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Testimony of
David J. Hayes, Counselor to the Secretary of the Interior

ON H.R. 3267

Before the House Committee on Resources
Subcommittee on Water and Power

MARCH 12, 1998

I am David J. Hayes, Counselor to the Secretary of the Interior, Bruce Babbitt, and I am speaking here today behalf of the Administration regarding H.R. 3267, the "Sonny Bono Memorial Salton Sea Reclamation Act."


The Administration applauds this Committee's interest in addressing the serious problems facing the Salton Sea. The Salton Sea ecosystem is under severe stress. As this Committee knows, the Salton Sea provides an important stop for hundreds of thousands of migratory birds who travel on the Pacific Flyway. It also is the permanent home of a number of wildlife and fish species. Virtually all of these wildlife resources are being stressed by exposure to ever-rising salinity concentrations in the Sea, as well as exposure to a variety of other contaminants in the ecosystem. As other witnesses will discuss in detail, there have been a number of serious bird and fish kills at the Sea over the past several years, and the frequency of these tragic occurrences is on the rise. The Sea's value as a recreational resource also has declined. Many anglers, boaters and other potential recreational users of the Sea find the resource to be uninviting.

The Administration also endorses the dedication of Salton Sea legislation to the memory of Congressman Sonny Bono and the renaming of the Salton Sea National Wildlife Refuge for him. Secretary Babbitt discussed the Sea several times with Sonny Bono before his death. The Secretary has a personal appreciation for Congressman Bono's commitment to save the Salton Sea.. It is one of the reasons why the Administration has been focusing special attention on this important resource.


As you know, Secretary Babbitt visited the Salton Sea last December. Over a two day period, he toured the Sea, received technical briefings on issues affecting the Sea, and hosted a meeting of governmental officials from all levels to discuss potential strategies for addressing the problems of the Sea. Congressmen Hunter and Brown also attended the meeting.

Following these discussions, Secretary Babbitt issued a Statement which I have attached to this testimony. In the Statement, the Secretary identified five "Consensus Principles" which achieved broad-based support:

1. Rising salinity levels and fluctuating lake levels are threatening some of the Salton Sea's fish, wildlife, and recreational resources.

2. Other environmental factors, in addition to salinity and lake levels, may be adversely impacting the Sea's resources.

3. Governmental authorities should work together to identify prudent mitigation efforts that can be implemented as soon as practicable, so that the trend toward further deterioration of the Salton Sea resource can be slowed, stopped, and/or reversed. It is likely that additional scientific research will be needed to facilitate the identification and implementation of appropriate mitigation steps.

4. Limited funds will be available to conduct the type of scientific research that is needed to inform the decision making process. Accordingly, research efforts need to be coordinated and prioritized to maximize the usefulness of scientific data to the decision making process.

5. All efforts to address the health of the Salton Sea must be undertaken through a publicprocess which obtains input from all interested stakeholders, including interested environmental organizations and private citizens.

Based on these principles, the Secretary identified two key steps that governmental authorities with a stake in the Salton Sea should undertake: (1) initiation of an open environmental review process under the National Environmental Policy Act (NEPA) and the California Environmental Quality Act (CEQA) to identify and evaluate specific options for addressing the Salton Sea; and (2) establishment of a joint governmental coordinating mechanism to help coordinat e and focus the efforts of the many governmental agencies who are involved in funding important research activities related to the Salton Sea.

The Secretary provided additional leadership on both of these issues by calling on the Bureau of Reclamation to work with the Salton Sea Authority to begin the NEPA/CEQA process on an accelerated timetable and produce an EIS that will analyze a range of alternatives to address the Salton Sea. On the science front, the Secretary encouraged the formation of a coordinating committee comprised of governmental authorities that have jurisdictional responsibilities for the Sea. The four governmental entities with direct interests in the Salton Sea-the United States, the State of California, the Salton Sea Authority, and the Torres Martinez Tribe-would each have a member on the "Salton Sea Research and Funding Coordination Committee." This Committee would consist of high-level governmental officials who would, with the assistance of a Science Subcommittee, identify and prioritize research and other types of scientific evaluation needed to complete the NEPA/CEQA process in a timely fashion. The Committee would seek input from all interested nongovernmental parties, including universities, environmental groups, citizens groups, and other interested parties and individuals.

The two part strategy that Secretary Babbitt outlined last year is now underway. The Bureau of Reclamation has been working with the Salton Sea Authority to begin an EIS process that will build on work that already has been done at the Sea, and which will identify and evaluate the potential environmental social, and economic impacts of various options for remediating the Salton Sea. The parties are preparing a work plan that will explain how the process will move forward, including opportunities for public input.

