George Miller

Mr. MILLER of California

Mr. MILLER of California. Mr. Chairman, I yield 2 minutes to the gentleman from Oregon [Mr. Blumenauer].

Mr. MILLER of California. Mr. Chairman, I yield 2 minutes to the gentlewoman from Colorado [Ms. DeGette].

Mr. MILLER of California. Mr. Chairman, I yield 4 minutes to the gentleman from Maryland [Mr. Gilchrest].

Mr. MILLER of California. Mr. Chairman, I yield 1 minute to the gentleman from New Jersey [Mr. Pallone].

Mr. MILLER of California. Mr. Chairman, I yield 2 minutes to the gentlewoman from Oregon [Ms. Furse].

Mr. MILLER of California. Mr. Chairman, I yield 30 seconds to the gentleman from Washington [Mr. Dicks].

Mr. MILLER of California. Mr. Chairman, I yield myself such time as I may consume. Mr. Chairman, we have heard a lot of reasons why we should gut the Endangered Species Act with this legislation. Unfortunately, most of them just turn out not to be true. We are told that the floods in northern California in the Yuba City area happen because of endangered species. But listen to what the Sacramento Bee, the newspaper of record, tells us, and what the Corps of Engineers tells us, and what the Fish and Wildlife Service tells us. The fact of the matter is the Fish and Wildlife Service signed off on that project in 1990, 1992, and 1994, but what happened? The local agency came in and asked that it be delayed so it could be built larger. Then the person who lost the bid came in and sued and delayed the project. That is why the project, it had nothing to do with endangered species. We are told that somehow the floods in central California happened because of endangered species, that the lower San Joaquin failed. We had levees that were designed for 8,000 cubic feet per second; that had 80,000 cubic feet per second come through there in a flood, 10 times the amount of water. These were perfectly maintained levees, according to the Corps of Engineers. They failed because 10 times the amount of water. The Coachella bypass, 10 times the amount of water that that levee was designed for came through that river and blew out those levees. Those levees were perfectly maintained, according to the Corps of Engineers. What we have here is a ruse. The same coalition that brought us the repeal of the Endangered Species Act from our committee last year is bringing this to the floor. The same coalition that brought us logging without laws that almost devastated the forests of this country now brings us levees without laws. This is nothing more than to blow a hole in the Endangered Species Act that far exceeds the holes blown in the levees by 10 times the amount of anticipated water. Historic floods, historic amounts of water, but what is their answer? Their answer is to repeal and exempt large, integrated, publicly subsidized water projects from any compliance with the Endangered Species Act, and that should not be allowed because the record is clear. Nobody can point to the Endangered Species Act in this case of suggesting that is why these levees broke. That is not what the corps said. But the most important point is this. Mr. Boehlert's amendment allows all of those levees to be fixed, and it allows all of those levees to be maintained in anticipation of an eminent threat to health or safety. That is Mr. Boehlert's amendment. We do not have to blow a hole in the Endangered Species Act to take care of this problem. This problem will be taken care of by the substitute offered by the gentleman from New York [Mr. Boehlert] and the gentleman from California [Mr. Fazio]. More importantly, that substitute will be signed into law. The rest of this is an interesting exercise, but the President has already said he would veto it. So the point is this: The evidence is clear. These levees failed, these well-maintained levees failed, because of 10 times the amount of water blew through these levees than was anticipated before, and that was true up and down the State of California. And when the gentleman from Louisiana [Mr. Tauzin] waves that book of regulations, that is California law, that is not Federal law.

