Trying to rectify this problem has been an interesting experience to say the least. Because we were not the only ones affected, and because a good portion of Washington County was identified as suitable tortoise habitat, our country commissioners tried to be proactive in solving this problem by requesting a section 10, which under the Endangered Specie Act allows for the setting aside of critical habitat as a type of preserve in order that other habitat areas might be released for other uses as the property holder sees fit. That process has been going on for over 4 years now with debate after debate as to what doesn't. During all of this process, the Fish and Wildlife Service has held everyone else hostage. Their arrogant attitude and gestapo approach has been criminal in my mind. Time after time, when all the committee came to the table in good faith, with the spirit of compromise, the FWS hedged, extended deadlines, and made more ambitious demands. It became very obvious from the various debates that the science community could not agree upon the facts because they had no hard science, just a lot of supposition. The FWS was of the opinion that they had full latitude of the "May Affect Clause" in "The Act".

The most conclusive evidence that seemed to surface indicated that maybe the tortoise never should have been listed in the first place, but the FWS were running rough shod and rampant because they were untouchable. They could not be held to any degree of accountability in the whole process, therefore, they were making decisions based on pseudo science with blatant disregard to the financial impact on the property holders or other county residences. What did it matter to them if their conclusions were wrong? It was no financial loss to them. No skin off their nose. Green Collar theft at its finest! In the meantime, who bears the financial impact? The private property owner is the guinea pig in this whole experience. The only one left holding the bag and unfortunately the bag is empty.

Case in point. Our property was originally listed as high density habitat which means up to 400 tortoises/section. Because we strongly contested that designation, the BLM and FWS agreed to walk it with us. On two different days, seven of us walked the portion of our property that was designated as the prime portion of the critical habitat and after walking many acres found, to their chagrin, a total of 1 piece of scat, 1 shell of a dead tortoise, I den, and only one live tortoise. They simply did not have the scientific evidence to justify their actions. Fortunately for us, that portion of our property was not included in the final map of the recovery plan as being critical habitat. Even though we still have 240 acres listed in the middle of the proposed HCP, others have even more.

For good or for worse, the HCP is still on course with possible implementation this fall, but it hinges on several things happening. One of which is the super exchange, which calls for all of the private property within the boundaries of the HCP to be traded to the BLM for properties in other areas that don't have endangered species on them. Whether that will happen or not remains to be seen.

One of the challenges that is still facing this exchange is the value that is being placed on the lands to be traded. We agreed to trade value for value. The original agreement was that in order to facilitate the implementation of the HCP, the appraisers would treat the land as if there were no tortoise's present. Even though that was agreed upon, that opinion has flipped flopped several times and is still presently being debated. The third approved appraisal is now being made of our property. With the Tortoise on our land, we are told it is worth $200-$300/acre. Because confidential negotiations are continuing, I am not at liberty to say what the high appraisal is on the land, but without the presence of the Tortoise, let it suffice to say, the difference in equity between the high and the low on these few acres is about $2,000,000.00 The difference for some of our neighbors would be 10 times that much. Are we expected to donate that equity in the name of patriotism or just because we like to think of ourselves as good philanthropic citizens?

My above example is only one little portion of one ongoing discussion, seeking for some sort of resolution. There are many others in this county and tens of property holders throughout the nation that are in similar circumstances. By one stroke of a pen, the FWS has had the ability to almost arbitrarily, designate specie and habitat as endangered or threatened, without any accountability. The Omnibus Property Act would make them accountable by saying if it is really critical habitat and worth protecting, we will pay fair market value for it and it will be funded by your departmental budget. You can bet that the supposed critical habitat would suddenly become much less critical. It would stop the FWS and others from saying, "There is no way we can fund this, therefore let us steal it for the public good by inverse condemnation."

I recognize that the Government has the right to declare eminent domain, nut believe strongly that any exercise of that right should use just compensation, not unjust confiscation.

If it is believed to be in the best good of the public to protect certain areas as critical habitat, it should be funded by the public on a shared basis nation wide, not by just those who have the misfortune of sharing their property with certain snakes, lizards, or tortoises.

I wish we had time to talk about the economic impact of the endangered species act on mortgages and lending institutions, retirement funds and other real estate investments. About its impact on grazing permits and how it has severely impacted our ability to use our ranches to the highest and the best use, or to talk about how the FWS has tried to weasel 25 percent of our irrigation water for moving a diversion and many other injustices. Maybe another time. I just hope that some degree of justice can be brought about by this proposed property protection act. I wish you all the luck in the world. Thank you for listening to me.

The CHAIRMAN. Thank you, Mr. Gardner.

Our last witness on this panel will be Mr. Edward Smith from Centerville. Smith bought into a town industrial development project but is now denied the use of his land because of artificially created wetlands on his property. His attempts to get permits thus far have been denied, as far as I know. So Mr. Smith, we'd like to hear your testimony at this time. We look forward to listening to you.

STATEMENT OF EDWARD D. SMITH

Mr. SMITH. Thank you Senator Hatch. I also enjoyed your preliminary remarks in reference to the Omnibus Bill. I think that will do us a lot of good. As mentioned, my name is Ed Smith and I reside in Centerville, UT.

