[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
THE ROLE OF NEPA IN THE SOUTHERN STATES
=======================================================================
OVERSIGHT FIELD HEARING
before the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
Saturday, July 23, 2005, in Nacogdoches, Texas
__________
Serial No. 109-26
__________
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COMMITTEE ON RESOURCES
RICHARD W. POMBO, California, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska Dale E. Kildee, Michigan
Jim Saxton, New Jersey Eni F.H. Faleomavaega, American
Elton Gallegly, California Samoa
John J. Duncan, Jr., Tennessee Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming Donna M. Christensen, Virgin
Vice Chair Islands
George P. Radanovich, California Ron Kind, Wisconsin
Walter B. Jones, Jr., North Grace F. Napolitano, California
Carolina Tom Udall, New Mexico
Chris Cannon, Utah Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada Jim Costa, California
Greg Walden, Oregon Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado Dan Boren, Oklahoma
J.D. Hayworth, Arizona George Miller, California
Jeff Flake, Arizona Edward J. Markey, Massachusetts
Rick Renzi, Arizona Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico Jay Inslee, Washington
Henry Brown, Jr., South Carolina Mark Udall, Colorado
Thelma Drake, Virginia Dennis Cardoza, California
Luis G. Fortuno, Puerto Rico Stephanie Herseth, South Dakota
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado
Vacancy
Steven J. Ding, Chief of Staff
Lisa Pittman, Chief Counsel
James H. Zoia, Democrat Staff Director
Jeffrey P. Petrich, Democrat Chief Counsel
------
TASK FORCE ON IMPROVING THE
NATIONAL ENVIRONMENTAL POLICY ACT
CATHY McMORRIS, Washington, Chairwoman
TOM UDALL, New Mexico, Ranking Democrat Member
Ken Calvert, California George Miller, California
George P. Radanovich, California Edward J. Markey, Massachusetts
Chris Cannon, Utah Frank Pallone, Jr., New Jersey
Jim Gibbons, Nevada Grace F. Napolitano, California
Greg Walden, Oregon Jay Inslee, Washington
Rick Renzi, Arizona Mark Udall, Colorado
Stevan Pearce, New Mexico Raul M. Grijalva, Arizona
Henry Brown, Jr., South Carolina Jim Costa, California
Thelma Drake, Virginia Nick J. Rahall II, West Virginia,
Louie Gohmert, Texas ex officio
Richard W. Pombo, California, ex
officio
------
C O N T E N T S
----------
Page
Hearing held on Saturday, July 23, 2005.......................... 1
Statement of Members:
Gohmert, Hon. Louie, a Representative in Congress from the
State of Texas............................................. 2
McMorris, Hon. Cathy, a Representative in Congress from the
State of Washington........................................ 2
Statement of Witnesses:
Carrillo, Victor, Chairman, Texas Railroad Commission,
Austin, Texas.............................................. 14
Prepared statement of.................................... 16
Davis, W.I., Shelby County Farm Bureau Forestry Chairman,
Texas Farm Bureau, Nacogdoches, Texas...................... 28
Prepared statement of.................................... 29
Dean, Stephen E., President/CEO, Texas Forest Products, Inc.,
Gilmer, Texas.............................................. 18
Prepared statement of.................................... 20
Dructor, Daniel J., Executive Vice President, American
Loggers Council, Hemphill, Texas........................... 5
Prepared statement of.................................... 7
England, Stephen M., Manager of Mined Lands, TXI Operations,
LP, Dallas, Texas.......................................... 30
Prepared statement of.................................... 31
Johnston, Debbie, Public Affairs Director, Abitibi-
Consolidated, Lufkin, Texas................................ 10
Prepared statement of.................................... 12
Nichols, Sandra, Staff Attorney, WildLaw, Montgomery, Alabama 42
Prepared statement of.................................... 44
Shelton, Larry D., Trustee, Texas Committee on Natural
Resources, Austin, Texas................................... 32
Prepared statement of.................................... 34
Smith, Stephen F., Executive Director, Texas Mining and
Reclamation Association, Austin, Texas..................... 23
Prepared statement of.................................... 25
OVERSIGHT FIELD HEARING ON THE ROLE OF NEPA IN THE SOUTHERN STATES
----------
Saturday, July 23, 2005
U.S. House of Representatives
NEPA Task Force
Committee on Resources
Nacogdoches, Texas
----------
The Task Force met, pursuant to call, at 10 a.m., at the
Cole Concert Hall, Stephen F. Austin State University,
Nacogdoches, Texas, Hon. Cathy McMorris presiding.
Present: Representatives McMorris and Gohmert.
Miss McMorris. The hearing will come to order. Good
morning, everyone. I would like to begin by welcoming County
Judge Sue Kennedy who will sing The National Anthem.
[National Anthem].
Miss McMorris. Thank you very much, Judge Kennedy.
Please remain standing as District Judge Ed Klein leads us
in the Pledge of Allegiance.
[Pledge of Allegiance].
Miss McMorris. Thank you, Judge Klein.
Now Dr. Rick Scarborough will present today's invocation.
[Invocation].
Miss McMorris. Thank you, Dr. Scarborough.
If everyone would take their seats, I will now recognize
Scott Beasley, Dean of the Forestry School, for his remarks.
Mr. Beasley. Good morning. I'm Scott Beasley, Dean of the
College of Forestry and Agriculture. This morning I'm here on
behalf of President Guerrero to welcome all of you and to
welcome the Task Force on Improving the National Environmental
Policy Act, or NEPA, as we like to call it.
Dr. Guerrero is out of the country, but he asked me to
express his regrets to the group for not being here to welcome
everyone personally. We're honored and fortunate to be one of
the three locations in the United States to host a hearing on
this important topic. I think we all realize that our public
lands are threatened as never before by such things as insects,
diseases, and fires, invasive species; and we need policies and
regulations and laws that will promote protection and
management of our natural resources.
I want to welcome all of you to this hearing, on behalf of
President Guerrero, to Stephen F. Austin State University; and
give a special welcome and thanks to the Task Force Members,
Representative Cathy McMorris from Washington State and our own
Representative, Louie Gohmert from Texas.
STATEMENT OF THE HON. CATHY McMORRIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WASHINGTON
Miss McMorris. Thank you.
We're going to start out just with some opening remarks,
and I want to start out by thanking my good friend, Congressman
Louie Gohmert, for inviting the Task Force to East Texas. It is
great to be here. He was with me when we kicked off the Task
Force in Spokane, which is my home base. I'm a Representative
from Eastern Washington State.
I've been asked by Chairman Richard Pombo of the Resources
Committee to chair the NEPA Task Force. This is our third of
six hearings and already we have learned a lot about NEPA and
the NEPA process and some ways that we can hopefully improve
that process.
We all share the same goal of clean air, clean water, and a
healthy environment. We want to focus NEPA to ensure sound
environmental decisions, instead of endless analysis and
litigation. We must protect and enhance our wildlife,
watersheds, and communities; and put common sense back into
environmental decisionmaking.
NEPA shouldn't simply become bureaucracy in action.
Texas and the other states represented by our witnesses
provide us unique examples of how NEPA works and how it can be
improved. The goal of the Task Force is to get out of
Washington, D.C., to listen firsthand to the people on the
ground so that we can better understand if NEPA is living up to
its intent.
It's no secret that NEPA, as well as other environmental
laws, have spurred vast amounts of litigation, have stalled
important economic development projects, and at times have cost
the taxpayers millions. Nearly every word in the NEPA law has
been litigated. That doesn't help our economy, and it certainly
doesn't help our environment.
The question before the Task Force is ``How can we do
better for our economy and our environment.''
Miss McMorris. I would like now to recognize Congressman
Gohmert for his opening statement.
STATEMENT OF THE HON. LOUIE GOHMERT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Gohmert. Well, thank you. Cathy McMorris is a good
friend. It's been wonderful to get to know you since we've been
in Congress together and I'm grateful for the leadership that
you've had.
We started off--we did have a hearing in Spokane and one in
Arizona. This is the third hearing. There will be three more
hearings, but this is one out of six in the entire nation.
And when I lobbied to have a hearing in this district and
carved a place within the district, this just seemed to be a
perfect place. Stephen F. Austin has perhaps the greatest
forestry school department anywhere in the country. And with
all the natural resources with which we've been blessed in East
Texas, what a place to come and learn more about the effects of
NEPA and environmental policies on our environment.
And as Chairwoman McMorris has mentioned, we all desire
clean air, clean water, a good environment. That's something we
all need and something we all desire ourselves. But what we've
been hearing are there are some policies that have actually
been detrimental to the environment. Although the intent is
good, sometimes the environment has been hurt when common sense
goes out the window.
So just as the--(inaudible). I can assure everybody that if
somebody is going to try to do away with one of our historical
sites here in East Texas, they've got a fight on their hands
because a lot of us don't want to see our history go away. It's
too rich here.
I would like to thank my district staff, my Washington
staff; and I would just like to ask that--they've helped get
this together. If you would all stand so people know who and
where you are. And if you have some additional information to
give me, as your Congressman--if you-all would all stand, those
that are on our staff.
And there's a young man that picked me up in Houston and
raced me up here last night, taking his time--Justin Roberts,
where you are? Is Justin here?
Voice. He's out back.
Mr. Gohmert. He's out back. Well, I wanted to give him
recognition.
I would also like to thank Stephen F. Austin for their
great hospitality. I knew when I proposed doing it here at
Stephen F. Austin we would get hospitality and helpful
friendliness; and just as I expected, it has really come
through. So thank you and the City of Nacogdoches, the County
of Nacogdoches, and all those that participated.
And when I called and talked with my good friend who's the
Chairman of the Railroad Commission--for those of you who are
not from around Texas, the Railroad Commission, they are the
ones that have such tremendous impact on resources and control
over our resources in Texas.
And so I want to especially thank Chairman Victor Carrillo
for taking the time to come to East Texas. He had some family
that was coming in; and yet he felt that this was so important
that he would take his time, come from Austin, and share with
us his insight.
So, Chairman Carrillo, thank you so much for coming to be
here with us and giving your perspective for the entire state.
And also, there are two of us here physically. There is the
Resources staff that have been here; and, folks, these guys are
unbelievable. I just appreciate them so much. They make these
hearings flow smoothly.
Everything is being recorded. Everything will be taken
down. Everything will be transcribed. Also, these witnesses--we
only give them five minutes for a statement. That's what we do
in Washington. That's what we do in these hearings. But they
can make as long a statement as they want. It will be submitted
with the record. It will be part of the record, and the record
is what everybody reviews.
There are nine Democrats on this Task Force, and none of
those individuals are here today; but I know they care deeply
about the environment. So you can rest assured they will be
reviewing the testimony carefully and all the information that
was derived, both the written and the recorded testimony.
This gives us a chance to see faces, to analyze the
information; and we appreciate you-all being here. We
appreciate you-all's respect. Somebody may say something with
which you disagree, but everybody--I don't care who it is--that
will testify deserves to be heard respectfully.
You can agree or disagree. Like Voltaire says, I may
disagree with what you say; but I will defend to the death your
right to say it. So if you would, be respectful, no matter what
is said.
Thank you so much. Chairman, thank you for giving your time
today.
Miss McMorris. Thank you, Louie.
Miss McMorris. And I want to take a few minutes to mention
this is a bipartisan Task Force. We have bipartisan
participation. We are seeking broad input from everyone that is
interested in the NEPA process, and NEPA is the process by
which we look at environmental impacts and make decisions, and
it was the first of many environmental laws that have been
passed in this country. We're not--the Clean Air Act, the Clean
Water Act, the National Historic Preservation Act.
(Inaudible). NEPA lays out the process by which we look at
those environmental impacts and decisions. NEPA is also the law
that encourages and requires public participation, and I think
that's one of the cornerstones of NEPA.
In keeping with that practice, even though we have only
invited nine witnesses here today, we want to hear from
everyone; and I encourage you to submit your comments to the
Resources Committee so that we take all comments and
recommendations into consideration.
There's a website that has been developed. It's under the
Resources Committee website, and we encourage any comments you
might have.
At this time, I would like to introduce our panel:
To give us a NEPA success story from the national forests
in East Texas is Daniel Dructor, Executive Director of the
American Loggers Council.
To talk about NEPA, its impact on natural gas prices, and
what that meant for a local timber mill is Debbie Johnston,
Public Affairs Director of Abitibi-Consolidated.
Next is Chairman Victor Carrillo, Chairman of the Railroad
Commission of Texas, who will tell us how states are able to
efficiently permit oil and gas operations.
Also here is Steve Dean, President of Texas Forest
Products, Incorporated. Mr. Dean will talk to us about the
impact of government regulations like NEPA on small businesses.
Steve Smith, Executive Director of the Texas Mining &
Reclamation Association, will discuss NEPA and its role in
mining.
Next will be W.I. Davis, representing the Texas Farm
Bureau, to talk to us about the different ways private and
public lands were impacted by the 1998 blow-down.
Stephen M. England, Manager of Mining Land from TXI
Geologic & Mine Services, will tell us about NEPA and
construction.
Larry Shelton, a Trustee of the Texas Committee on Natural
Resources, will talk about NEPA's public participation
requirements.
And Sandra Nichols, a staff attorney with WildLaw, will
share her experiences with NEPA and timber projects. Sandra has
joined us from Montgomery, Alabama.
Now, it's the policy of the Resources Committee to swear in
witnesses; so if you-all will stand and raise your right hand.
[Witnesses sworn.]
Miss McMorris. Let the record reflect that the witnesses
answered in the affirmative.
Before we get started, I want to point out that there are
lights at the front of the table to control the time. They will
light up. Each witness has five minutes, and I would encourage
you to stay as close to five minutes as possible; and I'll try
to keep it on time, too.
So when the green light is going, you're free to talk. When
the light turns yellow, you have one minute; and when it turns
red, I would ask you to wrap up. Your full testimony will
appear in the record. Keeping statements to five minutes will
allow us time for questions.
Mr. Dructor, you will begin.
STATEMENT OF DANIEL J. DRUCTOR, EXECUTIVE VICE PRESIDENT,
AMERICAN LOGGERS COUNCIL
Mr. Dructor. Good morning, Task Force Chairwoman McMorris
and Congressman Gohmert. My name is Danny Dructor; and I'm here
today representing the Texas Forestry Association, as well as
the American Loggers Council.
The Texas Forestry Association is a non-profit organization
representing family forest landowners, industrial forestry
concerns, and professional timber harvesters in the State of
Texas.
The American Loggers Council represents over 10,000 timber
harvesting professionals in 27 states throughout the U.S.,
including Texas, Louisiana, Arkansas, Mississippi, Alabama, and
most other states all over the country.
Our offices are located in Sabine County, Texas, near
Toledo Bend Reservoir. I appreciate the opportunity to testify
before you on this most important subject.
What I would like to present to you today is a success
story, a story of an incident occurring in the national forests
of Texas in February of 1998 where alternative arrangements
were made to streamline the NEPA process, resulting in the
removal and restoration of approximately 103,000 acres of the
timberland within the national forest lands of East Texas.
On February 10, 1998, hurricane-force winds slashed across
East Texas. The storm damaged approximately 103,000 acres of
national forest across the Sam Houston, Angelina, and Sabine
National Forests. In one afternoon, nature did more
clearcutting on the national forests in Texas than the Forest
Service had performed in the previous decade.
Because of the high humidity and high temperatures
associated with our region, there was not time to prepare an
EIS to analyze the effects of removing the damaged timber
before blue stain, insect damage, and rot would cause the
downed timber to deteriorate, losing all of its commercial
value.
Ronnie Raum, the Forest Supervisor working for the USDA
Forest Service on the national forests in Texas at the time,
went to Washington and asked the Council on Environmental
Quality for what is known as alternative arrangements to normal
NEPA requirements.
The three primary objectives for removing the downed trees
were: First, to avoid catastrophic fires that can originate in
the heavy fuel loadings resulting from the storm; second, to
avoid further damage to Red-cockaded Woodpecker and bald eagle
habitat; and third, to avoid further habitat loss from bark
beetle attack.
The following remarks are a portion of the presentation
that Ronnie made to the Texas Forestry Association Annual
Meeting on October 7th, 1998:
``Thanks in part to Congressman Jim Turner, the CEQ granted
only the 38th request for alternative arrangements in 20 years;
and it was the first time ever that the CEQ allowed timber
harvesting under alternative arrangements.
``Throughout the spring and summer over, 1,000 people from
all over the country were used to get the material on the
market and out of the woods. Over 106 MMBF of timber was
offered up for sale with an estimated economic value of $19
million in revenues.
``In six months' time, trees were removed from the vast
majority of the extensively and moderately damaged areas, which
included 89 sales and covered over 29,000 acres. Areas avoided
included the riparian zones and scenic areas in order to ensure
the trees could get harvested and avoid the lawsuits and
litigation that could possibly pressure the CEQ to withdraw the
alternative arrangements.
``Through it all, we have faithfully fulfilled our
commitments made to the CEQ. All that is left is to develop an
Environmental Impact Statement that will guide our
reforestation efforts. Because we did what we said we would do
and did not play any games with the CEQ approvals, other
national forests that have similar natural disasters will
hopefully get the opportunity to do what we did.''
I would like to show you some photographs--and you have
copies of them, as well. This is--all three of these--the first
picture is the devastation immediately following the blow-down
in 1998. And this is a picture that I took on July 13th of this
year showing what these areas look like. Again, total
devastation.
With proper replanting, we now have longleaf pine trees
established. And this is a CD down here to give you some
indication of the height of that tree.
Miss McMorris. When was it planted?
Mr. Dructor. I really don't know the date. Given this is a
longleaf pine, probably--approximately four to five years ago.
They sit in the grass stage for about four or five years before
they come up.
Again, another picture where you can see the longleaf pines
starting to come up.
Miss McMorris. We were going to fly over it today, but we
ran out of time.
Mr. Dructor. Well, it's really hard to see the regeneration
from the air. It's pretty dense.
OK. Events like this are not uncommon in our southeastern
forests or anywhere in the National Forest System. Naturally
occurring events such as wildfires, ice storms, insect and
disease infestations can and do occur in a moment's notice; and
we need a policy that will allow us to act in a timely and
efficient manner in order to help protect and restore the
forest and wildlife habitat once one of these national
disasters has struck.
Unfortunately, the events that took place in the national
forests in Texas between the months of February and August of
1998 are the exception rather than the rule.
Because of the series of events that occurred between the
six-month period, the forest and the wildlife living in its
natural surroundings were protected and enhanced.
The National Environmental Policy Act, the 35-year-old law
that was established to protect our forests, may be the very
law that obstructionists and liberal courtrooms use to destroy
them. Lawsuits and litigation appear to be the norm rather than
the exception; and oftentimes, cases are litigated on technical
issues rather than environmental issues. Misinterpretation by
the courts continues to hamstring the process and delay
projects that are necessary to restore forest health and reduce
fuel loads.
Miss McMorris. I need to ask you to wrap it up.
Mr. Dructor. I would just like to say--we would like to
offer up to this Committee the need to administratively
establish an alternative NEPA compliance procedure similar to
that used by the national forests and grasslands in Texas.
We have some ideas on how we might standardize the process
working with CEQ to make it work.
We also feel that funds should be appropriated to the
Forest Service for the hiring of contractors to carry out these
environmental management projects aimed at reducing fuel
loadings to protect and improve habitat.
There also should be returns to Ranger Districts of the
revenues generated from those projects to help continue the
maintenance of those projects. Thank you.
Miss McMorris. Thank you very much.
[The prepared statement of Mr. Dructor follows:]
Statement of Daniel J. Dructor, Executive Vice President,
American Loggers Council
Good morning Task Force Chairwoman McMorris, and other members of
the Task Force, my name is Danny Dructor, I am here today representing
the Texas Forestry Association as well as the American Loggers Council.
The Texas Forestry Association is a non-profit organization
representing stakeholders, including family forest landowners,
industrial forestry concerns and professional timber harvesters in the
State of Texas. The American Loggers council represents over 10,000
timber harvesting professionals in 27 states throughout the US,
including Texas, Louisiana, Arkansas, Mississippi, Alabama, Georgia,
Florida, South Carolina, Kentucky and Virginia. Our offices are located
on beautiful Toledo Bend Reservoir near Hemphill, Sabine County, Texas.
I appreciate the opportunity to testify before you today and provide
our comments on the very important issue of streamlining and improving
the National Environmental Policy Act (NEPA).
What I want to present to you this morning is a success story. A
story of an incident occurring in the National Forests of Texas in
February of 1998 where alternative arrangements were made to streamline
the NEPA process, resulting in the removal and restoration of
approximately 103,000 acres of timberland within the National Forest
lands of East Texas.
On February 10, 1998, hurricane force winds slashed across East
Texas. The storm damaged approximately 103,000 acres of National
Forests across the Sam Houston, Angelina and Sabine National Forests.
In one afternoon, nature did more clearcutting on the National Forests
in Texas than the Forest Service had performed in the previous decade.
Because of the high humidity and high temperatures associated with
our region, there was not time to prepare an EIS to analyze the effects
of removing the damaged timber before blue stain, insect damage and rot
would cause the downed timber to deteriorate, losing all commercial
value. Ronnie Raum, the Forest Supervisor working for the USDA Forest
Service on the National Forests in Texas at the time, went to
Washington to ask the Council on Environmental Quality for what is
known as ``Alternative Arrangements'' to normal NEPA requirements. The
three primary objectives for removing the downed trees were:
Avoid catastrophic fires that can originate in the heavy
fuel loadings resulting from the storm
Avoid further damage to Red Cockaded Woodpecker and Bald
Eagle habitat
Avoid further habitat loss from bark beetle attack.
The following remarks are a portion of a presentation that Ronnie
made to the Texas Forestry Association Annual Meeting on October 7,
1998:
``Thanks in part to Congressman Jim Turner, the CEQ granted
only the 38th request for alternative arrangements in 20 years
and it was the first time ever that CEQ allowed timber
harvesting under alternative arrangements. Throughout the
Spring and Summer, over 1,000 people from all over the country
were used to get the material on the market and out of the
woods. Over 106 MMBF of timber was offered up for sale with an
estimated economic value of over $19 million in revenues. In
six months time, trees were removed from the vast majority of
the extensively and moderately damaged areas which included 89
sales and covered over 29,000 acres. Areas avoided included the
riparian zones and scenic areas in order to ensure the trees
could get harvested and avoid the lawsuits and litigation that
could possibly pressure the CEQ to withdraw the alternative
arrangements.
Through it all, we have faithfully fulfilled our commitments
made to the CEQ. All that is left is to develop an
environmental impact statement that will guide our
reforestation efforts. Because we did what we said we would do
and did not play any games with the CEQ approvals, other
National Forests that have similar natural disasters will
hopefully get the opportunity to do what we did.''
I would like to show you photographs (see attachments) that depict
the state of the forest immediately following this catastrophic event
in 1998, and the results of prompt action and proper reforestation
efforts that lead to the restoration of these same forest as they are
now seen today just 7 years later, a short timeframe in the life of a
natural resource whose life cycle can well exceed 100 years.
The incident I have just discussed with you was the result of
landowners, forest managers, loggers and public servants working
together for the good of their communities, their economies, and most
importantly, the health of their forests. Without immediate
intervention, fuel loads on the National Forests in Texas across
103,000 acres would have been dramatically increased, leading to the
possibility of catastrophic wildfires which could have destroyed
forests, wildlife habitat, private property, and most importantly,
lives. Watersheds were restored to ensure that soil erosion and
siltation into creeks and reservoirs was minimized. The Southern Pine
Beetle, which preys on mature, weakened and diseased pine trees, did
not become a problem in the National Forest that summer because the
material had been removed from the forest, averting a possible epidemic
of Southern Pine Beetle infestations. Sales prices for the timber sales
remained strong throughout the summer, bringing over $40.00 per ton
($320.00 per MBF). The citizens of East Texas turned a potentially
environmentally and economically devastating event into an event in
which there were no real significant impacts either to forest health or
the local economy. What made this is a success was the ability to move
fast, expedite the process, and rapidly return our National Forest to
being productive, healthy forests as well as enhancing wildlife habitat
along the way.
