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105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                     105-75
_______________________________________________________________________


 
           FLOOD PREVENTION AND FAMILY PROTECTION ACT OF 1997

                                _______
                                

 April 24, 1997.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

_______________________________________________________________________


  Mr. Young of Alaska, from the Committee on Resources, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 478]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 478) to amend the Endangered Species Act of 1973 to 
improve the ability of individuals and local, State, and 
Federal agencies to comply with that Act in building, 
operating, maintaining, or repairing flood control projects, 
facilities, or structures, having considered the same, report 
favorably thereon with amendments and recommend that the bill 
as amended do pass.
  The amendments are as follows:
  Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Flood Prevention and Family Protection 
Act of 1997''.

SEC. 2. PURPOSE.

  The purpose of this Act is to reduce the regulatory burden on 
individuals and local, State, and Federal agencies in complying with 
the Endangered Species Act of 1973 in reconstructing, operating, 
maintaining, or repairing flood control projects, facilities, or 
structures to address imminent threats to public health or safety or 
catastrophic natural events or to comply with Federal, State, or local 
public health or safety requirements.

SEC. 3. AMENDMENTS TO ENDANGERED SPECIES ACT OF 1973.

  (a) Actions Exempt From Consultation and Conferencing.--Section 7(a) 
of the Endangered Species Act of 1973 (16 U.S.C. 1536(a)) is amended by 
adding at the end the following new paragraph:
  ``(5) Consultation and conferencing under paragraphs (2) and (4) is 
not required for any agency action that--
          ``(A) consists of reconstructing, operating, maintaining, or 
        repairing a Federal or non-Federal flood control project, 
        facility, or structure--
                  ``(i) to address a critical, imminent threat to 
                public health or safety;
                  ``(ii) to address a catastrophic natural event; or
                  ``(iii) to comply with Federal, State, or local 
                public health or safety requirements; or
          ``(B) consists of maintenance, rehabilitation, repair, or 
        replacement of a Federal or non-Federal flood control project, 
        facility, or structure, including operation of a project or a 
        facility in accordance with a previously issued Federal 
        license, permit, or other authorization.''.
  (b) Permitting Takings.--Section 9(a) of such Act (16 U.S.C. 1538(a)) 
is amended by adding at the end the following new paragraph:
  ``(3) For purposes of this subsection, an activity of a Federal or 
non-Federal person is not a taking of a species if the activity--
          ``(A) consists of reconstructing, operating, maintaining, or 
        repairing a Federal or non-Federal flood control project, 
        facility, or structure--
                  ``(i) to address a critical, imminent threat to 
                public health or safety;
                  ``(ii) to address a catastrophic natural event; or
                  ``(iii) to comply with Federal, State, or local 
                public health or safety requirements; or
          ``(B) consists of maintenance, rehabilitation, repair, or 
        replacement of a Federal or non-Federal flood control project, 
        facility, or structure, including operation of a project or a 
        facility in accordance with a previously issued Federal 
        license, permit, or other authorization.''.

  Amend the title so as to read:

    A bill to amend the Endangered Species Act of 1973 to 
reduce the regulatory burden on individuals and local, State, 
and Federal agencies in complying with that Act in 
reconstructing, operating, maintaining, or repairing flood 
control projects, facilities, or structures.

                          Purpose of the Bill

    The purpose of H.R. 478, ``The Flood Prevention and Family 
Protection Act of 1997'', is to reduce the regulatory burden on 
individuals and local, State, and Federal agencies in complying 
with the Endangered Species Act in reconstructing, operating, 
maintaining, or repairing flood control projects, facilities, 
or structures.

