WRITTEN TESTIMONY OF CLINT RILEY, SPECIAL ASSISTANT TO THE DIRECTOR, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR, BEFORE THE HOUSE RESOURCES COMMITTEE, SUBCOMMITTEE ON FISHERIES CONSERVATION, WILDLIFE AND OCEANS, REGARDING H.R. 154, H.R. 2501, H.R. 2619, H.R. 2623 AND H.R. 3056
SEPTEMBER 25, 2003
Mr. Chairman and Members of the Subcommittee, I thank you for the opportunity to provide the Administration’s views on H.R. 154, H.R. 2501, and H.R. 3056, which make technical corrections to the John H. Chafee Coastal Barrier Resources System, as well as H.R. 2619 and H.R. 2623, which would expand Kilauea Point National Wildlife Refuge and Cahaba National Wildlife Refuge, respectively. I am Clint Riley, Special Assistant to the Director of the U.S. Fish and Wildlife Service (Service).
John H. Chafee Coastal Barrier Resources System Legislation
Before discussing the Administration’s support of the three Coastal Barrier Resources System bills being discussed this morning, I will briefly describe the Coastal Barrier Resources Act (CBRA) and the Service’s role in its implementation.
Coastal barriers perform many functions that strengthen our economy and promote a healthy environment. These unique land forms support productive and lucrative fisheries, provide essential habitat for migratory birds and other protected species, serve as recreational areas for the public, and help sustain the vitality of local economies. Their beautiful beaches, unique dune and wetland environments, and biological diversity attract millions of visitors every year.
With all of the positive attributes coastal barriers provide to people and wildlife, it is no surprise that development pressures on coastal barriers continue to escalate. However, coastal barriers are composed of unstable elements, and are vulnerable to storm damage and chronic erosion. Located at the interface of land and sea, coastal barriers serve as the mainland’s first line of defense against the strong winds, huge waves, and powerful storm surges that accompany hurricanes. Their exposure to wind, wave, and tidal energy keeps coastal barriers in a state of flux, losing sand in some places and gaining it in others.
Recognizing the environmental and economic value of coastal barriers and the risks associated with their development, Congress adopted and President Reagan signed into law the Coastal Barrier Resources Act of 1982. Through implementation of the Act, Congress sought to minimize the potential loss of human life, reduce wasteful expenditures of Federal revenues, and protect fish and wildlife and their habitats. The Act identified and included in the John H. Chafee Coastal Barrier Resources System (System) approximately 590,000 acres of undeveloped coastal barrier habitat along the Atlantic and Gulf coasts. The undeveloped status of System lands was an important underpinning of the law. The Act sought to remove Federal subsidies for new construction in hazard-prone and environmentally sensitive areas that were not yet developed, but not to penalize existing communities where significant investments had already been made. CBRA in no way regulates how people can develop their land. Instead, it removes Federal subsidies for development by limiting Federal spending for flood insurance, roads, potable water, and other types of infrastructure on coastal barriers within the System. Therefore, individuals who choose to build and invest in these hazard-prone areas will incur the full cost of that risk, rather than passing the cost on to the American taxpayer.
In 1990, Congress passed the Coastal Barrier Improvement Act which significantly increased the size of the System to approximately 1.3 million acres and included coastal barriers along the Great Lakes, Puerto Rico, and the Virgin Islands. The expansion of the System by the 1990 Act is largely due to the designation of “otherwise protected areas” or OPAs. Federal flood insurance is the only Federal spending prohibition in OPAs. By withholding Federal flood insurance, OPA designations give additional protection to coastal barriers already held for conservation purposes, such as park land and wildlife refuges, and discourage development of privately owned inholdings.
When OPAs were first included in the System more than a decade ago, they were mapped with limited resources and rudimentary mapping tools. As a result, many OPAs could not be, and were not, mapped with the highest degree of accuracy and we continue to uncover cases where OPA boundaries do not coincide with the actual conservation land boundaries they were meant to follow. OPAs sometimes include adjacent private lands that are not inholdings, and the owners of these lands cannot obtain Federal flood insurance for their homes. We believe that Congress did not intend to include such adjacent private lands in the OPA. When these discrepancies come to our attention, as is the case with Cape Fear, we work closely with interested land owners, local and state officials, and protected area managers to correctly map the boundaries with the high quality mapping tools now available. Although the process is time consuming and requires a great deal of research and collaboration to ensure that OPA boundaries are correctly depicted on a digital map, we believe the result is well worth the investment. The replacement of crude paper maps with precise digital maps will result in a modernized tool that our customers and partners alike can rely upon for making important investment and planning decisions.