Events like this are not uncommon in our Southeastern Forests or
anywhere in our National Forest System. Naturally occurring events such
as wildfires, ice storms, insect and disease infestations can and do
occur in a moments notice, and we need a policy that will allow us to
act in a timely and efficient manner in order to help protect and
restore the forest and wildlife habitat once one of these natural
disasters has struck.
Unfortunately, the events that took place on the National Forests
in Texas between the months of February and August of 1998 are the
exception rather than the rule. Because of the series of events that
occurred during the six month period, the forest and the wildlife
living in its natural surroundings were protected and enhanced. The
National Environmental Policy Act, a thirty five year old law that was
established to protect our forests, may be the very law that
obstructionists and liberal courtrooms use to destroy them. Lawsuits
and litigation appear to be the norm rather than the exception, and
oftentimes cases are litigated on technical issues rather than
environmental issues. Misinterpretation by the courts continues to
hamstring the process and delay projects that are necessary to restore
forest health and reduce fuel loads.
In an article recently published in the American Forest Resources
Council newsletter, it was reported that in May, Representative Greg
Walden, Chairman of the Subcommittee of Forests and Forest Health,
wrote the Forest Service requesting information about the timber sale
program and any resulting appeals and litigation. The response from
Deputy Chief for National Forest System, Joel Holtrop indicated that
nearly 1.6 billion board feet are tied up in litigation as of May 31.
After reviewing the report Walden commented ``the timber sales program
is in worse shape than even these disturbing numbers would indicate.
Not counted in this figure are the proposed sales currently tied up in
the administrative appeals process, nor those held up while waiting for
a resolution to litigation facing other sales. As we learned during our
work on the Healthy Forest Restoration act, the Forest Service spends
an enormous amount of time and money fighting a very organized and
well-funded appeals effort. The result is weakened forest health,
weakened rural economies and a great deal of taxpayer money going into
the appeals and litigation rather than into good stewardship of our
forests.''
The Forest Service's current timber sale program offers
approximately two billion board feet per year. Annual mortality on
national forest system land could be as high as 10 billion board feet
per year while the total growth is at least 20 billion board feet. The
table in Exhibit I shows timber under litigation by Region. (MMBF =
million board feet)
We would like to offer up to this committee the need to
administratively establish an alternative NEPA compliance procedure
similar to that used by the National Forests and Grasslands in Texas.
We have some ideas on how we might standardize the process working with
CEQ to make it work.
We also feel that funds should be appropriated to the Forest
Service for the hiring of contractors to carry out environmental
management projects aimed at reducing fuel loadings, protecting and
improving habitat and reducing or protecting against insect and disease
infestations. There should also be provided for an automatic return of
revenue (one-half of net product revenue proceeds) to Ranger Districts
for the maintenance of accomplished project benefits.
There is also the need to provide training for forest service
personnel in the use of this project capability. Oftentimes the
administration gives the agencies the tools to work with, but forgets
to explain how to use them. We are fortunate enough to be sitting in an
auditorium that is part of Stephen F. Austin State University, who also
happens to be my alma mater and who graduates, in my opinion, some of
the finest forest managers found in the country. These young men and
women are the future of our forests, and I dare say that I will put
their expertise and education on proper forest management up against
any judge in any courtroom across the US. They are the ``doctors'' of
the forest, and do not need the opinion of a judicial appointee to
write a prescription.
While NEPA was a godsend in its early beginnings, its metamorphosis
into a battle ground between special interest groups and multiple-use,
sustained yield advocates has turned it into a counterproductive piece
of legislation. We ask that you carefully consider adopting amendments
to NEPA that will once again make it the premier environmental
management tool that its creators had envisioned.
Again, thank you on behalf of the Texas Forestry Association and
the American Loggers Council for this opportunity to testify before
this Task Force. I would be happy to attempt to answer any questions
you may have.
[GRAPHIC] [TIFF OMITTED] T2849.001
______
Miss McMorris. Ms. Johnston?
STATEMENT OF DEBBIE JOHNSTON, PUBLIC AFFAIRS DIRECTOR, ABITIBI-
CONSOLIDATED
Ms. Johnston. Thank you, Chairwoman. My name is Debbie
Johnston. I'm a Public Affairs Director for Abitibi-
Consolidated, with responsibilities for most of our
manufacturing and paper recycling operations in the southern
half of the U.S.
Abitibi-Consolidated is a global leader in the production
of newsprint and uncoated groundwood papers, as well as a major
producer of wood products with operations located in the U.S.,
Canada, the U.K., South Korea, China, and Thailand.
The company's Lufkin facility has deep-rooted ties to the
local community. The mill began operations in 1940, after the
discovery of a manufacturing process allowed the removal of
pitch and resin from southern pine trees, and financial
investors agreed to bankroll the construction of a newsprint
mill in deep East Texas to prove that the process worked.
Out of this risky venture, the manufacture of newsprint in
the southern U.S. Began; and the newspaper industry was freed
from its dependency on paper manufactured in the northeastern
region of the U.S. And in Canada.
Southland Paper Mills were the original owners of the mill;
however, it was later purchased by St. Regis and then by
Champion International.
Over the years, dramatic changes in the newspaper industry,
as well as a decline in the demand for newsprint and lack of
continued investment in the Lufkin mill by Champion led the
company to divest itself of its two Texas mills and paper
recycling operations. In 1998, after nearly a year of searching
for a buyer for the Texas assets, they were purchased by
Donohue, Incorporated, headquartered in Montreal, Quebec.
Donohue executives quickly recognized the value of owning a
mill in the south to manufacture a new grade of paper that
could provide printers and publishers in the south with paper
for sales catalogs, advertising flyers, and coupons.
The company purchased a large paper machine that had been
idled and packaged for shipment to New Zealand, and was
currently sitting on a site in British Columbia. The machine
took approximately one and a half years to assemble on the
Lufkin mill site, along with other upgrades to the facility
made at the same time to improve environmental performance and
enhance paper quality.
However, in 2000, midway through this extensive
modernization project, Donohue was acquired by another Canadian
newsprint manufacturer, Abitibi-Consolidated. Abitibi-
Consolidated completed the project at a cost of over $350
million, the largest single investment ever made in Angelina
County.
In August of 2001, the newspaper machine began--excuse me.
I got the wrong page--began production, notably one of the
largest paper machines in North America to produce this grade
of paper.
The mill modernization project involved not only the
addition of the new paper machine, but also included extensive
changes to the pulp bleaching area that resulted in significant
improvement to the environmental performance of the new mill.
The mill was converted to an oxygen bleaching system,
removing the use of elemental chlorine in the process; and the
mill's onsite waste treatment facility was upgraded and
expanded, making it a state-of-the-art facility in the
industry.
Although the demand for supercalendered paper remained
moderately strong during the 2001-2002 period, demand for
newsprint began to sag dramatically; and in December of 2002,
the company announced the idling of its newsprint mill in
Sheldon, Texas. New emphasis was placed on the Lufkin mill with
a great deal of focus on reducing manufacturing costs as the
mill began to feel the pressures of an international
marketplace.
It was also during this time that mounting energy costs
began to eat away at what had once been a promising investment
amongst the company's assets. The mill's energy infrastructure
was put in place when natural gas was cheap, plentiful, and
preferred as one of the cleanest burning fuels available. The
mill self-generated approximately 50 percent of its energy
needs and purchased the remainder from a local provider. During
this time period, monthly energy bills began to reach the $3
million mark and continued to climb.
By 2003, for every $1 increase in the price of natural gas,
the mill's annual energy costs increased by $11 million.
As natural gas prices rose and sustained themselves at the
higher levels, the mill could not overcome the bleeding caused
by these costs. In an effort to stop the bleeding at the
facility, the company announced in December 2003 it would
indefinitely idle the Lufkin mill.
For the mill, uncontrollable energy costs also came at a
time when demand for supercalendered paper grades and newsprint
were not strong enough to command pricing that would cover
manufacturing costs. Although a very difficult decision for
Abitibi-Consolidated, the losses that mounted during the most
recent years of the mill's operation abated much of the profit
generated from the company's other operations in the U.S. And
Canada.
With the idling of the mill, nearly 600 local employees
were laid off and countless other jobs in the region were
impacted from the loss of some of the highest paying positions
in the county.
It was reported earlier this year to this Committee by a
representative of the American Forest & Paper Association that
92 pulp and paper mills have closed in the U.S. In the past
five years, resulting in a loss of 47,000 jobs.
The Lufkin mill, along with our Sheldon facility, are real
examples of this statistic. Abundant and affordable energy is
needed to support the jobs of those who produce the paper and
forest products our nation depends on.
Legislation should minimize restrictions and consolidate
the process for approval of drilling permits. Infrastructure to
bring natural gas to market should likewise be improved in an
expedient manner. Reserves can then be brought to market using
existing environmental-friendly technologies without undue
delay.
We appreciate the Committee's interest in understanding
energy costs as they have affected our operations here locally,
and we will be happy to answer any questions.
[The prepared statement of Ms. Johnston follows:]
Statement of Debbie Johnston, Public Affairs Director,
Abitibi-Consolidated
Mr. Chairman and Members of the Task Force, my name is Debbie
Johnston. I am a Public Affairs Director for Abitibi-Consolidated, with
responsibilities for most of the Company's manufacturing and paper
recycling operations in the Southern half of the U.S.
Abitibi-Consolidated is a global leader in the production of
newsprint and uncoated groundwood papers, as well as a major producer
of wood products with operations located in the U.S., Canada, the UK,
South Korea, China and Thailand.
The Company's Lufkin facility has deep-rooted ties to the local
community. The mill began operations in 1940, after the discovery of a
manufacturing process allowed the removal of pitch and resin from
Southern pine trees, and financial investors agreed to bankroll the
construction of a newsprint mill in Deep East Texas to prove that the
process worked. Out of this risky venture, the manufacture of newsprint
in the Southern U.S. began, and the newspaper industry was freed from
its dependency on paper manufactured in the Northeastern region of the
US, and in Canada.
Original owners of the facility--Southland Paper Mills, Inc.--
employed over 250 local individuals, as well as some Canadian
papermakers who migrated South to help share papermaking skills with
the less experienced laborers in Texas. The Company grew quickly,
adding additional paper machines, as well as second newsprint mill in
Sheldon, Texas in 1967.
In 1977, Southland Paper was purchased by St. Regis Paper Company,
expanding the scope of the operations. St. Regis invested heavily in
the Lufkin mill, upgrading key pieces of processing equipment and the
mill registered gains in production, sales, and profitability.
In September of 1984, Champion International Corporation announced
it had agreed to purchase St. Regis. The combined capacity of Champion
International Corporation was now three million tons per year, making
it the industry's largest manufacturer of ``white paper''. The two
Texas mills also made Champion the second largest domestic producer of
newsprint.
However, over the years dramatic changes in the newspaper industry,
as well as a decline in demand for newsprint and a lack of continued
investment in the Lufkin mill by Champion led the Company to divest
itself of its two Texas mills and paper recycling operations. In 1998,
after nearly a year of searching for a buyer for the Texas assets, they
were purchased by Donohue Inc.'' headquartered in Montreal, Quebec.
Donohue executives quickly recognized the value of owning a mill in
the south to manufacture a new grade of paper--super-calendered--hat
could provide printers and publishers in the South with paper for sales
catalogs, advertising flyers, and coupons. The Company purchased a
large paper machine that had been idled and packaged for shipment to
New Zealand, and was currently sitting on a site in British Columbia.
The machine was transported by a cargo ship to the Port of Houston, and
hundreds of shipping containers were trucked to Lufkin. The machine
took approximately 1 1/2 years to assemble on the Lufkin mill-site,
along with other upgrades to the facility made at the same time to
improve environmental performance and enhance product quality.
However, in 2000, midway through this extensive modernization
project, Donohue was acquired by another Canadian newsprint
manufacturer--Abitibi-Consolidated. Abitibi-Consolidated was committed
to completing the modernization of the mill, and starting up the new
paper machine to produce super-calendared paper. The Company completed
the project at a cost of over $350 million--the largest single
investment ever made in Angelina County. In August of 2001, the new
paper machine began production--notably one of the largest paper
machines in North America to produce this grade of paper.
The mill modernization project involved not only the addition of
the new paper machine, but also included extensive changes to the pulp
bleaching area that resulted in significant improvement in the
environmental performance of the mill. The mill was converted to an
oxygen bleaching system, removing the use of elemental chlorine in the
process, and the mill's on-site waste treatment facility was upgraded
and expanded, making it a state-of-the-art facility in the industry.
The mill can now meet all of its proposed wastewater permit limits,
which are considered to be the most restrictive of all Southern U.S.
kraft mills.
Although demand for super-calendared paper remained moderately
strong during the 2001-2002 period, demand for newsprint began to sag
dramatically, and in December of 2002, the Company announced the idling
of its newsprint mill in Sheldon, Texas. New emphasis was placed on the
Lufkin mill, with a great deal of focus on reducing manufacturing costs
as the mill began to feel the pressures of an international
marketplace. The new large machine continued to produce a HiBrite grade
of newsprint, along with a super-calendared grade, but the mill's
second paper machine--used strictly for manufacturing newsprint and
newsprint grades--continued to be idled for weeks at a time to adjust
for growing inventory levels and sluggish demand in newsprint.
It was also during this time, 2002-2003, that mounting energy costs
began to eat away at what had once been a promising investment amongst
the Company's assets. The Lufkin mill's energy infrastructure was put
in place when natural gas was cheap, plentiful, and preferred as one of
the cleanest burning fuels available. The mill self-generated
approximately 50% of its energy needs, and purchased the remainder from
a local provider. During this time period, monthly energy bills began
to reach the $3 million mark, and continued to climb. By 2003, for
every $1 increase in the price of natural gas, the mill's annual energy
costs increased by $11 million.
As natural gas prices rose and sustained themselves at these higher
levels, the mill could not overcome the ``bleeding'' caused by these
exorbitant costs. In an effort to ``stop the bleeding'' at the Lufkin
facility, the Company announced in December of 2003 to indefinitely
idle the Lufkin mill. For the mill, uncontrollable energy costs also
came at a time when demand for super-calendared paper grades and
newsprint were not strong enough to command pricing that would cover
manufacturing costs.
Although a very difficult decision for Abitibi-Consolidated, the
losses that mounted during the most recent years of the mill's
operation abated much of the profit generated from the Company's other
operations in the U.S. and Canada. And adding to an already difficult
operating environment, the U.S. dollar remained weak.
With the idling of the Lufkin mill, nearly 600 local employees were
laid off, and countless other jobs in the region impacted from the loss
of some of the highest paying positions in the County.
It was reported earlier in the year to this Committee by a
representative of AF&PA (American Forest & Paper Association), that 92
pulp and paper mills have closed in the U.S. over the past five years,
resulting in a loss of 47,000 jobs. The Lufkin mill, along with our
Sheldon, Texas facility, are real examples of this statistic. Abundant
and affordable energy is needed to support the jobs of those who
produce the paper and forest products our nation depends on.
So the Lufkin mill continues to sit quiet, housing a small site
team that maintains the facility and continues to work on energy
solutions and changes to manufacturing equipment that would allow it to
manufacture a higher quality grade of paper. And what was once
considered a pioneer facility in East Texas, and then a giant in the
paper industry remains idle, but with the hope of some day producing
paper again.
The site team is currently investigating opportunities to burn
alternative fuels in a new multi-fuel boiler, however this is only
possible with additional significant capital investment--likely $50-70
million. Capital dollars within the corporation compete with proposed
projects of other Company facilities--some with much lower
manufacturing cost structure and higher payback, making an argument for
an additional investment in the Lufkin mill all the more difficult.
Although changes to federal energy policies may not come quickly
enough to help the situation the Lufkin mill finds itself in today,
energy legislation is required that expands the energy supply--
particularly natural gas--promotes energy efficiency, and encourages
the development of new technology. Environmental rules and regulations
have driven industry toward increased gas consumption without providing
for increased access to the supply that is needed to keep natural gas
costs competitive.
Legislation should minimize restrictions and consolidate the
process for approval of drilling permits. Infrastructure to bring
natural gas to market should likewise be improved in an expedient
manner. Reserves can then be brought to market using existing
environmentally-friendly technologies without undue delay.
We appreciate the Committee's interest in understanding energy
costs as they have affected our operations here locally and we would be
happy to answer any questions.
______
Miss McMorris. Mr. Carrillo?
STATEMENT OF VICTOR CARRILLO, CHAIRMAN,
RAILROAD COMMISSION OF TEXAS
Mr. Carrillo. Good morning, Madam Chair, and welcome to
Texas.
Miss McMorris. Thank you.
Mr. Carrillo. My name is Victor Carrillo. I'm Chairman of
the Texas Railroad Commission; and in spite of our name, we
oversee the oil and gas industry, the pipeline industry,
surface mining, and coal mining here in Texas, and natural gas
utilities.
My background is in the energy sector as a geologist and
geophysicist and former energy attorney. Before I was elected
to my statewide position, I was a county judge for my hometown,
though I can't sing as well as Judge Kennedy.
I'm also here on behalf of the Interstate Oil & Gas Compact
Commission. The IOGCC is a Congressionally ratified interstate
compact that includes 37 states that, together, produce over 99
percent of the oil and gas domestically in the U.S. The
Chairman is Governor Murkowski of Alaska, this year.
Responsible oil and gas exploration and development and
stewardship of our land and water resources can both be
achieved simultaneously. The fact is we see it done here in
Texas daily.
In Texas, we are quite proud of our ongoing role as the
premier energy-producing state in the nation. We're the number
one producer of oil and natural gas among any of the states. We
produce about 6 trillion cubic feet of natural gas every year,
which represents over 25 percent of the total U.S. Demand for
this clean burning fuel.
As of yesterday, here in Texas, we had 615 active oil and
gas rigs operating in the state. That represents almost 50
percent of the total activity across the nation. There are 26
refineries in the state, with a total refining capacity of over
4 million barrels per day, equaling over 25 percent of the
nation's total refining capacity.
As our nation's voracious appetite for energy continues to
grow, Texas has stepped up to the plate and will soon be the
nation's liquefied natural gas leader, as well. The FERC has
already approved four new onshore LNG facilities along our
Texas Gulf Coast. Texas is, indeed, still the preeminent energy
producing and refining state in the nation.
In February, I traveled to Washington and testified before
a House committee in support of the Energy Policy Act of 2005,
and I believe that the House version is a very good first step
to help ensure our nation's future energy security.
Turning to today's topic, there's no country in the world
that produces its natural resources, oil, natural gas, coal, to
higher environmental standards. Texas and the other energy-
producing states are proud of these environmental standards,
for we do indeed believe that we have a stewardship
responsibility over our land and water resources. But the ever
growing and often Draconian legislative environmental laws and
regulations sometimes threaten the future development of our
domestic energy resources: Oil, gas, and coal.
Recognizing that my time is limited, let me hit a few quick
topics; and perhaps we can fill in with some questions.
I encourage opening up areas currently off limits to
exploration, whether it's oil, gas, coal, in the Intermontane
West, in Alaska, and in our Outer Continental Shelf areas.
And pertinent to this Task Force, we should also seek to
streamline the regulatory process for areas that are already
open for development but that are frequently tied up in
sometimes unnecessarily complicated environmental regulations.
I recently completed an IOGCC survey identifying several
factors that inhibit some of this development, including the
fact that when state and Federal entities both have permitting
responsibilities for oil and gas development, state entities,
frankly, can get the job done about 20 to 35--in about 20 to 35
percent of the time that it takes for a Federal permit in the
same state.
Wildlife issues often delay the permitting of oil and gas
development; and response to this survey encouraged
consideration of offsite impact mitigation to address some of
these wildlife habitat issues.
We also recommend specific approve or deny timetables for
oil and gas permits to avoid a permit languishing in a Federal
agency for months and sometimes years.
In summary, the IOGCC supports the concept of revamping
NEPA to streamline the process without negatively impacting
true environmental concerns.
I have some comments with regard to storm water runoff
issues that I won't be able to cover but that impact NEPA,
also, and hydraulic fracturing issues, both of which are dealt
with, I believe, appropriately in the Energy Policy Act of 2005
in the House version.
Let me just--let me just wrap up by saying that no doubt
certain environmental laws and regulations are essential to
protect the public health and safety. However, many of these
environmental laws far exceed their original intent. To the
degree that we can, both at the state level and the Federal
level, we must limit government regulations that all too often
are over broad, complex, costly, and that stifle innovation,
ingenuity, and investment growth.
Finally, let me just emphasize the need for flexibility in
the laws and the regulations and the regulatory oversight as
opposed to having rigid, unbendable rules and laws that I think
ultimately limit the development of our natural resources.
With that, I'll wrap up. Thank you for the opportunity to
be here with you today.
[The prepared statement of Mr. Carrillo follows:]
Statement of Victor G. Carrillo, Chairman,
Texas Railroad Commission
Madame Chair McMorris, Congressman Gohmert, members--my name is
Victor Carrillo and I appreciate the opportunity to testify before you.
I am Chairman of the Texas Railroad Commission. In spite of the name,
we oversee the Texas oil & gas, pipeline & surface mining industries,
including lignite coal mines. My background is in the energy sector as
a former exploration geologist/geophysicist and oil & gas attorney.
I am also here today on behalf of the Interstate Oil and Gas
Compact Commission (IOGCC). IOGCC member states produce over 99% of the
oil and natural gas produced onshore in the U.S. Formed in 1935, the
IOGCC is a congressionally ratified interstate compact that includes 30
member and 7 associate states. Our 2005 Chairman is Governor Murkowski
of Alaska. I will be 2nd Vice Chair of the organization for the
upcoming year.
The mission of the IOGCC is two-fold: to promote conservation and
efficient recovery of domestic oil and natural gas resources while
protecting human health and the environment. Though many would have you
believe that those dual goals are mutually exclusive--let me assure you
they are not. Responsible oil & gas exploration and development and
stewardship of our land and water resources can both be accomplished
simultaneously. We see it done in Texas day in and day out.
In Texas, we are quite proud of our ongoing role as the premier
energy producing state in the nation. Texas is still the #1 producing
state for oil and natural gas. We produce about 6 Trillion Cubic Feet
of natural gas per year, which represents over 25% of total U.S. demand
for the clean burning energy source. We are also the 5th largest
producer of coal in the nation.
As of one week ago, Texas had 619 active oil & gas rigs operating
in the state--representing almost 50% of all land rigs in the nation.
And as a nation as we move to establish more LNG (liquefied natural
gas) facilities, I'm proud to say that four new onshore LNG facilities
have already been given the green light by FERC along our Texas Gulf
Coast.
Texas has the most extensive pipeline infrastructure in the nation
with over 250,000 miles of underground petroleum pipelines throughout
the state. There are 26 refineries in the state with a total refining
capacity of over 4 million barrels per day, equaling over 25% of the
nation's total refining capacity. Texas is still the preeminent energy
producing and refining state in the nation.
In February, I testified in Washington alongside Governor Frank
Murkowski of Alaska in support of the Energy Policy Act of 2005. I
continue to believe that the House version is a very good first step to
help ensure our nation's future energy security by helping to maximize
the production of our domestic petroleum resource.
Turning to today's topic, no country in the world produces its oil,
gas and coal to higher environmental standards. Texas and the other
energy producing states are proud of these environmental standards for
we believe that we have a stewardship responsibility for our land and
water resources. But the ever growing and often Draconian federal
environmental laws and regulations threaten future exploration,
production, and refining capacity.
I'd also like to point out that while Texas is the top oil and gas
producing state, Texas also ranks first in overall consumption of
petroleum, natural gas, coal, and electricity. So we share the national
concern for reliable energy supply sources at reasonable and stable
prices. A secure source of domestically produced oil, natural gas, and
coal is in the best interest of all--producing and consuming states
alike.
Recognizing that my time is limited, let me address just a few
specific hot topics.
Stormwater Runoff.
I am concerned with EPA rulemaking under the NPDES Stormwater
Permit Coverage for Small Oil & Gas Construction Activities which would
potentially require a stormwater permit of oil & gas operators for
activities affecting one acre or more, particularly with their
interpretation of ``common plan of development'' concept in the
Construction General Permit. EPA's rule would improperly seek to treat
oil & gas activities activities like residential/commercial
construction activities--and they are not the same. In residential/
commercial construction projects, there is often a common plan of
development that would impact an aggregated area of disturbance. With
oil & gas exploration, there is no guarantee of success of the first
well, much less any subsequent wells. In fact, let's say you drill a $2
million dollar exploratory well and you find nothing or at least
nothing that is economic to produce, then any plans for future wells in
that immediate area project will likely never come to fruition. For the
oil & gas producer, there simply is no common plan of development in
the vast majority of cases.