                  Background and Need for Legislation

    The Endangered Species Act of 1973 (P.L. 93-295) as amended 
(ESA, 16 U.S.C. 1531-1543), is one of our Nation's most 
powerful, yet most controversial environmental laws. This law, 
first passed primarily in response to a concern that some 
species, like the bald eagle, were possibly in danger of 
extinction, now imposes rigid and comprehensive regulations on 
Federal agencies and private citizens alike to protect species 
in the United States and to some extent foreign countries as 
well.
    Under the ESA, the Secretaries of the Interior and 
Commerce, with operational authority delegated to the U.S. Fish 
and Wildlife Service and the National Marine Fisheries Service, 
respectively, are responsible for implementing the provisions 
of the law. The Fish and Wildlife Service implements the ESA 
with respect to wildlife and most freshwater species of fish 
and the National Marine Fisheries Service implements the ESA 
with respect to most species of salt water fish and marine 
animals.

                      Federal Agency Consultations

    Section 7 of the ESA requires all Federal agencies to 
further its purposes through consultations with the Secretaries 
of Interior or Commerce, depending on the species affected, as 
a result of the Federal agency's actions. Every Federal agency 
must insure that any action authorized, funded, or carried out 
is not likely to jeopardize the continued existence of a 
threatened or endangered species or result in destruction of or 
adverse modification of designated critical habitat. 
Consultation is the process in which the Federal agency engages 
after a determination is made by that Federal agency that their 
planned action ``may affect'' a listed species or its critical 
habitat. After its initiation, consultation is concluded by the 
issuance of a biological opinion which must include the 
Secretary's judgment as to whether the planned action will 
jeopardize the species. If a ``jeopardy'' opinion is reached, 
then the Secretary must suggest reasonable and prudent 
alternatives to the action.
    The biological opinion is also the document which provides 
the ``incidental take statement''. Incidental take refers to a 
``taking'' of a species (or its habitat) and results from an 
otherwise lawful activity. The ``take'' of a species includes 
not only the actual harm or harassment to a member of the 
species but harm to its habitat as well. Further, the 
``taking'' of a species or its habitat cannot be the purpose of 
the activity, but must be merely incidental to it. If, in the 
opinion of the Secretary, ``take'' will occur, the Secretary 
prescribes ``reasonable and prudent measures'' (mitigation) and 
sets forth the terms and conditions that the Federal agency 
must meet or comply with to proceed with the project.
    The biological opinion is not advisory in nature, but is a 
mandate to the other Federal agency. The Federal action agency 
is technically free to disregard the biological opinion and 
proceed with its proposed action, but it does so at its own 
peril (and that of its employees), for ``any person'' who 
knowingly ``takes'' an endangered or threatened species is 
subject to substantial civil and criminal penalties, including 
imprisonment.'' Bennett v. Spear, Supreme Court No. 95-813, 
decided on March 19, 1997.

                  exemptions from federal consultation

    ESA Subsection 7(p) provides that in any area declared by 
the President of the United States as a major disaster area 
under the Disaster Relief Act of 1974, the President is 
authorized to act in the place of the exemption Committee and 
grant the exemption that the Committee could otherwise grant. 
Section 7 allows for exemptions to be granted by a Cabinet 
level exemption Committee; however, because the process is so 
cumbersome, it has had little utility in the 24 year history of 
the ESA. This exemption is limited to the ``repair or 
replacement of a public facility substantially as it existed 
prior to the disaster under Sections 405 and 406 of the 
Disaster Relief Act of 1974 and which the President determines 
(1) is necessary to prevent the recurrence of such a natural 
disaster and to reduce the potential loss of human life, and 
(2) to involve an emergency situation which does not allow the 
ordinary procedures of Section 7 to be followed.'' Under this 
authority, the President can act to exempt public safety 
projects from ESA after a major disaster to allow public 
projects to be rebuilt, but can't act beforehand to allow 
repairs and preventive maintenance of projects to prevent a 
disaster without full compliance with ESA.