CBRA is a map-driven law that is poised for a modernization process that expands electronic government, increases customer service, and builds upon existing tools used by our partners to conserve the nation’s coasts. The Coastal Barrier Resources Reauthorization Act of 2000 directed us to conduct a Digital Mapping Pilot Study that would produce draft digital maps of 75 areas and estimate the cost and feasibility of completing digital maps for the entire System. We are pleased to report that we are making progress on completing the pilot study and look forward to presenting it to you as soon as it is completed.
The Administration strongly supports the intent of CBRA and its free-market approach to coastal protection. Despite the challenges presented by the fact that the controlling CBRA maps were drawn using the imprecise mapping tools available at the time, the Administration believes that the intent of CBRA has largely been achieved. The Coastal Barrier Resources Reauthorization Act of 2000 also directed the Service to conduct an economic assessment of the System. This study was released in 2002, the year of CBRA’s 20th anniversary. The study estimated that CBRA will save American taxpayers approximately $1.3 billion from 1983 to 2010.
As authorized by Congress, the Secretary of the Interior is responsible for: (1) maintaining the official maps of the System; (2) conducting a review of the maps every five years to reflect natural changes; (3) consulting with Federal agencies that propose spending funds within the System; (4) working with the Federal Emergency Management Agency to ensure that Federal Flood Insurance Rate Maps accurately depict the System boundaries; (5) determining the location of private properties in relation to System boundaries; and, (6) making recommendations to Congress regarding the addition of areas to the System and in determining whether, at the time of its inclusion in the System, a coastal barrier was undeveloped and was appropriately included in the System. The Secretary administers the Act through the Service.
H.R. 154, To exclude certain properties from the John H. Chafee Coastal Barrier Resources System
H.R. 154, introduced by Representative Paul, addresses the Matagorda Peninsula, Texas Unit T07. T07, which includes most of the Matagorda Peninsula, was designated as a full System unit with the passage of the Coastal Barrier Resources Act in 1982. In addition, the Coastal Barrier Improvement Act of 1990 designated T07P, an adjacent OPA that includes mostly wetlands and open water on the sound side of the peninsula. H.R. 154 would adopt a new digital map that excludes from T07 approximately 19 acres of privately owned land in the Matagorda Dunes Homesites Subdivision.
When reviewing requests to modify an existing System unit, the Service examines the development status of the unit when it was included in the System by Congress. The Coastal Barrier Resources Reauthorization Act of 2000 codified the criteria for recommending appropriate “undeveloped” coastal barriers for inclusion in the System, and for reviewing a unit’s development status at the time of inclusion to determine whether an area was undeveloped and appropriately included in the System. The two criteria are density of development and level of infrastructure present at the time of inclusion. The density criterion is such that the density of development is less than one structure per five acres of land above mean high tide. The infrastructure criterion is such that there is existing infrastructure consisting of: (1) a road, with a reinforced road bed, to each lot or building site in the area; (2) a wastewater disposal system sufficient to serve each lot or building site in the area; (3) electric service for each lot or building site in the area; and, (4) a fresh water supply for each lot or building site in the area.
The Service was presented with records showing that a full complement of infrastructure – roads, wastewater disposal, electricity, and potable water supply – was available in the Matagorda Dunes Homesites Subdivision before Congress adopted T07 in 1982. Based on the information provided and research of the Administrative Record, the Service believes that the subdivision should not have been included in the original T07 Unit because it exceeded the infrastructure criterion used to designate “undeveloped coastal barriers” as part of the System.
When the Service finds a technical mapping error in one part of a System map, we review all adjacent areas to ensure the entire map is accurate. This comprehensive approach to map revisions treats other landowners who may be similarly affected equitably, and it also ensures that Congress and the Administration don’t have to revisit the same areas in the future.