Mr. MILLER of California. Mr. Chairman, the assault on the basic environmental laws of this country is underway once again on the floor of the House of Representatives. Some 2 years ago, it was the ``logging without laws'' rider that legitimized devastating timber practices in utter disregard for the Nation's environmental protection and resource management laws. Now we are presented with H.R. 478--the ``levees without laws'' proposal. This legislation pretends to be responsive to the victims of recent flooding, but its provisions go far beyond flood relief. ``Levees without laws'' pretends to promote protection of families. But it really protects those who would sanction the permanent management of dams and other facilities without regard for the ESA, regardless of any danger of flooding. We are once again being asked to legislate by anecdote: A Member cites a case where a levee failed, although there is plenty of doubt-- and no real evidence--that the ESA had anything to do with that failure. And off we go: waiving the ESA on every flood control facility, anywhere in America, for repairs, reconstruction, maintenance, whatever; not just for this flood season, not just for imminent flood threats, but for any reason, and forever. Let me tell you how far-reaching and damaging H.R. 478 would be, because the impact of passing this bill will not only be on the endangered species. It will be on your water districts. On your constituents who enjoy fishing. On commercial fishing operations. On logging companies and employees in your districts. On the economy of towns and counties you represent. This bill doesn't wipe out the ESA, much as its sponsors would like to do. It just creates a great big exemption for levees and dams and other flood control facilities. Let me tell you what that means. If these projects are excused from making their contribution to ESA protection and mitigation, the whole burden is going to pass to those further downstream whose actions may impact on the species. The flood control district may escape its responsibilities, the farmer may escape his responsibilities. But that means that all the more impact will be felt by those other individuals, businesses, and activities that also affect the species. This is directly contrary to the way we have been moving in species management protection. In California, where few have thought there was much chance for it, we have brought irrigators and cities and environmentalists and fishermen together and pounded out agreements on how to apportion water and how to manage our resources. It isn't easy and it doesn't always work quickly; but everyone stays at the table and negotiates because they know their interests are best protected by their being there and participating. But H.R. 478 tells the levee districts and the flood control districts: You're free to do whatever you want that affects endangered species, as long as you can call it maintenance or repairs or operations. You get to get up and walk away from the table, and pass all those responsibilities and burdens on to other people and economic interests in your community. You alone do not need to consult with anyone else; you do not need to participate in the species protection program, even though excusing you may well double or triple the burden for the logging industry, or municipalities, or the fishing industry, or the recreation industry. This isn't speculation; this is what is going to happen if we exempt maintenance and operational requirements of dams to protect endangered fish, like salmon in the Pacific Northwest. That is what H.R. 478 will do. The Everglades ecosystem could be devastated if the central and south Florida flood control project no longer has to consider endangered species with respect to water diversions and flows. Decisions on outflows in the Sacramento-San Joaquin Delta and San Francisco Bay will no longer have to consider impacts on delta smelt or winter run chinook. In the Upper Colorado Basin, purchases, sales, and exchange of water rights, which users have come to rely on, would cease. That is what H.R. 478 will do. Now, no one--and I stress that again, no one--is saying that the ESA should interfere with efforts to repair and rebuild damaged facilities, or to make necessary repairs to prevent flooding from occurring. The Fish and Wildlife Service has approved such waivers. The Army Corps of Engineers has agreed. An amendment to rewrite H.R. 478 to permit those emergency actions is going to be offered later today by the gentleman from New York [Mr. Boehlert]. But that is not what H.R. 478 does. There is no urgent need for those provisions of H.R. 478 that go beyond the relief for flood victims and prospective flood areas, as provided in Mr. Boehlert's amendment. The additional issues raised in H.R. 478 are extraneous to the debate over flooding. They deserve to be addressed during the comprehensive debate over reauthorization of the Endangered Species Act in the Committee on Resources. Our committee, however, has not yet begun that debate, and it is premature and inappropriate to bring these complicated issues before the House when we simply will not have the time nor expertise to address such wholesale changes to the ESA. Let us keep the focus where it belongs today: On the floods of 1997 and what we should do to alleviate the damage and loss of those who have suffered or who might suffer from future flooding. As both the Corps of Engineers and the Department of Interior have stated, as many of the witnesses that testified at our hearing stated-- the California levees broke because there was too much water, not because of the ESA. The rains and the melting snowpack combined to produce water that were 10 times the normal rates in some cases. Waiving the ESA is not going to stop floods. We have to consider many options: restoring channel complexity, wetlands protection, and setback levees, so that we can catch the water where it falls instead of dumping it down stream. We need to look at forest management policies that allow upstream clear cutting and the construction of logging roads which lead to erosion and slides that not only destroy valuable fisheries habitat, but contribute to downstream floods as well. We should provide more direct and indirect aid for moving homes and businesses out of the hazard zone, and we must limit the circumstances where we will permit the use of Federal funds to rebuild in harm's way. Existing levees systems should be re-engineered to ensure that they maximize flood hazard reduction. Rather than relying solely on repairs to existing levees, the Corps of Engineers should review the causes of the breaks and determine whether levees should be moved or constructed differently to withstand future floods. Finally, we need to look at how project planning and contracting processes and local funding issues slow the repairs and maintenance that need to be done. This bill does not address any of those problems, however. Instead, it focuses on one single aspect of the flood control planning process and takes a sledge hammer to the ESA. Please remember this bill is not about flood protection. It is an initial, and a sweeping, weakening of the Endangered Species Act that applies to any activity, on any flood control project, at any time, rain or shine. Flooding, or the threat of flooding, does not even have to be an issue. If this bill passes, no flood control project will ever be required to mitigate for its maintenance activities ever again. Nor will there be a requirement for mitigating the impacts of replacement, repair, rehabilitation, or operational activities regardless of whether these activities were conducted to protect human lives or property, and regardless of the impacts on endangered species. Now if there were no alternative but to choose between human lives and property or an endangered species, the argument would be different. But there is an alternative. We can provide the flexibility that is needed in the event of floods and flood threats, and we can do that without destroying the Endangered Species Act. We can achieve those goals by supporting the Boehlert substitute without modification when it is offered.