                           prohibited takings

    Section 9 of the ESA sets forth those actions which are 
prohibited or unlawful. The central and most frequently 
violated prohibition is the act of ``take'' or the ``taking'' 
of a species. ``Take'' is defined to mean to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect a 
species or attempt to engage in any of these activities. 
Regulations issued by the Secretary also define ``take'' to 
include significant adverse modification or destruction of a 
species' habitat. Section 9 take prohibitions only directly 
apply to fish and wildlife which are listed as endangered. The 
ESA authorizes the Secretary to extend by regulation the 
``take'' prohibition to ``threatened'' wildlife. The Secretary 
is also given great flexibility to make less restrictive 
regulations governing protections for threatened species. The 
Secretary has generally extended the take prohibition to 
threatened species, so that the distinction between protections 
for endangered species and threatened species has been blurred. 
There are some significant differences in the prohibitions for 
endangered plants. There is no prohibition on the ``take'' of a 
listed plant on one's own private property. However, regulatory 
authority to protect plants may be gained by the government if 
a private landowner needs a government permit to conduct 
certain activities, as when a Clean Water Act 404 permit is 
needed or an ESA Section 10 permit is needed because of the 
presence of endangered wildlife. Again, the Secretary may 
extend to threatened plants by regulation the prohibitions 
applicable to endangered plants.

    an exception to the take prohibition--the incidental take permit

    Under ESA Section 10, the Secretary can issue a permit to 
allow the incidental taking of species in order to allow an 
action or project to proceed. Generally, there are two 
exceptions--hardship exemptions (which are very rare) and 
permits. The permits issued under Section 10 are usually 
associated with nonfederal landowners and are issued only after 
an applicant submits an approved conservation plan (known as a 
habitat conservation plan). Past examples of conservation plans 
show that developing a plan that eventually is approved is no 
easy undertaking. The creation and development of these 
conservation plans is very costly and may take years to 
complete. There are a number of criteria the applicant must 
meet to get the Secretary's approval. For example, the 
applicant must state what the probable impact to the species 
will be, what mitigation measures the applicant is taking to 
minimize the impacts to the species, and what alternatives to 
the action the applicant has developed and considered. Finally, 
the applicant must follow other terms and conditions the 
Secretary may require. Even though all of the criteria may be 
met, the approval of a conservation plan still remains at the 
total discretion of the Secretary.
    An added complication overlaying some ESA decisions is the 
permit required by Section 404 of the Clean Water Act. Section 
404 generally regulates the discharge of dredged or fill 
material into navigable waters of the United States, including 
wetlands. Current interpretation of ``navigable'' waters can 
mean any just about any wet land or in many cases dry land near 
water bodies. If permits under Section 404 are required to 
proceed with an activity, then this constitutes a Federal 
agency action, and triggers the Section 7 consultation 
requirements of the ESA.

                               Mitigation

    Mitigation for impacts caused by activities on various 
environments is now regularly required to obtain a permit from 
a Federal agency. Mitigation can be accomplished in many ways, 
but frequently takes the form of setting aside land or 
restricting activities. Mitigation measures can also be in the 
form of replanting trees or other vegetation that provides 
habitat for the species impacted. Land involved in mitigation 
is often transferred to either a public or private entity for 
long-term maintenance. The entity may be a State or local 
agency or a private conservation group. The costs of mitigation 
vary but, depending on the type of mitigation required, may be 
substantial. If the permit applicant is required to acquire 
land to conduct mitigation, costs will depend on the value of 
the land and the costs of the required planting or habitat 
restoration. Mitigation is routinely required for building, 
repairing, reconstructing, and maintaining flood control 
facilities, such as levees. It is often the most controversial 
and difficult part of the process and can lead to substantially 
increased costs for the project.
    Applicants for permits are required to conduct various 
types of mitigation to obtain permits under Section 404 of the 
Clean Water Act (for wetlands mitigation) or their ESA Section 
10 or Section 7 permits. Mitigation must be approved and a 
funding source assured before the project can proceed.