However, we were not able to comprehensively revise the maps in this situation. Due to a disagreement between the State of Texas and Matagorda County over land ownership, the Service was unable to revise the boundaries of the nearby T07P OPA, which is depicted on the same maps as those for T07. The State contends that most of the land included in T07P is owned and held for conservation by the State. The County contends that the land is privately owned and not held for conservation. The dispute over land ownership will likely be resolved through future litigation.
The Service supports H.R. 154 that would adopt one new digital map of T07 to exclude the Matagorda Dunes Homesites subdivision and accurately depict the T07 boundaries on the southern portion of the map to follow the shoreline. The new map does not comprehensively revise the existing T07 and T07P boundaries at this time because it is not possible to obtain concurrence from the State and the County on property boundaries. Although the Service supports a less than comprehensive boundary change in this case, our support is due to the unique circumstances described above. Future efforts to revise the System maps will adhere, to the fullest extent practicable, to our traditional comprehensive approach to map revisions that seeks concurrence from all interested parties.
H.R. 2501, To clarify the boundaries of Otherwise Protected Area NC-07P, Cape Fear, North Carolina
HR 2501, introduced by Representative McIntyre, addresses the Cape Fear, North Carolina OPA NC-07P, which was designated with the passage of the Coastal Barrier Improvement Act of 1990. H.R. 2501 would adopt two new digital maps of NC-07P that exclude from the OPA approximately 49 acres of privately owned land outside of the conservation land boundaries. H.R. 2501 would also significantly expand the OPA by adding approximately 5,961 acres of conservation land, water, and wetlands that were not included in the OPA in 1990.
The Service supports H.R. 2501. Last year the Service testified in support of a similar bill that would make technical corrections to NC-07P. In the case of private lands adjacent to a conservation area that were included in an OPA, we believe the controlling question is whether Congress intended to include these private lands within the OPA. In this case, all evidence we can find, both from the map itself, and from the legislative history of the 1990 law, suggests that Congress intended only to include the public lands, not these adjacent private lands, in the OPA. The 49 acres of private property in question are outside the boundary of the conservation area, are not inholdings, and are not held for conservation purposes. The new maps provide an accurate and comprehensive digital revision to NC-07P and were prepared through a collaborative process involving the local landowners and officials from the Village of Bald Head Island, Bald Head Island Land Conservancy, North Carolina Department of Natural Resources, and Sunny Point Military Installation.
H.R. 3056, To clarify the boundaries of the John H. Chafee Coastal Barrier Resources System Cedar Keys Unit P25 and Otherwise Protected Area
H.R. 3056, introduced by Representative Ginny Brown-Waite, addresses the Cedar Keys, Florida Unit P25. P25 was designated as a full System unit with the passage of the Coastal Barrier Resources Act in 1982. In addition, the Coastal Barrier Improvement Act of 1990 designated P25P as an OPA. H.R. 3056 would adopt a new digital map that revises the excluded area of Cedar Key to remove approximately 32 acres of developable land from P25 and add approximately 50 acres of wetland and open water to P25. In addition, the new map revises the P25P OPA boundaries to coincide with the Cedar Keys National Wildlife Refuge boundaries which the OPA was intended to follow.
As mentioned above, one of the Service’s roles in administering CBRA is to determine whether certain private properties are affected by CBRA. The Service recently discovered a situation on Cedar Key where our field personnel, in the past, incorrectly informed the owners of three private lots on Cedar Key that their property was not part of the System, and therefore was eligible for Federal flood insurance. These property determinations were made in good faith with the best tools available at the time. The tools available were imprecise topographic quadrangle maps that are the current law, and aerial photos used to interpret these maps.
When higher precision mapping tools were recently used to make a property determination in another part of Cedar Key, we discovered the three earlier incorrect determinations. The affected landowners will lose their Federal flood insurance because their properties are actually within the System. Based on our review of the Administrative Record, we believe that the three lots were inadvertently included in P25 due to inaccuracies in the original topographic map. The new map proposed by H.R. 3056 provides a digital revision to the P25 excluded area that reflects what we believe was the original intent of the unit. The revised map appropriately excludes the three lots from the System, as well as other private properties on Cedar Key that never received determinations from the Service.