A recent independent economic analysis completed for the U.S.
Department of Energy (Estimated Economic Impacts of Proposed Storm
Water Discharge Requirement on Oil & Gas Industry Report from Advance
Resources International, Inc. to U.S. DOE Office of Fossil Fuels, Dec.
2004) estimated that just this one EPA regulatory change could cost the
country from 1.3 to 3.9 billion barrels of domestic oil production and
15 to 45 trillion cubic feet of domestic gas production over the next
20 years. To put that into context, and taking the median of those
numbers, that represents over five years of Texas natural gas
production and over seven years of Texas oil production that would be
lost.
Hydraulic Fracturing.
There is a current effort in the context of the Energy Bill seeking
to broadly regulate hydraulic fracturing under the Safe Drinking Water
Act for the very first time ever. Hydraulic fracturing is a technique
developed in oil & gas exploration to fracture deep underground oil &
gas bearing strata, thus releasing more of the oil & gas to be
produced. The technique has been safely and successfully used in states
like Texas for decades without any known negative impact to drinking
water supplies. In the vast majority of wells that have used these
techniques in Texas, the fracture zone is thousands of feet deep, well
below any possible contact with the drinking quality water, which is
generally limited to a few hundred feet from the surface.
Technological advancements allow industry to find & produce more
domestic oil & gas, more efficiently, where we already know it to
exist. It is technological advancements like hydraulic fracturing, that
have allowed the Barnett Shale Gas Play near Dallas/Ft. Worth to
develop into the largest producing gas field in Texas and one of the
hottest gas plays in the nation. Without the ability to use hydraulic
fracture techniques in the Barnett Shale, this huge gas deposit would
not be economic to produce.
A one-size fits all, federally mandated, EPA administered
regulatory approach in this issue unnecessarily trammels state rights
to oversee this activity in our state, by our own more flexible and
appropriate means. State programs like ours in Texas have for almost
100 years protected precious ground water resources while allowing
domestic oil and gas production to supply our national energy needs.
Refining (Downstream).
There has been no major new refinery built in the U.S. since 1976.
Did you know that now, in addition to importing almost 60% of the oil
(unrefined) that we need, we are now importing about 10% of the refined
gasoline that we need. The fact is that there is limited domestic
refining capacity. We had over 300 U.S. refineries in 1980. At the end
of 2003, there were about 149--a 50% reduction. Most are running at
near capacity.
Why have no U.S. based refineries been built in almost three
decades? While NIMBY plays an important role, so do the incredibly
stringent environmental controls (NEPA, Clean Air Act, Clean Water Act,
RCRA, etc.) that apply to new major construction. Some estimates
suggest that it would take several hundred permits and at least $2
billion to build a new refinery--perhaps half of that cost attributable
to the regulations directly
In the last decade alone, industry has invested almost $50 billion
in environmental improvements to existing facilities. And we wonder why
gasoline prices are at their current prices.
Access to Public Lands.
One final issue I will mention is the need to encourage opening up
areas currently off limits to oil and gas exploration--areas in the
Intermontane West, in Alaska, and in our Outer Continental Shelf (OCS)
regions. And pertinent to this task force, we should also seek to
streamline areas that are already open to exploration but that are
frequently tied up in unnecessarily complicated environmental
requirements, particularly on federal lands.
In summary, I believe that we would all do well to support the
general notion that ``government that governs least governs best.'' No
doubt, certain environmental laws and regulations are essential to
protect the public health and safety. However, many of these
environmental laws far exceed their original intent. To the degree we
can, we must reel in and restrain government regulations that all too
often are overbroad, complex, and costly and that stifle innovation,
ingenuity & investment growth in private sector. When the federal
government does pass a law or regulation, it should be simple, clear,
understandable, limited in scope, reasonable, practical, & pass the
common sense test.
Finally, let me emphasize the need for flexible regulatory
oversight and management tools as opposed to rigid, Draconian measures
that simply add cost and delay, and ultimately limit domestic energy
production at the very time that we need to be more, not less, energy
self sufficient.
Thank you so much for the opportunity to appear before you today.
If I can provide any additional information, please just ask. I
personally stand ready to assist you in any energy-related matter in
which you are interested.
______
Miss McMorris. Mr. Dean?
STATEMENT OF STEVE DEAN, PRESIDENT,
TEXAS FOREST PRODUCTS, INC.
Mr. Dean. How is that for the mike?
Miss McMorris. Very good.
Mr. Dean. I want to thank Congressman Gohmert for giving me
the opportunity to testify. I also thank Madam Chairman and
other Committee members who couldn't come to East Texas today.
My remarks are going to be limited primarily to water.
In 1997, the Texas Legislature passed Senate Bill One, in
which Texas was divided up into 16 geographical areas; and a
water group was formed for each area. Board members represented
a cross-section of the general public, counties,
municipalities, industry, agricultural, small business,
environmental, river and water districts, and utilities.
Each group had a state and Federal agency representation
member, plus coordinating members from adjoining states, from
adjoining regions, and from the Republic of Mexico.
The planning process involved water quality and water
development.
At our water meeting on April the 21st, 2004, I addressed
the board with the following comments regarding drinking water
and arsenic:
Since 1942, the U.S. has maintained a standard of 50 parts
per billion of arsenic in drinking water. Taking the current
drinking water standards into account, Texans enjoy some of the
best drinking water in the entire world. The Safe Drinking
Water Act of '74 mandated by amendment that arsenic standards
would be reviewed.
After a 16-year review by the National Research Council and
further review by the EPA, ultimately--based on the standards
set by the World Health Organization and the European Union,
the EPA recommended the adoption of 10 parts per billion.
Water supply proponents argued that the existing 50 parts
per billion were sufficient, while environmental groups pushed
for more stringent standards, some as low as three parts per
billion. This (inaudible) would not pass three parts per
billion. President Clinton signed an order adopting 10 parts
per billion as the new standard in the final days of his
administration.
The new standard was one of those last-minute rules forced
upon the administration.
When President Bush suggested that the standards be left
unchanged, headlines throughout the Nation stated, ``Bush
proposes to add arsenic to drinking water.''
During one of our Water Planning meetings, I asked our
Texas Water Development Board representatives whether the
impact of the new drinking water standards were being
considered in calculating our revised water inventory models.
He said, ``No.'' No consideration was being given to how the
new standards would impact the current water inventory.
As a result of those comments, I made a recommendation to
the Water Board; and I'll read that:
I would offer a motion that we adopt a resolution in
support of the current administration's desire to retain the 50
parts per billion standard until such time as water inventory
calculations and scientific data are taken into account and
that any recommendation to change these standards be broad
based and discussed in the light of public scrutiny.
The Region D Planning Board adopted that motion.
And then as far as water development goes--economic
development, water, energy, transportation, urban development,
aviation, timber, agricultural, industry, all face huge
challenges for success in the future. It all depends on water.
I made this comment to our Water Board:
Worthy water projects considered for the Texas 2050 Water
Plan have come under attack from stakeholders who agree that
water is needed, but who disagree with the idea of the
multiplier effect of mitigation imposed by the Corps of
Engineers.
Environmental interests have already removed the ability of
East Texans in Region D to provide for their own water
development by blocking construction on the Sabine River at
Waters Bluff.
Mitigation requirements have doubled, tripled, quadrupled,
and in some cases, proposed acreage set-asides that are forced
on landowners as a result of well-thought-out, logical, and
reasonable development.
Mitigation requirements are being used as an enforcement
tool against water planners by the U.S. Army Corps of Engineers
with disregard to the underlying stated reasons for mitigation
lands in the first place.
When reasonable accommodations from the Corps are requested
for consideration by stakeholders, the request is generally
considered, but almost universally fall upon deaf ears.
As board members of the Water Board, we realized that
common sense was a necessary ingredient in making a decision.
Consequently, I offer this resolution: Mitigation rules, as we
know them and as we are forced to abide by them, have nothing
to do with common sense. The State of Texas was built upon
sound thinking and common sense. Texas and the U.S. will thrive
in the future if we stay with common sense.
I will, therefore, offer a motion that this regional water-
planning group adopt a resolution to remove the total concept
of mandating and managing mitigation lands from the Corps of
Engineers and turn it over to the individual states.
The Region D planning group adopted my motion.
Madam Chairwoman, this concludes my remarks. I have
attached the minutes of the water board meeting where these two
resolutions were passed. I appreciate your time.
[The prepared statement of Mr. Dean follows:]
Statement of Stephen E. Dean, President/CEO,
Forest Products, Inc.
I want to thank Congressman Gohmert for giving me the opportunity
to testify today. I also thank Madame Chairman and other committee
members for coming to East Texas. I could speak on a number of
environmental issues that have affected me and my family on a very
direct and personal level. However, I will limit my remarks to an issue
that affects everyone in the country.
WATER
In 1997 Senate Bill One was passed by the 75th Texas Legislature.
The State of Texas was divided up into 16 regional geographical areas
and a water planning group or board was formed for each area. Board
members represented a cross section of the general public, counties,
municipalities, industry, agriculture, small business, environmental,
river and water districts, and water utilities. Each planning group had
state and federal agency representation plus coordinating members from
adjoining states, from adjoining regions, and from the Republic of
Mexico.
I was selected to serve on the initial group for Region D, and I
eventually served three consecutive 2-year terms. Senate Bill One laid
out a planning process that would address the water needs for the State
of Texas through the year 2050.
The planning process involved water quality issues and water
development issues.
At our water meeting on April 21, I addressed the board with these
comments regarding drinking water and arsenic.
Since 1942 the U.S. has maintained a standard of 50 parts per
billion of arsenic for drinking water. Taking the current drinking
water standards into account, Texans enjoy some of the best drinking
water in the entire world. The Safe Drinking Water Act of 1974 mandated
by amendment that arsenic standards would be reviewed by 1996.
After a 16-year review beginning in 1983, the National Research
Council recommended in 1999 that stricter Arsenic standards be
developed as ``soon as possible'', but gave no specific
recommendations. Next, the EPA studied arsenic effects in other parts
of the world and finally recommended adoption of 10 parts per billion,
the drinking water standard of the World Health Organization and the
European Union.
Water supply proponents argued that the existing 50 ppb standards
were OK while environmental groups pushed for more stringent standards,
some as low as 3 ppb. In the final days of his administration,
President Clinton signed an order adopting 10 ppb as the new standard.
In 1936, there were 2,411 pages in the Federal Register.
Today there are approximately 75,000 pages. President Clinton added
29,000 pages during the waning days he was in office.
The new arsenic standard was one of those last minute rules.
Because of the manner in which it was forced upon the incoming
administration, with no public forethought or opportunity for
discussion, it is clear that the decision to change the standards was
completely politically and not scientifically motivated. When President
Bush suggested that the standards be left unchanged, headlines
throughout the country stated ``Bush Proposes To Add Arsenic to
Drinking Water.''
Early in the Bush administration, during one of our Water Planning
meetings, I asked our Texas Water Development Board representative
whether the impact of the new drinking water standards were being
considered in calculating revised water-inventory models.
He answered NO. No consideration was being given to the impact the
new arsenic standards would have on existing water inventories. The
water supply models that our consultants and the TWDB use do not take
into account the new more stringent standards.
As a water-planning group, we were obligated to set aside political
motivation and seek the best and most reasonable course of action to
provide water for Texas for the future. We are obligated to use good
science and common sense.
I would offer a motion that we adopt a resolution in support of the
current administration's desire to retain the 50 ppb standards for
arsenic until such time as water inventory considerations and
scientific data are taken into account, and that any recommendation to
change the standards be broad based and discussed in the light of
public scrutiny.
Naturally occurring background levels of arsenic in soil tests in
Gilmer are in the 12 ppb range.
As goes water development, so goes economic development.
Economic development, water, energy, transportation, urban
development, aviation, timber management, agricultural, and industrial
planners in Texas face a HUGE challenge to success in the future.
I made the following comments to the water board...
Worthy water projects considered for the 2050 Texas Water Plan have
come under attack from stakeholders who agree that water is needed, but
who disagree with the idea of the multiplier effect of mitigation
requirements imposed by the USACE.
Environmental interests have already successfully removed the
ability and right of East Texas stakeholders in Region D from being
allowed to decide for themselves about water development for their use
in the local area on the Sabine River at Waters Bluff.
Mitigation requirements have doubled, tripled, quadrupled, and more
in some cases the proposed acreage set-asides that are forced on
landowners as a result of well thought out, logical, and reasonable
development.
Mitigation requirements are being used as an enforcement tool
against water planners by the U.S. Army Corps of Engineers...with
disregard to the underlying stated reasons for mitigation lands in the
first place.
When reasonable accommodations from the USACE are requested for
consideration by the stakeholders, the requests are generally
considered but almost universally fall upon deaf ears.
Members of the Region D Water Planning Group were selected because
they represent the stakeholders of the region. When they make a
decision, the individual member and his family must live with the
consequences, good or bad for the future.
As board members we recognize that common sense is a necessary
ingredient in decision making for our future.
Mitigation rules as we know them and as we are forced to abide by
them have nothing to do with common sense. The State of Texas was built
upon sound thinking and common sense. Texas and the U.S. will thrive in
the future if we stay with common sense. I would therefore offer a
motion that this regional water-planning group adopt a resolution to
remove the total concept of mandating and managing mitigation lands
from the USACE and turning it over to the individual States.
The Region D Planning Group adopted my motion.
Madame Chairman, this concludes my remarks. I have attached the
minutes of the water board meeting where the two resolutions were
passed.
Thank you,
______
Attachment
Minutes of the North East Texas Regional Water Planning Group
Wednesday, April 21, 2004--2:00 P.M.
Gilmer Civic Center
US 271 North
Gilmer, Texas
The Region D Water Planning Group (NETRWPG) met in an open meeting
on Wednesday, April 21, 2004, at 2:00 P.M. The meeting was held at the
Gilmer Civic Center located on U.S. 271 North, Gilmer, Texas. Notice of
the meeting was legally posted.
The meeting was called to order and invocation given by Chair
Williams at 2:00 p.m. A quorum was present.
The following voting members were present:
,-- ,
Larry Calvin Mendy Rabicoff
Steve Dean Vernon Rowe
John Durgin Jim Thompson
George Frost Tony Williams
Gary Jackson L. D. Williamson
William R. Justiss Terry Winn
Richard LeTourneau Beth Wisenbaker
David Parsons Eldon Wold
The following non-voting members were present:
Virginia Towles, representing Texas Water Development Board
Mike Rickman, representing Region C
Bobby Praytor, representing City of Dallas
Tommy Slater, representing AEP/SWEPCO
The following non-voting members were absent:
Curtis Campbell, representing Region B
Jerry Clark, representing SRA
Kevin Craig, Corps of Engineers
Glenda Kindle, Liaison for Region I
Robert McCarthy, NTMWD
W. David Ryburn, representing City of Irving
Thomas E. Taylor, representing Upper Trinity Regional Water
District
Greg Conley, representing TP&W
The following alternates for non-voting members were present:
Michael Brice, representing Greg Conley
The following voting members were absent:
Charles Ball
Barry Boswell
John Bradley
Gerald Brewer
Mike Dunn
C. W. Forsyth, represented by Aaron Gann
William Y. Rice
Committee members and alternates each identified themselves and
acknowledged the county and area of interest represented.
Minutes of the February 18, 2004 meeting were approved, on a motion
by Mendy Rabicoff and seconded by Gary Jackson. Motion carried, all
voting aye.
Gary Jackson made a motion to approve the notice concerning
expiring terms of Regional Planning Group members. Beth Wisenbaker
seconded the motion. Motion carried, all voting aye.
Mr. James Beach of LBG-Guyton Associates gave a presentation
concerning groundwater supply and related modeling. Chair Williams
thanked Mr. Beach for the informative presentation.
After discussion on the topic of arsenic, Steve Dean made a motion
to approve a resolution in support of the current administration's
desire to retain the 50 ppb standards for arsenic until such time as
water inventory considerations and scientific data are taken into
account and that any recommendation to change the standards be broad
based and discussed in the light of public scrutiny. Gary Jackson
seconded the motion. Motion carried.
After discussion on the topic of mitigation, Steve Dean made a
motion to approve a resolution to remove the total concept of mandating
and managing mitigation lands from the USACE and turning it over to the
individual states. Vernon Rowe seconded the motion. Motion carried with
a vote of 10 votes for and 6 votes against.
Vernon Rowe made a motion to approve BWR invoices and the financial
report as presented. Terry Winn seconded the motion. Motion carried,
all voting aye.
Jim Thompson, the group's liaison to Region C, gave an update on
two recent meetings.
Terry Winn presented a report to the group concerning the
Desalination Workshop which he attended in Austin. He stated that three
projects are actually being funded. They are Rio Grande, Corpus Christi
and Freeport. Mr. Winn advised that the price for this activity will be
approximately $2.50 per thousand gallons but the price may not include
brine disposal stream. Virginia Towles, of the Texas Water Development
Board, added that there is information concerning desalination
available online and reminded the group of the Groundwater Rule of
Capture meeting in Austin on June 15th.
The meeting was then opened for public comment concerning water
planning efforts. Comments were received from Mr. David Nabors of
Paris.
Wednesday, May 19, 2004, at 2:00 p.m. was established for the next
meeting date at the Gilmer Civic Center.
The meeting was adjourned at 3:30 p.m.
Terry Winn, Secretary/Treasurer
Additional Attendees:
Walt Sears -- NETMWD
Stan Hayes -- NRS Engineering
Ray Flemons -- Bucher, Willis & Ratliff
James Beach -- LBG-Guyton Associates
William W. Brown -- NETMWD
Michelle Thorne -- NETMWD
Nancy Stirl -- NETMWD
Jodi Sheridan -- Texarkana Gazette
Shirley Shumake -- DeKalb
Sharon Nabors -- Paris
David Nabors -- Paris
Patricia MeKelvey -- Bogata
Joe Max McKelvey -- Bogata
Wendell Davis -- Clarksville
Gordon Hall -- Mt. Pleasant
Helen Sessums -- Bogata
Floyd Sessums -- Bogata
Max Shumake -- DeKalb
Jack Grant
Mary Grant
Linda Henderson -- Douglasville
Eric Birdsong -- Denton
Bessie Heath -- Douglasville
Richard Zachary -- Mt. Vernon
Tommy Spruill -- Mt. Pleasant
Mary Templeton -- Lake Creek
Bill Templeton -- Lake Creek
Melvin Reynolds -- Gilmer
Greg Carter -- Corpus Christi
Nancy Clements -- Douglassville
Bob Bowman -- Longview
Robert Haney -- Longview
L. D. Caudle -- Maud
Red Birdsong -- Denton
______
Miss McMorris. Mr. Smith?
STATEMENT OF STEVE SMITH, EXECUTIVE DIRECTOR,
TEXAS MINING AND RECLAMATION ASSOCIATION
Mr. Smith. Good morning, Chairwoman McMorris and
Congressman Gohmert. I appreciate the opportunity to be here
this morning. My name is Stephen Smith, the Executive Director
of the Texas Mining & Reclamation Association.
We're a (inaudible) association. We have a little over a
hundred member (inaudible) companies that are either owner/
operators in the mining business, active mining operations or
(inaudible) provide goods and services to these owner/
operators. We mine a lot of resources in the state. Among the
resources that our members mine are clay, sand, stone, gravel,
uranium, lignite, and coal.
What I would like to share with you are some recent
examples of some of our members--and I typically refer to this
association as TMRA or TMRA (different pronunciation), with an
acronym--some of the TMRA members have gone through in recent
years and talked about some of the good things that happened
and some things that maybe were not--not so helpful.
But TMRA--we tend to support the NEPA process as it was
originally deemed by Congress, and we urge that this Task Force
carefully consider whether the NEPA processes are necessary to
duplicate the processes of other Federal environmental statutes
which have been implemented since NEPA.
We appreciate the work that you've already done. It's a
tough job. We look forward to continuing to work with you to
achieve an efficient NEPA process.
Several of our members were involved with the NEPA process
during the '70s, '80s, early '90s as they expanded their
(inaudible).
Recently, we've had two member companies who have gone
through the NEPA process, either completed it or are currently
involved with it right now. For one particular company, the EIS
was recently completed in the (inaudible) time period. I don't
know what the cost was. It was an undisclosed cost. The final
EIS was 780 pages in length, and I really don't know if that's
good or bad in terms of some of the standards across the
country. But that has been published and the process followed.
Their (inaudible) permit has been issued.
There were some positive experiences. Some things worked
well for this particular company. One thing in particular is
the project manager that was assigned to that company was a
very organized, efficient individual. This individual was very
conscientious of deadlines. They were obviously focused on
conducting a very efficient process.
So whether that was the luck of the draw or what, I really
don't know. They could have just as easily been assigned a
project manager who did not have those skills and then maybe
their experience would not have been so good.
I think what's interesting, though, is the decision to
conduct that EIS rather than pursue the nationwide (inaudible)
option for their (inaudible) permit was really driven by the
company and not the agency. It was basically a legal decision
that company made in response to a recent court decision that
required an EIS on a pipeline company here in the state even
though there were no grounds for requiring such a study.
So the timing of obtaining that permit was very critical to
this company, and they felt like the timing anticipated would
be less if we went ahead and pursued the EIS up front rather
than pursuing the nationwide (inaudible) and taking the chance
of added time to allow for a court-driven EIS. So basically, it
was a roll of the dice for them. That's kind of what it's
evolved to.
Then as they got into it via the timeline concerns, the
need for a permit, they had to (inaudible) during the scoping
process (inaudible) they had to accept (inaudible) that are not
required under the jurisdiction of any regulatory agency.
Another one of our companies to employ solution mining
while mining for uranium has a project out in New Mexico has
been issued (inaudible) material license. They were oversighted
by ELM, NRC, and the Bureau of (inaudible) Affairs; and when it
got down to choosing whether to do an EA or an EIS--typically,
these types of projects across the country are handled by an
EA, at best, because of the low environmental impact of that
particular operation.
In this case, the EA did not have (inaudible) and
regulations to address the EA; so it had to go through the EIS
process, which they did, costing several million dollars. They
published that in February of 1997, so--since the publication
of that, this--this EIS has been the subject of litigation
before the NRC, ASLD and--which has been brought on by various
intervenor groups.
So here it is July 23rd, 2005--this is more than eight
years after publication of the EIS--the company still doesn't
have its (inaudible) operation. It's spent several more million
dollars on legal expenses for litigation. Tens of thousands of
pages of material have been produced. The effort has consumed
the (inaudible) capabilities of that company and likely will
increase the cost of fuel.
Ultimately, the fuel (inaudible) power plants and,
therefore, the power that homeowners use. The NEPA process in
their situation, developed really into a procedural filibuster,
which is what--what has happened there.
A recent judge's decision that dealt only with water issues
was 73 pages, and none of the rulings so far--or rather all of
the rulings have supported the EIS; so really there was no
technical merit to any of the things (inaudible) by the
intervenors.
Miss McMorris. Would you please wrap up, Mr. Smith.
Mr. Smith. We have recommendations in our written comments.
I would say in conclusion that NEPA can be fixed. It won't be
an easy job. It will be a lot of work to do that, but we feel
like it can be fixed and function like Congress intended it to.
And it can be fixed so that it can provide certain regulatory
processes and still continue to protect the environment.
Thank you very much for the opportunity to comment.
[The prepared statement of Mr. Smith follows:]
TEXAS MINING AND RECLAMATION ASSOCIATION
111 Congress Avenue, Suite 1800
Austin, Texas 78701
July 21, 2005
The Honorable Cathy McMorris
Chair
Task Force on Improving NEPA
1333 Longworth House Office Building
Washington, DC 20515
Re: Comments Regarding Necessary Improvements to NEPA
Dear Representative McMorris:
This letter is submitted on behalf of the Texas Mining &
Reclamation Association (``TMRA'') and is intended to provide ideas and
suggestions for improving the National Environmental Policy Act (NEPA)
to the U.S. House Task Force on Improving NEPA.