Mr. MILLER of California. Mr. Chairman, will the gentleman yield?

Mr. MILLER of California. Mr. Chairman, I move to strike the requisite number of words. Mr. Chairman, I would inquire of the chairman of the subcommittee, I do not think there is any opposition here to accepting this amendment. We believe it is basically a restatement of law, and we have a long night ahead of us.

Mr. MILLER of California. Mr. Chairman, that is fine with us.

Mr. MILLER of California. Mr. Chairman, there is some obligation to go to the accuracy of the remarks he is saying. There is no limitation on debate.

Mr. MILLER of California. Mr. Chairman, I tried to make the point in general debate, and as the gentleman knows, we have levee failures in our State and we have had them across the country, and there is very little or sketchy evidence, in my opinion, that says it is due to ESA. But also, the Corps of Engineers in fact requires annual maintenance of the levees that includes mowing, burning, vegetation removal, filling in of burrow sites; all of the things the gentleman and I associate in the Sacramento Delta with that.

Mr. MILLER of California. This is an annual requirement of the maintenance of the levee by the Corps. Fish and Wildlife signs on.

Mr. MILLER of California. That is not the case, if the gentleman will continue to yield, Mr. Chairman. Both in the Chowchilla River and in the San Joaqain there were perfectly annually maintained levees that failed because instead of 8,000 cubic feet, Yuba was more, and that was not about maintenance.

Mr. MILLER of California. Mr. Chairman, I think the gentleman makes a very important point because under the Pombo legislation as amended by Campbell, the threshold that is required is the ordinary threshold we use for any public works project and any maintenance of any public works project, because that is always the rationale for the expenditure of the public moneys. So we still have the position where we could get into extensive maintenance which could include flushing out the bottom of Shasta Dam and destroying downstream habitat. You could get into massive rehabilitation of levees. You could move levees from 50-year protection to 100-year protection. So the Campbell amendment simply does not do anything to mitigate the concerns that the White House and many of us have about this legislation, because it is such a low standard. It is the same standard we use for any public works project. So I think the gentleman makes a very good point, that if we want to take care of this problem and we want to take care of it on a timely basis and we want to respond to these people who have, who have been flooded out and those who may be in the future, the Boehlert-Fazio approach is the only one that is going to get us there. I thank the gentleman for his remarks.

Mr. MILLER of California. Mr. Chairman, will the gentleman yield?

Mr. MILLER of California. Mr. Chairman, I thank the gentleman for yielding to me, and I think he raises a very important point. If we want to scapegoat the Endangered Species Act, we can, but the mounting evidence is, in these floods, that the Endangered Species Act was a nonfactor. In central California we had 10 times the amount of water come through the river channel than the levees were designed to hold. We had somewhere between 70 and 80,000 cubic feet per second in a channel that was designed for 8,000 cubic feet per second. Further north in the Yuba City area we had the failure of a levee. We had the failure of a levee in the area of where maintenance was talked about. But the fact of the matter is, over the last decade the Fish and Wildlife Service has signed off on a number of plans.

Mr. MILLER of California. Mr. Chairman, will the gentleman continue to yield?

