what you are seeing happen down here?

Mr. KADING. Well, the current project I am working on, the houses start at $1 million, and I have not seen the homes you are

talking about in 15 years. I would not even know where they built

those at anymore.

Mr. POMBO. Now, I do not know. You know, it is real frustrating

because a lot of what we hear is that, well, this only hurts the rich

guy. You know, it is the big developer, the big landowner. Those

are the only guys that get hurt by this, and we really do not care

if they have to spend $1 million on a habitat conservation plan. It

does not matter to us because that is just the wealthy guy that has

to pay.

But that is not what is happening in my area. In my area, it is

the little guy that is getting hurt because he cannot find a house

to buy, and he cannot find a job, a place to work, and we are unfortunately going through a lot of the same things that you do.

I live in a little farming community, what used to be a little

farming community that has now become a suburb of the San

Francisco Bay area because people are driving all the way, some

of them two and a half hours each way commute because there is

no place they can afford to live. It is the only place they can afford

to buy a house.

And that cannot be good for them. It cannot be good for their

family. It cannot be good for the environment no matter how you

look at it.

Mr. KADING. No, it is not.

Mr. POMBO. But that is what we are ending up with, and I appreciate all of your testimony.

Mr. Fife, I will have a series of questions for you that I will submit in writing, and if you can answer.

I thank all of you for your testimony. I guess more importantly

I thank you for your patience in waiting around, and I apologize,

but somebody had to be on the last panel, but I appreciate all of
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you for your testimony and for your answers to our questions, and

thank you for being here.

Mr. HUNTER. Mr. Chairman.

Mr. POMBO. Yes, Mr. Hunter.

Mr. HUNTER. Mr. Chairman, I want to thank our host, Ken and

Mary, and you for such a wonderful hearing. You came a long way

to run this hearing. It is very important to our working people. It

is very important to our landowners and everybody that believes in

basic fairness.

Thanks a lot for holding this hearing. We appreciate it.

Mr. POMBO. Thank you.

[Applause.]

Mr. CALVERT. Mr. Chairman, let me just add onto that and

thank you for taking the time. I know that it does take a lot of

time. I have done it, as well as you have, to come out and do these

hearings, and I certainly appreciate. I am sure both Mary and I understand that, and we really do appreciate it.

I just wanted to say that there is some terminology we heard

today, ‘‘practical,’’ ‘‘reasonable,’’ ‘‘balanced,’’ ‘‘fairness,’’ those types

of words, and I hope, Mike, that you and I and Fish and Wildlife,

we can work toward trying to get back to that because I think Fish

and Wildlife’s reputation from when I was a kid is a lot different

than it is today, and I would like to look to the day that we can

say that it is back to where it should be.

With that, Mr. Chairman, thank you very much.

Ms. BONO. My turn, Mr. Chairman?

Mr. POMBO. Go ahead.

[Applause.]

Ms. BONO. I, too, would like to thank you, Chairman Pombo, for

holding this hearing, for again spending part of your vacation time

here with us.

I think we have learned an awful lot. I think it has been very

productive.

I want to also take this time to thank my colleagues, Ken Calvert

and Duncan Hunter. I work so often with them on so many issues,

as you all know, especially the Salton Sea. I think the three of us

have sort of become a little—I do not know what you would want

to call us—some sort of strange Three Stooges. I do not know.

[Laughter.]

Ms. BONO. But it is always a pleasure and it is truly an honor

for me to work with all of these gentlemen. I my one year in Congress I have learned so much, but I have to tell you that I have

learned that there are a lot of really very decent people in Congress, and I think this whole panel was evidence of that.

I would like to thank the City of Hemet for hosting this event,

the Senior Center, the police department, once again, for all of

their hard work, but there is somebody I really, really want to

thank. She is asleep right now or she is peeking an eye. My daughter Chianna has stayed through this entire hearing, and I just

want to thank her for being here.

[Applause.]

Ms. BONO. So thank you, Mr. Chairman.

Mr. POMBO. Well, thank you all very much.
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I would like to just close the hearing by saying that we have a

lot of different ideas, a lot of different directions that people would

like to do. I think we all agree that the goal of the Endangered

Species Act should be to protect endangered species, and if we can

get beyond a lot of the issues that we have dealt with today and

can get back to what the original intention of the Act was, we

would not have to hold hearings like this, and some day I hope to

see that happen.

Some day I hope that we can pass a reauthorization bill that gets

beyond a lot of the fights and a lot of the problems that we have

now, and I hope my kids or my grand kids could look back at it

and say we did a better job of protecting endangered species than

what I am looking back at now.

But to Fish and Wildlife Service, we all look forward to the

changes that will come here. We look forward to working with you,

and I hope if nothing else, I hope this hearing pointed out to you

that there are some real problems. It is not just a few guys out

there who are not straight shooters, who are not playing right.

There are some problems, and it is not just created in someone’s

mind somewhere, and I hope that you can go back with that and

look at what has been going on and make some changes so that it

does not have to happen again.