Introduction
TMRA is a state organization comprised of approximately 140 mining,
electric utility, and supplier companies, and more than 800
individuals. TMRA supports coordinated, rational, and consistent
federal, state, and local policies to assure proper economic recovery
of the state's minable resources in an environmentally sound manner.
TMRA's members play a vital role in Texas' economy. Mining provides
more than $28 billion annually to our state and accounts for more than
50 percent of the local tax base for many of our state's rural
communities. TMRA members also significantly contribute to the
environmental health of the state. The Texas mining industry plants
more than two million trees annually on reclaimed mined land, spends in
excess of $100 million each year on land reclamation and protection of
water and air quality and archeological resources, and reclaims land
for cattle grazing, crops, commercial timber, wildlife habitat,
wetlands, and recreational use. The industry also promotes and assists
in the development and implementation of new environmental controls and
technologies by working in concert with environmental and regulatory
agencies and university researchers. TMRA industries have a strong
environmental ethic and have received numerous state and national
awards for their environmental programs.
Comments
1. The Task Force should encourage Congress to revise NEPA to
eliminate duplicative and overlapping environmental review processes
given the number of environmental laws that have been implemented since
NEPA was originally enacted.
NEPA is a procedural law that creates a formal review process for
public comments and the consideration of alternatives. NEPA does not
have any measurable or substantive environmental protection standards.
Substantive environmental standards are implemented under evolving
federal and state environmental regulatory schemes where hosts of
environmental protection authorities are vested with the authority to
enforce environmental statutes that have been enacted over the last 30-
plus years. Examples of these statutes include the Clean Air Act, Clean
Water Act, and the Solid Waste Disposal Act. In addition to substantive
requirements, these statutes have extensive procedural requirements.
Therefore TMRA believes that Congress should 1) evaluate how NEPA
interacts with these laws, and 2) identify where there are duplicative
review processes. Once identified, TMRA recommends that NEPA be revised
to eliminate duplicative processes.
2. The Task Force should work with Congress to clarify the meaning
of ``major federal action'' and what specific activities trigger a NEPA
review.
Generally, determining whether an action is a major federal action
is the threshold issue for determining whether an EA or an EIS is
required. Given that certain TMRA members have mining activities that
present relatively similar concerns and circumstances (i.e.
environment, geological conditions, and mining methods), it would be
beneficial to the industry if Congress clarified exactly what types of
actions were ``major.''
3. The Task Force should encourage Congress to mandate
standardized reviews to ensure a more consistent, reliable, and timely
review process.
Although site-specific reviews are a necessary component of the
NEPA process. There are several standard components of a NEPA review
that could be standardized to facilitate a more consistent, reliable,
and timely review process. Mandating the use of standardized revised,
complete with standardized checklists and timelines (discussed further
below), will eliminate much of the inconsistency that results from re-
creating the wheel with new agency personnel in each individual case.
This approach will also enable the regulated industry and the public to
more accurately gauge the substantive and procedural requirements that
will apply during a given review so they can better estimate budgets
and timelines. Therefore, TMRA encourages the Task Force to urge
Congress to mandate standardization to the maximum extent possible.
4. The Task Force should revise NEPA to streamline the number of
alternatives proposed by agencies.
Opponents to development routinely use the NEPA process as a delay
tactic. For example, federal officials are often forced to consider so
many alternatives (e.g. different locations and project sizes) that the
review process is tangentially and unnecessarily expanded into many
different directions.
From TMRA's perspective, the ``alternatives analysis'' is often
ill-suited for mining and reclamation activities because geological
factors---and not mere ``alternatives''--dictate where such activities
can or should occur. In other words, the coal, ore, or rock is either
present or it is not. In this simple, but very real-world scenario,
satisfying the current alternatives analysis requirement becomes a time
consuming paper exercise that does not add any qualitative or
quantitative value to the environmental analysis.
TMRA respectfully request that Congress ensure the agencies'
alternatives are reasonable and focused on the purpose and needs of the
specific mining or reclamation project under consideration. A focused
purpose that keeps the context of the regulated industry in mind will
ensure that the most reasonable, technologically achievable, and
economically feasible alternatives are considered.
5. The Task Force should ensure that Congress reforms the manner
and impact of judicial review under NEPA
Because NEPA issues are usually raised in federal courts, it is
common for TMRA members to face conflicting judicial opinion among
various federal courts. These conflicting decisions not only create
uncertainty for regulated industries, but also create ``venue
shopping,'' which is the practice petitioners often use to seek out a
friendlier district to hear their suit. TMRA submits that the Task
Force should encourage Congress to significantly restrict venue
shopping.
Moreover, NEPA judicial review is often used to delay project
development for years even though the substantive standards of all
other environmental laws have been satisfied and no other permit or
authorization is being challenged. TMRA submits that judges should be
restrained from enjoining project development during NEPA judicial
review or, at minimum, be required to expedite their decisions.
6. The Task Force should evaluate the timing delays associated
with current NEPA processes and recommend to Congress specific
timelines for NEPA review.
To add meaningful structure to the NEPA process, Congress should
establish clear time frames to all relevant review periods for
governmental entities. Statutory time frames would create a
quantitative requirement for all NEPA review processes, and cases would
be naturally prioritized based on their level of interests and whether
there were issues that truly impacted the environment. In addition,
each phase of the NEPA process, including the Categorical Exclusion
(CE), Environmental Analysis (EA), and Environmental Impact Statement
(EIS) should have a clearly delineated timeline.
Revising NEPA to include specific, statutorily-mandated time frames
would benefit TMRA members by creating certainty during the permit
application process. Congressional direction that encourages focused,
streamlined coordination, would also benefit federal agencies by
increasing efficiency. If governmental agencies failed to comply with
the statutory time frames, the NEPA review should be automatically
deemed complete. TMRA believes mandatory ``end dates'' for reviewing
NEPA-related issues would provide much needed closure for regulated
entities.
TMRA notes that this solution is not without precedent. The Council
on Environmental Quality, as well as several federal land management
agencies (e.g. U.S. Forest Service and Bureau of Land Management) have
regulations or guidance documents expressing the need for time limits.
However, because of the myriad of federal issues or agencies that could
potentially trigger a NEPA review, only a congressional mandate is
strong enough to bind all federal agencies. In conclusion, TMRA
requests that the Task Force recommend to Congress required statutory
time lines for NEPA review.
7. The Task Force should encourage Congress to revise NEPA to
ensure that non-significant and temporary activities are evaluated
under ``Categorical Exclusions.''
Categorical Exclusions (CEs) are an effective tool currently
authorized under NEPA that provide a mechanism for streamlining and
speeding up approval for common projects and activities that do not
threaten the environment. Congress should expand the use of CEs by
including:
Existing projects that simply require a renewal permit.
Activities that are non-significant and temporary.
Completed or proposed mitigation actions that are
sufficient to avoid significant impacts.
It is TMRA's experience that many agencies do not effectively use
the Categorical Exclusion mechanism because of conflicting court
decisions. For example, in an effort to avoid costly appeals, agency
officials often opt to conduct a full-blown EA or EIS to evaluate every
detail of a proposed activity, although the conditions may not warrant
such a lengthy review. To encourage the use of categorical exclusions,
Congress should better define what constitutes a significant impact to
the environment. As noted, TMRA believes that Congress should promote
the expanded use of Categorical Exclusions. Such action would allow
federal agencies to more effectively execute their NEPA
responsibilities.
8. The Task Force should identify areas in the NEPA process that
would benefit from risk-based decision making.
As explained, NEPA is a process oriented statute with little or no
quantifiable methodologies. Currently, risk based criteria are not used
during a NEPA review. TMRA believes the scientific and technical
aspects of NEPA would be improved if a more quantifiable approach that
included some of the fundamental concepts of risk-based decision making
were taken into account.
Conclusion
TMRA requests that the Task Force carefully consider these comments
in their efforts to improve NEPA. TMRA is concerned that the existing
NEPA process will negatively impact the long-term interests of its
members.
TMRA appreciates the opportunity to voice its position and is
available to assist the Task Force as it further considers the much
needed refinement of NEPA. If you have any questions regarding these
comments, please feel free to call at your convenience
Sincerely,
Stephen F. Smith
Executive Director
______
Miss McMorris. Mr. Davis?
STATEMENT OF W.I. DAVIS, TEXAS FARM BUREAU
Mr. Davis. Good morning, Chairwoman McMorris and
Representative Gohmert. Welcome to East Texas, and thank you
for your efforts in considering this important issue. Thank
you, Representative Gohmert, for hosting the Task Force and
championing our local concerns.
My name is W.I. Davis. I represent the Texas Farm Bureau of
which I'm a member along with over 380,000 Texas families. The
Farm Bureau is a grass-roots organization representing the
interests of rural Texas in agricultural production, which
includes forestry. Our policies are developed by individuals
who are actively engaged in production and who know best the
impact of laws and regulations.
Texas is proud of its private property ownership heritage,
but we have considerable economic interests related to timber
production on Federal lands. The health and prosperity of many
local communities and families rely on the sound management
practices of our natural resources. Additionally, private
holdings are directly impacted by disease and pest conditions
on adjacent Federal land.
I am a hands-on active manager of a 3300-acre family tree
farm for which I've had an interest for the past 60 years. From
1945 to 1998, we've practiced uneven age management which calls
for a selective harvest with the remaining seed trees to
regenerate the area.
Miss McMorris. I need to ask you to pull the microphone in,
please.
Mr. Davis. Beg your pardon?
Miss McMorris. Please pull the microphone in.
Mr. Davis. Oh, OK. I'll get it right.
In the '60s, we experienced a straight-line windstorm which
damaged 250,000 board feet, which we were able to salvage. We
left the remaining trees to naturally reseed the voided areas.
That was a big mistake. From that experience, we learned that
under stocked stands quickly fill with undesirable herbaceous
and wood plants which prevent natural regeneration.
When the 1998 storm hit our farm and the adjoining Sabine
National Forest, the damage suffered in the '60s was
remembered. In order to prevent that mistake, we made a
complete harvest of the severely damaged area and salvaged the
remaining downed trees. This operation covered 900 acres with a
salvage of 4.5 million board feet, which was completed by
midsummer of that year. That was only half of the job.
From 1998 through 2003, we reclaimed the devastated area by
site prepping and planting with genetically improved seedings.
At this time, I am happy to report that over 95 percent of the
storm damage has been reclaimed and is contributing its part to
the environment and success of the family tree farm. This was
only possible because we did not have to wait for over two
years for an EIS.
At this time, I would like to refer you to pictures that's
in your--the first picture is a picture that was made by the
Austin (inaudible). They came down and did a report on it. The
gentleman standing there with his back to the picture is my
daughter's family's consulting partner, and he is near the
east--the west boundary line of their property. And that
windstorm went from west to east, and the trees that you see in
the far distance are U.S. Park Service.
The next picture shows a stand of trees that is there now.
The ones on the left are longleaf. The ones on the right are
loblolly. They're from 15 to 20 feet tall at this time.
The next picture is a part of the 80 acres that were
planted with longleaf pine. In that year--which was over 250
acres. 80 acres of it were longleaf.
Now, approximately a mile and a half from that first
picture is what you've got just across the county road. It's
just wilderness. Nothing has been done. The salvage was made
but no regeneration.
These sound management practices, which remove much of the
dead timber before pest and disease can set in, and reseed
adequately to prevent trashy undergrowth, contribute greatly to
healthy woodlands. Similar practices need to be quickly
implemented on Federal lands when conditions warrant. Our----
Miss McMorris. Mr. Davis, can you wrap up, please?
Mr. Davis. Beg your pardon?
Miss McMorris. You're out of time. Will you wrap up now?
Then we'll come back and ask some questions.
Mr. Davis. All right. Again, I want to thank you,
Chairwoman McMorris and Representative Gohmert. We look forward
to working with you to achieve positive results in improving
the National Environmental Policy Act. I will do my best to
answer any questions later.
Miss McMorris. Very good. Thank you.
[The prepared statement of Mr. Davis follows:]
Statement of W. I. Davis, Shelby County Farm Bureau Forestry Chairman,
Texas Farm Bureau
Good morning Chairwoman McMorris, and members of the Task Force.
Welcome to East Texas and thank you for your efforts in considering
this important issue. Thank you Representative Gohmert for hosting the
Task Force and championing our local concerns.
My name is W. I. Davis, I am representing Texas Farm Bureau of
which I am a member along with over 380,000 Texas families. Farm Bureau
is a grassroots organization representing the interests of rural Texas
and production agriculture--which includes forestry. Our policies are
developed by individuals who are actively engaged in production and who
know best the impact of laws and regulations.
Texas is proud of its private property ownership heritage; but, we
have considerable economic interests related to timber production on
federal lands. The health and prosperity of many local communities and
families rely on sound management practices of our natural resources.
Additionally, private holdings are directly impacted by disease and
pest conditions on adjacent federal timberlands.
I am a ``hands on'' active manager of a 3,300 acre family tree farm
of which I have had an interest for the past 60 years. From 1945 to
1998 we practiced uneven age management which called for a select
harvest with the remaining seed trees to regenerate the area.
In the 60's we experienced a straight line wind storm which damaged
250,000 board feet, which we were able to salvage. We left the
remaining trees to naturally reseed the voided areas. That was a big
mistake. From that experience, we learned that the under stocked stands
quickly filled with undesirable herbaceous and wood plants which
prevented natural regeneration.
When the 1998 storm hit our tree farm and the adjoining Sabine
National Forest, the damage suffered in the 60's was remembered. In
order to avoid that mistake, we made a complete harvest of the severely
damaged area and salvaged the remaining downed trees. This operation
covered 900 acres with a salvage of 4,500,000 board feet which was
completed by midsummer of that year.
From 1998 through 2003, we reclaimed the devastated area by site
prepping and planting with genetically improved seedlings. At this time
I am happy to report that over 95 percent of the storm damage has been
reclaimed and is contributing its part to the environment and success
of the family tree farm.
These sound management practices, which remove much of the dead
timber before pest and disease can set in, and reseed adequately to
prevent trashy undergrowth, contribute greatly to healthy woodlands.
Similar practices need to be quickly implemented on federal lands when
conditions warrant. Unfortunately, the procedures in place under the
National Environmental Policy Act, and the willingness of some to
further stifle the process, too often limit the opportunity to restore
forest health in the best manner.
Our Farm Bureau policy supports efforts to streamline and expedite
the National Environmental Policy Act requirements to allow for the
sound harvesting of mature, burned, dying, downed or dead timber. We
believe the long term health and viability of our natural resources can
best be achieved through these principles. Without these changes, our
natural resources will continue to be wasted, opportunities for healthy
forest regrowth will be lost, and the best interest of local
communities and families will be sacrificed to the misguided policies
of activists.
Again, thank you Chairwoman McMorris, Representative Gohmert and
members of the Task Force. We look forward to working with you to
achieve positive results in improving the National Environmental Policy
Act. I will do my best to answer any questions you may have.
NOTE: Attachments to Mr. Davis' statement have been retained in the
Committee's official files.
______
Miss McMorris. Mr. England?
STATEMENT OF STEPHEN M. ENGLAND, MANAGER OF MINED LANDS, TXI
GEOLOGIC AND MINE SERVICES
Mr. England. Chairwoman McMorris, Congressman Gohmert,
thank you for inviting me to provide testimony today. I am here
on behalf of the National Stone, Sand & Gravel Association and
TXI Operations, LP.
We appreciate the opportunity to provide comments to the
Task Force on improving the National Environmental Policy Act.
TXI believes the stated goal of the Task Force of ensuring
Federal decisions are made in an appropriate and
environmentally sound manner, rather than by litigation, is
indeed necessary. TXI does not dispute the intent nor the value
of NEPA to the decisionmaking process.
In fact, in talking with the agencies and consultants
(inaudible) permits, the NEPA process has provided guidance to
review our applications in an orderly fashion; and that has
helped in many instances. In fact, there are several positive
aspects of NEPA that we could discuss; but time won't allow
that today.
Unfortunately, I have to address some of the other issues.
NEPA, as it stands today, is a process that's been used to
create regulatory pitfalls, stalling important projects.
Much of what I do with TXI in recovery of the necessary
construction aggregates is the reclamation portion and
mitigation. To mining projects, TXI provides substantial
opportunities to provide filtration and storage along rivers
because these are full of deposits that we need to bring to
market.
Unfortunately, busy agencies have been forced to try and
protect their NEPA documentation from legal challenges by
producing piles of paperwork that exhaustively discuss every
potential impact in hopes of creating a bullet-proof document.
While the agencies may see this padding as a way of reducing
litigation vulnerability, padding has a significant impact on
the process and is a litigation pitfall all its own.
Perhaps the most frustrating aspect we the regulated
community faces is the fact that it's nearly impossible to plan
for the permitting process. Wetlands permitting, for example,
requires a NEPA process that has no clear end point. Too often,
the NEPA process is turned upside down by a game of ``gotcha''
whereby the agencies complete their review only to be sued for
failure to have considered some report or failure to respond in
detail to some minor comment on an obscure point.
A recommendation that we would make is the establishment of
reasonable deadlines and tighter schedules that will provide
significant benefits in terms of planning finality and avoiding
delays while still protecting the environment. Data submitted
at the last second should not be cause for the agency to have
to reopen the entire NEPA process. Data of tangential
importance not reviewed by agencies should not be cause for
agencies to reopen the entire NEPA process. And I'll emphasize
the tangential portion of it.
The conclusion being: The tactics of those wishing to use
NEPA to delay resource development are well-known. These
tactics deplete important agency resources and siphon away
precious tax dollars needed for conservation and stewardship of
all our nation's resources.
I think, for the most part, all of us who have come to this
meeting today, having worked in offices, lived in homes, driven
on roads all provided in large part by construction
aggregates--it's not that we are oblivious to the need to
protect the environment. It's just that the recovery of
resources occurs oftentimes in areas that are sensitive to all
of us.
Thank you for the opportunity to comment on how NEPA has
affected TXI's aggregate production in Texas, Oklahoma, and
Louisiana.
Miss McMorris. OK. Thank you. Very good.
[The prepared statement of Mr. England follows:]
Statement of Stephen M. England, Manager of Mined Lands,
TXI Operations, LP
TXI Operations, LP appreciates the opportunity to provide comments
to the Task Force on Improving the National Environmental Policy Act
(NEPA). TXI believes that the stated goal of the Task Force of ensuring
that federal decisions are made in an appropriate, environmentally
sound manner, rather than by litigation is indeed necessary. TXI does
not dispute the intent and value of NEPA to the decision-making
process. As NEPA stands, at times the process has been used to create a
regulatory pit fall, stalling important projects. Moreover, the
unfortunate reality is that delays in projects (such as wetlands
permitting) due to unnecessarily lengthy NEPA reviews has a ``ripple
effect'' on the cost of construction materials.
Unfortunately, busy agencies have been forced to try and protect
their NEPA documentation from legal challenges by producing piles of
paperwork that exhaustively discuss every potential impact in hopes of
creating a ``bullet-proof'' document. While the agencies may see this
padding as a way of reducing litigation vulnerability, padding has a
significant impact on the process and is a litigation pit fall all its
own.
Perhaps the biggest permitting frustration we the regulated
community faces is the fact that it is nearly impossible to plan for
permitting when there is a Federal decision required. Wetland
permitting for example requires a NEPA process that has no clear end
point. Too often, the NEPA process is turned upside down by a game of
``gotcha'' whereby the agencies complete their review only to be sued
for failure to have considered some report or for failure to respond in
detail to a minor comment on an obscure point.
RECOMMENDATIONS FOR NEPA REFORM
Establishing reasonable deadlines and tighter schedules
will provide significant benefits in terms of planning finality and
avoiding delays, while still protecting the environment.
Data submitted at the last second should not cause the
agency to have to reopen the entire NEPA process
Data of tangential importance not reviewed by the
agencies should not cause the agency to have to reopen the entire NEPA
process
CONCLUSIONS
The tactics of those wishing to use NEPA to delay resource
development are well known. By asking for more discussion of peripheral
issues, and then moving on to other theoretical concerns, each time the
agency responds, does not protect the environment effectively. Under
this approach, aggregate resource development opponents will always be
able to point to some area of the record that is not discussed as much
as other areas, and or claim that the failure to properly analyze one
small issue is fatal to the overall process. These tactics deplete
important agency resources and siphon away precious tax dollars needed
for conservation and stewardship of all of the nations resources.
Thank you for the opportunity to comment on how NEPA has effected
TXI's aggregate production in the Texas, Oklahoma and Louisiana region.
Should you have any questions or require further information from me
please call me at (214) 502-0571. We look forward to working with the
Committee in this effort.
______
Miss McMorris. Mr. Shelton?
STATEMENT OF LARRY SHELTON, TRUSTEE,
TEXAS COMMITTEE ON NATURAL RESOURCES
Mr. Shelton. Good morning. I would like to offer my
appreciation first to the invitation and opportunity to address
the Task Force this morning.
My name is Larry Shelton, and I have lived in Nacogdoches
County for the past 25 years. I have been a member of the Texas
Committee on Natural Resources, also known as TCONR, since
1985. TCONR is a citizen conservation group that works on
conservation and public health issues in both rural and urban
areas.
Today I'm here to offer my support for the National
Environmental Policy Act in its entirety. I would like to talk
about its benefits and my experience under NEPA, as well.
Passage of NEPA in 1969, clearly marks a milestone in the
long history of America's relationship to its national
resources. NEPA acknowledges the paramount importance of this
country's national resources and the inseparable connection
between Americans and the environment. Additionally, NEPA
addresses environmental management in a comprehensive and
consistent way by establishing specific protocols for the
guidance of Federal land and resource managers.
To fully appreciate NEPA, one must recognize that it took
this country nearly two centuries to finally pass legislation
and create a single comprehensive policy for managing our
environment. Prior to this, a lack of foresight in planning
essentially created boom and bust cycles that frequently left
in its wake a trail of economic depression and hardship,
community deterioration, impairment of natural resources, and
environmental degradation. So we can see from the past that the
cost of no comprehensive environmental planning is also very
high, as well.
By the 1960s, the Nation was forced to acknowledge that we
were facing an economic, human health, and sustainability
crisis due to the lack of comprehensive environment planning
and full assessment of environmental impacts.
Clearly, we had a problem; and NEPA was the solution. NEPA
calls for the comprehensive disclosure of environmental
impacts. NEPA mandates consultation with state and local
agencies and does provide a comprehensive forum in which to
view environmental-significant actions in light of all current
legislation.
In essence, NEPA serves the same function as the rudder of
a ship. It provides guidance and direction. NEPA brings a wide
range of agencies, jurisdictions, and mandates under one
umbrella so the Nation can make environmental decisions in
intelligent and consistent ways.
NEPA allows the process of public participation, and any
attempt to repeal the rights afforded to the American citizen
under NEPA is an affront to the democratic institution of this
country and the belief in the citizens' ability to control
their own destiny.
NEPA is (inaudible) the participation of diverse agencies
and the public. This cooperation leads to areas of agreement
and also provides for resolving conflicts before final
decisions are made. So sensibility at the start helps to reduce
legal challenges to final decisions and helps to avoid the high
cost of correcting poorly planned projects, hence the
opportunity for NEPA to save money.
In the past 20 years, working through the NEPA process, I
have brought important resource information and experience to
the planning table to supplement agency personnel and
information, especially on national forest issues here in
Texas.
In my written testimony, I have included some of these NEPA
experiences, but today I just have a few minutes to offer a
brief example of how NEPA has been successful in East Texas.
Following a tornado in the Davy Crockett National Forest
last year, the Forest Service sought NEPA on the best way to
reforest the area after the damaged timber was salvaged. By
convening diverse groups and having meetings and working
through the NEPA process, a proposal was made to naturally
regenerate the area rather than replant seedlings.
As a result of this proposal, all of the objectives of the
area were met. The proposal resulted in the least impact to the
environment and also resulted in savings of the tens of
thousands of dollars in replanting costs.
In terms of meeting its goal to reduce environmental
impacts, reduce conflicts, and save money, NEPA has been
extremely successful. NEPA has worked here in East Texas; and
as a result, the vast majority of final decisions on the
national forests in Texas are implemented without opposition or
appeal.