With respect to the science effort, the four governmental, I authorities have appointed representatives to the "Research Management Committee" (renamed from the "Research and Funding Coordination Committee"), and the representatives have finalized mission statements for the Research Management Committee and the Science Subcommittee. (The mission statements are attached to this testimony.) The Research Management Committee has, in turn, appointed Dr. Milt Friend, a senior science advisor to the Chief Biologist of the United States Geological Service, as Chair of the Science Subcommittee. Dr. Friend is seeking input from all interested federal, state and local governmental agencies, and has initiated outreach to the university community, which has substantial expertise to lend to this project.

Comments on H.R. 3267


By way of overview, the Administration believes that Salton Sea legislation should build on the foundation of intergovernmental coordination that has been established over the past few months. More specifically, the Administration believes that NEPA's environmental review process must be implemented, under the active leadership of the co-lead agencies: the Bureau of Reclamation and the Salton Sea Authority, with full cooperation and input from other interested federal and state agencies including, for example, the U.S. Fish and Wildlife Service, the U.S. Geological Survey, the U.S. Bureau of Land Management the U.S. Environmental Protection Agency, the U.S. Army Corps of Engineers, the California Department of Fish and Game, the California Environmental Protection Agency, and the California Department of Water Resources.

The Administration also believes that science input should flow through the intergovernmental Research Management Committee that has been jointly established by the United States, the State of California, the Salton Sea Authority and the Torres Martinis Tribe. This:, Committee of governmental authorities is uniquely situated to take input from scientific experts and manage a scientific program that dovetails with the environmental review process, thereby maximizing the usefulness and relevance of scientific research.

H.R. 3267 would adopt some features of this framework, but it also would depart in important respects from principles that the Administration believes should underlie the Salton Sea restoration effort. We have discussed below the issues that are of most concern to the Administration.

The NEPA Process

The Administration believes strongly that remediation efforts at the Salton Sea must be based on an analysis that is completed in accordance with the National Environmental Policy Act. NEPA is designed specifically to identify a range of reasonable alternatives, and then to provide a thorough analysis of the potential environmental, social, and economic implications of each alliterative. This type of disciplined analysis ensures that decision makers know the implications of their choices. It also ensures that all interested parties, including the Congress, stand on a "level playing field" of information regarding the potential environmental, social, and economic consequences of remedial options.

H.R. 3267 apparently would allow the Department to undertake a NEPA review of the Salton Sea, but it would compromise and limit that review in at least three important respects. First, Section 101(c)(2) would allow the EIS to focus on only three types of remedial actions: the use of impoundments; pumping out water; and the augmentation of inflows. The Administration agrees that these options would be appropriate for consideration in an EIS, but we do believe strongly that the NEPA scoping process must include consideration of all reasonable options. Until we have completed the scoping process, which provides interested members of the public with an opportunity to offer their views, we will not know whether other potential remedial options might also warrant consideration. In fight of the work that already has been undertaken to analyze a variety of potential alternatives, we believe that a streamlined scoping process can be undertaken, but we strongly object to overriding this important ingredient of the NEPA process.

Second, H.R. 3267 would compress the NEPA process beyond any reasonable or realistic time frame. An EIS process for a large, complex project normally takes at least eighteen months to complete. A number of options typically must be analyzed against a number of environmental criteria, leading to the preparation of a draft EIS and the potential identification of a preferred alternative. The draft EIS is then provided to the public for comment. Following public input, the EIS is finalized, and decision makers are in a position to select the remedial action that will be undertaken. Implementation of the remedy then begins, with the preparation of construction specifications, environmental permitting, and other steps necessary to implement the remedy.

Section 101(c)(4) of H.R. 3267 would require the Department to complete the entire NEPA process plus select a remedial option and complete all construction specifications and environmental permitting for the selection remedial option within 12 months. As a practical matter, this approach would require completion of a major EIS within 6 to 7 months, an impossibility for a project as large and complex as one that is designed to restore the massive Salton Sea ecosystem. The proposed schedule also would truncate or the opportunity for the public to engage in meaningful input on potential remedial alternatives. Indeed, the schedule would require that both environmental compliance and permitting be completed within 12 months. However, since environmental compliance must be completed before any permitting decisions can be made, the schedule would be even more unrealistic. These types of shortcuts seem particularly inappropriate when the options under consideration in the Salton Sea EIS may call for the expenditure of hundreds of millions of dollars.

Third, the Administration objects to the legislation's attempt in Section 10 1(0(3) to cut off the rights of interested members of the public to pursue judicial review of the NEPA process in the courts. Overriding the protections of the NEPA process undercuts the fundamental integrity of the NEPA framework. Access to the courts ensures that the NEPA process will be completed in a fair and open manner. The Salton Sea deserves these legal protections.

Likewise, the Administration strongly objects to the proposed limitations on judicial review on a range of additional environmental permitting actions. In the Administration's view, it is inappropriate to shortcut the remedies afforded by the environmental laws in the name of environmental protection.