Twenty years ago I purchased 12 acres of dry agricultural property from a Mr. C. Taylor Burton. It was zoned agriculture at that time. Mr. Burton had done preliminary planning for an approximate 250 acre industrial park which would be zoned M-1. He had received preliminary approval from Centerville City for the plan. I purposely chose my 12 acres because it was one of the highest elevated lots in the subdivision and it was close to freeway exposure. I didn't know anything about wetlands, it was just prudent to save the field would be required because the new roads weren't engineered and elevated yet. Mr. Burton acted as liaison between the property owners and the city. Planning the new industrial district required many meetings with the property owners and the city. City counsel members and the city attorney were usually in attendance and minutes were always taken.

In February of 1976 the city gave notice of intent to create a special improvement district, and due to the cost of the scale down to 135 acres cited north and west of the Centerville freeway interchange. The city was unable to finance the improvements for the entire park so they decided to complete the basic improvements for the frontage road and the utilities and the laterals for our future interior roads, and then they required pledges from the property owners that we would indeed complete our interior roads and utilities before they would let the contract for the basic improvements. A year later, and unbeknownst to me, in 1977 the Wetland Act became law.

Well, the city proceeded with the basic improvements. The property owners began filling their lots and their roads indiscriminately without field permits and with encouragement of Centerville City. By December of 1979 the interior roads were completed and many of the lots were filled, some lots had buildings on them. The lots

that were not filled that were near catch basins, freeway drainage conduits, and drainage ditches become flood basins because there was nowhere for the water to drain, it was landlocked.

My property began to receive service water in the spring and it usually dried up by midsummer. My adjacent neighbor was receiving much more runoff. He had two acres to the south of me, and it began to get worse and worse each year as the building of east Centerville progressed. We were receiving more runoff, and now he has water on his property most of the year.

As a sidenote for proper chronology, I was later advised by the Corps that in 1980 they took an aerial photograph of my property where in the front portion of the property, about a quarter of the property, was shown filled. And the rear three quarters of the property was shown as a tinted brown color, which they described as saturated soils. I wasn't notified of that fact until 1993.

On September 20, 1982 the U.S. Army Corps of Engineers issued public notice of initiating and scoping, when Davis County Planning Commission applied for a permit to build approximately 687 acres of wetlands. That application included the Centerville industrial park property. However, very little of the industrial park area was shown as wetlands on their map.

They advised that within the 404 permit area there were approximately 1563 acres of which 940 acres were designated as wetlands by the Corps. They advised that the fill area consisted of approximately 687 acres of the total wetlands area and was indicated on their sheet number 2. The sheet referred to does not include my property, nor does it even come close to my property.

They advised that the remainder of the area not specified as wetlands was agricultural pastureland. They advised that the fill was required for commercial use for the wetlands area, that placement would require department of the Army permit and that environmental impact statements had been prepared for similar projects and they detailed three examples.

Later in 1993 Davis County told me that they had lost track of the application. By way of humor, in May 1986 the city advised me that ordinance 14 prohibited any lot from becoming the repository of stagnant water as it was a nuisance. I allowed clean fill on my property until April of 1993. I received a few partial loads of asphalt containing material by moonlight and later told the Corps that I would remove it. But neither the city nor the Corps were monitoring the moonlight dumps, nor were they posting signs or advising anyone to discontinue.

In May of 1993 the Corps cited me for discharging fill into a wetland on my property. I was in violation of section 404 of the Clean Water Act. They advised that they were conducting an investigation to determine the impact on the public interest and the action to be taken. I met a representative of the Corps at the property and felt very discriminated against as I was one of the last to fill my property and most of the others had buildings on them. They advised me at that time that there was no wetland map, that situations changed. They directed me to remove the fill or apply for an after-the-fact fill permit.

In October 1993 I submitted my application under Nationwide permit number 26 in section 404. In December 1993 the Corps ad

vised that I did not qualify for a nationwide permit. They advised that I could file for an individual permit and they gave me 45 days to resolve the violation. They verbally later advised against an individual permit because if I was unsuccessful I would not have further recourse.

In December of 1993 I requested time to investigate the runoff to my property and attempt to dry it up legally so that the artificially created so-called wetland would go away. In January of 1994 I met with Centerville City in an attempt to locate the improper runoff in the catch basins and conduits, we found some problems with no solutions. About that time the city made my neighbor remove his fill wanted sign and the city erected a small fill prohibited sign between us. They did not explain why, but we assumed that it was due to the Army Corps of Engineers.

In August 1984 I met with another representative of the Army Corps who promised to review my file. I never had a response from that request and have had no response or communication with the Army Corps of Engineers since.

My property was not originally a wetland, it was-and it is now a low quality artificially created springtime runoff pond that Centerville City created by their industrial park. The U.S. Army Corps of Engineer know this but is taking legal advantage of it. This concludes my remarks and I very much appreciate the few minutes of your valuable time, Senator Hatch.