With regard to the Abitibi plant, we are all sympathetic to
the hardships caused by unemployment; but we truly believe that
(inaudible) are the result of a host of different issues, and
NEPA should not be singled out for disproportionate scrutiny.
Also, with regard to NEPA being cited for--cited as
(inaudible) to the harvest of timber in the national forests, I
would like to address that. Timber harvest objectives are
established in the National Forest Management Plan which is
mandated by the National Forest Management Act which in turn
calls for the (inaudible) resources to meet the various needs
and values of the country. So NEPA does not set specific timber
value--timber harvest levels.
Also, to put things in perspective, the National----
Miss McMorris. I need to ask you to wrap up, Mr. Shelton.
Mr. Shelton. OK. Can I have 30 seconds?
Miss McMorris. All right.
Mr. Shelton. The national forest constitutes only 5 percent
of the timberland in East Texas and contributes to only about 3
percent of the timber mix for a harvest year.
The timber industry is, in fact, self-sustaining.
(Inaudible) national forest. The industry no longer depends
on the national forest timber harvest ability to be there
because it is (inaudible).
So in essence, only 5 percent is national forest land and
85 percent of those are timber harvesting; so in all, 98
percent of East Texas forest lands are open to harvesting. And
NEPA has very little impact, as a result, on the timber
industry.
I strongly urge the Task Force on Improving National
Environmental Policy Act to make no changes to NEPA or to the
regulations promulgated by the Council on Environmental Quality
and other Federal agencies who implemented NEPA.
Thank you.
Miss McMorris. Thank you.
[The prepared statement of Mr. Shelton follows:]
Statement of Larry D. Shelton, Trustee,
Texas Committee on Natural Resources (TCONR)
My name is Larry D. Shelton and I live at 15449 FM 1878
Nacogdoches, TX. 75961. I have lived in Nacogdoches County continuously
since 1979. I have been the owner and operator of Osage Woodworks, a
custom woodworking business, since 1983. I have been a member of the
Texas Committee on Natural Resources (TCONR) since 1985 and have served
on the board of trustees since 1994. TCONR is a citizen conservation
group that works on conservation and public health issues in both rural
and urban areas of Texas and the United States. Since 1997, TCONR has
been the state affiliate of the National Wildlife Federation.
TCONR very much appreciates your inviting me to be a witness at
this hearing. In my testimony today I offer clear and unambiguous
support for retaining the full integrity of the National Environmental
Policy Act (NEPA) and to urge this Committee to make NO changes to the
substance or intent of NEPA and none to the regulations that have
subsequently been promulgated to implement NEPA.
I will discuss some of the benefits that this country has reaped as
a result of the passage of NEPA and will share with this committee my
personal experience with NEPA over the past 20 years.
The passage of NEPA in 1969 clearly marks a milestone in the long
history of America's relationship to its natural resources. NEPA
acknowledges the paramount importance of this country's natural
resources and the inseparable connection between Americans and their
environment. Additionally NEPA addresses environmental management in a
comprehensive and consistent way by establishing specific protocols for
the guidance of federal land and resource managers as well as
interested and affected parties and user groups of federal lands and
resources.
To fully appreciate the logic and intent of NEPA one must first
look at the history of America's relationship with the abundant natural
resources that constitute our environment. As a young nation our first
century was marked by phenomenal expansion and an insatiable
consumption of natural resources that at the time were thought to be
inexhaustible. Our forefathers cleared the land for crops, often
burning or otherwise destroying the virgin forests. In ignorance we
depleted the soil through unsustainable farming practices, only to move
on when the land would no longer produce. When forests were harvested,
it was for quick profit without regard for sustainability, regeneration
or maintenance of native wildlife habitat. Wildlife was slaughtered,
often to the edge of extinction. The common result of this thoughtless
exploitation of resources was a ``boom and bust'' cycle that frequently
left in its wake a trail of economic depression and hardship, community
deterioration, impairment of natural resources, and environmental
degradation.
Advances in technology and industry through the 1950's further
enabled this country to exploit and modify our resources to the point
that environmental systems were becoming dysfunctional. The cumulative
impacts of chemicals, pesticides and other pollutants were beginning to
negatively affect human lives and livelihoods. Loss of habitat was
threatening the continued existence of much wildlife, including popular
game species. Extensive dam building and water diversions had
significantly altered the natural dynamics of the nation's watersheds.
By the 1960's the nation was forced to acknowledge that we were facing
economic, human health and sustainability crises due to the lack of
comprehensive environmental planning and full assessment of
environmental impacts and potential alternatives.
NEPA is the result of the courage and diligence of those willing to
recognize the lessons learned from our past mistakes and to commit to
preventing the repetition of those mistakes. I would like to share with
you a very good summary of the importance of NEPA that was provided in
2003 by the General Counsel for the Council on Environmental Quality:
At its heart, the NEPA process is grounded on certain basic
beliefs about the relationship between citizens and their
government. Those core beliefs include an assumption that
citizens should actively participate in their government, that
information matters, that the environmental impact assessment
process should be implemented with both common sense and
imagination, and that there is much about the world that we do
not yet understand. NEPA also rests on a belief that the social
and economic welfare of human beings is intimately
interconnected with the environment. [Dinah Bear, 43 Nat.
Resources J. 931, 932 (2003)
Due to increased population and development pressures, the
challenges we face today in terms of managing our environment and
resources to benefit people over the long-term are perhaps even more
imperative than they were at the time of the original passage of the
Act. NEPA acknowledges the significance of environmental management and
provides the guidance to carry it out.
The significance of NEPA is paramount in that it calls for the
comprehensive disclosure and full accounting of environmental impacts
associated with federally funded projects and other actions requiring a
federal permit. NEPA establishes a process wherein the public has the
right to offer comments prior to final decisions on environmentally
significant actions. NEPA mandates consultation with relevant federal,
state, and local agencies and provides a comprehensive forum in which
to view environmentally significant actions in the light of all current
environmental legislation. NEPA calls for the development of multiple
alternatives, including the option of ``No Action''. In some regards
the passage of NEPA constitutes a ``bill of rights'' allowing for the
American citizen to engage in the democratic processes of this country
regarding actions that have significant environmental impacts. These
impacts relate to the physical environment, public health, social,
cultural, and personal values, impacts on biotic communities, and
economic repercussions.
Any attempt to repeal the rights afforded to the American citizen
under NEPA is an affront to the democratic institutions of this country
and further reduces the democratic principles Americans support and
live by and citizens ability to control their own destiny. The many
provisions of NEPA are inseparably linked. To preserve the integrity of
the legislation it must be preserved in its entirety.
NEPA Ensures Disclosure of Impacts and Alternatives
NEPA is about creating an informed public by broadly sharing
important information that prior to NEPA would have been restricted to
a handful of federal bureaucrats or might never have been developed or
analyzed at all. NEPA calls for the full disclosure of environmental
impacts associated with federally funded and federally permitted
projects. The many actions of the federal government often result in
varied impacts not only to the physical environment, but to the economy
and on citizen's personal lives as well. It is through the development
and public distribution of environmental impact statements that the
citizen's ``right to know'' is maintained.
Environmental impact statements and environmental assessments
provide the public with information on the impacts of the proposed
action, along with the cumulative impacts of that action when
considered together with other related or similar actions. They also
must set out a reasonable range of alternative actions for public
consideration. The development of alternatives lies at the heart of
NEPA. For the average American, this consideration of alternatives is a
vital force toward lower-impact and more sensitive project design. Only
when the population has ready access to accurate information can
members of the public engage fully and competently in the democratic
processes of this country. The current federal requirements for
reporting impacts associated with the physical environment gives the
citizen information that may reveal additional impacts to one's health,
finances, property and community. We urge you not to deny citizens the
knowledge they need to provide meaningful input in the decisions that
affect their lives.
NEPA promotes the democratic process
NEPA allows citizens the right to participate directly in the
processes that result in decisions that affect their environment and
subsequently impact their lives. Whereas our country is founded on the
principles of democracy including the involvement of the public in
shaping the laws and decisions of government, NEPA directly empowers
the citizen to participate in the democratic process. Americans cherish
their freedoms and rights afforded under the laws of this land.
Alterations that have been proposed to NEPA would relinquish some of
those rights
NEPA is a forum
NEPA provides a framework to view the environmental impacts and
significance of federally permitted projects within the context of the
full spectrum of laws and mandates applicable to that project. Through
the NEPA process a project is analyzed in the light of all natural
resource laws including those related to water, air, wildlife, public
health, sustainability and land and resource management. Such a forum
allows for truly comprehensive disclosure of impacts and the
development of alternative actions intended to minimize or mitigate
those impacts.
NEPA promotes informed decisions that avoid costly mistakes
NEPA does not dictate a specific final decision about a project,
but rather guarantees informed decisions. NEPA has been attacked as
leading to delay and higher costs. While the NEPA process may entail
some additional delay and additional cost, the better decisions that
result save time and money in the long run. Bad decisions can be made
quickly, and initially they are cheap, but spending a little more time
and money in making a good decision rather than to rushing to a bad one
can really pay off. The costs and delays of living with bad decisions
or of trying to fix them after-the-fact are vastly greater than any
costs incurred in complying with NEPA.
NEPA has been a success
NEPA has been a tremendous success. It works. It has provided
innumerable benefits to the public by preventing and reducing
environmental impacts that also save the federal government money.
Because NEPA calls for a comprehensive disclosure of the impacts
related to a project as well as public participation we often see a
well-reasoned decision making process emerge from the consensus of
interdisciplinary management teams and affected publics and user
groups. Such cooperation at the planning stages of projects works well
toward finding areas of agreement and for resolving conflicts before
final decisions are made. Such consensus building at the start helps to
reduce legal challenges to final decisions and to avoid the high cost
of correcting poorly-planned projects.
Public participation can be a valuable service to government
agencies that lack sufficient resources and insight to fully identify
and articulate all issues and concerns. The downsizing of government
agencies has in many instances left those agencies understaffed and
overworked to the point that full development of issues and concerns is
not possible without public participation. And it is the full
development of issues, concerns and information that leads to consensus
building and conflict resolution. NEPA equates to fairness by offering
a ``level playing field'' for those groups competing for the same
resources. It helps us manage our natural resources and the impacts
associated with using our natural resources in a way that provides
enduring benefits to people over the long-term.
My participation in NEPA processes
As a member of TCONR over the past 20 years I have engaged
extensively in the NEPA process at many levels. My most persistent work
has been with the National Forests and Grasslands in Texas (NFGTX). I
provided input to two Land and Resource Management Plan (LRMP)
revisions and one amendment. I have worked with planning teams
developing management plans for three wilderness areas in Texas as well
as numerous other individual project plans. After these 20 years of
working closely with federal resource management issues I would claim
NEPA to be a rousing success. Coordination between federal, state, and
local agencies and affected user groups has led to many projects being
fully developed and implemented to the satisfaction of all parties
involved. As a representative of TCONR I have often brought important
resource information and experience to the planning table to supplement
agency personnel and information. The diligent work of all involved
parties has resolved conflicts and resulted in a satisfactory decision
that was ultimately implemented.
NEPA successes I've witnessed
The following are but two of many examples of NEPA success stories
that I have participated in, beginning with a recent episode from the
Davy Crockett National Forest. A tornado had damaged a portion of the
forest, precipitating a discussion on the best way to salvage damaged
timber and then regenerate the area to forest. Through the NEPA process
a consensus was reached that satisfied the needs for both salvage and
regeneration in a way that was satisfactory to most agency personnel
and to participating user groups. Rather than implementing expensive
site preparation and replanting of the site, the decision was made to
allow natural regeneration after the salvage operation was finished.
Natural regeneration of the site will result in savings to the federal
government of tens of thousands of dollars in replanting costs--a
result driven by NEPA.
In a case on the Sabine National Forest, timber harvesting was
planned for portions of a recognized sensitive area. TCONR and other
citizen groups expressed concern that high-impact logging would occur
in the primary zone of a designated natural heritage site. A scoping
meeting and field trip including agency personnel and user groups was
held to assess the situation. With only this one-day meeting, a
consensus was reached that satisfied all parties. By slightly modifying
the sale boundary, to avoid logging the primary protected area and
allowing for thinning in the secondary buffer area, all parties
involved felt that their objectives were satisfactorily met and the
project was greatly improved. These are but two of many such NEPA
engagements in which TCONR has been involved that resulted in a
satisfactory consensus, decision and implementation.
Attached to my testimony are three other NEPA success stories that
were compiled by other TCONR members. If you have questions about those
stories, I would be happy to put you in touch with persons who worked
with those projects.
NEPA has been misrepresented
Despite the many successes some individuals have sought to distort
NEPA's proud record of forging reasoned decisions based on the full
spectrum of information, public participation and implementation
options. One such example is the case of the Abitibi-Consolidated owned
paper mill in Lufkin, Texas.
NEPA has been attacked as one of the cause of the paper mill
impasse when in fact NEPA was not relevant to the decision-making
process. The decisions about Abitibi were actually the state's
obligations under the mandates of the federal Clean Water Act that
preclude the downgrade of water quality standards. NPDES permits, such
as Abitibi was seeking, are exempted from NEPA.
Because there is misunderstanding about the role of NEPA in the
Abitibi case, I think it is appropriate to take a few paragraphs to
describe what actually happened. As Abitibi-Consolidated made clear in
its public statements when the plant was closed in 2003, this case
involves a difficult suite of issues including economics, public
health, pollution of public waterways and multiple jurisdictions. In
newspaper accounts at the time, Abitibi cited weak markets for
newsprint, the weaker market due to the technology industries
``bubble'' bursting, continuing after-effects of the September 11, 2001
attack on the World Trade Center, a stagnant market dynamic, and high
energy costs as among the reasons for the closing. A spokeswoman for
Abitibi specifically stated that the shutdown was unrelated to what the
company had invested in environment-related projects at the mill,
saying that they had met their environmental challenges. Critics have
linked NEPA to the increase in costs of energy, but there are a large
number of reasons for increase in energy costs. Any impact NEPA would
have had, if any, on the plant closing would be minuscule compared to
other factors, such as increased global competition for limited energy
supplies and weather-related impacts like hurricane damage.
The paper mill has a decades-long history of discharging industrial
effluent into the Angelina River which currently flows into the Sam
Rayburn Reservoir. This reservoir is a regional recreation and
municipal water supply resource for a multi-county area. The effluent
discharge flowing into Sam Rayburn Reservoir has serious public health
implications. Warnings have already been posted at the reservoir
advising limited fish consumption due to mercury contamination,
probably from atmospheric mercury fallout. There is pending litigation
regarding alleged dioxin contamination in the reservoir. Sources of
pollutants in the reservoir, which the City of Lufkin plans to use as a
municipal water supply, are very controversial.
Lufkin's initial plan was to place a water intake at the upper
(north) end of the reservoir, close to the city, where the Angelina
River enters. The city has made subsequent plans to move the water
intake further south on the reservoir, possibly in an attempt to avoid
the lower quality water resulting from the industrial effluent
discharged from the paper mill. The placement of the water intake
further south in the reservoir increases the distance to the city
itself, resulting in more pipeline distance (at greater cost), a longer
cleared right of way and more energy consumed to pump the water to the
city.
Due to the new water intake location the pipeline right of way is
now proposed to cross the Angelina National Forest resulting in the
permanent loss of federal forest as the land is converted to a cleared
right of way. This forest land currently provides forest products, vast
public recreational opportunities, jobs to the forest products industry
and critical habitat for the endangered red-cockaded woodpecker.
A quick enumeration of the costs and benefits on both sides of the
issue reveals the inequity involved in the discharge of pollutants that
degrade water quality the mill's proposal to increase the discharge of
industrial effluent. The debate over the continued operation of the
paper mill at Lufkin has been misconstrued as a simple choice between
local jobs and unnecessary government regulation. This perception is
simply untrue. It was not NEPA that caused the closing of the Abitibi
plant, but rather the overall economic situation concerning the paper
mill.
Conclusion
As the world's population increases with each passing year, more
pressure is placed upon natural resources and the environment that
sustains us. Polls conducted over many years consistently reveal that
the great majority of Americans are strongly aware of our important
relationship with the environment and that they support conservative
resource management. America is considered the world leader in terms of
progressive environmental policies enacted to conserve resources, guard
public health, promote sustainability and reduce unnecessary impacts
during resource management and extraction. This honor has not been
achieved by chance but through the conscientious and far-sighted
efforts of dedicated leaders. This honor is the result of the passage
of the National Environmental Policy Act and over thirty-five years of
sound, competent environmental management carried out in a
comprehensive and transparent fashion.
NEPA has been a tremendously successful and popular piece of
legislation for a number of reasons. NEPA's authors recognized the
complex and comprehensive relationship that modern humans have with the
environment and penned its provisions accordingly--the Act calls for
full and in-depth analysis of potential impacts of proposed actions.
NEPA's authors sought to uphold the democratic spirit of government
that has shaped so many of our laws--the Act allows for full
interagency and interdisciplinary participation as well as that of
interested and affected public and private organizations and
individuals. NEPA's comprehensive and inclusive approach to planning as
well as the development of different alternatives provides the best
chances for final decisions to be implemented with the least amount of
controversy--the vast majority of final decisions on the National
Forests in Texas are implemented without opposition or appeal.
Considering the ongoing high rates of success enjoyed by the NEPA
process, the enduring public support for NEPA over the past thirty
years and the continued relevance that NEPA holds for the ongoing
resource and public health challenges we will be facing for many
decades to come, NEPA is as important now as ever.
NEPA has not only served as a stellar domestic policy but has
earned for America prestige and respect at the global level. As
legislation goes, the text of NEPA is not long, but each of its
provisions is important and essential to the integrity of the Act as a
whole.
In its current form, NEPA achieves its intended purpose of
providing comprehensive environmental and resource policy guidance that
provides the greatest benefit to the most people without causing
unnecessary impacts or jeopardizing public safety and health. As a
representative of TCONR and a long-time participant in resource
planning through NEPA, I strongly urge the Task Force on Improving
National Environmental Policy Act to make NO changes to NEPA or to the
regulations promulgated by the Council on Environmental Quality and
other federal agencies to implement NEPA.
Again, thank you for the opportunity to testify this morning.
______
ADDITIONAL NEPA SUCCESS STORIES
Sims Bayou Federal Flood Control Project--Complied by Evelyn Merz
Beginning in 1991, the Houston Regional Group of the Sierra Club
questioned the proposed design for the Sims Bayou Federal Flood Control
Project contained in the EIS prepared by the U.S. Army Corps of
Engineers. Local residents quickly formed the Sims Bayou Coalition
(SBC) which mobilized opposition to the Corps's plan to channelize and
concrete Sims Bayou.
Under the NEPA process, the Coalition was able to counter the Corps
design with an alternative that relied primarily upon detention instead
of channelization. Although the Coalition alternative has drafted was
not accepted by the Corps, meetings held between the Coalition and its
supporters, the Corps, the Harris County Flood Control District, and
elected officials from the county and Congress led to an agreement for
a vastly improved modification of the original Corps plan in 1992.
In the modified plan, the rigid trapezoidal channel shape was
replaced with a flood bench having gently sloping side, most of the
concrete was removed and replaced with vegetated slopes over cellular
mats, and trees became a part of the design specifications. The
residents and representatives from the Corps and Harris County Flood
Control walked sections of the project together to determine where the
orientation of the channel excavation could be changed to avoid
disturbing valuable trees and mapping trees to be saved in place or
marking trees to be moved.
As of 2005, the Sims Bayou Project is still under construction and
is often used by the Harris County Flood Control District (the local
project sponsor) as an example of its new approach to a ``greener''
form of flood control. The Coalition and other residents benefited from
a design that allowed for Sims Bayou to be a green ribbon through its
neighborhoods instead of a concrete ditch and offered an opportunity to
preserve and restore habitat. The NEPA process allowed all parties to
compromise on an acceptable flood control design for Sims Bayou.
Wallisville Reservoir--Compiled by Evelyn Merz
The Wallisville Reservoir project is in Liberty County near the
mouth of the Trinity River as it flows into Galveston Bay. Construction
began in 1966 and halted in 1974 under an injunction. The Corps of
Engineers had not prepared an adequate EIS.
Through following the NEPA process, a 20,000-acre project which
would have inflicted major damage upon the Galveston Bayou estuary
system was scaled back to a salt-water barrier to protect agricultural
water intakes, which was the only valid reason for proposing the
project. Water rights sought by the City of Houston through
construction of the project were satisfied by the construction of the
salt water barrier. The saltwater barrier allowed downstream flows of
nutrients which would have been blocked by the original design. The
reduction in size and depth of the reservoir allowed the preservation
of the Lake Charlotte cypress swamp area.
Lake Jackson Golf Course--Compiled by Brandt Mannchen
From 1995 to 2000 the Houston Regional Group of the Sierra Club,
the Houston Audubon Society, and an individual participated in the
National Environmental Policy Act (NEPA) process; U.S. Army Corps of
Engineers (ACOE) Section 10/404 permit process; and a lawsuit regarding
noncompliance with NEPA for ACOE Permit, No. 20271.
The proposal originally would have created a municipal golf course
on 400 acres, many of which were wetlands. Due to concerns about
wetland impacts the golf course proposal was reduced to approximately
209 acres. Additional mitigation conducted during the NEPA process
reduced impacts to 154 acres, with about 54 acres remaining
undisturbed.
The lawsuit was filed because the ACOE did not analyze the
cumulative environmental impacts that the golf course would have on
Columbia Bottomland forests and neo-tropical migrant birds in its
environmental assessment. The federal judge ruled that the ACOE must
assess cumulative effects due to construction of the golf course. The
ACOE did this and the case was dismissed in 2000.
______
Addendum to Testimony Presented by Larry D. Shelton
Please accept these additional comments relative to my original
written TESTIMONY submitted July 20, 2005, and my ORAL TESTIMONY
presented on July 23, 2005, in Nacogdoches, Texas. I request that they
be submitted into the record of the hearing.
While the hearing was to consider the ``Role of NEPA in the
Southern States'' it was apparent that much of the testimony presented
concerned situations where NEPA had no bearing or direct impact. I cite
some examples below.
Oil and gas drilling
Many comments were made concerning high energy costs. Delays caused
by NEPA were cited as the cause.
Statements presented by Texas Railroad Commissioner Victor Carrillo
revealed that Texas in fact has very little federal land and that as a
result very little oil and gas drilling in Texas is subject to the NEPA
process.
Mr. Carrillo further explained that the state had streamlined the
permitting process such that a delay of one to five days for a drilling
permit was now reduced in most cases to a single day. Clearly, NEPA is
not causing serious delays in oil and gas drilling in Texas.
The committee should also recognize that oil and gas prices are set
on the world market and therefore local increases in production do not
significantly affect prices as a whole.
The argument presented was that making changes to NEPA would
expedite oil and gas production and therefore lower the price of
energy. We would hope that the committee recognizes the fallacy of this
argument. In fact oil and gas reserves are finite and as reserves
dwindle the price will rise based on simple supply and demand
principles. Expedited production simply reduces reserves faster. The
real reason for escalation in energy costs is that global demand is
continually increasing at the same time that reserves are being
depleted. Simple logic tells us that increasing demand on finite
reserves will result in rising prices until fossil fuels are fully
depleted or other energy sources become available.
In summary, testimony presented on July 23, 2005 in fact verified
that NEPA has very minimal impact on the length of time needed to
obtain a drilling permit in Texas. Oil and gas prices are set on the
global market where the United States is a minor producer in comparison
to many other countries.
Forestry-related issues
Testimony was presented suggesting that NEPA has had a significant
impact on forestry related issues. In fact, federally-managed National
Forest land in Texas makes up a very small portion of the overall
commercial timberland area--only about 6% of the commercial timberland
base is federally owned. Additionally, National Forests contribute only
about 3% of the overall mix of forest products harvested in Texas. It
should also be noted that of the National Forest land in Texas, 85% is
managed for the growth and harvest of pine timber, which means that
less than 1% of Texas commercial timber land is taken out of the
productive timber base. In reality, the timber industry is able to meet
their needs independently of the National Forests due to the extensive
industrial and private land base currently being managed for timber
harvest. NEPA does NOT place any restrictions on these lands.