The Administration has begun to work with the Salton Sea Authority to develop a parallel EIS / feasibility study for the Salton Sea. Although the Administration has very serious objections to impacts of H.R. 3267 on the NEPA process, as explained earlier, it should be noted that we expect the EIS / feasibility process to include engineering evaluations of various alternatives that are typical at this stage.

Scientific Analysis

The Administration appreciates the efforts of H.R. 3267 to codify the Secretary's Formation of a joint governmental body to help prioritize and manage scientific research on the Salton Sea, and to integrate these activities into the NEPA process. The legislation would depart from the Secretary's approach, however, in at least two important respects.

First, Section 102(b) would change the membership from the Salton Sea Research Management Committee to include a representative of the university community. With this change, the Committee would no longer be made up of governmental officials who have legal responsibilities associated with the Salton Sea. Instead, key decisions regarding the timing and funding of specific projects would be made jointly with nongovernmental parties who may have a special interest in such decisions.

The Administration recognizes the important contribution that universities can and will make to the Salton Sea, but we believe that the contribution is best made by hearing from the university community regarding its views of research that should be undertaken, and then by calling on universities to assist in undertaking specific research activities. Dr. Milt Friend, Chairman of the Science Subcommittee, already has begun his outreach to the university community, and the Department hopes and expects that the universities will submit proposals to conduct a variety of research activities. Decisions about what research should be undertaken, and on what timetable, are best made by governmental authorities who have legal responsibilities to carry out and can be held accountable by the public for their decisions.

The Administration also is concerned that Section 102 may inadvertently narrow the scientific issues about which the Research Management Committee can receive input. While we agree that scientific questions related to wildlife resources are a very important scientific undertaking for the Committee (see Section 102(a)), it also is important to receive input on other issues that affect the ecosystem and may be relevant to the selection of potential remedial activities. For example, a greater knowledge of the geologic hazards for the area are needed to better understand the impact of potential earthquakes on proposed engineering solutions.

Emergency Action

Title H of H.R. 3267 would require the Secretary to immediately take action to reduce the salinity levels of the Salton Sea by diverting water into the Salton Sea which is "available as a result of high-flow periods in late 1998 and early 1999," and then "pumping sufficient water out of the Salton Sea prior to December 1, 1998," to accommodate these "diversions."

The Administration is troubled by a number of aspects of this proposed title. As an initial matter, the bill apparently would call on the Secretary to undertake these major actions without the benefit of any environmental analysis. The pumping out of large quantities of water to as yet unidentified locations obviously could have significant environmental implications on the Salton Sea, and on receiving lands or waters. Likewise, diversions of water from destinations to which such water would otherwise be delivered may have significant environmental ramifications on the Salton Sea, and on other locations that would be affected by the diversions. These major actions should not be undertaken without the benefit of an environmental and feasibility analysis of their implications.

Title II's assumption that water is available year for delivery to the Salton Sea also raises difficult and important questions that deserve more review and analysis. More specifically, the Administration is very troubled by assumptions that excess quantities of Colorado River water can be delivered to the Salton Sea. Rights to access Colorado River water supplies are governed by the "law of the river," a complex set of legal principles in which many Colorado River Basin states, tribes, and water users have a very strong interest. The saving,: provision relating to the preservation of rights and obligations with respect to Colorado River water, contained in Section 10 1 (0(2) should be strengthened and made applicable to all sections of the bill to ensure that the law of the river and rights and obligations arising therefrom are not impacted by the legislation.


H.R. 3267 would authorize significant funding for the EIS and related engineering effort and for scientific research. In addition, the bill would preauthorize up to $300 million dollars to construct an as yet unidentified remedy that would be selected following the completion of the NEPA process.

With regard to the authorization of $300 million to undertake remedial action, the Administration believes that it would be more prudent to identify the remedial action that is selected following the NEPA process, and then seek authorization and appropriations to implement that specific action. Until the NEPA process produces a disciplined analysis of alternatives, we are not in a position to identify what alliterative is best suited to addressing the problems facing the Salton Sea and what the cost of that alliterative might be.

Finally, we believe that cost of NEPA compliance, feasibility studies, and research should be cost shared equally between federal and non-federal interests as is currently authorized for the Bureau of Reclamation's Salton Sea activities.

We are also concerned by section 101(f) of the bill, which would make the costs of remedial action non-reimbursable to irrigators. Until we know more fully the source of the problems facing the Salton Sea, we believe it would be premature to exempt any party from contributing to the cost of a solution.


The Administration fully endorses the goals of restoring the Salton Sea as reflected in HR.-3267. However we strongly oppose HR.- 3267 as drafted due to the serious concerns we have outlined in this testimony and which will be further addressed in additional comments that we will submit for the record in the very near future. The Administration looks forward to continuing the dialogue with Congress on this important issue and, hopefully, by working together, we will be able to develop a consensus on how to address the serious problems faced by the Salton Sea.