   Problems Associated with ESA Compliance by Flood Control Officials

    According to the Corps of Engineers, the primary purpose of 
levees is to provide flood control to protect the lands located 
behind such levees from being inundated. Most levees are owned, 
maintained, and operated by a local or State government. In 
addition to levees, the maintenance of river channels plays an 
important role in flood control. Channels must be maintained to 
a certain depth to provide an expected level of carrying 
capacity for flood waters. Levees and channels require 
continued maintenance to retain their capacity and structural 
integrity. According to the Corps of Engineers' maintenance 
manual, levees are to be routinely mowed and vegetation removed 
to protect the integrity of the levee system. When levees are 
not maintained in conformance with guidelines, excessive 
vegetation may impede levee integrity, inspection, and flood 
fighting activities.
    The Corps also requires that river channels be clear of 
debris, weeds, and wild growth. According to the Corps, 
``Generally speaking, the regulations establish that projects 
must be maintained to pass the flood flows for which they were 
authorized and constructed. Vegetation, sediment, and any other 
obstructions which preclude the projects from operating as 
intended must be removed, with the work done in compliance with 
laws and regulations. This often requires obtaining permits and 
complying with the provisions of the Clean Water Act, National 
Environmental Policy Act, and the Endangered Species Act. 
Additionally, silt and vegetation obstruct the passage of flood 
flows causing higher river stages. Additionally, they deflect 
erosive forces toward the levees. This all results in an 
increased risk of flooding.''

                                H.R. 478

    H.R. 478 would exempt certain flood control related 
activities from the consultation requirements of ESA Section 7 
and would also provide an exemption from the prohibitions 
relating to a ``take'' of a species found in ESA Section 9. The 
activities covered by the bill include reconstructing, 
operating, maintaining, or repairing a flood control project, 
facility or structure to address a critical, imminent threat to 
public health or safety; to address a catastrophic natural 
event; or to comply with Federal, State, or local public health 
or safety requirements. The exemption would apply to activities 
that consist of maintenance, rehabilitation, repair, or 
replacement of a flood control project or facility in 
accordance with a previously issued Federal license, permit, or 
other authorization.
    Similar language was contained in H.R. 2275, ``the 
Endangered Species Conservation and Management Act of 1995'', 
which was ordered favorably reported by the Committee on 
Resources by a vote of 27-17 on October 12, 1995 (H. Rept. 104-
778, Part I).