[Prepared statement of Mr. Smith follows:]

PREPARED STATEMENT OF EDWARD D. SMITH

In approximately 1975, I purchased 1.55 acres of dry, upland, agricultural property, zoned agricultural, in West Centerville, UT.

On February 10, 1976, Centerville City created an improvement district for basic improvements and insisted on pledges from the property owners to complete the secondary interior road/utility improvements. On August 24, 1976, the City assembled the property owners for this purpose. Pledges were received on August 31, 1976.

The City completed the basic improvements and assessed the property owners their fees on April 3, 1978. I paid my assessed fees on June 2, 1978. In approximately December of 1979, most of the property owners completed the secondary improvements for the interior roads, including the new fill for same. At about the same time, many of the property owners began to fill their own property without resist

ance.

In 1980, I was later advised by the Army Corps of Engineers, that they took an aerial photograph of my property in which my property was shown only partially filled. The unfilled portion was tinted brown, which they interpreted as "saturated soils".

On Sept. 20, 1982, Davis county applied for a 404 fill permit with the Department of the Army, which included the Centerville Improvement District area. In that application, my property is shown as upland property and zoned "Industrial". As far as I can determine, the application died somewhere. Of the 940 acres designated wetlands by the Army Corps in that application, my property was not included, nor was most of the Industrial Park property. My property was not near the flow stations or collection points which they designated for drainage. It was my understanding, from that application, that only the predetermined wetlands required fill per

mits.

As I had not been notified by the City or the Corps about the aerial photograph or the fact that they considered any part of my property as wetlands, I continued to allow clean fill on the property until April of 1993. During that period, the property received a few unauthorized partial truck loads of asphalt containing material, which I later told the Corps that I would remove. Neither the City nor the Corps were monitoring the bad fill material dumped by moonlight nor did they post signs prohibiting same.

In May, 1986, the City advised that ordinance 14 prohibited any lot to become the repository of stagnant water, as it was a nuisance.

On May 5, 1993, the U.S Army Corps of Engineers cited me for discharging fill material into a wetland on my property. A Department of the Army permit had not been issued, so the fill was in violation of section 404 of the Clean Water Act. I do not know if anyone else in the area was cited. They advised me that they were conducting an investigation to determine the impact on the public interest and the action to be taken. I replied with a letter of explanation and a check for an after the fact fill permit which they refused and returned.

On May 12, 1993, I met their representative at the property and was totally shocked with their determined response.

I received a letter from the Corps dated March 25, 1993 wherein they advised me that I could remove the fill material or apply for an after-the-fact permit. They furnished me a copy of a Nationwide General Permit, number 26. On October 9, 1993, I submitted my application under Nationwide permit number 26 and section 404. On December 15, 1993, the Corps advised that my project did not qualify for a Nationwide permit because the fill had not been minimized or avoided to the maximum extent Practicable and no compensation mitigation plan had been Presented to offset any wetland losses. They advised that I could file for an individual permit. They gave me 45 days to resolve the violation. They further advised that they were citing me for a partially dug, shallow ditch, that apparently my neighbor had created in an effort to drain the rear of his property. I furnished letters from myself and my neighbor to the north, certifying that we had not cut the ditch, which the Corps referred to as a "blatant violation". As far as I know, they did not attempt to find the guilty party and gave me until January 5, 1994 to restore the ditch. On December 29, 1993, I requested time to investigate the run-off to my Property in an attempt to dry it up so that the artificially created wet land would go away before I expended money to fill and grade the ditch that my neighbor created.

On January 3, 1994, I met with Centerville City in an attempt to locate the improper run-off from the catch basins or conduits. We found Some problems, but not the solution. In January, 1994, the City made my neighbor remove his “Fill Wanted" sign and they erected a small "Fill Prohibited" sign, between us.

On approximately August 25, 1994, I met another representative from the Corps at the property who promised to "review my file" but I have had no response. I have had no communication with the Corps Since August 25, 1994.

Respectfully,

EDWARD D. SMITH.

The CHAIRMAN. Thank you so much. We're happy to have the testimony of all three of you. Before I begin some questions, let me just recognize some of the individuals who are here. I don't want to miss anybody, but let me just mention some that I've seen.

State Senator Holmgren is here; State Senator Mantes is here; Ted Stewart, the director of the Utah State Department of Natural Resources; Delora Bertelsen, the mayor of Springville is here. I expect the speaker of the Utah house of representative, Mel Brown, to join us, and we want to express our thanks to Representative Brown for the use of this room and the facilities. We also note that there are other representatives and community leaders who are here and who will be joining us. I don't want to overlook anybody, but we'll let it go at that.

Let me just start with you, Mrs. Edwards, and ask a few questions about the experience that you've had. I want to thank you for coming here today. It is good to see you again. You said that you were forced to sell your land for only $600 an acre. Now that sounds amazingly low to me. Do you have any estimate of what your land is really worth?

Mrs. EDWARDS. Well, we've had two appraisals on our land, and one was appraised at $10,000 an acre, and the other appraiser appraised it at $600. And then the wetlands-when they put it in wetlands, then they appraised it at $1,000.