Testimony was presented concerning the large blow-down of timber on
the Sabine National Forest in 1997. This testimony mentioned a special
arrangement made with the Council on Environmental Quality to expedite
the salvage of the downed timber. The record shows that the salvage
operation was carried out in an expedited manner due to this
arrangement and that the current regulations allow for such exceptional
circumstances. Testimony presented by Mr. Davis said that ``the salvage
was carried out successfully.'' This episode strongly suggests that the
current situation is working.
It is worthy of mention that mistakes were made in terms of
protecting federal resources apparently due to the wide-spread nature
of the operation and insufficient oversight from Forest Service
personnel.
Specifically, a Special Management Area that was NOT supposed to be
logged was cut over on a Sunday under what appeared to be suspicious
circumstances. An additional important point: a Forest Service
hydrologist brought in from another region to provide expertise for the
salvage effort wrote a letter clearly stating for the Forest Service
record that in his professional opinion stream protection as a whole
was NOT adequate during the salvage operation. These lapses resulted
from the expedited ``arrangements'' already made under NEPA. We oppose
any changes to NEPA that would make failure to adequately protect
resources as mandated a more common occurrence.
Water Development
Testimony was also heard concerning water development and the
construction of Marvin Nichols Reservoir on the Sulfur River. From the
testimony it was unclear as to specifically how NEPA was influencing
that project.
Part of this testimony included a reference to mitigation that
would amount to a 10 to 1 compensation rate of mitigated land to
inundated land. In 1990 biologists with Texas Parks and Wildlife
Department and the U.S. Fish and Wildlife Service estimated that
mitigation for Marvin Nichols could range between 163,620 and 648,578
acres, depending on intensity of management. This would be a ratio of
2.3 to 1 for the smaller number of acres and 9 to 1 for the larger
number. Proponents of the reservoir are saying that they have done more
site-specific studies and are using mitigation cost estimates that
indicate roughly a 2 to 1 ratio for Marvin Nichols. Mitigation formulas
are admittedly complex but the suggestion that the entire area affected
by the lake would be subjected to the 10 to 1 standard is exaggerated
by any estimate. At best, only a portion of the site would be subject
to the highest rate; other portions of the site would be subject to a
lower rate or to no mitigation at all. In reality, the 600,000 acre
mitigation figure cited is so unlikely that people close to the
reservoir issue, neither proponents nor opponents, routinely use it.
The construction of Marvin Nichols is a state project rather than a
federal one. Several other issues figure prominently in the challenges
that the proposed lake faces. Among those are the huge impacts to the
agricultural and timber economy of Northeast Texas, the length and
expense of the pipeline to the nearest market for water, and the fact
that the lake would be built to serve the distant Dallas-Fort Worth
area that has the highest per capita water consumption rates in the
state. The Region C Water Planning Group, the official water planning
group established by the Texas Legislature, has shown that there is
almost twice as much water available from already-existing reservoirs
as will be needed in the Dallas-Fort Worth-North Texas area in the year
2060. The fairness issue is raised when one area is expected to give up
productive lands to meet the water needs of other areas with
exceptionally high water consumption rates. Again, we urge the
Committee to be diligent in separating state from federal issues and in
deciding the actual degree of NEPA influence, if any.
Abitibi Consolidated paper mill
The spokeswoman for Abitibi presented testimony that the mill's
primary issue was securing a long term supply of lower priced energy.
As mentioned above it is very unlikely that world energy prices will
significantly decrease considering the ever increasing demand and the
finite nature of oil and gas reserves. The Committee must exercise
great care in weighing the relative impacts of diverse issues on the
price of energy, especially NEPA and the far greater global energy
market conditions.
Abitibi also faces significant water quality issues at the state
and local level that are minimally influenced by NEPA. At issue is the
discharge of industrial effluent into the Angelina River and in turn
the Sam Rayburn Reservoir. This Reservoir is a regional recreation and
municipal water supply resource. The right of self determination rises
to the forefront here as local citizens see the water they use for
recreation and water supply polluted. Those of us here in the counties
surrounding Sam Rayburn do not want to see any changes in federal
statutes that would make it easier for local industries to discharge
toxins into our drinking water. Nor should NEPA be cited as the main
impediment to the mills operation when the water quality issue is the
real problem facing our communities.
The Committee faces a huge challenge in sorting through the diverse
testimony and written comments that will be generated as a result of
the Task Force's review of NEPA. I strongly urge the members to
exercise the utmost caution in segregating actual NEPA issues from
state, local and even larger global issues. NEPA should not be used as
a scapegoat for unrelated issues.
I would also urge the Committee to maintain its bi-partisan mission
to objectively look at the Role of NEPA. At the Nacogdoches hearing,
the representatives of southern industrial America were lined up both
physically and symbolically in close proximity to members of the
Committee. The industrial representatives (including Texas Railroad
Commissioner Carillo) argued to the last witness that economic
considerations should be elevated in priority such that their
respective industries may have quicker and wider access to the natural
resources of this country.
I wish to make my belief clear that resource consumption is
necessary and a part of all of our lives.
It is the responsibility of the Resources Committee to make the
distinction between the original intent of NEPA and this clear lobbying
effort of American industries to prioritize their personal economics
over all other considerations in resource management decisions. NEPA
mandates that all aspects of resource management be considered
including the diverse personal values represented in resources and the
impacts associated with resource utilization, both for today's
Americans and for future generations. There is a strong appearance of
bias in this NEPA review process from both the disproportionately large
representation of industry on the witness lists and the uniform
assertion by those witnesses that NEPA should be changed to allow
easier and wider access to resources to increase their profitability.
There also appears to be a discrepancy between the mission of the Task
Force to ``improve'' NEPA and the apparent agenda of industrial
representative witnesses to weaken its provisions meant to insure
strong environmental protection and equity through reduced impacts and
comprehensive consideration of resource values.
Again I urge you to make no changes to NEPA that would weaken
environmental and human health protection. Additionally a full range of
resource values should be considered without prioritizing economics
over the others.
______
Miss McMorris. Ms. Nichols?
STATEMENT OF SANDRA NICHOLS, ATTORNEY WILDLAW
Ms. Nichols. Hi. I'm Sandra Nichols. I'm with WildLaw, an
environmental nonprofit law firm. I would like to thank
Chairwoman McMorris and Representative Gohmert for this
opportunity to talk about this.
My organization, WildLaw, has reviewed over 5,000 NEPA
documents, including several hundred full Environmental Impact
Statements. We work throughout the Southeast and work on a
range of environmental issues, but we focus on national
forests; so I would like to share with you some of our
experiences working with the national forests in Alabama,
Mississippi, and Louisiana.
I would like to begin by saying we need to keep this in
perspective. The vast majority of projects subject to NEPA
proceed without any problems, and there's no controversy or
litigation. In fact, changing laws results in more litigation.
When the law changes all those (inaudible) are uncertain, and
that's when litigation and challenges result.
In fact, NEPA is already a flexible law. The standard of
how much information needs to be collected is a reasonable
standard. There's no page limit--page requirements for
Environmental Impact Statements.
When implemented correctly, NEPA makes projects better.
When Federal agents use the law in the spirit in which it was
intended, conflicts and potential problems are resolved early
in the planning stages. The law allows identification of
environmental, social, economic, and historical concerns early
on; and they can be resolved before the project--before there's
too much invested in the project.
NEPA does not stop projects. Problems with projects stop
projects.
We all know from--hearing from across the country the great
controversies caused by fire danger in the national forests.
The problem is that not only do fires threaten public
resources, our national forests; but often communities that are
part of the national forests are endangered by this risk, as
well.
Well, right next door, in Louisiana, they have a fire
danger problem; but we don't hear about it on the news. The
Forest Service in Louisiana has used NEPA to do exemplary
planning and involved the community, and there's no objection
to their plans. The way that they have accomplished this is by
keeping the public informed.
They send out scoping notices with details about what
they're planning to do, and they do thorough Environmental
Assessments with detailed site-specific information, photos,
and they--they inform the public so that the public is aware in
advance, and they collaborate. Now, NEPA does not require
consensus. It only requires collaboration.
The (inaudible) in the Kisatchie National Forest has won an
award for their (inaudible) based on this process.
Another example of a successful implementation of NEPA is
from Alabama. The Conecuh National Forest--I've heard mention
of the longleaf pine. That's one of the rarest ecosystems in
the country. And up until the early '90s, the longleaf was
being systematically destroyed by (inaudible).
There was a change in personnel in the agency in Alabama
and in--and the new personnel decided that they wanted to
restore the historical longleaf and wire grass ecosystem, and
they went about it by fully embracing the spirit of NEPA.
NEPA encourages taking a holistic view of resources and
gathering full information in order to make informed decisions.
One complaint about NEPA is that it requires a lot of
procedure.
Well, the personnel at Conecuh found a way to follow NEPA
without bogging down their work. They did one large
comprehensive Environmental Impact Statement on the whole
restoration project. They included all the stakeholders from
the area, and they looked at all the resources in the forest.
Now, it did take them some time. For the past five years,
they've been implementing their plan out there, working on the
ground; and all the stakeholders, including the loggers and all
the different (inaudible) in the community are happy with the
results.
NEPA resolves conflicts. It allows different perspectives
(inaudible) potential problems to be revealed early.
Citizens sue when they're surprised. If they're not
informed or if there's a problem with the project, that's when
they report it. And the courts--courts aren't biased toward
citizen groups. They only stop projects that are actually bad
projects.
Because of the great attitude toward NEPA in the three
states that we work in, there's no--there's currently no
litigation in Alabama, Mississippi, or Louisiana national
forest areas on NEPA issues. In fact, the Forest Service
actually does a great job of collaborating with citizen groups
in these three states.
In conclusion, I would like to say if not for NEPA there
would be a lot more litigation. I agree that changes can be
made, but they should be changes in the implementation but not
the law.
When NEPA--when agency personnel implement NEPA according
to the spirit it was intended, if they're motivated to do so,
and they're trained to do so, NEPA results in better projects.
Thank you very much.
[The prepared statement of Ms. Nichols follows:]
Statement of Sandra Nichols, Staff Attorney, WildLaw
The National Environmental Policy Act 1 (NEPA) is
perhaps the shortest federal environmental statute. Yet its benefits
are incalculable. In countless cases, NEPA procedure has enabled the
discovery of potential problems early enough to resolve them before
they became obstacles to the completion of federal projects. This small
act's purpose is to require federal agencies to consider the
environmental consequences of major federal actions; it is aimed at the
federal government and not at individuals or the states. NEPA directs
that all federal agencies must include in all ``major Federal actions
significantly affecting the quality of the human environment, a
detailed statement by the responsible official on...the environmental
impact of the proposed project....'' 2 This requirement is
the genesis of what is commonly known as the environmental impact
statement (EIS), and the cases that deal with whether a federal agency
must prepare an EIS on a particular project are legion.
---------------------------------------------------------------------------
\1\ 42 U.S.C. '' 4321 et seq.
\2\ 42 U.S.C. ' 4432(C)(i).
---------------------------------------------------------------------------
Congress created NEPA to provide procedural steps for agencies to
take prior to initiating projects to assure that the decision maker and
the public would be aware of the environmental consequences of the
project. When making project decisions, among the factors federal
agencies must consider, NEPA requires a look the environment and public
concerns. The Supreme Court has held that NEPA is strictly procedural
in nature, which means that NEPA requires only that an agency evaluate
the environmental consequences of any action. NEPA require agencies to
consider the environmental impacts of their decisions, but it does not
mandate projects or methods. NEPA requires an agency to take a hard
look at environmental impacts, but that agency can still take any
course of action. There is no requirement in NEPA that the agency bias
its decision in favor of protection of public health and the
environment. 3
---------------------------------------------------------------------------
\3\ See generally Robertson v. Methow Valley Citizens Council, 109
S.Ct. 1835 (1989), and Marsh v. Oregon Nat. Resources Council, 109
S.Ct. 1851 (1989).
---------------------------------------------------------------------------
NEPA and the regulations adopted there under by the Council on
Environmental Quality (CEQ) are binding on all federal agencies. For
every federal project an environmental assessment (EA) must be
performed. The main purpose of the EA is to determine whether an EIS
needs to be done. If, as a result of the EA, the agency finds that
there is no ``significant'' environmental impact, then the agency
issues a Finding Of No Significant Impact (FONSI) and continues with
the project. The definition of ``significant'' has been heavily
litigated because if an agency issues a FONSI as the result of its EA,
and there are unresolved conflicts about the impacts of the project,
those concerned will argue that the FONSI was incorrect and that an EIS
must be prepared prior to continuing.
WildLaw attorneys have reviewed more than 5,000 NEPA documents,
including several hundred EISs, thousands of EAs, and thousands of
Categorical Exclusions (CEs), Decision Memos (DMs) and other related
work. We have seen 12-page EAs that fully complied with NEPA, and we
have seen 450-page EISs that did not even come close. Page length and
``administrative burdens'' have nothing to do with whether an agency
complies with NEPA or not. It is the attitude of the agency personnel
that matters most.
If agency personnel see NEPA as a burdensome hurdle to be overcome,
they will inevitably fail to comply with the law. When they see NEPA as
a process to improve information collection and decision-making and as
a means to improve public participation, they invariably do excellent
work, both in the NEPA analysis and on the ground.
Examples of NEPA Working in the Southeast
Kisatchie National Forest, Louisiana
Some U.S. Forest Service District Rangers use the new Healthy
Forests Initiative (HFI) authorities (which deal with NEPA
requirements, mostly) to shortcut public participation. When they
decide to undertake a project on their national forest they send out
generalized scoping notices (sometimes no more than two paragraphs) and
do not allow public comment on any draft EAs they do. The only
information the public ever gets about any categorically excluded HFI
project before it is decided is the scoping notice. Thus, if the
scoping notice does not give specific details, the public is taken by
surprise, after the decisions are made.
Districts in the Kisatchie National Forest, such as the Kisatchie
District, send out 5-10 page scoping notices that include detailed maps
and several photos of the project areas, all with brief, but clear and
detailed, descriptions of the project areas and planned actions.
After a CE project is decided, it is important that the decision
memo (DM) cover the analysis done and properly justify the project and
the use of the CE under the HFI. Otherwise, a member of the public
concerned about the project will have no way to find out more.
Commonly, citizens in this position resort to litigation in order to
learn the details of the project. Again, districts in the Kisatchie
shine in providing detailed DMs, including analysis of data on
management indicator species and other surveys, that give a very clear
picture of the staff's work and analysis and of the project's proposed
actions and impacts.
A good CE scoping notice and a good CE DM can head off much trouble
if they show thoughtful, careful and proper use of the HFI authorities
in ways that actually do address forest health problems.
If a project is too big for a CE and requires an EA, the agency
should send out the draft EA for a reasonable period for public review
and comment. Courts have ruled that the public must have a chance to
review and comment on a draft EA (or NEPA material that is
substantially equivalent to the EA) from the Forest Service.
All the districts in the Kisatchie provide reasonable comment
periods on their draft EAs. For an example of an exemplary EA, get a
copy of the draft EA for the Little Kisatchie Project Area project from
the Kisatchie District. It is a very fine EA giving the reader an
excellent and clear review of the project, its purpose and its impacts.
National Forests in Alabama
In 1992, the National Forests in Alabama were the worst in the
whole Forest Service system. Their only goal was logging and this
negligence resulted in legal violations. A series of lawsuits, appeals
and other legal actions shut down all logging in the National Forests
in Alabama in 1999. Since then, the leadership of the Forests and much
of the staff has changed. Now, the National Forests in Alabama are
implementing scientifically-valid restoration programs, all of which
were prepared under (and in full compliance with) NEPA. If NEPA can be
followed in Alabama, after such dismal failure, such a reversal can be
achieved anywhere. The first to do this new type of restoration work,
the Conecuh National Forest prepared a full Environmental Impact
Statement (EIS) on what restoration is needed for that forest's unique
Longleaf Pine/Wiregrass ecosystem (the rarest forest type in North
America) and on what work could be done in five years to correct past
mismanagement and restore the natural and healthy forest native there.
That restoration plan was not challenged legally in any way and is
proceeding successfully.
The Talladega National Forest just released their five-year
restoration EIS in early 2004. It covers 19,000 acres. They had MIS
data for the entire area over several years, and they did complete
surveys for endangered, threatened, proposed and sensitive species on
every acre of that 19,000 acres.
Now National Forests in Louisiana, Florida and parts of Mississippi
are also doing great Longleaf Pine restoration work, all in compliance
with NEPA. Population trend data on management indicator species is
being collected and analyzed. Survey data on threatened, endangered,
and sensitive species is being collected and analyzed. Public
participation is open and good. NEPA analysis for most of these
projects is exemplary and does not slow down the agency at all. Indeed,
most of these forests have found that doing NEPA analysis right,
instead of trying to shortcut NEPA, makes their final decisions better
and more successful.
How can agencies comply with NEPA? Simple, do these things: Follow the
law, use good science, be honest and open with the public.
Which takes longer? (1) Doing a quickie EA in four months, or (2)
Doing a full and thorough EIS for two years? Answer: (1).
Consider one timber sale WildLaw challenged in the late 1990s. The
EA came out, and it was garbage. We appealed the decision to proceed
with the project and we won. The second EA came out much the same, and
we appealed and won. The third EA came out, and, yep, we appealed and
won again. The fourth EA came out; it was finally better but still
lacking. It got stopped by a lawsuit. So, the EA that took four months
to do has still not been implemented now eight years after it was
started.
Around the same time, the Conecuh National Forest did a full EIS on
longleaf pine restoration on the forest; it took them about two years
to plan and prepare the EIS. They are now entering year five of that
five-year project and are starting the phase two EIS tiered to the
first EIS. That Ranger has won numerous awards, got a nice, big Tahoe
to drive, and has made the local loggers and politicians happy.
Scientists and all environmentalists involved in that forest are
pleased. The Ranger who did the crappy EA has disappeared somewhere
into the bureaucracy.
Read the Conecuh Longleaf Pine Restoration EIS. It is not a long
EIS in page-length as it is a good example of site-specific detail and
data without unnecessary filler. When they did it, they got a lot of
flack within the agency about how ``this is not the way we do things,''
but guess what? Once it was done, it was not appealed or sued over (not
even by that 5% who oppose logging on principle), and the Conecuh is
now winning awards and national recognition for their work. And
rightfully so. Now, all the forests in Alabama are doing restoration
EISs. The analysis work takes longer than for an EA but the result is
MUCH better.
Below are photos showing how the Conecuh National Forest uses
clearcuts with reserves to eliminate unnatural Slash Pine plantations
to restore them to native Longleaf Pine:
NOTE: The following pictures have been retained in the Committee's
official files.
Figure 1: All Longleaf is retained and debris is spread
to prevent erosion and rutting.
Figure 2: Longleaf seedlings are planted and prescribed
fire maintains the composition of the stand.
Figure 3: Longleaf forest in need of fire.
Figure 4: Prescribed fire in action.
Figure 5: Restored Longleaf forest after thinning and
with regular prescribed fire.
Also, you don't see massive wildfires on Alabama's National
Forests, precisely because they have a well-planned work program to
restore the natural forests, including regular prescribed fire. Instead
of disingenuously claiming that clearcuts done to get the cut out
``mimic natural processes,'' they are actually restoring and assisting
natural processes. These photos show how using prescribed fire for
restoration purposes works in the Conecuh National Forest.
The other National Forests would do well to learn from the Conecuh
in Alabama. They should take a year or two to do a full and excellent
EIS on what restoration really means for their district or forest. If
they consider all forest needs, road repair and road obliteration,
stream rehabilitation, indeed entire watershed rehabilitation, etc.,
and involve all stakeholders at every step they will be in a vastly
better position for future projects. It is more effective to do a
comprehensive analysis than to analyze individual projects which
cumulatively are big. Yes, that takes longer than an EA, BUT the
rewards could be significant. They include:
No need to do NEPA analysis, National Forest Management
Act data collection or Endangered Species consultation for five years.
Instead of doing EAs and having to do the same analysis over and over
for each project, do all the analysis at once and do 20 projects
together as one restoration plan. Then, the 20 projects will make more
sense and do a better job for the land than if you did them all
piecemeal. Do the analysis once and then do work in the woods for five
years before you have to do analysis again.
95% of your opposition will be gone. Why? If you comply
with the law, collect and use good data, utilize good science and be
open with everyone and keep them involved, the result will be better.
Sure, there is 5% out there who will oppose anything the Forest Service
(or other federal agencies) does, but how often do they sue? They do
occasionally, but the they only win when the agency has broken the law.
Make your work truly bulletproof. For years WildLaw has
heard about Forest Service people trying to ``bulletproof'' their EAs
by using certain language or by making up shortcuts that they think
will look like compliance with the law. Guess how many of these
``bulletproof'' EAs WildLaw has been able to shoot dead? The only way
to ``bulletproof'' your work is to do the work right. Follow the law,
use good science, be honest and open with the public, and no attorney
with any sense will dare sue you.
Awards, big vehicles, commendations, accolades,
promotions and fast career advancement (for solving the ``analysis
paralysis''), admiration from your fellow agency people and from a
variety of folks in the public, and good beer and fine whiskey.
In woodworking, the saying goes ``measure twice, cut once.'' It
means take the time to verify that the planned action is correct and
then you get to take that action without making mistakes and without
having to do the work over. For NEPA analysis, the same is true. Take
the time to make sure what you are doing is right and done well, then
you can do it without having a judge tell you to go do it over again.
And over again....
The solution to NEPA ``burdens'' lies not in changing the rules of
analysis but in changing how the analysis is done. For too long,
agencies have compartmentalized (literally) their work. Trying to make
each project look small and insignificant seemed like a good way to
avoid doing population data collection, cumulative impacts analysis and
a host of other things required by law for ``big'' projects. That
hasn't worked too well, has it?
Agencies need to stop looking at compartments and individual
projects. Instead, they should use NEPA as a tool to assess what the
land needs and what they can do to meet those needs over a longer term,
at least five years. This is not project planning but rather an
approach to how to implement plans with a broad vision instead of a
microscope.
Main problems we see with EAs (in no particular order)(and many of
these will be in the context of National Forest projects, which
we review the most):
1. Emphasis with packing EA with boilerplate language. More does
not make better; better makes better.
2. Lack of site-specific information about the project area and
the impacts to it.
3. Lack of cumulative impacts identification and assessment.
4. Failure to consult with and use the expertise of local
scientists.
5. In the rare species realm, the idea that ``if we assume they
are there and plan the project accordingly, things are okay.'' The idea
that you do not impact rare species if you assume they are there is a
fallacy. It is impossible to know that mitigation measures and other
actions to reduce impacts to rare species work unless there is some
science showing they do. If you do not survey for rare species and just
assume they are there, you have no way to know if your assumed
mitigation works. Example: you can assume that Passenger Pigeons are in
a project area and execute the project and its mitigation accordingly,
but you will not have any Pigeons when you are done.
6. Conversely, without truly looking for sensitive species there
is no way to know whether they are present in a project area and how a
project may impact them.
7. Similar to the above, the assumption that leaving habitat
available for a species means that the species uses it. Without actual,
on-the-ground, survey data, you have no way to know this. Example: the
National Forests in the South have plenty of good habitat for Passenger
Pigeons, so that means we have lots of them, right? You can build a
$100 million baseball stadium in Slapout, Alabama, but that does not
mean a major league team will use it. In order to know you are doing
the right thing, you must know the facts about the land and about the
impacts of your actions on it; you cannot guess, estimate, speculate or
model reality. You have to know to know.
8. Lack of reasonable alternatives. Some EAs have even had only
one action alternative (with the obligatory but readily dismissed ``no
action'' alternative). Really give consideration to the ``no action''
alternative; it won't kill you, honest. I know of two Forest Service
projects (one in AL and one in LA) where, once the Ranger gave real
thought to the ``no action'' alternative, they chose it. Action is not
always the best action.
9. Do not limit your decision or your alternatives by drawing up
an artificially narrow purpose and need for the action. Remember: if we
can show a court that you fiddled with the purpose and need to
predestine the outcome, we can get the project enjoined no matter how
well you complied with the laws after that. Some forests are now giving
full consideration to noncommercial methods of achieving the purpose
and need; doing so does not mean you have to choose it but failing to
consider the option when it is possible means losing in court. But some
districts have chosen noncommercial alternatives, particularly for
thinning young, dense stands of pines. Sometimes, not selling trees
works best.