                            Committee Action

    H.R. 478 was introduced on January 21, 1997, by Congressman 
Wally Herger (R-CA) and Congressman Richard Pombo (R-CA) The 
bill was referred to the Committee on Resources. On April 10, 
1997, the Committee held a hearing on H.R. 478, where various 
individuals testified regarding their efforts to repair and 
maintain flood control facilities, while attempting to comply 
with the Endangered Species Act and commented on H. R. 478.
    According to testimony received by the Committee on 
Resources, problems arise when the levees are not maintained 
and vegetation is allowed or required to grow on levees or in 
flood control channels. That vegetation becomes ``habitat'' for 
wildlife that is protected under both State and Federal law and 
brings with it all the procedural and substantive mandates of 
the ESA.
    The Committee heard testimony about a number of problems 
experienced by officials of local flood control agencies with 
primary responsibility and liability for maintaining the 
integrity and stability of flood control protection systems. 
These officials testified of past delays, cost increases, and 
work stoppages as a result of the presence of endangered or 
threatened species at or near various flood control facilities. 
Officials routinely expressed concerns over the long delays and 
uncertainties associated with mitigation requirements.
    One example studied by the Committee is the Sacramento 
River Flood Control Project (authorized in 1987), consisting of 
approximately 1,000 miles of levees that protect lands in the 
Sacramento Valley and the Sacramento-San Joaquin Delta. After 
the devastating 1986 flood season, there were numerous levees 
and other flood-related structures that needed repairs and 
maintenance. As of 1997 only a small portion of the work has 
been completed. The cost of the project was expected to be 
$105,630,000. Of that amount environmental mitigation will cost 
$7,286,000. Of that amount the construction of the mitigation 
projects is expected to be $4,450,000. Officials testified that 
the ESA was one of the complicating and delaying factors 
associated with the failure to proceed expeditiously with those 
repairs. During the 1997 California floods, several levees that 
were scheduled for repair failed resulting in flooding, loss of 
life, and damage to property.
    The Environmental Impact Statement for the project states 
that if no action were taken to repair the levees it is 
``likely to result in levee embankment problems and potential 
levee failure that could cause extensive flooding, significant 
economic damages, and could include loss of life. * * * Persons 
residing in areas protected by the levee would be at risk. 
Public safety impacts would depend on the location and 
magnitude of flooding, time of day, warning time, ability to 
evacuate, and effective implementation of an evacuation plan. 
Sudden levee failure would pose severe public health and safety 
risks.'' (EIS, May, 1992, page FEIS 9 [emphasis added]) 
Unfortunately, action was not taken within the expected time 
frame and loss of life occurred.
    The most frequently cited species which impacted levee 
repairs in the central valley of California is the threatened 
Valley elderberry longhorn beetle. This beetle makes its 
habitat in the branches of the elderberry tree. Although the 
Fish and Wildlife Service found no jeopardy to a listed species 
or its critical habitat in much of the levee repair work to be 
done in the Sacramento area, it still required substantial 
mitigation for the removal of elderberry trees from levees, 
without requiring that actual beetles be found living in the 
trees. In one case, the Service found that the project would 
impact 37 elderberry trees with 1,538 stems and therefore, 
could constitute an ESA Section 9 take and issued an incidental 
take statement to the Corps of Engineers requiring mitigation 
for the 37 trees. Mitigation was ordered to be conducted at a 
ratio of 5:1 for each impacted stem of the plant, which meant 
that for the 37 trees affected, the Corps was required to plant 
7,690 elderberry plants on 56.5 acres of mitigation land. There 
was a long list of conditions to be met in establishing and 
maintaining the mitigation site. The habitat was to be set 
aside in perpetuity and would be managed by either a State or 
private conservation group. A survival rate of 80 percent after 
10 years was required. While the levee reconstruction at this 
particular site had not yet been completed, the mitigation for 
the site has been carried out.
    In another example, the Committee found that levee 
reconstruction work was postponed for several months because of 
the presence of the threatened giant garter snake, listed as 
threatened under the ESA. Work was scheduled to commence in 
October 1996, but was halted out of concern that the snake was 
hibernating in the area and would be injured during 
construction since during hibernation, the snake burrows into 
the ground.
    On April 16, 1997, the Full Resources Committee met to 
consider H.R. 478. An amendment to clarify that the exemption 
was not applicable to new construction of flood control 
facilities or to routine operation of flood control facilities 
was offered by Congressman Pombo, and adopted by voice vote. 
The bill as amended was then ordered favorably reported to the 
House of Representatives, in the presence of a quorum by a roll 
call vote of 23-9, as follows:



                      Section-by-Section Analysis

Section 1. Short title

    This section sets forth the title of the bill as the 
``Flood Prevention and Family Protection Act of 1997''.

Section 2. Purpose

    This section provides that the purpose of the bill is to 
reduce the regulatory burden on individuals and local, State, 
and Federal agencies in complying with the Endangered Species 
Act in reconstructing, operating, maintaining, or repairing 
flood control projects to address public health or safety 
threats.

Section 3. Amendments to the Endangered Species Act of 1973

    This section amends Section 7(a) of the Endangered Species 
Act to exempt from the consultation and conferencing 
requirement, action that consist of reconstructing, operating, 
maintaining, or repairing a flood control project, facility or 
structure to address a critical, imminent threat to public 
health or safety or to address a catastrophic natural event, or 
to comply with Federal, State, or local public health or safety 
requirements. It further provides that consultation and 
conferencing are not required for maintenance, rehabilitation, 
repair, or replacement of a flood control project facility, or 
structure if done pursuant to a previously issued Federal 
license, permit, or other authorization.
    The second subsection grants the same exemption from the 
provisions of ESA Section 9 relating to the ``take'' 
prohibition.

            Committee Oversight Findings and Recommendations

    With respect to the requirements of clause 2(l)(3) of rule 
XI of the Rules of the House of Representatives, and clause 
2(b)(1) of rule X of the Rules of the House of Representatives, 
the Committee on Resources' oversight findings and 
recommendations are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact H.R. 478.