Mr. MILLER of California. Mr. Chairman, what happened was the local levee agency, the local flood control agency kept coming back to the Corps and making additions to the levees. Change orders. Those of us who know about military expenditures know the cost goes up because of change orders. They kept changing the design, and in this case the levee. The costs kept going up. They had to come back through budget cycles to get the money. Then the person who lost an open bid to do the work sued, saying the process was illegal, held the bid up and delayed the project. Had nothing to do with the Fish and Wildlife Service and ESA. The fact is they signed off on all these changes on all these projects. So we can scapegoat the ESA, and people can come down here, and we saw a little while ago in the well, and we can rail against the slugs and bugs and we can rail against the ESA. I would suggest that, for the most part, that is the genesis of this bill. If we look at the people who are supporting this legislation, they are the same people that supported this legislation in our committee, if the gentleman will remember, that basically just gutted the Endangered Species. They said we can save the species but we could not save the habitat. Hello? Where are the species supposed to go? So we have the same coalition. We can rail against it and feel good, and we can try to tell our constituents that this levee failed and that levee failed because of the Endangered Species. The gentlemen from Louisiana were up here talking about how they maintain their levees and how they have to dump water into their lake. They are doing that today. They are doing that today. There is nothing in the Boehlert amendment that requires the California mitigation plan. These are scare tactics. These are simply scare tactics, and the gentleman from Minnesota is making a very good point; that we ought to make this based upon the evidence and the information available. And the evidence and the information available simply does not add up that we should be blowing a hole through the Endangered Species Act with this legislation. And make no mistake about it, that is what part B of this legislation does, it blows it right out of existence with respect to all of the activities in large, integrated flood control and western water projects. They simply escape their liabilities.

Mr. MILLER of California. Mr. Chairman, will the gentleman yield?

Mr. MILLER of California. I mean the gentleman can stand up in the well and say whatever he wants, but he has some obligation to be accurate. But the fact of the matter is it is a water resources act, so if the gentleman from California does what he wants to do, it requires that mitigation be temporary, not the Endangered Species Act. The gentleman says the amendment offered by the gentleman from New York [Mr. Boehlert] would have prevented the report from going forth; there is nothing in the amendment that prevents the report from going forward. And the gentleman says it would be worse than existing law, and the fact is what he does is waive the provisions of existing law requiring consultation. So the gentleman can get up here and rail against the Endangered Species Act. We have some obligation to be accurate in terms of the facts we present to the House.

Mr. MILLER of California. Mr. Chairman, I thank the gentleman and I appreciate his argument. There is a reason we go through the process of endangered species. There is a reason we go through environmental impact statements. Mr. Chairman, last year the Congress talked about spending $1 billion for one dam in California, one dam, $1 billion or more. We went through the assessments, we looked at the environmental assessments, we looked at the alternatives. What did we do? We changed the way we operate at Folsom Dam. We strengthened the levees. We did not build the $1 billion dam for the biggest floods in our State, and that system worked perfectly. That is why we go through these assessments, because good environmental practices and the taxpayers' interest coincide so very often. We could have chosen to build a $1 billion dam, we did not have to. And now for very little money, I think that is the point the gentleman makes, there is a reason for doing this.

Mr. MILLER of California. Mr. Chairman, I want to commend the gentleman for his remarks. I think he in fact makes maybe the most reasoned presentation so far on the floor. That is that we have all heard from our constituents and we have all heard from our colleagues, problems with implementation, management, and enforcement of the Endangered Species Act. That is a well known fact on the floor of this House. The fact is that we have watched and we have battled over this thing over the many years. But the gentleman makes a point; if we really want to address this, it has to be done in a reasoned fashion. We have to bang it out. The gentleman from California [Mr. Pombo] started an effort last year and that came to naught. The gentleman from Alaska [Mr. Young] has approached me this year about whether or not there is a chance to get a group of people to sit down and discuss this. The gentleman from New York [Mr. Boehlert], the gentleman from New Jersey [Mr. Saxton], and the gentleman from Maryland [Mr. Gilchrest] have talked to Members in their caucus about this. Mr. Chairman, the fact of the matter is we are arriving at a point where there is a critical mass of people who believe that we have an obligation to address this in a comprehensive fashion. I think that is the important way to go about it. But to use this vehicle as a means of now just driving a large hole into it with respect to huge, huge integrated water projects throughout the western United States, through much of the area of flood control projects, I think would be a terrible mistake. We can do the Boehlert- Fazio amendment. That is doable. The President will sign it. We can take care of this immediate problem. Then we can start with the very hard, difficult work, and that is getting a comprehensive review and changes with this act so in fact it can work for the rest of our economy.

Mr. MILLER of California. Mr. Chairman, it is my understanding that it is 15 minutes a side. I ask unanimous consent to yield half my time to the gentleman from New York [Mr. Boehlert], half of my 15 minutes.