10. Conversion of natural forests, example: hardwoods to pine.
11. Perpetuation of problems. We saw half a dozen Southern Pine
Beetle projects in 2001-02 that planned on logging infected Loblolly
Pine and then planting Loblolly right back again. You cannot solve a
problem if the solution recreates the very conditions that caused the
problem in the first place. If you are not going to truly solve a
problem, it would be better just to leave it alone. Districts that
solved the problem replanted with Longleaf, which was what was supposed
to be there.
12. BEs based on lack of data from project site and on overall
population data on rare species.
13. ``Site-specific'' information that is clearly wrong. We do
check the sites of projects from time to time; we won't claim that we
check every stand in every project, as we don't have enough people or
money for that. But we get out to more of them than you will ever know.
The odds are if you are misrepresenting the situation on the ground, we
will nail you on it sooner or later.
14. Assumption that ``because what we are doing is supposed to be
good for the environment, then we don't have to do much analysis.''
NEPA requires equal identification and analysis of all impacts, even
``good'' ones, to make sure that the real result of a proposal can be
reasonably known ahead of time.
15. Use of ``paper reality.'' Example: ``Visual Quality Objectives
will not change due to clearcut.'' VQOs are standards set on paper, and
they are changed by changing the paper; they won't change even if a
nuclear blast hits the site. A clearcut will change the scenic and
visual quality of an area even if Plan and paperwork says the VQO stays
the same. NEPA requires assessment of real world impacts, and that duty
cannot be foregone by saying your paper classifications would be
changed by timber cut. Another example: classifying a site as a ``pine
site'' in order to claim that cutting down the 100-year-old hardwoods
there is ``not conversion.''
16. Failure to show how mitigation measures will be applied in a
site-specific manner and how they will work. Merely listing mitigation
measures in the EA is not legally sufficient. You must show that they
will reduce impacts to a level of insignificance or you HAVE TO prepare
an EIS. If you have used those mitigation methods in the past and they
have worked, don't just say so; demonstrate that success in the EA
through data, studies, research or even well-documented observations
and photographs. Although a scientific study on how stream buffers in
your district did indeed prevent sediment from entering the water is
best, accounts of actual field observations of similar buffers on
similar slopes and soils in the past that did show that sediment
stopped yards form the stream is an acceptable demonstration of the
impacts and results of mitigation. Unsupported claims of ``best
professional judgment'' mean nothing, but judgment based on documented
past experience is something worthwhile. Include in the EA accounts of
past similar projects and how the mitigation measures worked there;
include photos, maps, field notes, etc.
17. Misunderstanding of the ``significance'' standard in NEPA. An
EIS must be prepared unless the agency can show that the impacts will
be insignificant, either in themselves or through use of properly
documented mitigation measures. If the impacts might be significant, or
if the agency just does not know if they will be significant or not,
the agency must prepare an EIS. Most districts assume that unless the
impacts are clearly shown to be significant, then an EA is all that is
needed; that is not the law. NEPA assumes that an EIS is required
unless the EA can prove that the impacts will not be significant;
failure to make that proof mandates an EIS. The burden is NOT on the
public or environmental groups to prove significance.
18. Minimization of negative impacts, a lack of honesty about
things being bad. Example: claims that a clearcut will not look bad, it
will provide ``visual diversity'' or ``a deeper view into the forest.''
Use of euphemisms or contrived language (``timber harvest,'' ``visual
diversity,'' ``regeneration cut,'' etc.) Don't make ridiculous claims
like ``portions of the public like how clearcuts look.'' Yes, the 1/10
of 1% of the public who are loggers may like a clearcut but to
``balance'' that evenly with the 99.9% of people who do not is just
deceptive. BE HONEST! A clearcut to restore the native forest type WILL
look bad for many years; admit that but explain clearly that the
adverse visual impact is needed to get the beneficial result of
restoring the natural forest in that area. Admit where you lack data.
Admit where you do not know if mitigation measures will work. We will
be inclined to work with you to address those deficiencies if you admit
them, but if you hide them, we will attack you (and rightfully so).
19. Attempts to minimize negative impacts by artificially limiting
space and time of impacts analysis. Examples: using a three-year time
frame for assessing impacts from clearcuts; real world impacts from a
clearcut last much longer than three years. Limiting analysis to
artificial boundaries such as compartments or ``action area'' or a
conveniently drawn ``project area.'' A clearcut in compartment X will
have cumulative impacts (scenic, wildlife, etc.) with a clearcut 30
feet across a road from it in Compartment Y, but if EA analysis only
looks at Compartment X or the watershed that holds X (although X and Y
are compartments next to each other at the top of two adjacent
watersheds), real world impacts will be ignored and public will be
deceived by the paper. But a judge will see my photographs and video
showing how you missed a cumulative impact that was just 30 feet from
your project.
20. Attempts to force inappropriate projects into types that are
categorically excluded from the requirement to conduct an EA. If the
project is valid, considering the environmental impacts and informing
the public can only make it better.
Suggestions for ways an agency can improve its NEPA compliance (in no
particular order):
1. Better maps in EAs (need clear copies, color works best).
2. More detailed scoping notices.
3. Provide more information on projects even when they are
categorically excluded from the EA requirement.
4. Distribute EAs and EISs on CD-ROM in addition to paper. You
will save paper, and those of us who are computer savvy will appreciate
it.
5. More site-specific description and information.
6. More identification and assessment of cumulative impacts.
Really monitor after the project and develop real data on what impacts
are. This will be very useful to you for future projects.
7. Less boilerplate language. Use it only when really
appropriate; do not try to use it as a substitute for real work.
Packing an EA or EIS with irrelevant information is a waste of your
time; it will not ``bulletproof'' your work.
8. Use local data and studies. Less reliance on distant studies
to justify action. Example: a southern National Forest in the 1990s
used New England bird studies (from more than 1000 miles away) on
impacts from clearcuts planned in Alabama (totally irrelevant to local
climate, forests and bird species) and rejected local studies done in
that very district by the state's foremost ornithologist; even though
those local studies were complementary to 80% of what the district was
doing in its timber program. Things like this make for easy winning
appeals and lawsuits for us.
9. Seek out and use work and opinions of local experts. Local
university scientists, studies funded by environmental groups (For five
years, WildLaw and its client Wild Alabama funded more studies on the
National Forests of Alabama than anyone, including the agency), Natural
Heritage Programs, National Speleological Society (for finding caves
and assessing them for endangered bats), etc. The Forest Service admits
it lacks resources to do all the scientific research it would like, so
you need to be more proactive in getting help from outside sources.
Form networks with experts BEFORE projects are proposed and get their
input at all stages. Don't just assume experts will know about projects
and comment if needed, because often they do not.
10. Consider more alternatives.
11. Give consideration to economic impacts other than those that
support the proposal. For example, when planning a timber sale,
consider the effects of lost recreational use.
12. Use reality. If real world and paper classifications do not
match, admit it and assess the real world impacts; do not sweep them
under the rug.
13. Admit it when you don't know things. NEPA does not require
perfect knowledge but a reasonable attempt to identify impacts. Do the
best you can and admit data gaps. ``Best professional judgment'' means
nothing when you have collected no data; when you use your ``judgment''
on a foundation of nothing, you are just guessing, and smart judges
know it. But when you have made a good, honest effort to collect what
data and research you could and then make reasonable assumptions based
on best professional judgment to fill gaps, that can be okay.
14. And when in doubt about the data and impacts, be humble and
act cautiously. Do not take a ``see no evil'' approach. Be respectful
of the fact that you really do not know everything there is to know
about a forest; no one every will. Environmentalists are much more
willing to work with agency people who recognize and admit the
limitations of their knowledge. Agency people who act like they know it
all are big, bright (and EASY) targets for us.
15. Give equal weight to other uses of the land in question.
16. Give REAL consideration to the thoughts, ideas, and (yes)
feelings of the people who use and love the area. In some areas and in
many ways, the people who use the area for hunting, hiking, etc. do
indeed know the place better than the agency people do, and you must be
honest and brave enough to admit that fact and REALLY seek their help.
Do not just pretend to seek public input and then brush it off and do
what you want anyway. Example: a number of truly world-class
archeological finds have been made on the Bankhead National Forest in
the last 15 years, ALL by local people, none by the Forest Service.
17. Distribute information widely. Make the mailing lists open;
assume that people want the stuff unless they tell you otherwise. Do
not try ways to get people off the list so that you can ``hide''
projects from them; do not send out quarterly notices saying, ``If you
do not return this card within ten days, we will assume you have no
further interest and will drop you from the list.'' Your default should
be that people are interested until they say they are not, not the
reverse. In this age of electronic mailing lists, you have no excuse
for not including everyone on everything.
18. Get out into the woods with environmentalists. We are not your
enemies, unless force us to be. WildLaw has often found common ground
while actually out standing on the ground and discussing things as we
saw them. Invite all environmentalists who comment or show interest in
your forest for hikes, cook outs, canoeing, camping, whatever. Those
who are truly interested in the forest and the project will accept and
be willing to talk with you. Those who refuse your repeated attempts to
reach out to them are more interested in their agenda than anything
real; we cannot help you with those folks other than to say to do your
job right and the best you can and ignore them the best you can. If you
comply with the law, they cannot beat you in court. Environmentalists
only win in court when they are right; there is no ``bias'' among
federal judges toward environmentalists. We have practiced before more
than 200 judges; none of them let us have what we wanted just because
we wanted it.
Remember: if an agency hides things, minimizes real world impacts
or evades full compliance with the laws and regulations, the public
will assume that it is up to something, and they will challenge the
proposal. Even if a proposal will have beneficial results (such as
restoring the natural forests in that area), if you cut corners, we
have to assume that you are up to something dastardly. Otherwise, why
would you be cutting corners? Honesty and openness in all things will
do you much more good than anything else.
NEPA is a tool for exploring environmental issues and public
concern about these issues at a point when true problems can be
resolved without impeding projects. When the NEPA process is followed
in the spirit of collaboration, only flawed projects will be
challenged. NEPA results in improved agency work.
I deeply appreciate this opportunity to address the Committee and
present this testimony before it. I remain committed to working with
the Committee's members and staff to find real solutions for making
NEPA a better and more effective law. Representative Joe Barton has
publicly invited environmental groups ``to come out of the trenches''
and meet you halfway. If that invitation is truly sincere, as we
believe it is, we are here to do that.
Thank you,
______
Miss McMorris. Thank you. Excellent testimony. Congressman
Gohmert and I are going to take turns now asking questions.
I'll let you start.
Mr. Gohmert. (Inaudible) I really appreciate your time.
(Inaudible). So let me go straight to our Texas Chairman of the
Railroad Commission.
You had mentioned in your testimony, Chairman, that there
was some storm water runoff issues that apparently you didn't
get to. Would you care to address that issue?
Mr. Carrillo. Yeah. There's some particular provisions to
the proposed EPA rulemaking under the NPDES storm water permits
that would potentially require a storm water permit for oil and
gas operators for activities affecting 1 acre or more of
activity, particularly with what's referred to as the common
plan of development concept in the Construction General Permit.
From my perspective, what would happen is--if that occurs
is that EPA's rule would really improperly seek to put oil and
gas exploration and development--categorize it as if it was
residential/commercial development. There are big differences
in residential and commercial development. Clearly, if you're
building a subdivision, you start out here and you know you're
going to have 500 homes, you can plan.
You can say that, yes, indeed, the total activity is going
to impact this certain amount of acreage.
In oil and gas development, for example--I'll give you an
example. You may spend 2 1/2 million dollars to drill a well
and you--you certainly have plans to develop that property
beyond that; but it could very well be that that is a dry hole
and you abandon those plans and the impact ultimately ended up
being just one pad site.
So there's some rules that are being considered that I
think could negatively impact development to the tune of--one
study said it could cost the country from 1.3 to 3.9 billion
barrels of domestic oil production and 15 to 45 trillion cubic
feet of domestic gas production over the next 20 years.
To put that in perspective, Councilman, taking the median
of those numbers--that represents over five total years of
Texas natural gas production and over seven years of Texas oil
production that would be lost.
And the issue, as I see it--and I recognize that we're
doing--NEPA is kind of used as an umbrella through which all of
these other laws are considered, whether it's the Clean Water
Act, Clean Air Act, Endangered Species Act, et cetera. And so
while it doesn't relate directly to NEPA, I think due to the--
due to the fact that you're dealing with these additional
environmental laws, it does come into play.
Mr. Gohmert. Let me follow up, too. You're familiar with
hydraulic fracturing, for example. I understood that the State
of Texas had a program that's worked for a hundred years that
has oversight over hydraulic fracturing. Can you explain some
of the steps in place that--the Texas regulations that protect
the environment and perhaps that could be exported into the
Federal level?
Mr. Carrillo. Hydraulic fracturing refers to fracturing the
subsurface strata, generally thousands of feet below the
surface, to release oil and gas that is--that is currently
trapped under there. The Barnett Shale Gas Play, the hottest
gas play in the State of Texas, and one of the biggest and most
important plays in the nation, is just under the City of Fort
Worth and surrounding counties.
If we--if industry was not allowed to fracture the rock and
the subsurface that--that play would not be a viable economic
play. That represents about 26 trillion cubic feet of natural
gas potential.
So at the very time that this nation needs more energy
resources--we're importing about 50 percent of our oil--we're
actually importing gasoline right now, and we're looking to
build liquified natural gas facilities. This is the very time
that we need to encourage more domestic production, not
unnecessarily discourage it.
Now, hydraulic fracturing does have a history--about a
hundred years here in the state--of production without any
known damage to groundwater resources, because, in fact, the
fracturing is limited to those strata thousands of feet
underground, not anywhere near the--the near surface, I guess,
groundwater resources.
And so I guess my encouragement is to give the states more
flexibility to deal with these issues internally as opposed to
having a Federal answer--one-size-fits-all answer to the very
different and varying problems of the individual states that I
believe deal with them and do on a regular basis.
Mr. Gohmert. Thank you, Chairman.
Miss McMorris. I wanted to direct a question to Mr.
Dructor. I was--found it interesting to hear about the
alternative arrangement that was made with the CEQ in response
to the wind that (inaudible). I understand that you mentioned
in your testimony it was only the 38th time that they had
granted such a request.
I wanted to ask if you--were alternative arrangements used
to expedite other restoration activities such as reforestation?
If not, what do you believe were the consequences?
Mr. Dructor. I think according to Mr. Davis' testimony and
what I saw in the photos he presented, there's evidence there
that the alternative NEPA arrangements (inaudible) harvesting
activities of that timber.
When it came down to reforestation projects and NEPA
processes were involved, full EISs had to be administered; and
because of that--those pictures were taken on July 13th of this
year. When I was out there looking last week, taking those
pictures, they were still doing sod prep (inaudible). They
hadn't been planted yet.
And so we're looking at trees that haven't been put in the
ground versus 15- to 20-year-old trees already re-establishing.
And as a result of that, you know, we're losing habitat for our
Red-cockaded Woodpecker every time one of these storms hits.
And the frequency of these storms is not just every once in a
while. It's quite often in the southern forests due to
hurricanes, tornadoes, windstorms, all that.
And so if we're really going to be concerned about
protecting these Red-cockaded Woodpeckers, we need to get
something done a little bit faster. And we propose, you know,
to do that, we need to look at some alternative ways to evoke
NEPA or to streamline NEPA to get these projects underway.
I think it's amazing that, you know, that out of the 2
billion board foot allowable to be cut right now, the Forest
Service are under litigation for 1.6 billion board feet. So is
NEPA working? I don't think so.
I brought this with me. I'm sorry I didn't have time to
show it a minute ago. This is the timber sale volume that is
under litigation across the national forests throughout the
United States. And certainly, you heard we don't have but about
3 percent of volume of Federal lands in Texas. In Region 8,
where we fall, we have 50 million board foot of timber that's
under litigation.
Miss McMorris. I'm in Region 6.
Mr. Dructor. Pardon?
Miss McMorris. I'm in Region 6.
Mr. Dructor. Region 6? Yes, Washington. There's 277 million
board foot under litigation. And this doesn't include the
timber in the Timber Sale Program that's under appeals prior to
being (inaudible). It's being determined how it's going to be
managed.
So is NEPA working? Are we using the best process? I think
NEPA has got good (inaudible) to it, but we need to take it
back to its original intent.
Miss McMorris. If we were to put something, you know,
administratively to establish an alternative arrangement, how
do you believe it would impact public participation? Because
that is one of the bases of the NEPA process, encouraging--we
want to be encouraging public participation. Can you talk to me
a little bit about how, you know, we could encourage more
people in this process with arrangements--how it might impact
public participation?
Mr. Dructor. Well, I think--I think, again, you have to get
it back down to more of the local level. You can't do
everything out of Washington, D.C. We've got the (inaudible)
office building right here at Stephen F. Austin State
University.
These guys (inaudible) for our forests, and they know
what's going on on the ground. We can't legislate and set
forest policy (inaudible) each individual impact down here on
our forests. We've got to get control back to the local levels
and invite public input on the processes, the local folks who
it's going to have the biggest impact on.
Miss McMorris. In your written testimony, you referred to
an assessment by Congressman Greg Walden of the timber sales
program; and you were commenting a little bit about it, you
know, I think, by showing this chart, the state of timber sales
program. What do you feel the effect has been on local
communities?
Mr. Dructor. Devastating. I certainly know of mills that
have closed here in East Texas because they were dependent on
Forest Service timber sales, (inaudible) in Huntsville, Texas,
and a few others around. Because they didn't own their own
acreage, they had to go out and buy--the Forest Service usually
had some set-aside sales where they could go out and get on
those (inaudible) support.
So I think it's (inaudible) important when you start
getting an even analysis of what are the economic impacts. I
don't think there's enough emphasis put on--in the NEPA
analysis of how it's going to affect the local economies.
Miss McMorris. Thank you.
Mr. Gohmert. I'd like to hear from Ms. Nichols.
Ms. Nichols, I appreciate your comments and appreciate the
information you also provided in writing. We don't know each
other personally, but I've heard a good deal about your
organization and you personally, and the----
From my understanding, you and your organization are a
great example of how people can approach things from two
different positions in concern for the environment that your
organization has and concern for individuals and families that
are adversely impacted. My understanding is that your group has
worked well with other groups, that you try to arouse common
sense.
You testified a moment ago that the vast majority of your
projects proceed without any problems. From what I understand,
that may be true because of the commonsense approach that
you've had in protecting the environment. But from testimony
we've seen around the country, with litigation just
skyrocketing over the last 35 years and continuing that rapid
growth and--for example, as board feet continue to decline in
inverse proportion to the amount of litigation--it seems that
it's--not everyone uses good judgment in trying to protect the
environment, as I understand you and your group have. So I
think you-all are to be applauded.
I do need to make--since all of this is being recorded and
will be part of our Congressional Record on this issue, with
regard to (inaudible) and Environmental Impact Statements,
Section 1502.7 requires that there not be--the final EIS shall
normally not be less than--I'm sorry--shall normally be less
than 150 pages; and proposals of unusual scope and complexity
shall normally be less than 300 pages.
But when you--you say that NEPA resolves conflicts. I mean,
we're seeing this heightened litigation that's created more
conflicts; and we saw in our hearing in Spokane where there
were, like, eight feet or more of just documents over a
(inaudible) less than a mile of road. It's been in litigation
for years.
I really appreciate your approach; so let me just ask: How
is it that you have been able--what have you done to work with
groups to come to conclusions so that you can say the majority
of the projects proceed without problems? What are you--how do
you----
Ms. Nichols. Well, I have to start--thank you. I have to
point out that there are always going to be people with extreme
positions on both sides; so there will always be conflicts of
this type, and it's not--NEPA doesn't give them any advantage.
People would be objecting to development projects, no matter
what.
Our approach is that, you know, logging trees is legal.
Mining is legal. All these projects are very important to our
economy, but we just want to see them done in the best way
possible.
And from our perspective, NEPA--when--with an emphasis on
when it is implemented correctly. If the stakeholders are
involved and there's collaboration and different perspectives
are respected, conflicts get resolved. It's really when people
are shut out of the process--we are talking--NEPA only affects
public resources; so when people are--when the public is shut
out of the process, they're more inclined to sue, even if it
turns out it's a good project.
If they're listened to, if informed, and their perspective
is at least considered--and we all know NEPA doesn't dictate
how Federal agencies do their work. They can still do with any
project what they want; but 99 times out of a hundred when
concerns are at least considered and decisions are explained,
then most reasonable people will try not to fuss.
Is that basically what you're saying?
Mr. Gohmert. Uh-huh. I appreciate that insight, yes, ma'am.
Ms. Nichols. Thank you.
Mr. Gohmert. And let me also mention that it seems that one
of the problems we hear is it's not necessarily just NEPA,
itself; but as with any law that Congress passes and--then you
get the agencies involved and people that are not elected
ending up giving their twists on regular--regulations, it ends
up creating more problems for individuals than was ever
intended by the laws.
And so as you continue to answer questions, if you know of
regulations that have created problems that we can address
rather than the law, itself, then that would be a good insight.
If I might just add this last: I like this as an example of
regulations being completely different from the law's intent.
Congress wanted, after 9/11, for airline pilots to have the
right to carry guns in the cockpit. If they're going to fly one
of the biggest weapons in America, a jet airliner, then surely,
they can be trusted to have a gun.
And I asked one of the pilots, ``Do you-all carry guns?''
And he said, ``Do you know what the regulations are in order to
carry a gun? We've got to go through this intensive
psychological review and testing and all these rigorous
requirements.'' Most people are not going to--and that becomes
part of your permanent file. Well, nobody wants all this
psychological testing in their file. Regulators knew that; so
they overcame the will of Congress just by the regulations they
put in place.
So any insight that you might have about Federal
regulations that we need to get after will be helpful.
Miss McMorris. And I might just mention that our goal is--
as a Task Force, we haven't yet figured out what our
recommendations will be, but it is--there could be
recommendations to the statute or to the way NEPA is
implemented; so we're open to any suggestions you might have.
I want to get back to Ms. Johnston. You said that the plan
was impacted by the high natural gas prices, and we wanted to
share with the audience--we have a chart that shows natural gas
prices around the world, and I think it is important to note
that we, in this country, are paying the highest of any country
around the world.
Ms. Johnston, can you just talk a bit more about your--you
know, you made some choices, using what was probably the most
environmentally friendly option that you had; and yet those
choices ultimately affected your decision to shut down the
mill; is that correct?
Ms. Johnston. Yes, that is correct. And as I stated in my
testimony earlier, the infrastructure--the energy
infrastructure of the mill was put in place at a time when
natural gas was plentiful and inexpensive, and so we saved
money. And certainly, we didn't see the kind of prices that we
experienced in 2002 and 2003. Prior to that time, we did have
fluctuations in gas prices, but nothing like the levels that we
saw at that particular time and have continued to sustain
themselves, which was a huge problem.
The other problem was we were making product that did not
have high profit margins; so we weren't able to build
additional costs into price of the product. And so with no end
in sight in gas prices, the only decision that the company
could make at that time was to close the facility, take a step
back, and look and see if there aren't some other energy
options that could be pursued to give us some relief on the
costs.
Miss McMorris. Just so everyone understands, NEPA does come
into play in natural gas contracts. The government considers
open-land explorations or giving lease permits, and I wanted
just to ask: What do you think it would take for you to be able
to plan and make appropriate cost adjustments? If supply were
increased, that might lead to more stable pricing. Would that
be something that would be helpful?
Ms. Johnston. Certainly. And you are exactly correct in
connection with closing the mill. The fact that--one of the
primary reasons that the facility closed was because of these
energy costs (inaudible) current configuration with prices in
natural gas.
And if exploration and drilling were expanded for natural
gas, that would increase the supply, and we believe that it
would impact the pricing of natural gas. We are a perfect
example of what happens to a facility when the prices remain
high and we can't overcome them by incorporating them into our
prices.
Miss McMorris. Good.
Mr. Carrillo, I want to follow up. You made some statements
related to the difference between state and the Federal
processes and talked about the state--you were able to work
through the state process in 25 to 35 percent of the time it
takes to meet Federal requirements.