                        Cost of the Legislation

    Clause 7(a) of rule XIII of the Rules of the House of 
Representatives requires an estimate and a comparison by the 
Committee of the costs which would be incurred in carrying out 
H.R. 478. However, clause 7(d) of that rule provides that this 
requirement does not apply when the Committee has included in 
its report a timely submitted cost estimate of the bill 
prepared by the Director of the Congressional Budget Office 
under section 403 of the Congressional Budget Act of 1974.

                     Compliance With House Rule XI

    1. With respect to the requirement of clause 2(l)(3)(B) of 
rule XI of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, H.R. 
478 does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    2. With respect to the requirement of clause 2(l)(3)(D) of 
rule XI of the Rules of the House of Representatives, the 
Committee has received no report of oversight findings and 
recommendations from the Committee on Government Reform and 
Oversight on the subject of H.R. 478.
    3. With respect to the requirement of clause 2(l)(3)(C) of 
rule XI of the Rules of the House of Representatives and 
section 403 of the Congressional Budget Act of 1974, the 
Committee has received the following cost estimate for H.R. 478 
from the Director of the Congressional Budget Office.

               Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 21, 1997.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 478, the Flood 
Prevention and Family Protection Act of 1997.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Deborah Reis.
            Sincerely,
                                              James L. Blum
                                   (For June E. O'Neill, Director).
    Enclosure.

H.R. 478--Flood Prevention and Family Protection Act of 1997

    CBO estimates that enacting H.R. 478 would have no 
significant effect on the federal budget. Because the bill 
would not affect direct spending or receipts, pay-as-you-go 
procedures would not apply.
    H.R. 478 would exempt certain flood control projects and 
related activities from the consultation requirements and other 
provisions of the Endangered Species Act (ESA). Under these 
requirements, federal agencies and others must consult with 
either the U.S. Fish and Wildlife Service or the National 
Oceanic and Atmospheric Administration, as appropriate, before 
taking any actions that may affect protected species. The 
amendments to the ESA that would be made by subsection 3(a) of 
the bill would enable federal and other public agencies to 
expedite preventative measures in response to an imminent 
threat of flooding. Subsection 3(b) would further exempt such 
measures from the act's provisions on the taking of a species. 
The ESA defines ``take'' as any action ``to harass, harm, 
pursue, hunt, shoot, wound, kill, trap, capture, or collect, or 
to attempt to engage in any such conduct.'' Under the ESA, 
agencies are often required to mitigate the effects of their 
actions. Enacting subsection 3(b) of H.R. 478 could allow 
affected agencies to save discretionary funds that would 
otherwise be used for mitigation purposes such as habitat 
acquisition or restoration, but any such effects would not be 
significant.
    H.R. 478 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act of 1995 
and would impose no costs on state, local, or tribal 
governments. State and local agencies are responsible for 
maintaining and operating some flood control facilities. 
Enacting this bill would allow those agencies to avoid some 
expenditures currently required under the ESA.
    The CBO staff contact for this estimate is Deborah Reis. 
This estimate was approved by Robert A. Sunshine, Deputy 
Assistant Director for Budget Analysis.

                    Compliance With Public Law 104-4

    H.R. 478 contains no unfunded mandates.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italic, existing law in which no change is proposed 
is shown in roman):

                     ENDANGERED SPECIES ACT OF 1973

          * * * * * * *

                        interagency cooperation

  Sec. 7. (a) Federal Agency Actions and Consultations.--(1) * 
* *
          * * * * * * *
  (5) Consultation and conferencing under paragraphs (2) and 
(4) is not required for any agency action that--
          (A) consists of reconstructing, operating, 
        maintaining, or repairing a Federal or non-Federal 
        flood control project, facility, or structure--
                  (i) to address a critical, imminent threat to 
                public health or safety;
                  (ii) to address a catastrophic natural event; 
                or
                  (iii) to comply with Federal, State, or local 
                public health or safety requirements; or
          (B) consists of maintenance, rehabilitation, repair, 
        or replacement of a Federal or non-Federal flood 
        control project, facility, or structure, including 
        operation of a project or a facility in accordance with 
        a previously issued Federal license, permit, or other 
        authorization.
          * * * * * * *