But I appreciate you being here. I appreciate you sticking

through the entire hearing with us. That does mean a lot to me

that you were willing to stick here and listen to all of the testimony.

But thank you all very much. The hearing is adjourned.

[Whereupon, at 2:35 p.m., the hearing was concluded.]

[Additional material submitted for the record follows.]
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STATEMENT OF HON. BILL THOMAS, A REPRESENTATIVE IN CONGRESS FROM THE

STATE OF CALIFORNIA

Mr. Chairman, thank you for the opportunity to give this statement to the Committee and to discuss the concerns of my Kern and Tulare County constituents from

California’s 21st District. Your dedication to holding hearings on this matter and

keeping the spotlight on the many problems of species protection laws is very much

appreciated by me and by rural landusers in California.

We Need Real Conservation

As you know, I have introduced three Endangered Species Act reform bills, H.R

494—The ESA Fair Process Reform bill, H.R. 495—Fair Land Management Reform

bill, and H.R. 496—The Liability Reform bill. In my last appearance before this

Committee I had only time to briefly touch upon these bills and their goals. I want

to give you some specific comments on other reforms that are needed.

My constituents have been severely affected by the designation of over 20 Federal

threatened and endangered species and almost 100 candidate species. Kern County

comprising two-thirds of my district embraces more than 8,000 square miles of

desert, mountain and valley terrain (equal to the size of Massachusetts), including

two important military facilities, Edwards Air Force Base and the Naval Air Warfare Center at China Lake.

Rural land users can never have faith in the government’s action toward endangered species protection unless we are a part of that process of listing species and

devising plans for their recovery and management. That is why I wrote the Fair

Process Reform bill to correct the current problems of land users being shut out of

the process. People need to have equal access to inforrnation relied upon by Federal

agencies when making decisions on endangered species. If the government collects

insufficient or inadequate information, then the public should be able to point that

out and present necessary information. There needs to be a legitimate hearing by

government officials, not a meeting in which a government clerk collects local complaints and says ‘‘I’ll pass this on’’ to the people who actually make the decisions.

‘‘I’ll pass this on’’ means that complaints from local landowners will be dropped into

the black hole of a government file folder.

A legitimate hearing involves an opportunity to call government officials as witnesses, question their actions, put on independent witnesses and experts, and provide more scientific evidence. A rural landowner who may ultimately bear the burden of paying for endangered species protection has the right to look in the eye of

the government bureaucrat who is listing a species and ask, ‘‘Why did you ignore

this information?’’ and ‘‘Our witnesses show this species is not endangered. How do

you respond?’’ That is why I included in my bill a provision for such a hearing process with full disclosure of information by the agencies. My bill includes provisions

for open access to the public for scientific studies and underlying study data. My

bill also includes provisions to improve the scientific basis of government decisions

such as minimal information requirements for petitioners, peer review of multiple

scientific studies used to support listing or government action, and economic impact

analysis of its actions required for listings.

I have previously spoken in support of Chairman Young’s bill, H.R. 1142, that

compensates landowners for significant government takings. I wrote my bill, H.R.

496—the Fair Land Management Reform bill, with a similar provision. You also

know, however, about the general practice of the government in extracting ridiculous mitigation requirements from landowners. No doubt today you will hear many

more such examples. The problem is one that is built into the current system. The

government is staffed with people who follow their own view of species protection

and have taken power far beyond what Congress envisioned. Since Congress does

not provide money to protect these species, government officials force landowners to

pay. Frankly, with nothing stopping them, Washington has taken on the power to

demand land and money from landowners which is why we continue to hear stories

of these outrageous mitigation requirements. I include a provision in H.R. 496 that

limits the how much mitigation the government can require for both land and water

projects. If there must be mitigation, then it should be on an acre for acre basis.

Lastly, we must stop penalizing landowners for ‘‘harming species’’ when no harm

occurs. In my last testimony to this Committee, I recounted how the government

made my constituents sandbag a tree that would be flooded; the tree was assumed

to be the habitat for a species, but in fact there was no species present in that tree.

The government nonetheless would not relent and demanded that the tree be sandbagged regardless of the work and cost. My bill, H.R. 495, the Liability Reform bill,

would stop such nonsensical actions. In no way do we affect the current criminal

and civil penalties in the Endangered Species Act against intentional actions. If a

person intends to harm a species by cutting down trees with the nests of spotted
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owls or plowing fields with endangered kit foxes, the current law would operate just

as it does today. But criminal and civil penalties should be limited to actual and

intentional takings of an endangered species, not accidental or hypothetical ones.

My bill also includes ‘‘Safe harbor’’ and ‘‘No surprises’’ provisions to end the string

of broken promises and added obligations put on landowners by the government

such as those mentioned above. It is sad that we need a law to ensure government

honesty, but apparently that is needed.

Until such steps are taken, the Endangered Species Act will continue to fail to

achieve its intended goal of Federal wildlife protection, which reflects the will of the

American people. I ask this Committee to consider the bills I introduced as means

to fulfill America’s promise to protect endangered species and endangered family

farm and landowners as well.
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