I wanted just to have you talk a little bit more about some
of the differences; and from that experience, if you have some
recommendations as to how we might be able to improve the
process, that would be----
Mr. Carrillo. Certainly. Thank you. Actually, I would like
to follow up on her response briefly. I think one of the things
that I mentioned but didn't elaborate on is that for the good
of the Nation and on a long-term basis, developing a liquefied
natural gas facility to bring natural gas to some of these
places far away from where the natural gas is said to be
stranded, is less expensive than bringing it (inaudible) is an
answer--may be the answer for stabilizing natural gas prices
over the long term.
I do think that the American public needs to brace
themselves, frankly, for relatively high energy prices for, you
know, the mid--short term to mid term; but, ultimately, some of
these prices can be stabilized by what you said, increasing
domestic production and, frankly, building an LNG facility,
which we are doing, as I mentioned--Texas, Louisiana, and the
Gulf Coast areas are doing. Even those areas in the northeast
and west aren't willing to have these facilities along their
shores; so that's one (inaudible).
With regard to your question--and I was specifically
mentioning--referring to permits to drill oil and natural gas.
And I mentioned that we, here in Texas, have almost 50 percent
of the total activity across the Nation in terms of onshore
drilling.
Typically--for example, at our state agency, we're on pace
to approve some 15,000 drilling permits this year.
That's a huge number of drilling permits. We have a system
in place where, under normal circumstances, that takes from
about one to five days. We have an expedited process, frankly.
Operators can pay an additional fee; and they can walk it
through, basically. And we can have a typical turnaround time
of one day.
We also have, over the years, increased our electronic
filing ability so people can, from their office through the
computer, via the Internet, submit their forms. We can process
them more efficiently and do a turnaround time that's much
quicker, and that is one thing--I'm not that familiar with the
Federal process and whether electronic processing is available,
but it should be. It should be encouraged. It certainly
enhances the speed with which one can get that accomplished.
I don't know if that answers your question.
Miss McMorris. Thank you.
Mr. Gohmert. Following up on the permit issue and the
ability of the Railroad Commission to process permits promptly,
apparently, you have the data in place that allows you to
examine what will be impacted by a particular permit; is that
correct, so it can be reviewed.
Mr. Carrillo. Certainly. And we have cooperative working
relations with other state agencies. For example, we can get
information from the CEQ and Water Board that tells us to what
depth is drinking quality water found so that we, in our
requirements--our regulations require adequate protection of
that water be--occur with the operator.
So there's a lot of cooperation with different agencies
that--I know it's more difficult at the Federal level, but it
needs to be encouraged.
I don't know if that answers----
Mr. Gohmert. Yes, it does. And so--so in consideration of a
permit and whether or not you approve it, you take into
consideration the drinking water, the groundwater, those
different aspects that are so vital to the rest of us. Is that
accurate?
Mr. Carrillo. That is accurate. And frankly, I mean,
there's been oil and gas drilling activity here for over a
hundred years. Over a million wells have been drilled in Texas;
so a lot of it comes with the fact that we have just, over the
years, had to develop some processes to work these efficiently
through the system.
Texas is also rather fortunate that we--there's very little
federally owned land as opposed to some of the other western
states, in particular; so it really doesn't--some of these
Federal laws and regulations don't necessarily impact the state
or the industry to the degree that they do in certain other
states, particularly in the west.
Mr. Gohmert. Following up on permits, Ms. Johnston, is it
your experience with Abitibi that you-all could pretty well get
permits reviewed and a definitive answer in one to five days?
Ms. Johnston. That's a loaded question.
Mr. Gohmert. That's an opening to discuss any permit
problems that you face.
Ms. Johnston. Well, (inaudible). Congressman, as you're
aware, we have had a problem. We've had a (inaudible) permit
that has been hanging out there for probably five to seven
years. The permitting process--now, this is state, not Federal;
but it does begin to be quite burdensome. And as many of my
colleagues have said, it leads to additional costs and drain on
the company.
Mr. Gohmert. Well, Mr. Dean, you brought up, obviously,
water; and obviously, you've been an active advocate on water
issues. And then we've heard from Ms. Nichols that one of the
keys is getting adequate input from the public--getting
adequate information and availability from and through the
public and to the public.
What's your sense about the effect that--public comments
you've made and others have made on the water laws that you've
been discussing?
Mr. Dean. Well, one thing--it seems like the public
comments are invited, but then the reaction to those comments
is--has been--it seems to be falling on deaf ears.
And the point about trying to get--I've talked to the Corps
of Engineers, for example, on mitigation issues. When the Texas
Water Plan effort started in Northeast Texas, we were looking
at building a large reservoir in Northeast Texas (inaudible)
Marvin Nichols Reservoir, for example, 65,000 acres.
And in some of the conversations that we had with the
consultants who were sitting around the table and
representatives from the other agencies, I asked the question--
I just threw the question out on the table. I said, ``What is
the thinking on mitigation for this reservoir?''
And one of the representatives from one of the state
agencies said, ``Oh, well, we like to think in terms of 10
acres of mitigation for every one acre that you put in the
lake.'' So they're planning in terms of 650,000--600,000 acres
of mitigation for a 65,000-acre lake.
And one of the Water Board members who is here today, Mr.
LeTourneau, just reported to me--I asked him, how things were
going on the Water Board. He said, ``Well, maybe you didn't
know; but the Marvin Nichols Reservoir has been taken off of
the agenda as far as our Water Board in concerned.''
So Northeast Texas has 55 percent of the developable water
in the State of Texas; and yet we have to go through such
regulatory land mines, so to speak, that we can't get anything
done.
It takes 30 years to get a lake permit, and yet it--and it
costs millions and millions of dollars; and so apparently, the
Water Board for Northeast Texas has decided it wasn't worth it
for the Marvin Nichols to go through all that.
So--so we have obvious needs that need to be fulfilled. We
have reasonable ways to follow and fulfill those needs. We
have--we have both sides of the public who are trying to work
together, from the environmentalists--you know, all the way
from the left to the right.
And yet we have government agencies who have their own
agenda or their own turf that they want to protect, and so it
makes it impossible for--for the public--for us as general--as
average citizens to get anything done. So we're just going to
sit here and wait until we run out of water, I guess.
Miss McMorris. Mr. Shelton, first of all, thanks for your
testimony--your written testimony. It was very thorough, and I
appreciate the time that it must have taken you to put that
together and the examples that you shared about where NEPA has
been a success and has worked well.
One thing that struck me about your testimony was going
back to the '50s and the '60s and the conditions that were
present when NEPA was passed, and I wanted to ask if you feel
the same conditions today exist.
Mr. Shelton. Well, I guess the answer would be yes and no.
We've solved some of those problems, but what's happening out
there with--with our resources can be looked at as a slice of
pie--or pie, so to speak; and we're just continuing to divide
that pie up into smaller and smaller pieces.
And what's interesting to note in the conversations we've
had today is in some cases, with some resources, you can
compromise. You can have your cake and eat it, too; but in
other resource management decisions, they constitute an
irretrievable commitment.
And I believe the conversation about building Marvin
Nichols--I mean, how can you compromise on building a lake?
Because on the one hand, you have a functional stretch of river
bottom which provides jobs and wildlife habitat and functional
farms and productive timberlands; but once you build a lake,
those are gone. So you're faced with an either/or.
I think that the challenge we face in managing our
resources and our environment today is trying to find positions
where we truly can compromise and have our cake and eat it,
too, rather than being faced with an irretrievable commitment
that we cannot take back.
So, you know, as our lands are divided and developed--you
know, things have changed a lot since the '50s and '60s. And
even though, in terms of impact on the environment, each
particular industry may have reduced significant acts or
conditions on the environment, we have more and more industries
who are, in fact, contributing to this. So the cumulative
effects over time are adding up.
And as people increase, as demand on resources increase,
you know, we're--we're eventually going to hit--hit a dead end
somewhere along the way. So we really need to be very careful
with what we do.
Miss McMorris. You--you made it perfectly clear that you--
there should be no changes to the substance of the regulations,
that any attempt to repeal the rights under NEPA confronts the
democratic institution.
I just want to make it clear that I think that more public
involvement is very important in the NEPA process. I think
there are--I do personally believe there's ways that we can
improve this law and build upon what has been started, and it
goes beyond just filling out reports or--and handing them off
to the public and asking for public--you know, that we have
disclosure or more information or more reporting. I'm not sure
that that accomplishes our ultimate goal of protecting the
environment.
I really believe that if we can, early on, start the
collaboration and work together that we're going to ultimately
make better decisions for the environment.
I wanted to ask you about the--the alternative approach
that was used with the blowdown and to ask if you feel that
there's an opportunity in some circumstances where we can
utilize that type of approach when it's important that the
decision be made quickly, because I understand that--that it
was appealed, too, and that an EIS--you know, there's still
resistance.
Mr. Shelton. Yes. I was involved in that particular action;
and, you know, ultimately, the timber was salvaged, as we saw.
But pretty much what happened is due to this act of nature. We
had a volume of timber that was impacted or damaged that was
equal to, I believe, approximately two or three years' worth of
timber harvest.
It would have been--it would have been the allowable sale
quantity of the amount of timber that they would have normally
harvested during that period. We would have had this--
literally, a huge windfall out there; and rather than having
these impacts and this timber harvest distributed out over a
period of years and, actually, over the whole land base of the
national forests, it was all concentrated in one particular
area.
So I think the concern there was that we were actually
accelerating the harvest rate for that particular area of the
Sabine National Forest. Of course, there was nothing that could
be done about that. The timber was down.
But the concerns were the impacts that go along with that,
and I think that a really important point that needs to be made
here today is that with respect to the national forests, you
have all kinds of mandates which (inaudible) multiple uses and
multiple resources out there.
Mostly what has been focused on today is timber and forest
products coming from the national forests and the great thing
about a democratic country is that we can all have our input
and we can pass laws which reflect our personal values and what
we feel like our personal needs are.
And we need to stress here that the national forests are
trying to provide for the diverse values and needs of the whole
population. There's no mandate out here that says we have to
turn national forests into tree farms, because the same tree
that will provide 2-by-4s also provides wildlife habitat and
habitat structures, provides (inaudible) resource that protects
the soil and water, and these are all very important values to
the diverse American public out there.
And so our group, especially, thinks that with respect to
the national forests we should manage it with types of
resources which are not well-represented in the private sector.
As I mentioned, 94, 95 percent of East Texas is--manages the
timber it's harvesting. So we--we feel like we should give
special consideration to those other resources out there that
are not being well-represented on private land, and we should
focus those things on the national forests and should be
especially conscientious of resources there.
Miss McMorris. The private landowner also has to comply
with the Endangered Species Act and the Clean Water Act and
other laws.
Mr. Shelton. The Endangered Species Act, yes. The best
management practice is a voluntary thing which is supposed to
help them comply with the requirements of the Clean Water Act,
though. There's--there's a whole host of mandates out there
that (inaudible).
Miss McMorris. OK. I might have to come back to you for all
my questions.
Mr. Shelton. Sure.
Miss McMorris. Did you want to----
Ms. Nichols. I wanted to add--I just wanted to add one
quick comment about responding to unusual emergency situations
in projects that relate to NEPA.
There is a whole (inaudible) in the regulations of
(inaudible) that a category be excluded from the whole NEPA
process. It's a much briefer process, and emergencies such as
storm damage and field outbreaks are generally often covered by
those exclusions.
I just wanted to point out that NEPA already is flexible.
I'm not familiar with the specifics of that issue, but I wanted
to point that out. Thank you.
Mr. Gohmert. And I do appreciate those comments. We have
heard--and you've got it in your testimony previously. You said
generally they're excluded. Well, they can be; but you have to
go through the process of getting an exception. And as was
pointed out by Mr. Dructor, the alternate arrangements have
only been allowed 38 times in 28--in 20 years.
And we've heard testimony in cases in which pine beetles
have devastated an entire forest without anything being--ever
being done because an exception was not granted.
Forests have been destroyed by natural elements like the--a
winter storm and then not getting a permit in time to go in and
salvage the timber before it's completely lost and worthless.
So it's one of those things--in fact, in his written
testimony, Mr. Shelton had a quote--had a quote from an
article. The article was entitled ``Some Modest Suggestions for
Improving the Implementation of the National Environmental
Policy Act. And you note the article--that NEPA wants to
protect NEPA, and that's the gist--I mean, that is his title,
``Some Modest Suggestions for Improving Implementation''; and
he has a quote in his article that says (quote read).
And that's what we're trying to do, even though I don't
know what ossified means. So anyway--I know what mechanical
means, and the mechanical approach it seems has gotten us into
some problems.
And it was mentioned a moment ago, Mr. Shelton, about the
forests; but there also is no mandate that the forests become
wilderness. And as we've seen here in Texas--and you can go to
the Sahara Desert--there are areas where there have been
wonderful, wonderful environments that nature, itself, has
destroyed.
And I think--this an editorial comment of my own. I think
we were given the job to tend the garden here; and if we don't
try to protect it, it goes to a terrible situation. Species go
extinct on their own without man ever having a role in that,
before man was around. So our goal is to try to be a good
steward. And I appreciate everyone's testimony.
I would like a little input--Mr. Smith, we didn't ask you a
bunch of questions. And going back to permits, if you could
give us a little snapshot of your--the problems or lack of
problems for getting permits in order to proceed in mining
areas.
Mr. Smith. That's a great question. We have a very good
relationship with Chairman Carrillo's agency. We meet with
members of the (inaudible) Committee on a regular basis--on a
quarterly basis, and we address permit issues.
There's a great exchange of information there where the
staff of the Railroad Commission--if there's any explanation--
discussion of the permitting requirements, that's thrown out on
the table. If we have any questions or concerns, we throw that
information out on the table. We work with them.
We--Chairman Carrillo, himself, directed us about a year or
so ago to take a special look at our permitting system in the
State of Texas, which we did. Are there some ways that we can
streamline that permitting process to make it go quicker in the
state? So we have done that. We're continuing to do that.
You always have parts of the permit--the Railroad
Commission permit to go into an area and mine for lignite is a
very unique permit in terms of complexity, length, and all
that. There's a lot of pieces to that permitting system, and I
would say that the best thing you can have is a good agency
relationship and a good focus on making the best permitting
system you can possibly make. That's what we've got in place
now.
There will always be parts of that permitting process that
we wish would work a little quicker, whatever; but we're
working on those things and hope that the end result will
continue to be as efficient as we can possibly make it.
Miss McMorris. Very good.
Well, I thought I would go back to Mr. Shelton real quick.
My friend here mentioned the Council on Environmental Quality,
and they did a--you know, they did a review of NEPA and came up
with some more--came up with internal recommendations of how to
better implement NEPA.
You, in your testimony, quoted the--what you thought was a
good summary. And it is mentioned under a title that is about
modest improvements for NEPA, and I just wanted to give you the
opportunity, if you had any--if you could change anything about
NEPA, what would it be?
Mr. Shelton. Well, it's interesting that NEPA--and
(inaudible) talked about this--is a relatively short piece of
legislation as it goes. It's only several pages long.
And as I mentioned, it's really an umbrella--several of the
witnesses have mentioned it--it's an umbrella. It essentially
establishes a direction for this country so that we would have
a consistent and comprehensive, you know, environmental policy.
So I think that's essentially sound, and its provisions
that would avoid any unnecessary impact are good.
(Inaudible) impacts if we can avoid them. It also helps
protect the public health and safety and gives alternative
actions to choose from and public participation. These are all
very sound aspects of the foundation of NEPA. As far as those
myriad other mandates and laws which are tucked under this
umbrella, I certainly can't say that I'm familiar with every
last one.
I think that the rest of my testimony is that we are
opposed to weakening environmental protection. I don't think
any specific (inaudible) has been put forth by this Task Force.
I think your job here is to take testimony and listen. So until
we really have anything specific to respond to, you know, it's
hard to do. But I think that my point here is that the
principles and the practices of NEPA are sound and, you know,
its purpose is to protect our environment and our public health
and I think that's what it should do.
Miss McMorris. Good. Thank you.
Mr. England, would you speak to the ripple effect of
current NEPA reviews on cost of construction, if you would?
Mr. England. Certainly.
Miss McMorris. Make sure you pull the mike in.
Mr. England. If the permitting process--we--projects are on
a particular schedule. In order to close real estate, for
instance, you get the permits. If it's not in a timely
fashion--in order for you--the owners are not obligated to
follow through with a real estate deal, and we lose that
opportunity to develop those resources.
If the permit costs or permit process results in delays,
you end up with additional consulting costs. You end up with
additional financial costs. You have laborers and equipment
you're not working. That ripples through the entire process.
If we can't provide construction aggregates to market, the
same kinds of effects occur. It's becoming more and more
difficult for construction companies, themselves, to--with big
projects to (inaudible) both financial, labor, and other costs.
Miss McMorris. Would you--would you just describe a little
bit what happens when NEPA has to be reopened?
Mr. England. My view of what happens when NEPA has to be
reopened is that you end up with the additional delays that
we're talking about. If we--if--the NEPA process, as I
understand it, is a process that you can check and ensure that
the myriad of regulations are being addressed; but once an
agency has checked off that issue, they should feel comfortable
in being able to move on to their (inaudible) document with the
assurance that it's not going to go into litigation.
If it's reopened for some minor item, oftentimes not
necessarily directly related to the specific site condition,
it--it results in substantial delays and loss of (inaudible.)
Miss McMorris. Very good. Thank you.
Mr. Gohmert. I couldn't help but be struck by--as we were
talking about some of these, thinking about an issue that's
gotten a lot of attention in the (inaudible) Resources
Committee; and that's the energy bill. One of the most
controversial issues is MTBEs, and when MTBEs--you'll have to
check the history of when they were first brought up as a way
to make gasoline burn more cleanly and efficiently, which it
does. MTBEs make gas burn more efficiently and saves air.
Congress demanded and passed laws requiring MTBEs to be put
into gasoline.
The gas companies--oil and gas companies were screaming,
``Please don't make us do that. It's going to be more costly.
It's going to cost us in the long run. We're not sure about the
long-term effects. There's things we don't know about MTBEs.
Please don't make us do that.''
Congress didn't hear. They said, ``Put it in. It's going to
make gasoline burn more cleanly. We need that to (inaudible).
It was required. They put it in anyway. They didn't care what
the companies thought.
And now one of the biggest issues before Congress and one
of the hang-ups in the energy bill is that some of the same
people that said, ``These oil and gas companies are corrupt.
Make them put the MTBEs in there.'' You know, ``They should be
required to put MTBEs''--they're now saying, ``Can you believe
these corrupt oil and gas companies? They're asking that they
not have to pay every dime to clean up the environment that's
been devastated by MTBEs being put in gasoline.''
They didn't want to put it in there, and Congress required
them to put it in. Now these same people that found out it can
pollute drinking water are saying, ``Make those sorry companies
clean up the water they polluted. They should have known those
MTBEs"--well, I'll stop it there.
Anyway, it's nice if we can come and figure out and--get
all of the input on issues before they're forced through
legislation, and so I would just encourage each of you--I
appreciate your testimony and any insights you have on any part
of the process that can be made better, can be streamlined, can
be made more effective.
Obviously, as Ms. Nichols said, we can do a better job when
we get more input from people; so I don't--well, I'll tell you
what, why don't we follow up with our--and we are good friends.
Chairman Carrillo, I appreciate you coming, but with--you had
mentioned the IOGCC study that had been done, a survey.
Let me ask you to--you know, that apparently indicated that
there were personal agendas by some team members who work on
permits and issue the permits that contribute to permit delays.
It also was found that NEPA activity involved in oil and gas
permitting was more process oriented and did not readily
accommodate useful, proven remediation techniques. Do you know
of any specific incidents of remediation techniques that were
not adequately accommodated?
Mr. Carrillo. I have to apologize. I do not--I don't think
I have an adequate answer for that particular question. The
gist of the--of the 2005 IOGCC survey was that there are
inherent issues that operators/producers routinely run into;
but as to that very specific question, I do not have any
(inaudible) of some of those proven remediation techniques that
were not allowed to be used. So I apologize.
Mr. Gohmert. OK. Well, I don't have any further questions.
I do thank all of you. I know it's taken your Saturday morning.
We got elected to do this kind of thing; so we brought it on
ourselves. You-all didn't get elected to do this; so thank you
very much for taking time to help us.
Mr. England, do you----
Mr. England. Yes. I apologize. I would like to follow up
with the two additional points with regards to the (inaudible)
Act. Specifically, when geology dictates where we can get
construction aggregates and we are forced to seek other sites,
two specific ripple--additional ripple effects occur. One is
that the sites aren't (inaudible). You can't get quality
aggregates everywhere; so if you cannot get a permit to a
particular place, you lose that opportunity and/or--or you're
forced to seek a permit farther away.
The result being further delay for us on the (inaudible)
process with regard to that. Thank you.
Miss McMorris. Well, Mr. Davis, we don't want you to get
away without a question. Do you want to do--just speak to your
experience as it relates to how--you know, in the event of a
windstorm or fire or insects or disease, how you, as a private
tree farmer, can respond compared to the Forest Service?
Mr. Davis. Thank goodness we weren't--we weren't under the
regulation of NEPA. (Inaudible). We didn't have to follow--
follow the regulation. We were free to go and do what needed to
be done immediately. We were able to--and actually, I think
that I would like to see that, when those types of disasters
happen, that the Forest Service has the opportunity to act and
act immediately, not only to salvage, which was a success, but
the reestablishment (inaudible).
They've got--they've got some longleaf pines that's still
in the grass stage that are trying to fight its way through
underbrush to get sunlight. So hopefully--hopefully, some
relief can be given there to the Park Service.
What I would like to do is--I missed this. I want to get a
Farm Bureau statement in. Our Farm Bureau policy supports the
effort to streamline and expedite the National Environmental
Policy Act requirements to allow for the sound harvesting of
mature, burned, dying, downed, or dead timber. We believe the
long-term health and viability of our natural resources can
best be achieved through these principles.
Without these changes, our national resources will continue
to be wasted, opportunities for a healthy forest regrowth will
be lost, and the best interests of local communities and
families will be sacrificed through misguided policies.
Miss McMorris. Amen. Thank you. I think we'll wrap it up. I
want to thank everyone in the audience for being here today.
What makes America great is the fact that citizens are involved
directly in our government. Thank you for taking the time on a
Saturday morning to be here. If you have brought written
comments and want to leave them, there is a table in the back
of the conference hall. We would welcome any comments you have
for us.
I want to thank the panelists for being here. Each of you
did excellent. We may have other questions for you, and we will
submit those to you in writing and ask that you respond in
writing when you receive such questions.
This hearing is a continuation of the process of listening
to a range of people as to how they've been impacted by NEPA.
And we heard from all of you today, impacts from three states.
We shared a host of perspectives and recommendations. I think
that the views provided today, as well as those provided to the
Task Force via e-mail and fax have laid a foundation for
developing recommendations on improving NEPA.
I would like to thank Congressman Gohmert for welcoming me
to East Texas, for hosting the Task Force meeting here today.
It's great to be here.
Is there anything you want to add in closing?
Mr. Gohmert. Thank you. And we do appreciate you coming to
East Texas. We do feel like it really is as close to the Garden
of Eden as you can get, but--I hope by the time you leave,
you'll understand that Washington is not my home, and it will
never be my home.
Again, thanks to the panel. Thank you all. And I did want
to mention one other thing, though. I read an editorial in the
Tyler paper today that indicates that because of some of the
Federal laws more and more companies like Temple Inland--and
I've discussed this with some of their officials, but we have
laws that are almost pushing them into selling off some of
their timberland to private owners who are seeing the short-
term benefit of cutting trees and not remediating and not
planting more trees to replace the ones they've cut down.
So it's an ongoing process of trying to make the laws help
the country more and (inaudible) laws that encourage people to
have long-term visions for continuing to provide trees, and we
shouldn't be discouraging that, so...
There is--anything I've ever written in my life, I've
always found ways to edit it. Even after it has won awards or
things like that, I go back and go, ``Oh, that can be said
better.'' That's what we're trying to do with NEPA, and we
appreciate the audience participation.
I will tell you this, too: We'll try not to let you get
away before we serve you some real barbecue. It's not like what
you get around Washington, D.C.
Miss McMorris. With that, we're adjourned. Thank you.
[Whereupon, the Task Force was adjourned.]
[NOTE: Information submitted for the record has been
retained in the Committee's official files.]