                            prohibited acts

  Sec. 9. (a) General.--(1) * * *
          * * * * * * *
  (3) For purposes of this subsection, an activity of a Federal 
or non-Federal person is not a taking of a species if the 
activity--
          (A) consists of reconstructing, operating, 
        maintaining, or repairing a Federal or non-Federal 
        flood control project, facility, or structure--
                  (i) to address a critical, imminent threat to 
                public health or safety;
                  (ii) to address a catastrophic natural event; 
                or
                  (iii) to comply with Federal, State, or local 
                public health or safety requirements; or
          (B) consists of maintenance, rehabilitation, repair, 
        or replacement of a Federal or non-Federal flood 
        control project, facility, or structure, including 
        operation of a project or a facility in accordance with 
        a previously issued Federal license, permit, or other 
        authorization.
          * * * * * * *
                            DISSENTING VIEWS

    The California floods of 1997 were a great tragedy, and it 
would be irresponsible for Congress not to consider how to 
reduce the likelihood of such a tragedy in the future. We 
should not use this tragedy, however, as an excuse to undercut 
the Endangered Species Act (ESA) which, rhetoric aside, was not 
the cause of the floods.
    ESA plays a role in the permitting and planning for flood 
control projects, as do numerous laws. However, both the 
Department of Interior and the Corps of Engineers have clearly 
stated that the floods in California were the result of a 
winter storm unprecedented in recent history. Reservoirs and 
levees were simply overwhelmed. Both agencies were emphatic 
that there were no cases where it could be demonstrated that 
the implementation of the ESA caused any flood structure to 
fail, or where the presence of any listed species prevented the 
proper operation and maintenance of flood control facilities.
    The same was true after the Midwest floods of 1993, when 
the Floodplain Management Task Force chartered an Interagency 
Floodplain Management Task Force to do an extensive, 
independent review of the major causes and consequences of that 
disaster. In general, the Task Force concluded that the floods 
were the result of an unprecedented hydro-meteorological event 
that caused excessive rainfall and runoff. Habitat and wetlands 
loss was found to be a contributing factor to the magnitude of 
the runoff, which ultimately exceeded the capacity of many 
levees. The Task Force also found that these types of floods 
will continue to occur and that activities in the floodplain 
continue to remain at risk unless the current system of flood 
plain management in the United States is fundamentally altered. 
Nowhere in the report did the Task Force identify the ESA as 
the cause of levee failures or recommend that environmental 
protections should be diminished as a way to improve flood 
protection and protect people and property from future risk.
    During the debate on H.R. 478, the majority argued that the 
ESA was responsible for delays in repairs and maintenance that 
contributed to levee failure and resultant flood damage. The 
majority has been unable to furnish credible examples of this 
interference to justify a sweeping attack on the ESA. The real 
problem is the mistaken belief that we can prevent flood plains 
from flooding strictly through the use of structural means such 
as dams and levees. Moreover, this reliance on structural means 
actually exacerbates the damage of big floods. If we truly want 
to reduce the damage and human suffering associated with 
floods, we must look for new ways to manage them including the 
restoration of channel complexity, the adoption of watershed 
management, wetlands protection, and setback levees. A more 
detailed explanation of the need for this new approach was 
clearly outlined in the testimony of Dr. Jeffrey Mount.
    The passage of this legislation, however, will provide no 
guarantee of increased safety. Instead, its broad, blanket 
exemptions to the ESA would apply in both emergency and non-
emergency situations nationwide, and would have impacts far 
beyond the stated goal of protecting human life and property.
    For example, the bill exempts all ``Federal or non-Federal 
flood control facilities, structures, or projects'' from 
consideration under the ESA. According to the Corps of 
Engineers this could mean dams, pumps, levees, dikes, channels, 
drainage systems, dredging projects, reservoirs, and even beach 
erosion control. The real potential for flooding does not even 
have to be an issue.
    Moreover, in the case of non-Federal projects, the 
determination of whether any project is considered a ``flood 