When the Service finds a technical mapping error in one part of a System map, we review all adjacent areas to ensure the entire map is accurate. Upon reviewing the adjacent P25P OPA, which is depicted on the same maps as those for P25, we uncovered significant State and Federal conservation lands that are not included in the existing OPA boundaries. The process to revise the existing OPA boundaries and depict the new boundaries on a map is lengthy as it requires the Service to work with landowners and local, State, and Federal officials to accurately define the conservation area boundaries.
The Service supports H.R. 3056 that would adopt a new digital map of P25/P25P that accurately delineates the P25 Cedar Key excluded area and the adjacent P25P OPA boundaries. This digital map addresses only part of the existing area that encompasses P25 and P25P. All the boundaries on the digital map are accurate and we have letters of concurrence from Levy County and the State of Florida that confirm this. The areas of P25 and P25P not addressed by this digital map continue to be depicted in the current map. The Service supports a future comprehensive digital revision to the entire P25 and P25P area that follows adequate research to examine the extent of the adjacent conservation lands that were not included in P25P when the OPA was designated in 1990. We will prepare these maps expeditiously, obtain concurrence from appropriate entities, and present them to Congress for consideration when they are completed.
This situation is a notable departure from our traditional comprehensive approach to map revisions. The Service supports a targeted map revision in this case because the time required to accurately re-map the significant conservation lands of P25P would preclude a timely remedy for the private property owners who received an inaccurate determination from the Service and subsequently lost their Federal flood insurance eligibility. However, in future cases where we uncover a technical mapping error, we will apply, to the fullest extent practicable, our traditional approach of comprehensively re-mapping the entire area.
John H. Chaffee Coastal Barrier Resources System Conclusion
Mr. Chairman, the situations surrounding the three CBRA bills discussed above are all indicative of the “growing pains” the John H. Chafee Coastal Barrier Resources System is experiencing. We have worked with Congress to develop approaches for making recommendations regarding CBRA maps, and to the maximum extent, we strive to maintain consistency in our approaches. However, we have also learned through experience that we must be flexible enough to deal with unanticipated situations as they arise. Two of the three cases I discussed do not adhere to our preferred approach of comprehensive re-mapping. In those two cases, due to unique circumstances, we believe that providing timely relief to the affected private property owners is essential. In the short-term, we will continue to address technical mapping errors as we uncover them. In the long-term, we are hopeful that our progression towards accurate and up-to-date digital maps will help alleviate many of the challenges we are currently facing due to the imprecise mapping of the past.
The Administration supports the three Coastal Barrier Resources System bills I discussed today and we will continue to work with Congress to achieve CBRA's objectives and ensure the System is accurate in its boundary descriptions. Our work to correct technical errors is one part of our broader goal to modernize all CBRA maps and provide our partners and customers with better information. We believe this will help achieve all of three of CBRA's intentions: saving taxpayers' money, keeping people out of the deadly path of storm surge, and protecting valuable habitat for fish and wildlife.
National Wildlife Refuge System Legislation
H.R. 2623, To provide for the expansion of Cahaba River National Wildlife Refuge
I would like to begin by giving you a brief summary of Service involvement in the protection of lands in the Cahaba River area. For several years, The Nature Conservancy (TNC) has been working to develop partnerships with corporations, local communities, and other conservation groups to protect the Cahaba River and its unique natural resources. Though the Cahaba River has experienced a dramatic decline of freshwater fish and wildlife during the past 50 years, it is still one of the nation’s most biologically diverse rivers. It currently supports 64 rare and imperiled plant and animal species, and 15 federally listed fish, snail, and mussel species – 13 of which are found nowhere else in the world. There are a total of 131 species of fish in this River – more than any other river of its size in North America.
To protect a critical core area along the Cahaba River, Congress passed the Cahaba River National Wildlife Refuge (NWR) Establishment Act, which became Public Law 106-331 following the President’s signature on October 19, 2000. The Act directs the Secretary of the Interior to acquire up to 3,500 acres of lands and waters within a designated acquisition boundary. In partnership with TNC, the Service began acquiring land for the Cahaba River NWR in September, 2002, and to we have acquired a total of 2,977 acres.
H.R. 2619, To provide for the expansion of Kilauea Point National Wildlife Refuge
H.R. 2619 authorizes expansion of the Kilauea Point NWR. It is one of three National Wildlife Refuges managed as part of the Kaua`i NWR Complex. This Refuge was established in 1985 when the Coast Guard transferred 31 acres to the Service. Today the Refuge consists of 203 acres of protected land on the island of Kaua`i, near the northernmost tip of the Hawaiian Islands.