control project, facility, or structure'' for the purposes of 
exemption from the ESA would be left to local municipalities 
and water districts. The potential for a broad interpretation 
for considering water projects as flood control facilities, in 
order to be exempt from the ESA requirements, is very real.
    While so-called ``routine operations'' were deleted from 
the bill in Committee, this broad category of facilities will 
still be exempt from ESA requirements not only for 
``maintenance, rehabilitation, repair, or replacement, but also 
for operation of any project of a facility in accordance with a 
previously issued Federal license, permit, or other 
authorization''. This could include the operation of any 
facility operating under a Section 404 permit, a FERC license, 
or a broad range of other permits issued by the Federal 
government. At a minimum, this would include the general 
operations of FERC licensed dams, including spills, temperature 
controls and draw downs--all needed for salmon recovery.
    Further, the exemption for such operations, as well for 
``maintenance, repair, replacement, or rehabilitation'' of any 
facility would apply at any time, not just when a threat to 
public safety was evident. These terms are so broad it could 
include dredging a channel, inlet, or river; maintenance or 
repair of fish screens at dams or pumps; shutting down dams for 
general repairs; and the rehabilitation of the entire 
Mississippi River and Tributaries project or the Sacramento 
River Flood Control System (a five year, ongoing project).
    In addition, this legislation could have severe unintended 
consequences. Although the requirements of the ESA for 
consultation and mitigation would no longer apply to this broad 
category of flood control projects, all other interests, 
including fishermen, real estate developers, cattlemen, and 
foresters would still be subject to the full requirements of 
the Act. As such, they will be required to shoulder additional 
protection for species listed under the ESA to compensate for 
the impacts of flood control that will no longer have to be 
mitigated. This is unfair and could create severe economic 
impacts.
    For example, in California, the commercial salmon fishermen 
have just been told that they are going to face the most 
restrictive season in their history because of the decline of 
endangered winter run chinook, Snake River chinook, and coho. 
If the National Marine Fisheries Service no longer had 
authority to regulate the dams, pumps and other water projects 
that impact these fish, both the commercial and sport fishing 
industries, worth billions of dollars to the state, will face 
even further restrictions and possibly be shut down altogether.
    In the Pacific Northwest, any general maintenance, repairs 
or operations of flood control structures like hydroelectric 
dams that operate under a FERC license may no longer be subject 
to ESA requirements such as fish screens, flows, or temperature 
controls. The recovery of salmon could be over, and a $500 
million fishery and tens of thousands of jobs will be lost.
    In Florida, inlets and beach berms are dredged to 
facilitate the drainage of agricultural lands, and is 
considered by the Corps to be flood control. This dredging has 
a direct, negative impact on sea turtles. If shrimpers who have 
to pull TEDs to protect these turtles are restricted now, when 
NMFS and the FWS have no ability to regulate these other 
activities impacting the turtles, they are going to be forced 
to restrict even further the only impacts they can regulate--
fishing activities. The same is likely to be true in 
California, Oregon, and Washington, where coastal coho are 
about to be listed under the ESA. If the impacts of flood 
control on coho cannot be regulated, it is likely that NMFS 
will be forced to place greater restrictions on logging, 
mining, and agriculture, all of which also impact the species.
    In short, despite intentions to try and ``narrow'' this 
bill, its scope is still excessively broad and its implications 
for other interests are unknown. This is why piecemeal 
amendments to the ESA do not work. There is no evidence to date 
demonstrating that the ESA was in any way responsible for the 
floods in California, the Midwest, or elsewhere. If we really 
want to avoid these types of flood disasters in the future, we 
should look to the real causes of the floods themselves and 
stop using the ESA as a scapegoat. If we do not, we are only 
destined to see these tragedies repeated time and again in the 
future.

                                   George Miller.
                                   Sam Farr.
                                   Neil Abercrombie.
                                   Bruce F. Vento.
                                   Bill Delahunt.