The Kilauea Point NWR is managed to provide protected marine and terrestrial habitats for a host of increasingly rare Hawaiian wildlife species. The steep cliffs on this Refuge support nesting seabirds such as red-footed booby, Laysan albatross, great frigate bird, red-tailed tropic bird, white-tailed tropic bird, and wedge-tailed shearwater. Hawaii’s state bird, the endangered Hawaiian goose (or nene), and the Pacific Golden plover use the refuge’s grasslands. Endangered Hawaiian monk seals haul out on the rocks below the cliffs, and endangered humpback whales, threatened green sea turtles, and protected spinner dolphins migrate through the adjacent National Marine Sanctuary. The refuge’s endangered plant restoration program is giving a number of rare species a chance to survive on Kilauea Point’s protected and managed environments. Kilauea Point is one of the few Hawaiian refuges open to the public and is one of the most popular spots for visitors and residents of Hawaii alike, with an average of 300,000 visitors a year.
Status of the National Wildlife Refuge System
The Administration is committed to taking better care of what we have, while ensuring that new acquisitions truly meet strategic needs of the NWRS. This includes purchasing in-holdings within currently approved refuge boundaries. There must be a balance between acquiring new lands and meeting the operational, maintenance and restoration requirements for the resources already in public ownership. Towards this end, the Service is currently developing a plan to guide future growth and land acquisition for the NWRS.
The National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105-57) requires the Service to develop a Comprehensive Conservation Plan (CCP) for each refuge in the National Wildlife Refuge System (NWRS). The CCP describes the desired future conditions of a refuge and provides long-range guidance and management direction to achieve refuge purposes. It is during this process that expansion of a refuge is considered and recommended if increasing the size will help fulfill the purpose for which the refuge was established. Development of a CCP provides a forum for meaningful public participation and improved coordination with the states and local communities. It also affords local citizens an opportunity to help shape future management of a refuge, recognizing the important role of refuges in nearby communities. In the future we will develop draft CCPs for both Cahaba River and Kilauea Point refuges, and the public will have the opportunity to comment on these drafts.
We have evaluated the areas identified in H.R. 2623 and H.R. 2619 as potential additions to Cahaba River and Kilauea Point National Wildlife Refuges and, after a careful review of our current priorities and funding constraints, have concluded that the funding needs associated with the operational requirements to expand these refuges would compromise our ability to properly manage and address the needs of these refuges, as well as existing refuges throughout the system. However, the Pacific Regional office has begun evaluating whether a scaled back expansion at Kilauea Point NWR limited to the coastal strand, estuary, and grassland north of the estuary (totaling approximately 40 acres) would be valuable additions to the refuge based on benefits to threatened and endangered species.
We note that other opportunities and tools exist for protecting resources along the Cahaba River and coastal Kaua`i. Service programs such as Partners for Fish and Wildlife, the North American Wetlands Conservation Act, the Landowner Incentive Program, and Private Stewardship Grants can be used in cooperation with State, local and private partners to restore and protect these natural resources. The States of Alabama and Hawaii both receive funds through the Federal Aid in Wildlife Restoration, Federal Aid in Sport Fish Restoration, and state wildlife grants that can assist in protecting these areas and their resources. The State of Hawaii Department of Land and Natural Resources, the County, the City of Kilauea, and other local partners have all expressed interest in protecting the natural resources along the coastal area of Kaua`i. Thus, we believe the Service working in partnership with other interested agencies can achieve the resource protection goals suggested by H.R. 2623 and H.R. 2619.
We appreciate that Representative Bachus and Representative Case and their constituents are interested in having the Fish and Wildlife Service expand our role in the areas around Cahaba River and Kilauea Point National Wildlife Refuges. However, for the reasons stated previously, the Administration cannot support this legislation.
In conclusion, for the reasons outlined above the Administration supports the three Coastal Barrier Resources System bills being discussed this morning, but cannot support the two National Wildlife Refuge expansion bills.
Mr. Chairman, this concludes my prepared statement. Thank you again for the opportunity to testify at today’s hearing. I would be pleased to respond to any questions you or the Committee Members may have.